Royalty and cess are payable only by a lessee under a mining lease.

S. B. Sinha, J.-In both the writ petitions the same question of law is involved and with the consent of the learned counsels appearing on behalf of both the parties, these two writ petitions have been heard together and are being disposed of by this common JUDGMENT :.

2. In C. W. J. C. No. 69 of 1987 the petitioner has asked for issuance of a writ of or in the nature of mandamus directing the respondents to refund the amount of royalty deducted from the petitioner as evidenced by Arrexure-2 series.

3. In C. W. J. C. 1369/87 the petitioner has prayed for issuance of a writ of or in the nature of mandamus directing the respondents to abide by the decision of this court in the case of Dayanand Prasad Sinha & Co. v. The State of Bihar and others disposed of on 31.8.84 and further for at appropriate writ directing the respondents not to deduct any royalty and cess on the consumption of minor minerals for execution of the contract by the petitioner.

4. In the first case it is alleged that the petitioner has been working as a contractor in the Indian Oil Corporation Ltd. The authorities of the State of Bihar in purported exercise of their powers conferred upon them under rule 26 of the Bihar Minor Mineral Concession Rules, 1972 directed that royalty and cess payable to the State of Bihar be deducted from the bills of the petitioner for reimbursement to the State. The ORDER :in respect of royalty and cess payable to the State of Bihar was allegedly passed on the ground that the petitioner is responsible to pay the same as such minor mineral is used by it.

5. In C. W. J. C. no. 69 of 1987 a counter affidavit has been filed by M/s. Indian Oil Corporation Ltd. where it has been averred that they deducted the amount in terms of the ORDER :of State of Bihar in spite of the ORDER :passed by this court in C. W. J. C. No. 4198 of 1984. It has further been stated by the said respondent that they have deposited the entire amount so realised, in the account of the State of Bihar.

6. The point in issue as has been raised by Mr. G. C. Bharuka appearing for the petitioner that admittedly no mining lease bas been executed by the State of Bihar in favour of the petitioner in terms of the provision of the Mines and Minerals (Regulation and Development) Act, 1957 the rules framed thereunder, namely, the Bihar Minor Minerals Concession Rules, 1972 the petitioner would not be made liable to pay any royalty and cess in favour of the State of Bihar. In this connection he has referred to a decision in the case of Tata Engineering & Locomotive Co. Ltd. v. The District Mining Office and Cess Collector (Mining) and another (1981 B. B. C. J. 149 : 1981 PLJR 86). In that decision it has been held that royalty and cess is payable only by a lessee in the event a mining lease is executed in favour of the lessee by the State under the said rules. It has also been held that the amount of royalty and cess under rule 26 of the said rules refers to only those persons who are bound by the lease or persons acting on their behalf and not those who might have utilised the material extracted by the lessee or persons acting under him there being no material in this case that petitioners are such persons as acting on behalf of the lessors. My attention has been drawn to the aforementioned decision of this court in C. W. J. C. No. 4198 of 1984 wherein this court by ORDER :dated 31.8.84 also held the same view and granted appropriate relief to the petitioner.

7. The learned Government Advocate appearing on behalf of the State has submitted that in view of the decision of this court the persons removing sand from the river and/or minor minerals from other places belonging to the State of Bihar shall be made liable to pay the royalty as they have been extracting minor minerals without making any payment to the State of Bihar. In the event it is found that some persons are extracting the minor minerals in violation of the provision of the Mines and Minerals (Regulation and Dev