DEV GANGA ENTERPRISES Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by the plaintiff - Appellant M/s Dev Ganga Enterprises against the State of Rajasthan and the Mining Department, Udaipur and Rajsamand being aggrieved by rejection of its Civil Suit No. 40/2005 filed for mandatory injunction against the defendant - Mining Department by the judgment and order dated 29. 3. 2006 of learned Additional Dist. Judge (Fast Track) No. 2, Udaipur.

(2.) THAT the plaintiff - appellant was granted contract for collection of excess royalty by the Superintending Mining Engineer, Udaipur on 18. 7. 2003 Ex. 1 on record for the period of 2 years upto 31. 3. 2005 for a sum of Rs. 36,52,00,000/- (Thirty Six Crores Fifty Two Lacs ). The relevant preamble clauses of the said contract Ex. 1 are reproduced hereunder for ready reference: &nbsp&nbsp&nbsp&nbsp&nbsp" Whereas the contractor has offered a bid for the grant of excess royalty collection contract for Mable (mineral) excavated and removed from the Mining leases situated within Revenue boundary of Tehsil Rajsamand, Kumbhalgarh, Amet and Railmagra of Dist. Rajsamand. And whereas the said bid has been accepted by the State Government and the contractor had paid Rs. 3,05,00000/- for first installment of the contract and has undertaken to pay the remaining amount of Rs. 33,47,00,000/- in monthly installments, payable in advance upto tenth day of the month to the State Government with the condition that the working Mining Lease holder shall enjoy the right of mining on payment of royalty to the contractor at the rate specified in the first schedule to the Rajasthan Minor Mineral Concession Rules ,1986. And whereas the contractor has further undertaken to pay increased amount of contract money, security and guarantee in proportion to the enhancement in the rate of royalty due to amendment in the first Schedule to the Rajasthan Minor Mineral Concession Rules, 1986 for the remaining period of the contract from the date of such enhancement along with the monthly installment payable as above. " Clauses 6 and 11 of the contract relevant for the present controversy involved in the present appeal are also reproduced hereunder: &nbsp&nbsp&nbsp&nbsp&nbsp" (6) The contractor shall abide by the orders and instructions issued by the Government or any officer of the Department in accordance with the provisions of the Rajasthan Minor Mineral Concession Rules, 1986 regarding royalty collection not herein specified. (11) The contract shall pay the installment of contract money according to the stipulations laid down in the contract, and if any amount is not paid on due date, it shall be collected as a arrears of land revenue and an interest @12% will be charged irrespective of any other action being taken for cancellation of contract or imposition of penalty under relevant rules. Clause (1) of Other conditions of Notice Inviting Tender and clause 28. 1 of the conditions of tender are also reproduced hereunder for ready reference: ******** The case of the plaintiff - appellant is that he successfully completed the term of the said contract even for the period of three months for which contract was extended upto 30. 6. 2005 on which date, the respondents issued no dues certificate in favour of the appellant. However, when the respondent - Department demanded interest of Rs. 18,46,899/- from the appellant - plaintiff on account of alleged delay in payment of monthly installments under the said contract, the plaintiff filed the aforesaid suit challenging the said levy of interest, which however, came to be rejected by the learned trial Court as aforesaid.

(3.) THIS Court is of the considered opinion that the stand of the respondent - Department that Rule 61 would not apply to the contract in question is incorrect and cannot be sustained. The said contract is admittedly executed under Rule 37 (2) of the MMCR, 1986 itself in model form No. 10 appended to these Rules of 1986. The contract for collection of excess royalty is nothing but part of royalty over and above dead rent which is minimum guaranteed amount of royalty irrespective of actual quantity of mining done by the lessee is nothing but a "royalty" and it is not a third concept other than "dead rent" or "royalty". The use of term defined in Rule 3 (xiii-a) separately as "excess Royalty Collection" does not make "excess Royalty Collection" as a different concept and since contract in question is granted only for excess royalty over dead rent in terms of Rule 37, the absence of words "excess royalty" in Rule 61 does not make it inapplicable ipso facto. THIS Court finds no substance in this argument of the respondent - Department that Rule 61 does not apply. The mere fact that upon amendment in rule 61, they have demanded additional interest in pursuance of increase in the rate of interest under Rule 61 estops them from raising contention that Rule 61 would not apply to the contract in question. THIS Court as a matter of fact finds no repugnancy in the contract executed in model form No. 10 under Rule 37 of the MMCR, 1986 and other provisions of MMCR including the Rule 61. Therefore, the said Rules can be read as supplemental to the terms of the contract executed between the parties for deciding the controversy as to whether the interest can be levied by the respondent - Department for alleged delay in payment of monthly installments. It cannot be lost sight of that such monthly installments of total amount of the contract fixed upon auction is payable in advance upto 10th day of month to the State Government as per the quoted portion of the contract aforesaid. Thus, the period of 10 days given for the payment of such monthly installments in advance cannot be said to be grace period for payment of such monthly installments. As a matter of fact, if such monthly installment is not paid within 10 days, on 11th day only, it would fall due and whether further grace period of 15 days as given in Rule 61 would be available to the appellant or not or in other words, whether meter for charging interest as per Clause 11 of the Contract or Rule 61 of the MMCR, 1986 would commence from 11th day or after providing further grace period of 15 days after lapse of 10 days, is the relevant question.