IN the HIGH COURT of JHARKHAND at RANCHI W.P.(C) No

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 4737 of 2014

M/s RAUSSCL (JV) a joint venture firm through its authorized signatory K.P. Naidu, son of K. Janardhana Naidu having its office at Haria Mod, Chandwa, P.O. & P.S. Chandwa, District Latehar (Jharkhand) ... … Petitioner Versus

1. East Central Railways, having its headquarter at Hazipur, District Hazipur, Bihar represented through Chief Administrative Officer having its office at Hazipur, District Hazipur, Bihar

2. Chief Administrative Officer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

3. Chief Engineer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

4. The State of Jharkhand through Secretary, Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

5. The District Mining Officer, Koderma, P.O. & P.S., Latehar, District Latehar

6. District Mining Officer, Hazaribagh, P.O., P.S. & District Latehar ... … Respondents with W.P.(C) No. 1596 of 2013

Bhardwaj Construction Company Pvt. Ltd., having its registered office at 25C, Road No. 1, Ashok Nagar, Ranchi, Jharkhand 834002 through one of its Director Shri Jai Durga Pathak, son of late Lambodar Pathak, Resident of 25C, Road No. 1, Ashok Nagar, Ranchi, Jharkhand ... … Petitioner Versus

1. East Central Railways, having its Headquarter at Hazipur, District Hazipur, Bihar

2. Chief Administrative Officer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar 2

3. Chief Engineer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

4. The State of Jharkhand through Secretary, Department of Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

5. The District Mining Officer, Koderma, P.O. & P.S., Koderma, District Koderma

6. District Mining Officer, Hazaribagh, P.O., P.S. & District Hazaribagh ... … Respondents with W.P.(C) No. 1602 of 2013

Bkb Transport (P) Ltd., a company registered under the Indian Companies Act, having its office at New Road, P.O. Phusro Bazar, District Bokaro through Saurabh Kumar Agarwal, son of Madan Mohan Agarwal, Resident of New Road, P.O. Phusro Bazar, District Bokaro ... … Petitioner Versus

1. East Central Railways, having its Headquarter at Hazipur, District Hazipur, Bihar

2. Chief Administrative Officer (Construction), East Central Railways (Construction Organization), Mahendru Ghat, First Floor, Patna

3. Chief Engineer (Construction), East Central Railways, Mahendru Ghat, Patna

4. The State of Jharkhand through Secretary, Department of Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

5. The District Mining Officer, Koderma, P.O. & P.S., Koderma, District Koderma

6. District Mining Officer, Hazaribagh, P.O., P.S. & District Hazaribagh ... … Respondents with W.P.(C) No. 1603 of 2013

Saurabh Kumar and Brothers, a Partnership concern having its office at and P.O. Jaridih Bazar P.S. Gandhi Nagar, District Bokaro 3 through one of its partner Saurabh Kumar Agarwal, son of Sri Madan Mohan Agarwal, Resident of at and P.O. Jaridih Bazar, District Bokaro ... … Petitioner Versus

1. East Central Railways, having its Headquarter at Hazipur, District Hazipur, Bihar

2. Chief Administrative Officer (Construction), East Central Railways (Construction Organization), Mahendru Ghat, First Floor, Patna

3. Chief Engineer (Construction), East Central Railways, Mahendru Ghat, Patna

4. The State of Jharkhand through Secretary, Department of Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

5. The District Mining Officer, Koderma, P.O. & P.S., Koderma, District Koderma

6. District Mining Officer, Hazaribagh, P.O., P.S. & District Hazaribagh ... … Respondents with W.P.(C) No. 1790 of 2013

M/s Triveni Engicons Pvt. Ltd., a Company registered under the Companies Act, 1956 having its registered office at 3/6, HS Tower, L. Road, Bistupur, Jamshedpur, District Singhbhum East, Jharkhand through its authorized signatory Shri Subir Kumar Dutta, aged 63 years, son of Late Sudhir Chandra Dutta, Resident of – Flat No. 104, Sabu madhusudan iketan, Reversmeet Road (Near Mouni Baba Temple), Sonari, P.O. & P.S. Sonari, Jamshedpur, District Singhbhum East ... … Petitioner

Versus 1. South Eastern Railway, having its Headquarter at Garden Reach, Kolkata

2. Chief Administrative Officer (Construction), South Eastern Railway, Garden Reach, Kolkata

3. Chief Engineer (Construction) South, South Eastern Railway, Garden Reach, Kolkata 4

4. Chief Engineer (Construction II), South Eastern Railway, Garden Reach, Kolkata

5. The State of Jharkhand through the Secretary, Department of Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

6. The District Mining Officer, Saraikella Kharsawan, District Saraikella Kharsawan

7. District Mining Officer, Chaibasa, P.O., P.S. Chaibasa, District Singhbhum West ... … Respondents with W.P.(C) No. 1795 of 2013

Versus

1. South Eastern Railway, having its Headquarter at Garden Reach, Kolkata

2. Chief Administrative Officer (Construction), South Eastern Railway, Garden Reach, Kolkata

3. Chief Engineer (Construction) South, South Eastern Railway, Garden Reach, Kolkata

4. Chief Engineer (Construction II), South Eastern Railway, Garden Reach, Kolkata

5. The State of Jharkhand through the Secretary, Department of Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

6. The District Mining Officer, Saraikella Kharsawan, District Saraikella Kharsawan

7. District Mining Officer, Chaibasa, P.O., P.S. Chaibasa, District Singhbhum West ... … Respondents 5

with W.P.(C) No. 1860 of 2013

Jaishiv Constructions Pvt. Ltd., having its office at Bano Manzil Road, Ranchi through one of its Director, Y.N. Singh, son of Late J.P. Singh, Resident of Bano Manzil Road, Ranchi, P.O. G.P.O., P.S. Sukhdeonagar, District Ranchi ... … Petitioner

Versus

1. East Central Railway, having its Headquarter at Hazipur, District Patna, Bihar

2. Chief Administrative Officer (Construction), East Central Central Railways, Mahendru Ghat, First Floor, Patna

3. Chief Engineer (Construction) Central, East Central Railway, Mahendru Ghat, First Floor, Patna, Bihar

4. South Eastern Railway, having its Headquarter at Garden Reach, Kolkata

5. Chief Administrative Officer (Construction), South Eastern Railway, Garden Reach, Kolkata

6. Chief Engineer (Construction) South, South Eastern Railway, Garden Reach, Kolkata

7. Chief Engineer (Construction II), South Eastern Railway, Garden Reach, Kolkata

8. The State of Jharkhand through the Secretary, Department of Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

9. The District Mining Officer, Chaibasa, P.O., P.S. & District Chaibasa

10. The District Mining Officer, P.O., P.S. & District Hazaribagh

11. The District Mining Officer, P.O., P.S. & District Latehar ... … Respondents with W.P.(C) No. 4566 of 2013

M/s Royal Infraconstru Ltd. having its office at 18, R.N. Mukherjee Road, 6th Floor, Kolkata, P.O. & P.S. Kolkata, represented through 6 its Project Manager, Pintu Banerjee, S/o Shambhu Nath Banerjee, R/o 20/11, Rana Pratap Road, AZone, Durgapur, Burdwan, P.O. Ashoke Avenue, P.S. Aurobindo Thana, District Burdwan (W.B.), Pin 713204 ... … Petitioner Versus

1. East Central Railways, having its Headquarter at Hazipur, District Hazipur, Bihar represented through Chief Administrative Officer having its office at Hazipur, District Hazipur, Bihar

2. Chief Administrative Officer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

3. Chief Engineer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

4. The State of Jharkhand through Secretary, Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

5. The District Mining Officer, Koderma, P.O. & P.S., Koderma, District Koderma

6. District Mining Officer, Hazaribagh, P.O., P.S. & District Hazaribagh ... … Respondents with W.P.(C) No. 4569 of 2013

M/s Royal Infraconstru Ltd. having its office at 18, R.N. Mukherjee Road, 6th Floor Kolkatta PO PS Kolkatta represented through its Project Manager Pintu Banerjee, S/o Shambhu Nath Banerjee R/o 20/11, Ranapratap Road, AZone, Durgapur, Burdwan, Pin713204 PO Ashoke Avenue, PS Aurobindo Thana Distt. Burdwan (W.B.) ... … Petitioner Versus

1. East Central Railways, having its head quarter at Hazipur, District Hazipur, Bihar represented through Chief Administrative Officer having its office at Hazipur, District Hazipur, Bihar

2. Chief Administrative Officer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar 7

3. Chief Engineer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

4. The State of Jharkhand through Secretary, Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

5. The District Mining Officer, Giridih, P.O., P.S. Giridih, District Giridih

6. District Mining Officer, Hazaribagh, P.O., P.S. & District Hazaribagh ... … Respondents with W.P.(C) No. 2117 of 2014

M/s MRKR Pallavi Upkar JV a joint venture firm through its authorized signatory M. Vasudeva Reddy, son of Sathi Reddy having its office at 63347/22/10/2, 101, Sai Villa Apartments, Dwarkapuri Colony, Panjagutta, P.O. & P.S. Erra Manzi, District Hyderabad ... … Petitioner Versus

1. East Central Railways, having its headquarter at Hazipur, District Hazipur, Bihar represented through Chief Administrative Officer having its office at Mahendru Ghat, P.O. & P.S. Bankipore, District Patna, Bihar

2. Chief Administrative Officer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

3. Chief Engineer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

4. The State of Jharkhand through Secretary, Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

5. The District Mining Officer, Latehar, P.O. & P.S., Latehar, District Latehar

6. District Mining Officer, Hazaribagh, P.O., P.S. & District Latehar

... … Respondents 8

with W.P.(C) No. 2127 of 2014

M/s MRKR Pallavi Upkar JV through its authorized signatory M. Vasudeva Reddy, son of Sathi Reddy having its office at 63 347/22/10/2, 101, Sai Villa Apartments, Dwarkapuri Colony, Panjagutta, P.O. & P.S. Erra Manzi, District Hyderabad ... … Petitioner Versus

1. East Central Railways, having its head quarter at Hazipur, District Hazipur, Bihar represented through Chief Administrative Officer having its office at Hazipur, District Hazipur, Bihar

2. Chief Administrative Officer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

3. Chief Engineer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

4. The State of Jharkhand through Secretary, Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

5. The District Mining Officer, Latehar, P.O. & P.S., Latehar, District Latehar

6. District Mining Officer, Hazaribagh, P.O., P.S. & District Latehar ... … Respondents with W.P.(C) No. 2138 of 2014

1. East Central Railways, having its head quarter at Hazipur, District Hazipur, Bihar represented through Chief Administrative Officer having its office at Hazipur, DistrictHazipur Bihar, Mahendru Ghat, Patna, Dist. Patna, Bihar 9

2. Chief Administrative Officer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

3. Chief Engineer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

4. The State of Jharkhand through Secretary, Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

5. The District Mining Officer, Latehar, P.O. & P.S., Latehar, District Latehar

6. District Mining Officer, Hazaribagh, P.O., P.S. & District Latehar ... … Respondents with W.P.(C) No. 2658 of 2014

M/s Triveni Engicons Pvt. Ltd., a Company registered under the Indian Companies Act, 1956 having its registered office at 3/6, HS Tower, L. Road, Bistupur, Jamshedpur, District Singhbhum East, Jharkhand through its authorized signatory Shri UTTAM KUMAR MALLICK, aged 56 years, son of Late Sudhir Kumar Mallick, Resident of – Flat No. K/F6, Kantilal Gandhi Memorial Hospital Campus, SouthPark, P.O. & P.S. Bistupur, Jamshedpur, District East Singhbhum (Jharkhand) ... … Petitioner Versus

1. South Eastern Railway, having its Headquarter at Garden Reach, Kolkata

2. Chief Administrative Officer (Construction), South Eastern Railway, Garden Reach, PO, PS & Dist. Kolkata

3. Chief Engineer (Construction) South, South Eastern Railway, Garden Reach, PO, PS & Dist. Kolkata

4. Chief Engineer (Construction II), South Eastern Railway, Garden Reach, PO, PS & Dist. Kolkata

5. The State of Jharkhand through the Secretary, Department of Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi 10

6. The District Mining Officer, PO, PS & Dist. Saraikella Kharsawan, District Saraikella Kharsawan

7. District Mining Officer, Chaibasa, P.O., P.S. Chaibasa, District Singhbhum West ... … Respondents with W.P.(C) No. 2687 of 2014

1. South Eastern Railway, having its Headquarter at Garden Reach, PO, PS & Dist. Kolkata

2. Chief Administrative Officer (Construction), South Eastern Railway, Garden Reach, PO, PS & Dist. Kolkata

3. Chief Engineer (Construction) South, South Eastern Railway, Garden Reach, PO, PS & Dist. Kolkata

4. Chief Engineer (Construction II), South Eastern Railway, Garden Reach, PO, PS & Dist. Kolkata

5. The State of Jharkhand through the Secretary, Department of Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

6. The District Mining Officer, PO, PS & Dist. Saraikella Kharsawan, District Saraikella Kharsawan

7. District Mining Officer, Chaibasa, P.O., P.S. Chaibasa, District Singhbhum West ... … Respondents with W.P.(C) No. 5244 of 2014

M/s RSR InfraJGB (JV) through its Authorized Signatory K. Sathyanarayana Raju son of late K.D. Raju having its office at 1st 11

Floor, BSahu Complex Murpa More Balamath PO & PS Balamath Dist. Latehar ... … Petitioner

Versus

1. East Central Railways, having its Headquarter at Hazipur, District Hazipur, Bihar represented through Chief Administrative Officer having its office at Hazipur, District Hazipur, Bihar

2. Chief Administrative Officer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

3. Chief Engineer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

4. The State of Jharkhand through Secretary, Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

5. The District Mining Officer, Koderma, P.O. & P.S., Latehar, District Latehar

6. District Mining Officer, Hazaribagh, P.O., P.S. & District Latehar ... … Respondents with W.P.(C) No. 395 of 2015

M/s RAUSIGS (JV) a joint venture firm through its authorized Signatory K. P. Naidu son of K. Janardhana Naidu having its office at Haria Mod, Chandwa, PO & PS Chandwa, Dist. Latehar (Jharkhand) ... … Petitioner Versus

1. East Central Railways, having its head quarter at Hazipur, District Hazipur, Bihar represented through Chief Administrative Officer having its office at Hazipur, District Hazipur, Bihar

2. Chief Administrative Officer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

3. Chief Engineer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar 12

4. The State of Jharkhand through Secretary, Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

5. The District Mining Officer, Koderma, P.O. & P.S., Latehar, District Latehar

6. District Mining Officer, Hazaribagh, P.O., P.S. & District Latehar ... … Respondents with W.P.(C) No. 1096 of 2015

M/s Kashi Construction a partnership firm through its partner Kamal Kant Singh son Late Triveni Prasad Singh resident of VillageMehdhai PO Bhagwanpur PS Bhagwanpur Dist Begusarai Bihar ... … Petitioner Versus

1. East Central Railways, having its head quarter at Hazipur, District Hazipur, Bihar represented through Chief Administrative Officer having its office at Hazipur, District Hazipur, Bihar

2. Chief Administrative Officer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

3. Chief Engineer (Construction), East Central Organization (Construction Organization), East Central Railways, Mahendru Ghat, First Floor, P.O., P.S. & District Patna, Bihar

4. The State of Jharkhand through Secretary, Mines, Govt. of Jharkhand having its office at Nepal House, P.O. & P.S. Doranda, District, Ranchi

5. The District Mining Officer, Hazaribag, P.O., P.S. & Dist. Latehar ... … Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioners : Mr. Rajiv Ranjan, Advocate Mr. Shresth Gautam, Advocate Mr. Shray Mishra, Advocate Mr. Gaurav Abhishek, Advocate 13

Mr. Piyush Chitresh, Advocate Mr. Shadab bin Haque For RespondentState : Mr. Ajit Kumar, A.A.G. Mr. Rajesh Kumar, G.P. V Mr. Saket Upadhyay, J.C. to A.A.G. For RespondentRlys. : Mr. Vijoy Kumar Sinha, A.S.C. (Rlys.) Mr. S.K. Lala, Advocate Order No. 06 Dated: 25.03.2015

Aggrieved by deduction from their running Account

Bills on account of royalty for “ordinary earth used for filling or

leveling purposes in construction of embankment, roads, railways,

building”, batch of writ petitions has been filed seeking a

declaration that until and unless, ScheduledII to the Jharkhand

Minor Mineral Concession Rules, 2004 is amended and rate of

royalty for “ordinary earth used for filling or leveling purposes in

construction of embankment, roads, railways, building” is fixed, no

royalty for the same is payable to the State of Jharkhand. A

common question of law has been raised in all the writ petitions

and prayer in all the writ petitions are almost identical. Therefore,

it is not necessary to discuss, in detail, facts of each case separately

and, suffice would be to notice facts of any one case. The nature of

work carried by the writ petitioners is noticed below:

Sl. No. Writ name and no. Agreement details 1. WPC No. 4737/14 Earth work in cutting, filling M/s. RAUSSCL (JV) blanketing, turfing between 24 Km to 28 Km in New BG line between Tori Shivpuri in Latehar 14

District 2. WPC No. 1596/13 Construction of Major Bridges Bhardwaj between Koderma and Construction Hazaribagh in connection with Company Pvt. Ltd. construction of new BG Railway line between Koderma and Ranchi 3. WPC No. 1602/13 Work of ECR for construction of BKB Transport (P) Minor Bridges alongwith RUB etc. Ltd. in KodermaGiridih Section 4. WPC No. 1603/13 Work of construction of 10.00 Saurav Kumar and span road over bridges in between Bros. Koderma and Ranchi 5. WPC No. 1790/13 Earth Work, construction of M/s. Triveni Engicons bridges, blanketing etc. in Pvt. Ltd. connection with the Third Line between Km 265 to SINI (SecII) in SINI Yard Chakardharpur Division 6. WPC No. 1795/13 Execution of Blanketing minor M/s. Triveni Engicons bridges in Kharsawan Pvt. Ltd. Dongoaposhi 3rd line between Km 327 to Km 345 (SecIII) in Chakardharpur Division 7 WPC No. 1860/13 Execution of railway formation Jaishiv Constructions work by earthwork in cutting and Pvt. Ltd. embankment etc. in SecII from Km 370 to Km 377 including Padapahar yard in connection with the doubling work of BanspaniPadapahar (Chakardharpur Division) 8 WPC No. 4566/13 Earth work in cutting, filling, M/s. Royal blanketing, construction of Minor 15

Infraconstru Ltd. & Major bridges etc. between 49.50 KM to 56.4 KM from Koderma to Tillaya 9 WPC No. 4569/13 Earth work in cutting, filling M/s. Royal blanketing, construction of Major Infraconstru Ltd. bridges at 49.55 Km, at Km 50.099, at Km 56.875, at Km 82.114, at Km 87.44 and at 90.57 in connection with construction of new BG line between Koderma and Giridih 10 WPC No. 2117/14 Earth work in cutting, filling M/s. MRKR Pallavi blanketing, turfing between 11.5 Upkar JV Km to 16 Km in New BG line Between Tori Shivpuri in Latehar District 11 WPC No. 2127/14 Earth work in cutting, filling M/s. MRKR Pallavi blanketing, turfing between 16 Upkar JV Km to 19 Km in New BG line Between Tori Shivpuri in Latehar District 12 WPC No. 2138/14 Earth work in cutting, filling M/s. MRKR Pallavi blanketing, turfing between 19 Upkar JV Km to 22 Km in New BG line Between Tori Shivpuri in Latehar District 13 WPC No. 2658/14 Execution of railway formation M/s. Triveni Engicons work by earthwork etc. in Pvt. Ltd. connection with the Third Line between Adityapur to Km 265 (SecI) including yard remodeling works in Adityapur & Gamhariya yard (Chakardharpur Division) 16

14 WPC No. 2687/14 Earth work in cutting, filling M/s. Triveni Engicons blanketing, turfing for the Section Pvt. Ltd. IV Km 345 to Dongoaposhi in Chakardharpur Division 15 WPC No. 5244/14 Earth work in cutting, filling M/s. RSR InfraJGB blanketing, turfing between 22 (JV) Km to 24 Km in New BG line Between Tori Shivpuri in Latehar District 16 WPC No. 395/15 Earth work in cutting, filling M/s RAUSIGS (JV) blanketing, turfing between 28 Km to 33 Km in New BG line Between Tori Shivpuri in Latehar District 17 WPC No. 1096/15 Construction of loading wharf, M/s. Kashi approach road and other ancillary Construction works at Banadag in connection with construction of Hazaribag Banadag Railway Siding for NTPC

W.P.(C) No. 2117 of 2014

2. The petitioner is a registered contractor under the railways and with the Government of Jharkhand and it is engaged in construction work and other allied activities. The petitioner was awarded the work for “earth work in cutting, filling, blanketing, drafting, construction of minor bridges, major bridges and other ancillary work between 11.5 Km and 16 Km” in connection with construction of new business line between ToriShivpuri in Latehar district. The aforesaid work involves extensive use of earth work in 17 leveling purposes, for construction of embankment for railways etc.

The petitioner procures ordinary earth from local agriculturists and land holders in and around the area of construction. No lincese has been granted by the State of Jharkhand for mining of the ordinary earth. The South Eastern Railways deducts lumpsum payment from contractors’ bill for those contractors, who are not submitting

M and N Forms for earth work and the said amount is paid to the

State Government on account of royalty for earth work. It is stated that the Assistant Mining Officer, Hazaribagh issued letters to the petitionerCompany for disclosing the quantity of minor minerals used in construction. The Mines Inspector inspected the work carried by the petitioner under contract and he furnished details of bricks, sand, metal boulder, ordinary earth etc. used in the construction and accordingly, letter dated 17.03.2011 directing the petitioner to deposit a sum of Rs.5,66,400/ was issued.

3. The learned counsel for the petitioners submits that in exercise of powers conferred under Section 15 of the Mines and

Minerals (Development and Regulation) Act, 1957, the then State of Bihar issued notification dated 28.09.1994 whereunder, royalty for Ordinary Clay used in manufacturing of Raniganj tiles and used for commercial purposes, was fixed @ Rs.15 per cubic mtr. In the

Notification dated 28.09.1994 under Sl. No.3(ii), it is indicated that no royalty would be charged for “Ordinary Clay” used for any other purposes. The Government of Jharkhand framed Jharkhand Minor 18

Mineral Concession Rules, 2004 and adopted Notification dated

28.09.1994 of the State of Bihar however, after the Notification dated 03.02.2000 was issued by the Government of India, the

Government of Bihar though amended the Schedule by providing rate of royalty for “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building”, the Government of Jharkhand did not amend Second

Schedule to the Jharkhand Minor Mineral Concession Rules, 2004 and therefore, royalty for “ordinary earth” which has been declared a minor minerals by the Notification dated 03.02.2000, cannot be collected from the petitioners. The learned counsel for the petitioners relied on decisions in “Hindustan Steel Works

Construction Ltd. Vs. State of Bihar and Ors.”, reported in (2007) 2

PLJR 849, “Banarasi Das Chadha and Brothers Vs. Lt. Governor,

Delhi Adminstration and Ors.” (1978) 4 SCC 11 and “Som Datt

Builders Ltd. Vs. Union of India” (2010) 1 SCC 311.

4. As against the above, Mr. Ajit Kumar, the learned AAG submits that the expression used in the Notification of the

Government of Jharkhand is “Sadharan Mitti” which is the expression used in the Notification dated 03.02.2000 of the

Government of India and thus, the respondentState has rightly demanded payment of royalty for ordinary earth used by the petitioners for filling or leveling purposes in construction of 19 embankment, roads, railways, buildings etc. It is further submitted that the ordinary and natural meaning of the expression “Sadharan

Mitti” is “ordinary earth” and not “Ordinary Clay” and the English version of the Jharkhand Notification is not correct. Trying to distinguish the judgment in “Hindustan Steel Works”, the learned

AAG submits that the said decision is not binding and this Court can interpret the expression “Sadharan Mitti” once again. It is further submitted that the issue involved in the present case is covered by the decision in “Som Datt Builders” case.

5. In reply, Mr. Rajiv Ranjan, the learned counsel for the petitioners states that the decision in “Hindustan Steel Works

Construction Ltd.” has been affirmed by the Hon’ble Supreme Court in SLP (c) No(s). 1633016333/2007.

6. The question which arises for consideration is,

“whether in view of the notification dated 03.02.2000 issued by the

Ministry of Mines, Government of India declaring the “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, buildings”, a minor mineral in addition to the minerals already declared as minor minerals, a consequent amendment in the Second Schedule to the Jharkhand

Minor Mineral Concession Rules, 2004 is necessary for fixing and collecting royalty for the “ordinary earth” which has been declared a minor minerals by the aforesaid notification?” 20

7. Before considering the rival contentions, it is necessary to notice the relevant provisions in the Mines and Minerals

(Development and Regulation) Act, 1957. Section 2 of the Act declares that the Union should take under its control the regulation of mines and development of minerals. In “Bharat Coking Coal

Limited Vs. State of Bihar & Ors.”, (1990) 4 SCC 557, the Hon'ble

Supreme Court has held that, “By Section 2 of the Act, the

Parliament has declared that it is expedient in public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent provided in the Act. In view of the parliamentary declaration as made in Section 2 of the

Act, the State Legislature is denuded of its legislative power to make any law with respect to the regulation of mines and the development of minerals to the extent as provided by the Act”. In

“P. Kannadasan Vs. State of T.N.”, (1996) 5 SCC 670, it has been held that, levy of taxes/cesses on minerals by States is not permissible. The denundation of the States is not partial. It is total. They cannot levy any tax or cess on minerals so long as the declaration of Section 2 stands. In “State of W.B. Vs. Kesoram

Industries Ltd. & Ors.”, (2004) 10 SCC 201, a Constitution Bench of the Hon'ble Supreme Court has observed that, “the effect is that no

State Legislature shall have power to enact any legislation touching: (i) the regulation of mines, (ii) the development of minerals, and (iii) to the extent provided by Act 67 of 1957”. 21

8. Section 15 of the Act confers power on the State

Governments to make rules in respect of minor minerals. In exercise of power under Section 15 of the Act, the State

Government can make rules for fixing and collection of rent, royalty, fees, deadrent, fines or other charges and the time within which and the manner in which these are payable. The expression

“Minor Mineral” has been defined in Section 3(e) to mean building stone, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes. Section 3(e) further provides that the Central

Government may, by notification in official gazette declare “any other mineral”, to be a minor mineral. Thus, the power to declare any other mineral which is not included in the definition of minor minerals in Section 3(e), is vested in the Central Government. As noticed above, vide Notification dated 03.02.2000, the Central

Government declared “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building”, a minor mineral. Thus, in exercise of powers under

Section 15 of the Act the State Government is required to fix the rate of royalty for “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building”. The learned counsel for the petitioners has contended that though the State of Bihar amended the Schedule, the State of

Jharkhand which adopted Notification dated 28.09.1994 of the

State of Bihar, did not amend its Rules and therefore, royalty for 22

“ordinary earth” declared as a minor mineral by the Central

Government cannot be charged by the State of Jharkhand. Per contra, the learned AAG contended that in view of the Notification dated 03.02.2000 of the Central Government and the decision of the Hon’ble Supreme Court in “Som Datt Builders” case, the respondentState has rightly issued demand letters directing the petitioners to pay royalty for the “ordinary earth used by them for filling or leveling purposes in construction of embankment, roads, railways, building”.

9. In the counteraffidavit, the respondentState of

Jharkhand has stated that, “in exercise of the powers conferred by

Section 15 of the Mines and Minerals (Development and

Regulation) Act, 1957, the State Government of Jharkhand published Notification No.2332/M dated 27.12.2010 (Annexure6 of the writ application) amending the Schedule2 of the JMMC

Rules, 2004 whereby and whereunder, at Serial No.5, the rate of charging royalty for use of Ordinary Clay clay used for manufacturing of Raniganj tiles and its commercial use, was fixed

@ Rs.24.00 per cubic metre. Prior to this Notification, the rate of charging royalty on Ordinary Clay was @ 15.00 per cubic mtr.”. It is further stated that the Notification dated 03.02.2000 is binding on the State Government and the State Government is bound to follow the provision wherein the definition of Ordinary Clay also brings ordinary earth under its purview i.e., Ordinary Clay includes 23 ordinary earth if the ordinary earth is being used for commercial purposes. It is contended that, since the use of ordinary earth by the petitioners is for commercial purposes, the petitioners cannot evade payment of royalty at the rate of Rs.24 per cubic mtr.

10. In Som Datt Builders case, the State of U.P. in exercise of powers under Section 15 of the Mines and Minerals

(Development and Regulation) Act, 1957 framed rules, which adopted the definition of minor mineral. It appears that the

Government of U.P. issued Notification dated 20.03.2001 whereby, the 1st Schedule appended to the 1963 Rules was amended and rate of royalty for “ordinary clay”/”ordinary earth” was fixed at Rs.4 per cubic mtr. In Som Datt Builders case, the issue before the Hon’ble

Supreme Court was whether, “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building”, is a minor mineral and the Hon’ble Supreme Court held the inclusion of “ordinary earth” as a minor mineral, valid. In

Hindustan Steel Works Construction Ltd., a Division Bench of Patna

High Court considered the expression “Sadharan Mitti” and

“Ordinary Clay”. The Court referred to dictionary meaning of the word “Clay” in Chambers Dictionery, Oxford Dictionary, Standard

Dictionary of the Hindi language by Bhargava etc. It has been held that,

7. “It is indisputable that both the Hindi and the English versions would refer to one and the same thing. It is, 24

therefore, apparent that the Hindi expression 'Sadharan Mitti' was used to describe ordinary clay referred to in the English version of the notification and that was included as one of the minor minerals as defined in Section 3(e) of the Act”. 11. The Division Bench of Patna High Court finally held that, “royalty for ordinary earth can be charged after 18.04.2006, when the State Government issued notification including the ordinary earth declared vide Notification dated 03.02.2000, a minor mineral and fixed royalty for the same under Schedule II”.

In Banarasi Das Chadha, the issue was whether “brick earth” is a minor mineral within the meaning of the expression in Section 3(e) of Mines and Minerals (Development and Regulation) Act, 1957.

12. The State of Jharkhand vide Notification dated

27.12.2010 amended ScheduleII whereby, the royalty for

“Ordinary Clayclay used for manufacturing of Raniganj tiles and commercial use” was fixed at the rate of Rs.24 per cubic mtr. By the said amendment, “ordinary earth” declared vide Notification dated 03.02.2000 by the Central Government as a minor mineral has not been incorporated in the 2nd Schedule and no rate of royalty has been fixed by the State of Jharkhand for the “ordinary earth” within the meaning of Notification dated 03.02.2000. It is thus, apparent that the State of Jharkhand can collect royalty for

“Ordinary Clay” as appearing at Sl. No.5 in the 2nd Schedule to the

Jharkhand Minor Mineral Concession Rules, 2004 and not for 25

“ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building”.

13. In the writ petition the petitioners have sought a declaration that “Ordinary Clay used for Raniganj tiles and other commercial use” is different from “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” and also for a declaration that without amending the 2nd

Schedule to the Jharkhand Minor Mineral Concession Rules, 2004, no royalty can be charged for “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building”. Vide order dated 28.07.2014, the petitioners were directed to make payment of royalty at the rate fixed for “Ordinary

Clay used for manufacturing Raniganj tiles and commercial purposes”. The respondentState has pleaded that besides, not paying royalty for “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building”, the petitioners have not paid royalty for other minerals also. Though, copies of demand notices have been produced on record, it does not appear from the record that the petitioners have made payment in compliance of order passed by this Court. The

State of Jharkhand has raised objection stating that the petitioners did not furnish details of consumption of minor minerals. It is further stated that the petitioners are required to procure ordinary earth used for commercial purposes from the authorised lease 26 holder/permit holder/dealer and permit in FormG can be obtained from the District Mining Officer however, the petitioners have not applied for permit in order to avoid payment of royalty. In view of the fact that no prayer challenging the demand notice/notices has been made in the writ petitions, I am not required to deal with the aforesaid objections of the respondentState. From a reading of the provisions of the Mines and Minerals (Development and

Regulation) Act, 1957 and the judgment of Hon'ble Supreme Court in “Som Datt Builders”, there cannot be a dispute that the State

Government has power to fix the rate of royalty for “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” and to enforce the payment of royalty for the same however, the exercise of power by the Government of

Jharkhand under Section 15 of the Act fixing the rate of royalty for a minor mineral must be reflected through a notification amending

2nd Schedule to the Jharkhand Minor Mineral Concession Rules,

2004. Admittedly, the State Government has not fix the rate of royalty for “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” and, it has sought to recover royalty for the same contending that “Ordinary

Clay” would include “ordinary earth used for commercial purposes.

From the definition of “minor mineral” in Section 2(e) of the Act and notification dated 03.02.2000 of the Central Government, it is apparent that “Ordinary Clay” is different from “ordinary earth 27 used for filling or leveling purposes in construction of embankment, roads, railways, building”. The distinction between the two is reflected in issuance of the said notification itself in as much as, the

Central Government has issued a separate notification notifying

“ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building”, a minor mineral. The distinction is further clarified in view of decision of the Hon'ble

Supreme Court in “Banarasi Das Chadha” wherein, “brick earth” has been held to be a minor mineral. Thus, it is apparent that

“ordinary earth” and “Ordinary Clay” have different uses and the uses of “ordinary earth” in a particular form has been the determinative factor whether it is a minor mineral or not. In view of the specific prayer made in the writ petitions, it is hereby declared that “Ordinary Clay” occurring in notification dated

27.12.2010 of the State of Jharkhand is different from “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” for which rate of royalty has not been fixed by the Government of Jharkhand. In the result, the respondentState of Jharkhand is restrained from realising royalty for “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” without amending Second Schedule to the Jharkhand Minor Mineral

Concession Rules, 2004 and without prescribing rate of royalty for the same. 28

14. The writ petitions are allowed in the above terms.

Accordingly, I.A. No.3837 of 2014 (in W.P.(C) No.2117 of 2014),

which has been filed for the stay of deduction from running and

final bills, also stands disposed of.

(Shree Chandrashekhar, J.)

R.K./A.F.R.