JUDGMENT 1. - This writ petition is directed against order dated 8.11.2004 (Annexure 8), issued by Mining Engineering, Jodhpur, whereby the Chief Engineer (C-II), Northern Railway, Jodhpur has been directed that an amount of Rs. 5,05,538/- payable towards the royalty by the petitioner-contractor on the ballast used in the work awarded by the railway, may be deducted from the bills security amount of the petitioner and remitted to the Mining Department, Government of Rajasthan. 2. The brief facts leading to the filing of the present writ petition are that the petitioner, "AA class" contractor entered into an agreement with the Northern Railways, Jodhpur (respondent No. 2) on 19.4.2000 for supplying and stacking of stones ballast (machine crushed) in connection with Luni-Barmer-Munabao 'Gauge Conversion Project from Kms. 656 to 679. The petitioner completed the work in the year 2002. It is stated that for supply of stones ballast under the contract, the petitioner purchased the same from various mining lease holders after due payment of royalty and supplied the same to the respondent No. 2 as per the instructions. As per the terms of the agreement, the petitioner was required to submit a "No Dues Certificate" issued by the Department of Mining to the effect that no royalty or any kind of state revenue is outstanding. In this view of the matter, the petitioner vide communication dated 24.9.2003 submitted the entire record retaining to the purchase of the minerals alongwith the receipts of the royalties paid on such purchases to the mining lease holders bearing Ravanna Nos. 124553 and 123876. It is contended on behalf of the petitioner that the petitioner has not carried out any mining operation or excavation activities and he has simply purchased the minerals from the various lease holders after due payment of royalty and the entire material having been placed on record, the respondents should have assessed the liability of the petitioner after due examination of material on record and giving an opportunity' of hearing to the petitioner. The learned counsel contend that the respondents have straight away directed the respondent No. 2 to deduct the amount a sum of Rs. 5,05,538/- without assessment of the royalty payable. The petitioner contend that he is not liable to pay the additional royalty @ 2% in terms of circular dated 22.9.1994 (Annexure 3). The learned counsel contend that the respondents have straight away directed the respondent No. 2 to deduct the amount a sum of Rs. 5,05,538/- without assessment of the royalty payable. The petitioner contend that he is not liable to pay the additional royalty @ 2% in terms of circular dated 22.9.1994 (Annexure 3). The learned counsel has drawn the attention of this Court to the circular dated 13.11.2000 (Annexure 7) wherein it has been laid down that after submissions of the details/documents by the contractor, the Mining Engineer/ Assistant Mining Engineer shall finally assess the liability of royalty payable within a period of one month and till then the payment of final bills shall not be made to the contractor, but, if the assessment is not made within a period of one month, then the final bill of the contractor shall not be withheld. 3. In reply to the writ petition, the respondent No. 1 has stated that the petitioner did not produce the Ravanna Nos. 124553 and 123876 as alleged in the writ petition, he had only submitted the Royalty Receipts. It is submitted on behalf of the respondent - State that the petitioner had not obtained Short Term Permit in terms of Rule 63 of Rajasthan Mining Mineral Concession Rules for the mineral used. The respondent further contended that the direction for deduction of additional royalty @ 2% from the running bill of the petitioner was in accordance with Circular dated 22.9.1994 and absolutely justified. 4. The respondent Railway has also filed the reply wherein it is contended that as per clause 12.8 of the agreement, the final payment can only be released on petitioner producing the "No Dues Certificate" from Mining Department or any concerned office of the area. It is submitted that an amount of Rs. 3,85,943/- is outstanding and the same will be released only after production of "No Dues Certificate" issued by the respondent No. 1. 5. I have heard the learned counsel for the parties and considered the rival submissions. 6. It is not in dispute that for the completion of the work of construction awarded to the petitioner with the respondent No. 2, the mineral was purchased by the petitioner from the various mining lease holders. 5. I have heard the learned counsel for the parties and considered the rival submissions. 6. It is not in dispute that for the completion of the work of construction awarded to the petitioner with the respondent No. 2, the mineral was purchased by the petitioner from the various mining lease holders. According to the petitioner he has furnished the complete details of the royalty paid to the mining lease holders from whom the petitioner had purchased the mineral. It has been specifically averred that the entire record of purchase of materials alongwith receipt of royalty paid and Ravanna bearing No. 124553 and 123876 were submitted by the petitioner before the Mining Engineer concerned. The production of the receipts by the petitioner has not been denied by the respondents but, the production of Ravanna No. 124553 and 123876 has been specifically denied. However, no material has been placed on record by the respondents to show that the authorities have applied their mind to the material placed on record and considered the submissions made by the petitioner before creating the liability. It is not even the case of the respondents that after due consideration of the material, any assessment order assessing the liability of the petitioner for payment of royalty has been passed. In terms of the circular dated 13.11.2000, the respondents were under obligation to assess the liability of the petitioner after giving an opportunity of hearing to him in accordance with law, cannot be sustained and deserves to be quashed. 7. It is not in dispute that the payment of final bill of the work completed has not been made to the petitioner by the respondent No. 2 on account of the aforesaid over Annexure 8 and on account of the petitioner not producing the "No Dues Certificate" in terms of clause 12.8 of the agreement. In all fairness, the learned counsel appearing on behalf of the petitioner submitted that the department of Mining may be directed to issue "No Objection Certificate" to the petitioner for the payment of the amount due on his furnishing the bank guarantee for an amount equal to the amount of the petitioner lying with the railway against the final bill i.e. Rs. 3,85,943/-. The learned Dy. Government Advocate has also not opposed the fair offer made by the petitioner. 8. 3,85,943/-. The learned Dy. Government Advocate has also not opposed the fair offer made by the petitioner. 8. In view of the discussion above, the writ petition succeeds, it is hereby allowed. Orders impugned Annexure 8 dated 8.11.2004 passed by the Mining Engineer, Jodhpur is hereby quashed. The liability of the petitioner for payment of royalty, if any, shall be assessed by the Mining Engineer in accordance with law by passing a speaking order, after due consideration of the material on record and giving an opportunity of hearing. The Mining Engineer, Jodhpur is directed to issue "No Objection Certificate" to the petitioner as aforesaid, on petitioner furnishing a bank guarantee for an amount of Rs. 3,85,943/-.'On petitioner furnishing the "No Objection Certificate", the respondents No. 2 shall release the payment admittedly due against the final bill, within a period of two weeks thereafter.No order as to costs.Petition allowed *******