Allowed

Ms Royal Mittal a Joint Ventrue Through Its Legal Manager Sudip Bhowmick v. East Central Railway Through Its Chief Engineer And Ors.

Jharkhand HC19 Jul 2018WPC/6131/2017

Case brief

AI extract

What is this about?

This Court allowed a writ petition filed by a joint venture contractor seeking refund of excess royalty deducted from running account bills. Relying on a Division Bench judgment declared in rem regarding royalty rates for ordinary earth, the Court held the objection that the petitioner did not file the original writ was misconceived. The petitioner is granted liberty to represent before respondent

What did the court decide?

Petitioner granted liberty to approach Respondent No. 2 for refund; Respondents directed to pass order for refund of Rs. 39,69,345/- within ten weeks.

Ms Royal Mittal a Joint Ventrue Through… — Contract and Commercial Disputes | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No. 6131 of 2017

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M/S Royal - Mittal a Joint Venture, Kolkata, through its Legal Manager, Sudip Bhowmick ….. Petitioner

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Versus

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East Central Railway, under the Ministry of Railway, Government of India, Patna (Bihar), through its Chief Engineer

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The Deputy Chief Engineer, East Central Railways, Dhanbad

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The State of Jharkhand, through the Secretary, Mines, Government of Jharkhand, Ranchi ….. Respondents

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----For the Petitioner: Mr. Vikas Pandey, Advocate For the Railways: Mr. Sudhir Kumar, Advocate

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06/19.07.2018 The present writ petition has been filed by the petitioner, which is a Joint Venture of M/S Royal Infraconstru Ltd. and M/S Mittal Brothers Engineers and Contractors, for issuance of direction upon the respondent-East Central Railway to forthwith refund an amount of Rs.39,69,345/- deducted from the running account bills of the petitioner as royalty for ‘Construction of sub structure and superstructure of 8 Nos. Major Bridges in connection with construction of new BG line between Koderma to Giridih’, in terms with the judgment dated 28.06.2016 passed by the learned Division Bench of this Court in L.P.A. No. 705/2015 and other analogous cases.

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The factual background of the case, as stated in the writ petition, is that the petitioner, which is a Joint Venture, executed the aforesaid work in terms with the agreement and the work order issued to the petitioner by the respondent-East Central Railway. In course of execution of the said work, the deductions were made from the running account bills of the petitioner as royalty for removal of the ordinary earth. One of the partners of the Joint Venture i.e. M/S Royal Infraconstru Ltd. preferred a writ petition being W.P.(C) No. 4569/2013 challenging the said deductions made by the respondent-East Central Railway. The said writ petition along with batch of the writ petitions led by W.P.(C) No. 4737/2014 were disposed of vide judgment dated 25.03.2015 passed by the learned Single Judge of this Court holding inter alia, that the

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“Ordinary Clay” mentioned in notification dated 27.12.2010 of the State of Jharkhand is different from “ordinary earth used for filling or levelling purposes in construction of embankment, roads, railways, building” for which rate of royalty has not been fixed by the Government of Jharkhand. In result, the respondent-State of Jharkhand was restrained from realising royalty for “ordinary earth used for filling or levelling 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. The petitioner thus submitted its refund claim of Rs.60,45,032/- on account of royalty in light of the judgment passed in W.P.(C) No. 4737/2014 and other analogous cases including W.P.(C) No. 4569/2013 preferred by M/S Royal Infraconstru Ltd. In the meantime, the State of Jharkhand preferred several Letters Patent Appeals and M/S Royal Infraconstru Ltd. was made the party-respondent in L.P.A No. 183/2016. The learned Division Bench set aside the order of the learned Single Judge and allowed the said batch of Letters Patent Appeals vide the judgment dated 28.06.2016 holding, inter alia that “ordinary earth used for filling or levelling purposes in construction of embankment, roads, railways, building” is covered by Entry No. 19 to the notification dated 27.12.2010 issued by the State of Jharkhand in exercise of the powers under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957. It was further held that the rate of royalty prescribed is 10% of sale price on ad valorem basis. Even if there is no specific rate of royalty prescribed for the “ordinary earth used for filling or levelling purposes in construction of embankment, roads, railways, building”, the same has already been prescribed as minor mineral by the Central Government in its notification issued under Section 3(e) of the Act, 1957 and hence the same is covered by Entry No. 19 of the notification dated 27.12.2010 issued by the State of Jharkhand and therefore the respondent-contractors are liable to make payment of the royalty as per Entry No. 19 of the notification dated 27.12.2010 issued under Section 15 of the Act, 1957. In pursuance of the judgment

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rendered by the learned Division Bench of this Court in L.P.A No. 705/2015 and other analogous cases, the petitioner’s claim for refund reduces to Rs.39,69,345/- and accordingly the petitioner has substituted its earlier claim for refund by making the refund claim of Rs.39,69,345/-.

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Learned counsel for the petitioner further submits that the only objection raised by the respondent-East Central Railway against the petitioner’s claim for refund is that the petitioner, which is a Joint Venture, did not prefer any writ petition before this Court, rather one of its partners i.e. M/S Royal Infraconstru Ltd. preferred the writ petition which was also made the party-respondent in L.P.A. No. 183/2016. On this ground, the petitioner’s claim for refund has not been entertained.

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A counter affidavit on behalf of the respondent-East Central Railway has been filed on 05.04.2018. However, by way of a supplementary counter affidavit filed on behalf of the respondent-East Central Railway on 13.07.2018, Para (X) of the counter affidavit filed on 05.04.2018 has been sought to be deleted. If the said Para (X) of the counter affidavit filed on 05.04.2018 is ignored, the only surviving objection of the respondent-East Central Railway is that since the petitioner (JV) did not prefer any writ petition before this Court, rather one of its partners i.e. M/S Royal Infraconstru Ltd. had preferred the writ petition before this Court, the claim of refund made by the petitioner (JV) cannot be entertained.

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Heard learned counsel for the parties and perused the relevant documents available on record. The learned Division Bench of this Court vide the judgment dated 28.06.2016 passed in L.P.A No. 183/2016 and other analogous cases has held that the royalty prescribed for “ordinary earth used for filling or levelling purposes in construction of embankment, roads, railways, building” would be covered by Entry No. 19 to the notification dated 27.12.2010 issued by the State of Jharkhand and the same is the law to be applied to all the similarly situated contractors irrespective of the fact as to whether they preferred any writ petition or were the party-respondent in the Letters Patent

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Appeals or not. Thus, in my considered opinion, the said objection raised by the respondent-East Central Railway is misconceived.

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The Hon’ble Supreme Court in the case of State of Uttar Pradesh & Ors. Vs. Arvind Kumar Srivastava & Ors. reported in (2015) 1 SCC 347 had the occasion to deal with such aspect wherein it has been held as under:-

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“22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.”

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On perusal of the aforesaid judicial pronouncement, it is evident that if a judgment rendered by the Court is a judgment in rem with intention to extend the benefit to all the similarly situated persons irrespective of the fact whether they approached the Court or not, the said law laid down by the Court would apply to the said persons also. Undoubtedly, the judgment dated 28.06.2016 passed by the learned Division Bench of this Court in L.P.A. No. 705/2015 and other analogous cases is a judgement in rem to be applied in all similarly situated cases.

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Considering the aforesaid facts and circumstances, the petitioner is given liberty to represent before the respondent No.2-the Deputy Chief Engineer, East Central Railways, Dhanbad for refund of Rs.39,69,345/-, who in turn shall forthwith represent the respondent No.3-the Secretary, Mines, Government of

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Jharkhand, Ranchi for refund of the excess amount deposited by it with the State Government after realising the same from the petitioner on account of royalty. The respondent No.3 is further directed to take up the said representation and pass appropriate order for refund after calling for the relevant records within a period of ten weeks from the date of filing of the said representation before him. If the said amount is found refundable, the follow up action for refund shall be taken by the respondent Nos. 2 & 3 for payment of the said amount to the petitioner.

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It is made clear that this Court has not made any factual determination of the aforesaid claim of the petitioner which shall be done by the respondent No.3 on the basis of the relevant records keeping in view the law laid down by the learned Division Bench of this Court in L.P.A No. 705/2015 and other analogues cases.

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The present writ petition is accordingly disposed of with aforesaid observations and directions.

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(RAJESH SHANKAR, J)

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High Court of Jharkhand, Ranchi Dated 19.07.2018 Satish/A.F.R

Ms Royal Mittal a Joint Ventrue Through Its Legal Manager Sudip Bhowmick v. East Central Railway Through Its Chief Engineer And Ors.

Case brief

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What did the court decide?

Ms Royal Mittal a Joint Ventrue Through Its Legal Manager Sudip Bhowmick v. East Central Railway Through Its Chief Engineer And Ors.

Case brief

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