R.K. Agarwal, J. - (1.) In this batch of writ petitions, all the petitioners have questioned the jurisdiction and competence of the State of U.P. to levy/demand royalty on ordinary earth and other minor minerals which they supply to the Government Departments and other undertakings pursuant to the contract entered between the parties. We are treating Civil Misc. Writ Petition No. 47754 of 2005 as the leading writ petition and, therefore, are giving its facts for proper appreciation of the issues involved in these writ petitions. Facts of the case :
(2.) The petitioner in the writ petition, M/s J.K. Constructions Engineers and Contractor, Hyderabad, is a partnership firm and is engaged in various works awarded by the Ministry of Railways for construction of broad gauge lines, earth work and embankment. According to the petitioner, while constructing the broad gauge railway lines, it made embankment, platform after doing earth work maintaining level according to the specification of the Engineers of the Railways. The ordinary earth is used for leveling, embankment and also for making heap of earth to cover the shortfall in the surface level of the earth. The petitioner claims that it is neither the lessees under the U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as "the Concession Rules") nor carrying out any mining operation under the Concession Rules. The petitioner is not even a permit holder nor prospective licensees as defined under the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as "the 1957 Act"). According to the petitioner, it has been awarded a contract on 23.9.2004 by the North Central Railway for earth work and embankment and cutting including the side drains and ancillary work between Ch.00.00 to 32675 including Lalitpur yard in Lalitpur-Udaipura section in connection with Lalitpur-Khajuraho-Singrauli new broad gauge line. The contract value for the work is Rs. 9,29,97,332/-. Pursuant to the aforesaid contract, the petitioner is carrying out the earth work. The respondent Nos. 3 and 4 are demanding royalty @ Rs. 4/- per cubic meter under Item No. 10 of the First Schedule of the Concession Rules, as amended by the U.P. Minor Minerals (Concession) (24th Amendment) Rules, 2001 (hereinafter referred to as "the Amendment Rules"). The Government of India, Department of Mines, vide notification dated 3.2.2000, had declared the ordinary earth used for filling or leveling purposes in the construction of embankment, road, railways, building to be a minor mineral in addition to the minerals already declared as minor mineral hereinbefore under Clause (e) of Section 3 of the 1957 Act. In exercise of powers under Section 15 of the 1957 Act, the State of U.P, has amended the First Schedule of the Concession Rules by the Amendment Rules and had fixed royalty payable on ordinary earth at the rate of Rs. 4/- per cubic meter. The Government of Uttar Pradesh, vide order dated 30.1.2001, had directed all the District Magistrates and the Divisional Commissioners to ensure that ordinary earth which is being supplied to the Government Departments/public undertakings for being used in the construction work, is excavated/transported only after issuance of the necessary permits and payment of royalty. In order to effectuate the amendment made in the Concession Rules by the Amendment Rules and to check evasion of payment of royalty, the Government of Uttar Pradesh has issued an order on 2.2.2001 and 5.8.2002 wherein it has directed all the Principal Secretaries/Secretaries of the Government of Uttar Pradesh to ensure that the minor minerals, like ordinary earth, sand, morrum, ordinary clay, stone, etc which is being supplied by the contractors and are used in construction work, are transported only after payment of due royalty and accompanied by a valid form MM 11. The payment of royalty should be ensured by asking the supplier to produce the certified copy of the treasury challan evidencing payment of royalty and in cases where the royalty has not been paid on such goods, the requisite amount of royalty be deducted from the payment of the bills to the suppliers and deposited in the relevant government account.
(3.) The validity of the notification dated 3.2.2000 issued by the Government of India by which ordinary earth has been included in the definition of 'minor minerals' in Clause (e) of Section 3 of the 1957 Act as also the Government Orders dated 2.2.2001 and 5.8.2002 are under challenge.;