Assam P.W.D Contractors Assocation Vs the State of Assam and 17 Ors.

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GAHC010121092016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/6758/2016

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ASSAM P.W.D CONTRACTORS ASSOCATION

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C/O. OFFICE OF THE CHIEF ENGINEER, P.W.D. COMPLEX, CHANDMARI, GHY.-781003, DIST. KAMRUP M, ASSAM REP. BY ITS GENERAL SECRETARY SRI UTPAL MEDHI.

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VERSUS

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THE STATE OF ASSAM AND 17 ORS REP. BY THE COMM. and SECY., PWD ROADS DEPTT., GHY.

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Advocate for the Petitioner : MS.S KAKATI

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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O R D E R

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09.09.2022

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Heard Mr. J Roy, learned senior counsel for the petitioner, Ms. S Sarma, learned Additional senior Government Advocate for the respondents No. 1, 2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 being the authorities in the PWRD, Assam, Mr. KP Pathak, learned counsel for the respondents No. 3 and 18 being

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the authorities in the Environment and Forest Department and Ms. M Barman, learned Junior Government Advocate for the respondents No. 4, 5 and 6 being the authorities in the Mines and Mineral Department of the Government of Assam.

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The petitioner is an association bearing the name Assam PWD Contractors Association registered under the Societies Registration Act, 1860 and their registration is valid up to 29.02.2019. The petitioner is aggrieved by the Annexure-7 undated communication No. PEM.83/2009/ Pt/VII-A from the Joint Secretary to the Government of Assam in the Mines and Mineral Department addressed to all the Divisional Forest Officers. By the said communication, the Divisional Forest Officers were directed to take immediate steps for enforcement of the Gazette Notification dated 23.06.2015. The Gazette notification of 23.06.2015 is the notification dated 17.06.2015 by which the Assam Mines and Mineral Concession (Amendment) Rules, 2015 (Rules of 2015) was notified. The first schedule of the said Rules provides the rates of royalty to be paid in respect of the Mineral that may be obtained or extracted. The further relief sought for is that the schedule of rates of royalty provided in the amended Rules of 2015 be not made applicable in respect of such running and pending bills of the contractors under the petitioner association for the works which were started or completed or in progress prior to coming into force of the Rules of 2015. In other words, the grievance raised in this writ petition is to be understood that in respect of all such contract works that the petitioner association is having with the respondent PWD, for which any minerals that may be utilized, the rates of royalty to be made applicable would not be the revised rates of royalty as provided in the amended Rules of 2015, but the earlier rates that prevailed ought to be made applicable.

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To substantiate the claim, the petitioner association contends that the respective contractors have their agreements with the respondent PWD for various works and such agreements are all dated prior to the coming into effect of the amended Rules of 2015 i.e. 23.06.2015. To substantiate the contention, Mr. J Roy, learned senior counsel for the petitioner relies upon certain earlier pronouncements of this Court, wherein it was held that the deduction at source in respect of the royalty to be paid for the minerals utilized for the contract works be done as per the terms of the agreement between the contractors and the PWD and the deduction at source be not done as per the revised rates of royalty provided by the amended Rules of 2015. By referring to the aforesaid judgment, which was rendered in the judgment and order dated 30.03.2017 in WP(C) No. 862/2017 and other writ petitions, it is the contention of the learned senior counsel that in the instant case also all the contractors of the petitioner association have their respective agreements with the respondent PWD and therefore, the rates that prevailed when the respective contract agreements were entered ought to govern the field and not the revised rates as per the amended Rules of 2015.

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We are in disagreement with the aforesaid contention of the learned senior counsel for the reason that the other pronouncement was rendered on the premises on a question as to what ought to be the rate of royalty on minerals to be deducted at source when the bills of the contractors were paid by the PWD. The proposition laid down in the said judgment did not provide that for all other purposes the contractors would have to pay only the rates of royalty as it stood on the date of respective agreement and not the revised rates. All that the said judgment provided is clarified to mean that only for the purpose of the amount to be deducted at source, the provisions in the respective agreements would

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hold the field which does not mean that the contractors are exempted from paying the revised rate of royalty as per the amended Rules of 2015, even in respect of such minerals that may be extracted or obtained by the contractors after the effective date of 23.06.2015 when the amended Rules providing for the revised rates came into effect.

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The aforesaid clarification in our view would be sufficient to answer the issue raised by the writ petitioner in the present writ petition. Otherwise also factually we are in disagreement with the submission of the learned senior counsel for the petitioner that as because there is a contract between the contractors and the respondents in the PWD, therefore, the rates on minerals that the contractors are required to pay would be governed by the terms of the contract and not as per the statutory Rules which governs the field. The rates on the minerals to be paid not only is governed by the statutory law i.e. the amended Rules of 2015, but it is a privity between the Mines and Mineral Department and the Contractors or any person who may seek to obtain such minerals from the Department and therefore, the rates would be governed as per the prevailing law. Merely because the contractors of the petitioner association have a contract with another Department i.e. the PWD, the terms of such agreement cannot govern the rates of royalty that may be applicable in respect of a transaction between the Assam Mines and Mineral Department and the contractors of the petitioner association or any other person.

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From such point of view also, we are unable to accept the relief sought for in this writ petition. Accordingly, we clarify and provide that in respect of the rates of royalty on minerals that the contractors of the petitioner association would require to pay would now be governed on the factual aspect as to whether such minerals were obtained or extracted by the petitioner contractors

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prior to 23.06.2015 or thereafter. If the minerals were obtained or extracted after the revised rates came into effect, the revised rates would prevail and on the other hand, if the minerals were obtained or extracted prior to 23.06.2015, the rates applicable shall be governed by the earlier rates that were in force.

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Mr. J Roy, learned senior counsel for the petitioner also assailed the component of monopoly charges by referring to one such bill available at page 200 of the writ petition and submits that there is no legal basis to impose a monopoly rate in respect of bills by the contractors of the petitioner association.

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To understand the issue raised, we requested Ms. S Sarma, learned counsel for the PWD to inform the Court as to what is the concept of monopoly charges being imposed. The reply upon instruction from the PWD given is that whenever any forest products or any minerals which is also a forest product is utilized by the contractors without being accompanied by an invoice, the authorities under the Rules are required to impose a monopoly charge which may vary from case to case.

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We are not expressing any view on the legality and acceptability of such stand, but at the same time as a question is raised as to from where the monopoly charge is being imposed, the aforesaid submission of the learned counsel for the PWD would be an answer to such question raised.

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The writ petition is closed with the aforesaid clarifications.

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JUDGE

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Comparing Assistant

Assam P.W.D Contractors Assocation v. the State of Assam and 17 Ors.

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Assam P.W.D Contractors Assocation v. the State of Assam and 17 Ors.

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