UDAIPUR CONTRACTORS ASSOCIATION Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS group of Special Appeals is directed against the judgment of the learned Single Judge dismissing the challenge to the Government Notifications dated 22. 9. 94 and 8. 11. 1996 issued by the Department of Mines, Government of Rajasthan, directing all the departments like Public Works, Irrigation, Public Health Engineering and other Central Government Departments/organisations etc. to deduct 2% of the contract amount from the running bills of the contractors by way of royalty on provisional basis of assumed exploitation of minerals, if any, on the ground of it being a contractual matter, which cannot be decided in writ jurisdiction in view of the judgment of the Apex Court reported in AIR 1989 S. C. 1076 and AIR 1996 SC 3515. The appellants-writ petitioners have been relegated to the remedy of civil suit.

(2.) THE appellant-writ petitioners are the contractors carrying out the constructions awarded to them by different departments from time to time. THEir say is that they are not indulged in the excavation of any mineral in any area nor they are the holders of quarry licence nor any sort of mining lease is possessed by them temporarily or permanently or casually under the provisions of Rajasthan Minor Mineral Concession Rules, hereinater referred-to as "the MMCR", for excavation of minerals. It is also averred that none of the appellant-writ petitioners are liable for assessment under Rule 38 of the MMCR and none of them is submitting or is required to submit annual monthly return for assessment of royalty in Form No. 11 or monthly statutory return in Form No. 11a. It is also submitted that for the purpose of execution of works contract, building stones, grit and bajri are being purchased by them from the open market and while purchasing these materials, they also obtain invoices and revenue receipts from those lease holders/dealers. It is further submitted that building stones, ballast/grits and bajri, which is used for construction by the contractors, are being purchased from the mining areas and those areas are surrounded by royalty check posts established by the Mining Departments of the Government of Rajasthan and without paying royalty either by the dealer or concerned truck owner or any consumer, no such minerals are being allowed to pass through those royalty check posts. It is also submitted that these royalty check posts have bene given on contract to various contractors for recovery of royalty by the State Government. It is, thus, submitted that without paying royalty, no mineral can pass through the said check posts established by the Mining Departments. It is also submitted that these minerals are directly supplied by the lease holders after paying the royalty. Thus, according to the petitioners, they are nowhere concerned with the excavation of minerals or sale of minerals.

(3.) ON the other hand, it is submitted by Mr. Jangid learned Additional Advocate General, that the contract between the writ petitioner-contractors and the concerned departments is a private contract and not a statutory contract. As per the contract, royalty on minerals is payable by the contractors.