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HIGH COURT OF MADHYA PRADESH
A. M. Khanwilkar, C.J., Rajendra Menon and Sanjay Yadav, JJ.
Phaloudi Constructions and Infrastructure Pvt. Ltd. (M/S.)
v. State of M.P. and others
Writ Petitions No.4547, 6977, 7029, 7108, 7370, 7398, 7496, 7517, 7581 and 7733 of 2016 (Jabalpur); Decided on 10.5.2016.
(1) Interpretation of Statute -- proviso to section -- scope of -- it intends to take out a part of main section for special treatment -- it is not expected to enlarge scope of main section.
Held : There are catena of decisions laying down law as to scope of proviso that it intends to take out a part of the main section for special treatment. It is not expected to enlarge the scope of the main section. AIR 1961 SC 1596, AIR 1975 SC 1758 and AIR 1985 SC 582 followed.
(2) Minor Mineral Rules, 1996 (M.P.) -- Rr.68(1), Proviso (III), 4 and 2, Cl. (xvi-b) -- contractor -- means of -- who holds trade quarry -- quarry permit holder/contractor engaged in construction as mentioned in Third Proviso -- is contractor -- he can purchase minor mineral from open market -- Third Proviso not creates substantive class of contractor engaged in work of Government department and undertaking -- provisions of rule 68 -- are in addition to provisions of rule 4.
[Paras 24 & 25
(3) Minor Mineral Rules, 1996 (M.P.) -- R.68(1), Proviso III -- scope of -- about payment of bills and release of royalty -- requirements of -- bills of purchase of minerals or an affidavit disclosing source from where purchased minerals used in construction -- must be furnished -- if authorities are satisfied with produced bills -- may process the bills -- in case of any doubt -- affidavit of petitioner may be called -- on completion of such process -- respondents shall clear bills -- in case authorities are not satisfied on verification -- reasoned order should be passed.
Held : (1) The petitioner shall either furnish the bills of purchase of minerals from authorised dealer or an affidavit disclosing the source from where petitioner purchased minerals, which were used in the construction work.
(2) The respondents authorities if are satisfied with the bills produced by the petitioner may process the bills, but in case of any doubt, respondents authorities may insist the petitioner to file an affidavit in support of its contention in respect of purchase of minerals from the open market by the bills.
(3) In case the petitioner is unable to produce the bills for the purchase of the minerals or the royalty receipt in this regard, respondents authorities shall insist the petitioner to file an affidavit pointing out specifically the manner in which minerals were purchased, disclosing particulars of the person from whom the minerals were purchased. On filing of the affidavit, the authorities shall be within their right to verify the aforesaid facts. They can also verify the facts from the record of the Mining Department of the concerned district.
(4) On completion of the aforesaid process, the respondents shall clear the bills of the petitioner submitted in connection with the execution of the works contract and the amount of royalty, if any recovered from the bills, shall be released in favour of the petitioner.
(5) In case, the authorities are not satisfied with the contention of petitioner or on verification, facts are not found correct then they shall pass a reasoned order in rejecting the contention of petitioner.
(6) If the petitioner fails to produce the bills/affidavit as indicated hereinabove, the petitioner may represent his case to the concerned authority showing his inability to produce the bills or affidavit and it shall be for the State Government or authority to consider the representation and pass a suitable order in that regard within two months from the date of receipt of the representation.
AIR 2015 M.P. 90 and 2016(1) RN 281 overruled. W.P. No.4658/2012; Decided on 13.4.2012, W.P. No.1361/2009, 1987 JLJ 743, 2005 Arb WLJ 379 (MP), 2007(3) MPHT 433 (DB) AIR 2007 NOC 2586 (MP) and 2008(2) MPLJ 40 held lost their binding force, is not a correct view.
BACKROUND
Per Sanjay Yadav, J. -- 1. Writ Petition No.4547/2016 is concerned with the challenge to Third Proviso to sub-rule (1) of rule 68 of the Madhya Pradesh Minor Minor Rules, 1996 (hereinafter referred to as 1996 rules') and the consequential relief of direction against the respondents to release the amount of royalty withheld by the respondents. The need to challenge the validity has arisen because the matter involving similar relief filed before the Indore Bench and Gwalior Bench are being dismissed without following the dispensation specified in M/s. Chandrama Construction Company v. M.P. Rajya Krishi Vipran Sangh : Writ Petition No.1361/2009 decided on 22.4.2009, though the same was followed by the Division Bench at the Principal Seat (Jabalpur). This led the Bench hearing the matter to admit the petition on 29.3.2016. An interim relief was granted in similar terms as per the dispensation specified by the Division Bench at the Principal Seat (Jabalpur) in the case of M/s. Trishul Construction v. State of M.P. : Writ Petition No.9834/2015 decided on 26.8.2015, adopting the dispensation specified in M/s. Chandrama Construction Company (supra). It was also directed by the Division Bench that the Benches at Indore and Gwalior, being coordinate Benches, must follow the same dispensation keeping in mind the dictum of the Supreme Court in the case of Bir Bajrang Kumar v. State of Bihar [AIR 1987 SC 1345]. Later, an application for review and recall of order dated 29.3.2016 came to be filed by the State of Madhya Pradesh vide I.A. No.5280/2016, stating in paragraphs 4 and 5 :
“4. The answering respondents submit that coordinate Benches of this Hon'ble Court at Indore and Gwalior have been pleased to dismiss the writ petition of similar nature in view of amendment inserted by way of proviso to rule 68 which has come into force vide gazette notification dated 23.3.2013 and have therefore justly distinguished the proposition as laid down in the case of M/s. Chandrama Constructions Company on account of alteration in the position of law after 23.3.2015. The coordinate Hon'ble Division Benches of Indore as well as Gwalior have assigned reasons for distinguishing and not following terms laid down in the case of M/s. Chandrama Constructions on the basis of material alteratior in the position of law as earlier there was only executive instructions or necessitating submission of No Dues Certificate from the Mining Department but now since there is a statutory requirement, the principles laid down in Chandrama Constructions case no longer hold the field since 23.3.2013. Copies of this Hon'ble Court are collectively marked as Annexure RP-1.
5. The answering respondents submit that since during the course of hearing on 29.3.2016, an oral submission was made on behalf of counsel for the petitioner. However, at the relevant time, for want of knowledge, the aforesaid judgments of the Indore Bench and Gwalior Bench of this Hon'ble Court could not be brought to the notice of this Hon'ble Court and the same has led to passing of the direction as contained in the order dated 29.3.2016 and the situation of passing of conflicting orders by the coordinate Benches of this Hon'ble Court has arisen, which deserves to be resolved at the earliest.”
2. The application led the Division Bench pass an order on 30.4.2016, raising doubt over the opinion formulated by the coordinate Bench. It was expressed :
“Both the decisions, no doubt, refer to the 3rd proviso to rule 68. In the present petition, however, said 3rd proviso to rule 68 itself has been challenged being invalid. In this petition, it is the case of the petitioner that although he is engaged in canal works, road works, infrastructure development, drain works and project works; and for which purpose procures sand from open market, therefore, it is unnecessary to produce No Dues Certificate as stipulated under the 3rd proviso. Thus, invoking that proviso will be unnecessary and irration
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