Ujjal Bhuyan, J.

1. Delay condoned. Office to register this appeal.

2. This writ appeal has been preferred by the State against the Judgment and Order dated 11.06.2009 passed by the learned Single Judge allowing W.P.(C) No. 5258/2007 filed by the respondent/writ petitioner.

3. The facts of the case may be briefly noted.

4. Respondent is a Class-1A contractor registered with the Assam Pubic Works Department (PWD) (Roads). Pursuant to Notice Inviting Tender (NIT) dated 30.08.2005 issued by the Chief Engineer, PWD (Roads), respondent was issued a work order dated 30.01.2006 awarding a contract for construction of rural roads, culverts, minor bridges, routine maintenance etc. for a period of 5 years. It may be mentioned that the Chief Engineer and the respondent had entered into a contact agreement relating to the work awarded, pursuant to which notice to proceed with the work was issued to the respondent on 30.01.2006. While executing the work, respondent had used stones, gravel, sand and other materials, which were procured from the open market. According to the respondent, it was confirmed by the supplier that the payment received from the contractor was at a rate which included forest royalty, taxes etc. In connection with execution of the awarded work, respondent raised running bill of Rs.1,58,82,341/- for the period from April, 2005 to March, 2007. However, an amount of Rs.8,66,864/- was deducted from the total amount towards forest royalty, including income tax and value added tax on forest royalty. Respondent filed the related writ petition challenging the aforesaid deduction from his contractual dues. Respondent contended that the tender documents as well as the contract agreement did not provide for such deduction. Therefore, such deduction was unauthorized.

5. The appellants, who were arrayed as respondents in the writ petition, contested the claim of the petitioner by filing counter affidavit The stand of the department was that as per office memorandum dated 17.06.2000 issued by the Finance Department, Government of Assam, the executing agency is debarred from paying any bills in connection with construction works of Government Departments or Government Undertakings using forest produces unless the Forest Department certifies that the forest produces so utilized were collected from legal sources and necessary royalty/price due to the Government has been paid. The office memorandum further provides that in cases where such certificates are not furnished, the bills may be passed only after deduction of the amount due as royalty, which would be deposited in the Government account. As no such certificates were furnished by the petitioner, the deduction was made.

6. Petitioner filed re-joinder affidavit denying the contention of the department and generally reiterating the averments made in the writ petition.

7. Learned Single Judge by the Judgment and Order dated 11.06.2009 allowed the writ petition. Referring to the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the Assam Minor Mineral Concessions Rules, 1994, learned Single Judge observed that it is the responsibility of the mining lessee to make payment of forest royalty, not that of the contractor and that in the absence of specific provision in the contract, deduction of forest royalty from the dues of the contractor was not justified. Allowing the writ petition, learned Single Judge directed refund of the deducted amount of Rs.8,66,864/- to the petitioner.

8. Feeling aggrieved, the department is in appeal.

9. Heard Mr. I. Choudhury, learned Standing Counsel, PWD for the appellants as well as Mr. D. Das, learned Senior Counsel assisted by Mr. P. Sharma, learned Counsel for the respondent.

10. Under clause 7.2 of the tender documents, the contractor was not required to obtain any consent from the employer for the purchase of materials, which should be in accordance with the standards specified in the contract. Clause 41.1 of the tender d