- (1.) By Court Heard counsel for the parties.
(2.) The facts of CWJC No.3495/2000R are being taken into consideration as the question of law involved in both the cases are same.
(3.) Petitioner's contention is that it is a company registered under the provisions of Indian Companies Act, 1956 and is engaged in developing lands and construction of multi-storeyed buildings, for which the company has to use building sand, grabble, bricks, stones and chips. These are admittedly the goods covered under the provisions of the then Bihar Minor Minerals Concession Rules, 1972 and these goods are subject to payment of royalty etc. However, since the petitioner is a private developer and contractor of multi-storeyed buildings and he is not covered under the definition of "Works Contractor" as defined in Explanation (ii) to sub-rule 10 of Rule 40 and is not dealing with the Department of Central or State Government or Company, Corporation, Undertakings, Autonomous body of the Government, who engages works contractors for any kind of construction on their behalf, and further the petitioner is neither a lessee, nor a licensee under the above Rules of 1972, therefore, it could not have been asked to pay royalty by invoking sub-rule 10 of Rule 40 of Rules 1972. It is submitted that the petitioner's business activities are not in dispute. It is also submitted that validity of sub-rule 10 of Rule 40 of Rules 1972 was challenged by the works contractors before the Ranchi Bench of Patna High Court in the case of M/s. Madhusudan Choudhary Vs. State of Bihar & Ors., 1996 1 PLJR 723 and it has been held in the said judgment of the Division Bench of Ranchi Bench of Patna High Court that sub-rule 10 of Rule 40 of the Bihar Minor Mineral Concession Rules, 1972 is intra-vires. However, petitioner is not the works contractor but is a private builder and therefore, no royalty can be claimed from the writ petitioner. This position has been made clear in the judgment of Single Bench of this Court in the case of M/s. Awash Vs. State of Bihar & Ors., 2002 1 JCR 217, wherein it has been held that Mining Officer cannot demand royalty in respect of minor minerals used by contractors doing construction work of persons other than Central or State Governments or Corporation. The judgment of M/s. Awash was under consideration before the Division Bench of this Court (M/s. Awash Vs. State of Jharkhand & Ors., 2004 1 JCR 192). According to the learned counsel for petitioner, the Division Bench in paragraph 7 of the above judgment held that Rule 40(10) of Rules 1972 applies to the works contractors and not to "other than the works contractors". In view of the above reasons, according to the learned counsel for the petitioner, the observation made by the learned Single Judge in the judgment of M/s. Awash in paragraph 16 stands overruled and therefore, respondents cannot demand the relevant documents of challans etc. from the private contractors to find out whether minor minerals carried or used by the private contractors are royalty paid materials or not. Learned counsel for the petitioner further relied upon the Division Bench judgment of Patna High Court delivered in the case of P.B.Enterprises Vs. State of Bihar & Ors., 1992 2 BLJR 1270, wherein on the basis of executive instruction, some presumption has been sought to be drawn of violation of Rule 40(1) of the Rules 1972 and this Court held that on the basis of such executive instruction, no presumption of illegal mining or removing mineral can be drawn.;