Allowed

M/s. Pjsc Stroytransgaz, v. The Assistant Director of Mines and Geology

Telangana HC22 Feb 2013WP/18956/2011

Case brief

AI extract

What is this about?

This common order addressed writ petitions challenging demands for seigniorage fee and dead rent on earth excavated for civil works. The court held that such fees apply only to minerals extracted from leased quarry areas via mining operations, not to incidental excavation during contract execution.

What did the court decide?

Writ petitions allowed; miscellaneous petitions disposed of; no order as to costs.

M/s. Pjsc Stroytransgaz, Vs The Assistant… — Mining and Natural Resources | Telangana HC (2013)

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*THE HONOURABLE SRI JUSTICE L.. NARASIMHA REDDY

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+Writ Petition Nos.3813, 1289, 10125, 10610 of 2012; 18956, 21462, 24010, 24016, 26050 & 28146 of 2011

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%22-02-2013

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#Larsen & Toubro Limited, rep. by its Manager, & others ..Petitioner

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Vs.

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$The Executive Engineer, Public Health Engineering Department, Anantapur and others. ..Respondents.

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!Counsel for the petitioners : Sri E. Manohar, Sr. Counsel Sri D. Prakash Reddy, Sr. Counsel Sri C.R. Sridharan

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^Counsel for the Respondents : Add. Advocate General

< GIST:

> HEAD NOTE:

? Cases referred

1) (1976) 3 SCC 784 2) 1970(2) SCC 467

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THE HON’BLE SRI JUSTICE L.. NARASIMHA REDDY

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Writ Petition Nos.3813, 1289, 10125, 10610 of 2012; 18956, 21462, 24010, 24016, 26050 & 28146 of 2011

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COMMON ORDER:

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In this batch of writ petitions, common question that arises for consideration is, as to whether the seigniorage fee or dead rent is payable on the gravel or soil that emanates in the course of digging of foundations for civil works of different categories.

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The petitioners are contractors or agencies, undertaking civil works of different types, mostly entrusted by the Government. In the course of execution of works, be it, for construction of buildings or laying pipelines, the digging or excavation takes place. After the foundations are constructed, or pipelines are laid, as the case may be, part of the earth that is dug from the trenches is used in filling them. The remaining part, which represents the volume of the foundation, or pipe, laid in the trench, would remain. Most of the time, it is spread by the side of the works. In exceptional cases, it is transported to a place, outside the site of construction. In case of construction of buildings, it may be used at other places in the same site.

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The petitioners have been carrying out works under different contracts. The relevant agreements did not provide for any payment or deduction of seigniorage fee or dead rent on the earth that comes out of the foundations of trenches. The Vigilance Wing of the Mines and

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Geology Department appears to have taken the view that seigniorage fee or dead rent are payable on such quantities also. Acting on the same, the respective Assistant Directors of Mines and Geology issued demand notices, requiring the petitioners to pay the seigniorage fee on the quantities indicated therein. In certain cases, penalties are also levied.

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The petitioners contend that the occasion to levy seigniorage free or dead rent would arise, if only a lease, to quarry minor mineral, is granted by the competent authority, and the concerned mineral is quarried and sought to be taken away from the leased area. They submit that none of them are lessees, nor they have made any attempt to quarry the gravel or earth, much less did they make any attempt to transport the mineral to any place, outside.

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On behalf of the respondents, it is pleaded that the gravel that is excavated in the course of execution of work is a minor mineral and irrespective of the purpose for which it was excavated, seigniorage fee becomes payable as provided for under the A.P. Minor Mineral Concession Rules, 1966 (for short ‘the Rules’).

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The arguments on behalf of the petitioners are advanced by Sri E. Manohar, and Sri D. Prakash Reddy, learned Senior Counsel, and Sri C.R. Sridharan, learned counsel.

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Learned Additional Advocate General appeared on behalf of the respondents.

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None of the petitioners have been granted any leases under the Rules. Their principal activity is to execute civil works. It is too well known that the digging of trenches becomes necessary either to lay foundations in the course of construction of a building or in the process

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of laying pipelines for bulk supply of water. The only ground on which the respondents sought to levy seigniorage fee

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on the petitioners is that in the course of execution of works, considerable quantity of gravel was excavated and only part of it was used in leveling the trenches. The levy is on the estimated differential quantity. For instance, if in a trench of 100 feet length, 5 feet width and 10 feet depth, 500 cubic metres of gravel is taken out, and 600 cubic metres of earth is re-used in filling the trench, after the completion of the civil work, the seiniorage fee sought to be levied upon the remaining quantity of 400 cubic metres.

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In certain cases, the debt rent is also sought to be levied.

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The word “mining” is not precisely defined under any enactment. Section 3(d) of Mines and Minerals (Regulation and Development) Act, defines the expression, “mining operations”, “as any operation undertaken for the purpose of winning any mineral”. Beyond that, what constitutes mining is not mentioned, either under that enactment or under the Mines Act. As held by the Supreme Court

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i n BHAGWAN DASS v. STATE OF U.P. AND OTHERS^[1] , any mineral that exists upon a private or Government land would vest in the State, and mining operation can be only with the specific permission accorded under a lease or licence.

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However, if one takes into account the provisions of the relevant enactments and the Rules made thereunder, it becomes clear that the necessity or obligation to pay the seigniorage fee had arisen, if only the mineral is removed from any particular area. Mere digging of earth for a purpose, not connected with the mining activity cannot result in obligation to pay the seigniorage fee or dead rent.

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Further, the State can impose tax or fee only under a specific legislation made by the competent legislature. Bye-law or subordinate legislation cannot bring about the obligation. In BIMAL CHANDRA BANERJEE V. STATE OF M.P. AND OTHERS^[2] , the Supreme Court held,

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“Para-13: No tax can be imposed by any bye-law or rule or regulation unless the statute under which the subordinate legislation is made specially authorizes the imposition even if it is assumed that the power to tax can be delegated to the executive. The basis of the statutory power conferred by the statute cannot be transgressed by the rule-making authority. A rule-making authority has no plenary power. It has to act within the limits of the power granted to it”.

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In the instant case, the respondents did not indicate any provision under which, the petitioners are made liable to pay the seigniorage fee.

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Two expressions employed in this regard need to be understood: Any person, who is granted lease to quarry any minor mineral is placed under obligation to pay the ‘dead rent’ and/or ‘seigniorage fee’. While ‘dead rent’ is payable on a flat rate, depending on the area, for every year, seigniorage fee is levied on the mineral that is excavated. Even if a lessee did not undertake any activity of mining, after the lease was granted, an agreement is entered into, and he will be under obligation to pay the dead rent, at a specified rate for each hectare of land or part thereof, once in every year. Seigniorage fee however becomes payable only when the mineral is extracted or excavated and it is sought to be taken away from the leased area. This is evident from Rule 10(3)(b) of the Rules:

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“10) Seigniorage fee or dead rent:-

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(1) xxx

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(2) xxx

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(3) When the quarry lease is granted—

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(b) the seigniorage fee shall be paid before the mineral is removed from the leased area”

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Strict construction of the Rule would lead to a conclusion that the seigniorage fee can be levied only when a quarry lease is granted and mineral is extracted from it. In other words seigniorage fee cannot be levied, in case the mineral is extracted from an area, which is not leased or the person is not a lessee. This would lead to an absurd situation, wherein a lessee becomes liable to pay the fee, but not the one, who undertakes such activity, without valid lease.

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In case the petitioners have undertaken any activity of mining and used or sold the mineral recovered in the process, they would be under obligation to pay not only the seigniorage fee, but also the penalty thereon.

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The activity of mining has its own specific attributes. Its principal objective is to extract mineral and utilize it for commercial purposes. Since the Government holds the sovereign rights over the minerals, that are impregnate in the earth, it is only on being permitted by it, that the activity of mining can take place.

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It is not even alleged that any of the petitioners have taken up mining as their principal activity. It is in the course of their civil works, that the trenches are dug. This naturally lead to the accumulation of the resultant gravel or earth by the side of the trench. Since the digging of the trench is for the purpose of civil work, it cannot be treated as mining activity at all. Added to that, the digging was not undertaken with an objective of recovering gravel or any other specified material. On the other hand, the gravel or earth came to be removed in the course of

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digging the trench. Even if stone comes in the trench, that has to be blasted or cut. On that account, the concerned individual or the agency cannot be said to have undertaken mining activity.

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Another way of looking at the issue is, as to whether the petitioners have supplied or sold the mineral or earth recovered in the process of digging the foundations. If they sold the soil or gravel, which they excavated, without obtaining lease or used it for a different work, the respondents shall be entitled to levy seigniorage fee. That is not even the allegation. A totally higher-technical approach is adopted. Mathematical calculation of what would have been the earth executed in the course of digging the trench, what would be the quantity of earth that is needed to level the trench, after the completion of the work, and what would remain thereafter, is done and on the last of the quantities,

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the seigniorage fee is sought to be levied. The whole approach of the respondents is untenable.

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The writ petitions are accordingly allowed. The miscellaneous petitions filed in the writ petitions shall also stand disposed of. There shall be no order as to costs.

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_______________________ L. NARASIMHA REDDY, J

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Dt.22-02-2013

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Note: LR copy to be marked. (B/O) KO

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[1] (1976) 3 SCC 784

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[2] 1970(2) SCC 467

M/s. Pjsc Stroytransgaz, v. The Assistant Director of Mines and Geology

Case brief

What is this about?

What did the court decide?

M/s. Pjsc Stroytransgaz, v. The Assistant Director of Mines and Geology

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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