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2013 DIGILAW 624 (RAJ)

Jetha Ram v. State of Rajasthan

2013-03-29

VINEET KOTHARI

body2013
Hon'ble Dr. KOTHARI, J.—This writ petition has been filed by the petitioner, Jetha Ram S/o Dudharam, an Ex-Sarpanch and Social Worker of Village Sada, Tehsil Sindhari, District Barmer. The petitioner also carries on the business of supply of building materials including "Bajri", a minor mineral, in the name of his proprietorship firm M/s. Baba Ramdeo Construction and Supplier. 2. By filing the present writ petition under Art.226 of the Constitution of India, the petitioner, inter-alia, has challenged the order Annex. 4 dated 19.3.2013 issued by the Director, Mines Department, Udaipur giving the con-tract of collection of excess royalty and permit fees to the private respondent No. 5-M/s. Ridhee Sidhee Associates, on his highest bid of Rs. 7.37 crores for payment of excess royalty and permit fees for the "Bajri" to be excavated and lifted from the Tehsil(s), Gudamalani and Sindhari in District Barmer from all rivers and nala/s in the said area for the period 1.4.2013 to 31.3.2015. 4. The notice inviting tender (NIT) for the said contract was initially issued by the Mining Department vide Annex.1 NIT No. 7/12-13 dated 30.1.2013 and upon modification thereof vide Annex. 2 NIT dated 22.2.2013, in Column No. 5 of the said NIT, the reserve price for payment in the form of contribution in the Environment Management Fund (EMF, fort short) imposed by the State by amendment of the Minor Mineral Concession Rules, 1986 (MMCR), the said Reserve Price was added to the originally fixed reserved price in Column No. 4; and thus the reserve price of such excess royalty and permit fees for the said area was fixed at Item No. 21 of both the NIT(s). The respondent No. 5 M/s. Ridhee Sidhee Associates, being the only and highest bidder for the said bid, was thus awarded the contract for the said area vide Annex. 4 dated 19.3.2013, which has been assailed by the present petitioner, Jetha Ram. 5. Learned counsel for the petitioner, Mr. The respondent No. 5 M/s. Ridhee Sidhee Associates, being the only and highest bidder for the said bid, was thus awarded the contract for the said area vide Annex. 4 dated 19.3.2013, which has been assailed by the present petitioner, Jetha Ram. 5. Learned counsel for the petitioner, Mr. Dinesh Mehta, on the question of locus-standi of the petitioner to file the present writ petition challenging the award of contract in favour of respondent No. 5, submitted that since the petitioner is a businessman also besides being a public man being an Ex-Sarpanch and Social Worker, would ultimately bear the brunt and suffer the said levy of Environment Management Fund (EMF) contribution, besides the excess royalty and permit fees, which is being paid by him to the contractor while taking out the "Bajri" from the said area; and therefore, he has a cause of action in the matter and is assailing the said award of contract in favour of respondent No. 5 including therein the contribution to the Environment Management Fund (EMF), which has been constituted under Rule 37(T) and 37 (U) of the MMCR, 1986, which has been reproduced in the writ petition. 6. Learned counsel for the petitioner, Mr. Mehta, also urged that since for the area specified for lifting of the minor mineral "Bajri", namely, Gudamalani and Sindhari Tehsils of district Barmer, no mining lease, license or short term permit is granted by the Mining Department to the contractor/respondent No. 5, therefore, the contractor cannot be compelled to pay such contribution to the Environment Management Fund (EMF); and thus inclusion of said component in the NIT Annex. 2 was illegal and grant of contract in favour of respondent No. 5, on the basis of highest Bid of Rs. 7.37 crores, including the Environment Management Fund contribution, was bad in law; and since the part of such burden is bound to be shifted on the purchasers and excavators of "Bajri" like the petitioner, hence, the present challenge in the writ petition has been laid. 7. Having heard the learned counsel for the petitioner at some length, this Court is of the opinion that the present writ petition filed by the petitioner is not only misconceived but amounts to the abuse of process of law. 7. Having heard the learned counsel for the petitioner at some length, this Court is of the opinion that the present writ petition filed by the petitioner is not only misconceived but amounts to the abuse of process of law. The petitioner completely lacks the locus-standi to challenge the said levy of contribution to the Environment Management Fund (EMF) created by the State Government by the amendment of the MMCR, 1986 by introducing the provision of Rules 37(T) and 37(U), which are quoted below in extenso for ready reference:- "37T. Environmental safeguard to be implemented by individual lessee/licensee/short term permit holder:- 5. Every lessee/licensee/short term permit holder in addition to deposit of royalty and submission of financial assurance shall also deposit contribution in environment management fund to meet out the financial requirement of association/agency for carrying out environmental protection work as per the environment management plan at the following rates, namely:- (i) for limestone (dimensional) of Rs. 10/- per tone of mineral Kota and Jhalawar district, dispath marble and granite (ii) ordinary earth Rs. 1/- per tone of mineral dispatch (iii) all other minerals Rs. 5/- per tone of mineral dispatch 37 U. Cluster Level Environmental Conditions:- Following provisions shall be incorporated in the environment management plan:- (11) Procedure for collection of Environment Management Fund (EMF): (i) In case of mining lease and short term permit contribution for Environment Management Fund shall be collected provisionally at the time of issuing rawanna which shall be finalized at the time of assessment and the difference amount shall be recovered or refunded, as the case may be. Provided that in case of mining leases where excess royalty collection contract is given, the contribution for Environment Management Fund for the quantity for mineral dispatched above the dead rent limit shall be recovered along with royalty through contractor. The contract amount for the existing contractors to be authorized for recovering contribution for Environment Management Fund shall be proportionately revised. (ii) In case of quarry licenses, contribution for Environment Management Fund shall be recovered at the check post/naka by department official or by the contractor if authorized in this behalf. The contract amount for existing contractors to be authorized for recovering contribution for Environment Management Fund shall be proportionately revised. (iii) Mining Engineer/Assistant Mining Engineer shall maintain clusterwise ledger of EMF for keeping record of collection from lessee/licensee/permit holder and expenditure incurred. The contract amount for existing contractors to be authorized for recovering contribution for Environment Management Fund shall be proportionately revised. (iii) Mining Engineer/Assistant Mining Engineer shall maintain clusterwise ledger of EMF for keeping record of collection from lessee/licensee/permit holder and expenditure incurred. Cash book shall be maintained separately for EMF." 8. It is clear from the above provisions that a separate and dedicated fund has been created by the State Government for protection of environment, which suffers a set back and damage on account of excavation of various minerals, minor or major. The rules of MMCR obviously governs the minor mineral like building material known as "Bajri", which when mixed with the cement, forms the concrete used for construction of various buildings, roads etc. The utilization of this fund created for dedicated purpose is bound to be for the purpose of protection, promotion and maintaining the balance in the environment by the State Government, who has an obligation to do so under Chapter IV of the Constitution of India. 9. The contribution in the form of Rs. 5/- per ton of the minor mineral like "Bajri" in the present case has been made make levy more broad based and facilitate the collection thereof from various persons, who utilize such mineral for their own purposes. The proviso of Rule 37U(11) quoted above clearly spells out this. 10. Surprisingly, in the present case, the respondent No. 5- M/s. Ridhee Sidhee Associates, who has been awarded the said contract with full open eyes, accepted the terms of this contract in the tender notice itself and thereupon gave his Bid for the said contract including the contribution to EMF and finding his such bid to be highest, he was awarded contract by order Annex. 4 dated 19.3.2013. The said contractor, respondent No. 5 herein, is not at all aggrieved by the said inclusion of this contribution of Environment Management Fund (EMF) but the present petitioner, who is supplier of building materials and who is obviously the purchaser of such "Bajri" either from the respondent No. 5 or at his own and subject to payment of excess royalty and permit fees to the authorized contractor like the respondent No. 5, is only a remotely affected person. If such a challenge at thee instance of a customer or supplier and consumer/s of the goods to the statutory levy was allowed be challenged, as if the levy of exercise duty on the manufacturer of goods allowed to be challenged by the ultimate consumer of the goods was to be allowed by the courts of law, nothing more would be a glaring example of the process of law abused than this. 11. The petitioner, an Ex-Sarpanch and a self-acclaimed Social Worker, claims to be a public man, who is also a businessman in his own right, is not only all too misplaced to file such writ petition but is obviously causing harm to the public cause of maintaining and promoting of the environment, for which the State has introduced this levy by creating a broad and a dedicated fund for that purpose. When the contractor/respondent No. 5 itself is not aggrieved by the said levy or the contribution of EMF which is being collected through it, through bid money, this Court finds it absolutely impossible to allow the present petitioner (a consumer and supplier of those goods) to assail the validity of the same and that too by assailing the very award contract in favour of private respondent No. 5 in which there is no illegality as such. 12. As already stated above, the respondent No. 5 had entered into the said contract, fully being aware of the terms and conditions and with open eyes as to on what terms and conditions of tender, he is taking the said contract. Having taken that and not challenging the same, one would conclude that the terms of contract are acceptable to both the parties to the contract. The affected parties by implementation and execution of such contracts, statutory in character, entered with the Government Department, can hardly be permitted to challenge the award of such contracts. 13. The contention of the learned counsel for the petitioner that since no mining lease or license or short term permit is given to the contractor/ respondent No. 5 the levy would not fall within the ambit of Rule 37(T). This contention is also misconceived Firstly, the contractor like Respondent No. 5 authorized to collect excess royalty, permit fees and EMF contribution, can be covered by the terms licensee or short term permit holders also, but this is not the condition precedent. This contention is also misconceived Firstly, the contractor like Respondent No. 5 authorized to collect excess royalty, permit fees and EMF contribution, can be covered by the terms licensee or short term permit holders also, but this is not the condition precedent. The Provisos of Rule 11 of Environment Management Plan in Rule 37(U) clearly provide such collection of EMF contribution even by contractors like respondent No. 5.Therefore, the petitioner cannot contend that since no mining lease is granted to contractor, he cannot be authorized to collect EMF contribution. The contract in question clearly provides for collection of EMF contribution along with excess royalty and permit fees and the challenge to the same is absolutely misconceived it would have been futile even at the instance of contractor himself and so it is at the instance of the consumer or the supplier of "Bajri", the petitioner herein. The said contention also therefore fails and is hereby rejected. 14. The petitioner, therefore, in the considered opinion of this Court, totally lacks the locus-standi to maintain this writ petition besides, the challenge being absolutely merit less; and such challenge coming from an acclaimed public man, like an Ex-Sarpanch and Social Worker, who ought to have espoused the cause of protection of environment by the machinery of the State, is all the more painful. In these circumstances, this Court is of the considered opinion that the present writ petition of the present petitioner being merit-less, calls for no interference at the instance of the petitioner and the same deserves to be dismissed. 15. Consequently, the present writ petition filed by the petitioner is found to be devoid of any force and the same is, accordingly, dismissed. No costs. A copy of this order be sent to the parties concerned forthwith.