JUDGMENT :

B.R. SARANGI, J.

1. The petitioner, who is a 'C' class contractor, has filed this writ application challenging illegal deduction made by the opposite parties from the bill amount raised, after final measurement of work, purportedly towards payment of royalty for earth work.

2. The factual matrix of the case, in hand, is that to protect the saline water of Bay of Bengal, Bijaypatna Dhamara Saline Embankment was constructed. To combat the increasing force of high tide in the Bay of Bengal, as well as for the communication purpose, the Government in Department of Water Resources floated tender for the work "Raising and Strengthening to Bijaypatna Dhamara Saline Embankment from RD 15.00 to 17.00 km for 2007-08". The value of the tender was Rs. 11,97,399/- and for the purpose of tender earnest money of Rs. 12,000/- was to be deposited. The date and time for sale of tender paper was from 15.11.2007 to 26.11.2007 up to 15.00 hours., and the date of receipt of tender paper was from 15.11.2007 to 26.11.2007 up to 15.00 hours. The date of opening of tender paper was 27.11.2007 at 11.00 hours and stipulated period of completion was 75 days.

3. In pursuance of the Invitation for Bids issued vide tender call notice no. 04/2007-08, the petitioner, along with others, submitted his bid. The petitioner, having satisfied the requirements stipulated in the detailed tender call notice, was selected, being the lowest bidder, to complete the work at Rs. 9,33,826.00, which is 22.01% less than the cost estimated by the Department. Consequentially, the tender of the petitioner was accepted, after following all the legal formalities, and he was communicated, vide letter dated 06.12.2017, to submit certain documents for drawl of agreement. After fulfilling all the conditions, an agreement was executed on 04.01.2008, vide Agreement no. 298 F 2 of 2007-08. Consequent thereof, the petitioner, vide letter no. 57 dated 05.01.2008 issued by the Executive Engineer-opposite party no.3, was communicated with the work order, wherein it was stipulated that the date of commencement and completion of work would be treated as 05.01.2008 and 19.03.2008 respectively. In the memorandum of the agreement, the estimated coast was shown as Rs. 11,97,399/-, but the agreement amount was shown as Rs. 9,33,826/-. The percentage to be deducted from bills as security deposit was shown as 3%. The memorandum would show the deduction of income tax from the bills at 2% and sales tax at 4%. There was no other mention of deduction other than the above noted deductions. After the completion of work within the stipulated period, i.e., by 19.03.2008 under the supervision of the Departmental Engineers, the final measurement was made on 08.04.2008, as recorded in the final bill, vide M.B. No. 5249 at page 126-137. The total earth work, after completion of project, was recorded to be 25,118.98 Cum., instead of total proposed agreement quantity measuring 25,382.60 Cum. The amount finalized, after final measurement, was Rs. 9,24,127/-, i.e. @ 3,679/100 Cum., but the petitioner has received a sum of Rs. 4,88,737/-. When a query was made, it was informed to the petitioner that the opposite party no.3 deducted a sum of Rs. 3,51,665/-, from the total amount of works executed, towards royalty of the earth work under OMMC Rules, 2004. Hence this application.

4. Mr. N. Panda, learned counsel for the petitioner states that the petitioner is not liable to pay royalty under the Odisha Minor Minerals Concession Rules, 2004 (for short "OMMC Rules, 2004") for construction/repair/ strengthening the saline embankment to protect the agricultural field from saline water and as such, there was no condition for deduction of royalty @ Rs. 14/- per cubic metre of earth work. Therefore, deduction of Rs. 3,51,665/- made from the final bill of the petitioner towards royalty cannot sustain in the eye of law and the same has to be refunded to the petitioner. It is further contended that the work was executed by I