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2018 DIGILAW 544 (PAT)

Aditya Multicom Private Limited v. State of Bihar

2018-03-28

DINESH KUMAR SINGH

body2018
ORDER : DINESH KUMAR SINGH, J. 1. The present writ application has been taken up out of turn on the prayer of learned counsel for the petitioner with the consent of learned Special P.P., Department of Mines. Heard Mr. Jitender Singh, learned Senior Counsel for the petitioner and Mr. Naresh Dixit, learned Spl. P.P., Mines. 2. The present writ application has basically been filed for quashing of" the Memo No. 462, dated 25.3.2018, issued under the signature of Assistant Director, Mines and Geology, Rohtas, Sasaram, as contained in Annexure-4, whereby the petitioner has been reminded to make payment of royalty amount of Rs. 62,32,91,782/- (Rupees Sixty Two Crores Thirty Two Lacs Ninety One Thousand Seven Hundred Eighty Two) by 4 P.M. 28.3.2018, failing which the settlement made in favour of the petitioner will be cancelled by 5 P.M. on 28.3.2018 in view of the order of the High Court. The impugned order also stipulates that the total amount of the royalty has been calculated as Rs. 82,32,91,782 (Rupees Eighty Two Crores Thirty Two Lacs Ninety One Thousand Seven Hundred Eighty Two), but since the petitioner has made payment of Rs. 20 Crores, hence the reminder for the balance payment. 3. The specific relief prayed for as stipulated in paragraph no. 1 of the writ petition reads as follows:- "(i) For issuance of a writ in the nature of Certiorari for quashing the memo no. 462 dated 25.3.2018 issued by the Assistant Director, Mines & Geology, Rohtas, Sasaram, whereby and whereunder the petitioner has been asked to deposit the royalty by 28.3.2018, failing which the settlement of the petitioner would be cancelled. (ii) For a declaration that the amount realizable in terms of the agreement is directly relatable to winning of minor minerals and sale thereof, and in absence of any winning and sale, the royalty as also other charges, cannot be realized. (ii) For a declaration that the amount realizable in terms of the agreement is directly relatable to winning of minor minerals and sale thereof, and in absence of any winning and sale, the royalty as also other charges, cannot be realized. (iii) For a direction to the respondent authorities not to take any action or create any impediment for non-deposit of the amount for the interregnum period (i.e. from 19.9.2017 to 31.1.20-18) when the petitioner was restrained from carrying out mining activity, by the order of the respondent District Magistrate, which was ultimately interfered with and restored with effect from 1.2.2018; and for such other relief(s) to which the petitioner is found entitle in the facts and circumstances of the case." It is submitted by learned Senior Counsel for the petitioner that in pursuance to an advertisement for settlement of sand Ghats, the petitioner being the highest bidder, the sand Ghats were settled in favour of the petitioner for the district of Rohtas for the period of 2015-2019, but the petitioner was restrained from conducting the mining from 19.9.2017 to 31.12.2017 and from 1.1.2018 to 31.1.2018 (135 days in all). Hence the petitioner is not required to pay the amount of royalty to the tune of Rs. 3650 Crores + Rs. 2 Crores calculated by way of interest for delayed payment (total amount of Rs. 38.50 Crores). 4. In furtherance of above contention, it is submitted that Rule 26(4) of the Bihar Minor Mineral Concession Rules, 1972 (hereinafter referred to as 'Rules, 1972') mandates that the lessee shall pay rent of royalty in respect of any minor mineral own, extracted and removed. Since the petitioner was restrained from conducting mining, hence he neither extracted nor removed the sand for the period specified above. Since the settlement of the sand Ghat made in favour of the petitioner was cancelled vide order dated 19.9.2007, passed by District Magistrate, Rohtas, hence, it cannot be said that the petitioner owned the Sand Ghats during cancelled period. However, the said order of cancellation was unsettled vide order dated 25.1.2018, passed by Mines Commissioner in Revision Case No. 4 of 2017 as contained in Annexure-3 as a result the petitioner was precluded from conducting the mining operation for 135 days for which the total amount of royalty including the interest on delayed payment calculated by the department comes to the tune of Rs. 38.50 Crores which the petitioner is not liable to pay. The balance amount remains to be paid by the petitioner is about 24 Crores out of which the petitioner is ready to submit draft of Rs. 20 Crores by 4 P.M. today, i.e., 28.3.2018 and the petitioner further undertakes to deposit a draft of Rs. 4 Crores to the concerned authority by tomorrow, i.e., 29.3.2018. 5. It is clarified by learned counsel for the petitioner that the petitioner is ready to make payment of rent/royalty as per the terms of settlement including the interest on delayed payment except the period he was restrained from conducting the mining operation by virtue of cancellation of settlement. Hence, the respondent authorities be directed to issue the e-Challan forthwith. 6. Mr. Naresh Dixit, learned Special P.P., Mines submits that the department is entitled to claim the entire amount including the payment of interest for each day's delay in making payment. However, the department is going to accept the above offer of Rs. 24 Crores by 29th of March, 2018 for issuance of e-Challan forthwith, but the same does not amount to accepting the contention of the learned Senior Counsel for the petitioner that ultimately the petitioner is not liable to make payment of the entire demand raised. 7. Having heard learned counsels for the parties, it appears from perusal of Rule 26(4) of the Rules, 1972 that rent of royalty has to be charged for any minor mineral own extracted and removed. Rule 26(4) reads as follows:- "26(4) Notwithstanding anything contained in any instrument of lease the lessee shall pay rent/royalty in respect to any minor mineral own, extracted and removed at the rate specified from time to time in Schedules I and II." 8. Admittedly, the petitioner was precluded from conducting mining from the date the settlement was cancelled by the Collector and till the date the petitioner was permitted to resume mining operation (the period as specified above) by revisional order passed by the Mines Commissioner. 9. In the circumstances, this Court permits the petitioner to deposit balance amount, excluding non-operational period, to the tune of Rs. 24 Crores, out of which, a draft of Rs. 20 Crores will be submitted today itself, i.e., 28.3.2018 by 4 P.M. to the concerned authority and draft of Rs. 4 Crores will be submitted by tomorrow, i.e., 29.3.2018. 10. 9. In the circumstances, this Court permits the petitioner to deposit balance amount, excluding non-operational period, to the tune of Rs. 24 Crores, out of which, a draft of Rs. 20 Crores will be submitted today itself, i.e., 28.3.2018 by 4 P.M. to the concerned authority and draft of Rs. 4 Crores will be submitted by tomorrow, i.e., 29.3.2018. 10. It is made clear that the present payment will be subject to the result of the writ application. 11. It is expected from the concerned authority to issue the e-Challan forthwith in favour of the petitioner as per the terms of settlement forthwith. 12. It is further made clear that the petitioner is liable to make payment of interest for delayed payment of royalty as per the terms of settlement. 13. Mr. Naresh Dixit, learned Special P.P., Mines prays for some time to file counter affidavit, meeting the contentions raised in the writ application. As prayed for, put up this matter on 20th of April, 2018.