The employer has the competence and jurisdiction to recover forest royalty from the bills of the contractors, and recovery cannot be made without giving an opportunity to the contractors to produce proof of payment of forest royalty.

JUDGMENT :

[Sandeep Mehta, J.]

Heard Mr. U.K. Goswami and Mr. R.K. Bothra, learned counsel for the appellants. Also heard Mr. K. Gogoi, learned standing counsel, N.F. Railway and Mr. D. Gogoi, learned standing counsel, Forest Department, representing the respective respondents.

2. These 3(three) intra-Court writ appeals involve identical, factual and legal issues and arise out of a common judgment & order dated 30.06.2022 rendered by the learned Single Bench in a bunch of writ petitions led by WP(C) No.9227/2019. Hence, all the appeals have been heard and would be decided together by this common judgment.

3. The core question, which this Court is required to adjudicate in this batch of writ appeals, is regarding the legality and validity of the notice dated 08.02.2021 issued by the Northeast Frontier Railway requiring the appellants to provide the Forest Royalty Clearance Certificate (FRCC) regarding 5(five) components of the work order in question, i.e. (i) earth work; (ii) total sand; (iii) quarry dust; (iv) stone chips, and (v) boulder. The letter mentions that the Forest Royalty Clearance Certificate of the quantities of material utilized by the contractor would have to be submitted before clearing the next bill submitted towards the construction works awarded by the Northeast Frontier Railway to the contractor(s), viz. B.G. standard formation; minor bridges including retaining wall; side drains; catch water drains; ground improvement works and all other connected ancillary works in between km 44.13 (including Digaru Station yard) to km 98.00 in connection with Digaru-Hojai Double Line Project of N.F. Railway.

4. The appellants questioned the legality and validity of the aforesaid order by filing the captioned bunch of writ petitions, which came to be disposed of by the learned Single Judge vide judgment & order dated 30.06.2022, with the following observations and directions:-

“18. Conclusion:

In view of the aforesaid discussion and reason, this court concludes as follows:

I. That ordinary earth is a minor mineral and royalty is leviable upon the same as held in Rohit Newar (supra) and Som Datt Builders (supra).

II. The notification dated 01.09.2009 shall be applicable only when a permit is applied under clause 20B(1) and (2) by the employer department/ undertakings and granted by the forest department under clause 20B(4) of the Notification, which is not the case in the present batch of writ petitions.

III. In absence of any contract condition, when a contractor is unable to produce a certificate showing the use of forest produce on which royalty has been collected, the recovery from the bill against forest royalty cannot be made.

IV. Without certainty of the fact that royalty is payable on the materials used by the contractors, the same cannot be recovered without giving any opportunity to the contractors before deduction/ recovery from their bills.

V. In those contracts where such conditions are incorporated, the employer shall be within its competence and jurisdiction to recover the forest royalty from the bills of the contractors/from the security deposits/earnest money etc. as per OM 17.06.2000 and the principle laid down in Durga Krishna Stores (supra) shall be applicable.

VI. Those contractors, where the Office Memorandum dated 17.06.2000 is a part of contract and the same has been signed by the contractors and the employer, the contractors shall be bound by the Office Memorandum dated 17.06.2000, only when a specific clause is incorporated in the contract that the materials required, should be collected either through permits etc. under MMC Rules, 2013 and/or through permits issued under Assam Forest Regulations, 1891 and the Rules and Notifications issued thereunder.

19. Directions:

For the forgoing reasons, conclusion and findings, this court directs the followings:

i. The employer shall verify the contract of the petitioner(s) herein and if it is found that forest royalty is recoverable in terms of the determina