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2013 Supreme(MP) 152
HIGH COURT OF MADHYA PRADESH
Shantanu Kemkar and J.K. Maheshwari, JJ.
Arpit Heights (P) Ltd. (M/s.) v. Indore Development Authority
Writ Appeals No.357, 568, 642 and Writ Petitions No.9583, 9584 and 10910 of 2012 (Indore); Decided on 18.3.2013.
A.K. Sethi with Rahul Sethi, Manuraj Singh, Ranjana Gawde,
Anand Soni and Bhuvan Deshmukh for parties.
Headnote:Mines and Minerals (Regulation and Development) Act, 1957 -- S.9 -- M.P. Minor Mineral Rules, 1996 -- R.30 -- one condition of contract contrary to the statutory provisions -- parties not required to abide by the same.
Held : In view of the aforesaid legal position, in our considered view, the learned Single Judge has committed error in dismissing the writ petition on the basis of the aforesaid clause which runs contrary to the statutory provisions because the Collector can issue certificate with regard to payment of royalty only, if the royalty is payable by the contractor. If the contractor has purchased the material from a supplier and the supplier has purchased the material from the mine owner, who has extracted the mineral from a place which is not known to the contractor, the contractor cannot be expected to run from pillar to post finding out of source of extraction and the mineral consumed by him and then produce the certificate. This condition seems to be impracticable and inconsistent to the statutory provision. 1987 JLJ 743, 2004(4) MPLJ 175 and 2008(2) MPLJ 40 affirmed. 2007(3) MPHT 433 relied on.
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Kemkar, J. -- 1. This order shall govern disposal of Writ Appeal No.568/2012 (Indore Development Authority v. M/s. S.V. Constructions and another), Writ Appeal No.642/2012 (M.P. Power Transmission Co.Ltd. v. M/s. S.V. Constructions and another), Writ Petition No.9583/2012 (M/s. P.D. Agrawal Infrastructure Ltd. v. The State of M.P. and others), Writ Petition No.9584/2012 (M/s. P.D. Agrawal v. The State of M.P. and others), and Writ Petition No.10910/2012 (Himmat Singh v. The State of M.P. and others), as identical question of law is raised in all these six cases. For the convenience, facts are taken from Writ Appeal No.357/2012.
2. Feeling aggrieved by the order dated 13.7.2012 passed by the learned Single Judge of this Court in Writ Petition No.1745/2012, this intra-Court appeal has been filed by the appellant-writ petitioner.
3. The appellant-writ petitioner is a registered contractor. It carried out various construction works allotted to it and had submitted final bills to the respondent-IDA for making payment. The respondent-IDA insisted the writ petitioner to produce the Royalty Clearance Certificate. Feeling aggrieved, the aforesaid writ petition was filed.
4. The writ petitioner’s case was that in view of the clear legal position settled by various judgments of the Division Bench and the Single Bench, including the judgment in the cases of M.P. Contractors Sangh, Indore and others v. State of M.P. and another [1987 JLJ 743], M.P. Audyogik Kendra Vikas Nigam v. Abrar Construction Company and others [2005 Arb. WLJ 379 (M.P.)], Keti Construction Limited v. State of M.P. [2007(3) MPHT 433 (DB)], and Tomar Construction Company v. State of M.P. and others [2008(2) MPLJ 40], the respondent had no right to insist upon the petitioner for production of Royalty Clearance Certificate for making the payment of its bills.
5. Before the writ Court, the respondent had placed reliance on clause 7.21 of the contract entered into between the parties authorizing them for such insistence.
6. The writ Court, considering the condition incorporated in clause 7.21 of the contract, dismissed the writ petition by observing that once a specific condition was in existence in the agreement executed between the parties, the parties are certainly required to abide by the terms and conditions agreed between them. Aggrieved, the appellant-writ petitioner has filed this appeal.
7. We have considered the submissions made by the learned counsel for the parties and have also considered the judgments on which reliance has been placed.
8. In the present case, following condition was in the agreement :
“7.21 The Contractor shall have to furnish a Royalty Clearance Certificate from the District Collector before final bill.”
9. We find that in the case of Keti Construction Limited (supra), Division Bench taking into consideration the order passed by the learned Single Judge in the case of Prestige G.S. Sole v. M.P. Rural Road Development [2004(4) MPLJ 175], in which similar was the clause (clause No.6.2.1) in the agreement, did not approve insistence of production of Royalty Clearance Certificate. Relevant paragraph of the order passed by the Division Bench in the case of Keti Construction (supra), reads thus :
“13. In the second Division Bench, reliance was placed on M.P. Contractors Sangh, Indore (supra). In the case of Prestige G.S. Sole (supra), learned Single Judge of this Court after referring to the M.P. Mines and Minerals (Development and Regulation) Act and M.P. Minor Minerals Rules, 1996, specially rule 30 held in paragraphs 7, 10, 11 and 13 :
7. Considering the aforesaid, there is no reason why the impugned action in this case be also not held to be illegal. Even though, in the present case the agreement contains certain stipulation in clause 6.2 as referred to in paragraph 4, but even this condition stipulates that all dues, taxes, royalty etc. levied on the contractor’s work shall be payable by the contractor. This condition only stipulates that taxes, due
