MAIN POINT
There is no infirmity in Government circulars requiring payment of royalty with regard to only those minerals which have been used by the contractor for which no royalty was paid. In case royalty has already been paid, Contractor is permitted to approach Mining department for refund with proof of payment of royalty.

JUDGMENT

       ASHOK BHUSHAN, J.

Leave Granted.

2. This appeal has been filed against the judgment of the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur dated 17.12.2008 in D.B. Civil Special Appeal No. 231 of 2008 by which judgment, the Civil Special Appeal filed by the appellant against judgment and order of Learned Single Judge dated 20.02.2007 was dismissed. Brief facts necessary to be noted for deciding the appeal are:

The appellant, a contractor, licensed by Nagar Nigam, Jaipur has been carrying out constructions of buildings, roads, drains, footpaths, etc.. The appellant for carrying out his construction work uses Bazri, stone, grit, moram, etc. which is claimed to be purchased from an open market at Jaipur.

3. State of Rajasthan has issued various Government Orders dated 20.02.1994, 08.11.1996 and 20.11.1996 by which provision of deduction of 2% towards the royalty of minerals from bills of contractors of the construction department was made. The State of Rajasthan modified the scheme by issuing an order dated 13.11.2000 by which the earlier Government Orders providing for deductions of 2% as royalty of minerals from the bill was done away. A new scheme was enforced vide order dated 13.11.2000. Under the new scheme, the copy of work order issued by Construction Department to the contractors containing details of the quantity of the minerals used for construction was required to be produced before the Mining Engineer/ Assistant Mining Engineer, who before the commencement of the mining work were required to issue short term permission letter for use of mineral in the construction.

4. Another Government Order was issued dated 03.10.2001 by which, direction nos. 2 & 4 as contained in the circular dated 13.11.2000 were modified.

5. Further, directions were issued on 25.01.2002. A letter dated 26.03.2002 was issued by the Government to the Chief Executive Engineer, Commissioner, Jaipur Municipal Corporation referring to Government Orders dated 03.10.2001 and 13.11.2000 and requesting the Jaipur Municipal Corporation to ensure compliance of the aforesaid Government Orders. It was further stated that until the No Dues certificate is issued in favour of the contractors by the Department of Mining, payment against final bill of the contractors be not made so that Department and State may not suffer any kind of revenue loss. The appellant filed the writ petition being Writ Petition No. 3191 of 2002 praying for the following reliefs:

“a. By way of writ, order or direction the order dated 26.03.2002 Annexure-5 passed by the respondent No. 3 may kindly be quashed and set aside.

b. by way of writ order or direction, the respondents may be restrained not to collect royalty from the petitioners on purchase of Bazri, grit, stone, moram etc from the open market.

c. by way of writ order or direction, the respondents may be restrained to not to levy royalty from the running and final bills of the contractors i.e. petitioners awarded prior to 26.03.2002.

d. any other appropriate writ, order or direction to which the petitioner may be entitled to in the circumstances of the case may be issued in his favour.

e. cost of the writ petition may be awarded in favour of the petitioner.”

6. The Writ Petition filed by the appellant was disposed of by the learned Single Judge on 20.02.2007. Learned Single Judge disposed of writ petition in terms of an earlier judgment in SBCWP No. 359 of 1998, R.S.Shekhawat & Others Vs. State of U.P. decided on 28.02.2001.

7. The appellant aggrieved by the decision of learned Single Judge dated 20.02.2007 filed DBCSA No. 231 of 2008. The Division Bench held that there is no illegality in order passed by the learned Single Judge in R.S.Shekhawat and others case (Supra), hence, the learned Single Judge disposing of the writ petition of the appellant did not commit an error. The appeal was accordingly dismissed. Aggrieved by the decision of the D.B. dated 17.12.2008, the appellant has filed the present appeal