# M/s Om Contractors v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 61
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-15
- **Case number:** Civil Misc. Writ Petition No. 56218 of 2007
- **Bench:** V.M. Sahai, R.N. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-om-contractors-v-state-of-u-p-and-others-40987
- **Pages:** 4

## Headnote

Minor and Mineral Rule (Concession)
Rules
1963-Payment
of
Royaltypetitioner
purchased
stone
bolder
through agent from different leaseholder
demand of Royalty-held-illegal subject
to satisfaction of the authority on
production of receipts.

Held: Para 5

There is no provision in the aforesaid Act
and Rules regarding payment of royalty
by the purchaser of stones from the
lease holder of mines. This is for the
lease holder to pay royalty to the
Government. Nowhere, it has come that
62 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
any lease was granted in favour of the
petitioner. The purchaser of products of
mines is not obliged to pay royalty. The
respondent
no.3
is
duty
bound
to
scrutinize the receipt and Rawannas, if
submitted by the petitioner and to
release his payment. If there was any
lacuna in the bills, the petitioner should
have been asked to remove it.

## Text

1 All] M/s Om Contractors V. State of U.P. and others
61
departmental proceedings initiated against
the petitioner are non est.

12. At this stage, we may also refer
to the judgement relied upon by the
Standing Counsel in the case of State of
U.P. Vs. Harihar Bhole Nath (2007) 1
UPLBEC 56 which according to the facts
involved herein is clearly distinguishable
for the following reasons:

13. In the aforesaid case, as noticed
by Hon'ble Supreme Court in paragraph
12 of the judgement, the employee had
been placed under suspension, before he
attained the age of superannuation.
Departmental proceedings were not only
initiated against the petitioner, an Enquiry
Officer was also appointed, subsequently
the order of suspension was stayed under
a judicial order.

14. The Hon'ble Supreme Court,
therefore, proceeded to hold that the legal
fiction created with regard to the point of
time when the enquiry proceedings would
be deemed to have been commenced, was
not affected.

15. The Hon'ble Supreme Court
proceeded to hold that under the facts and
circumstances of the case, the proceedings
stand initiated and other permission of the
Governor is not required to be obtained
for continuation of such proceedings.
Therefore, in paragraph 14 of the said
judgement the Hon'ble Supreme Court
proceeded to clarify as follows:-

"Proviso appended to Regulation
351-A
merely
controls
the
main
proceedings. The same would apply in the
exigencies of the situation envisaged
therein, namely, even the proceedings
were initiated after retirement and nor
prior thereto."

16. The writ petition is allowed. The
order dated 22nd November, 2005 as also
disciplinary proceedings initiated against
the
petitioner
are
hereby
quashed.
Respondents are directed to ensure the
payment of all retiral benefits including
the arrears thereof strictly in accordance
with the law at the earliest possible.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2007

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISRA, J.

Civil Misc. Writ Petition No. 56218 of 2007

M/s Om Contractors

...Petitioner
Versus.
State of U.P and others ...Respondents

Counsel for the Petitioner:
Sri I.P. Singh

Counsel for the Respondents:
Smt. Sarita Singh
S.C.

Minor and Mineral Rule (Concession)
Rules
1963-Payment
of
Royaltypetitioner
purchased
stone
bolder
through agent from different leaseholder
demand of Royalty-held-illegal subject
to satisfaction of the authority on
production of receipts.

Held: Para 5

There is no provision in the aforesaid Act
and Rules regarding payment of royalty
by the purchaser of stones from the
lease holder of mines. This is for the
lease holder to pay royalty to the
Government. Nowhere, it has come that
62 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
any lease was granted in favour of the
petitioner. The purchaser of products of
mines is not obliged to pay royalty. The
respondent
no.3
is
duty
bound
to
scrutinize the receipt and Rawannas, if
submitted by the petitioner and to
release his payment. If there was any
lacuna in the bills, the petitioner should
have been asked to remove it.

(Delivered by Hon'ble V.M. Sahai, J.)

1. By way of this writ petition the
petitioner has prayed for a writ, order or
direction in the nature of certiorari
quashing the impugned order dated
4.10.2007, passed by respondent no.3
which is filed as Annexure-3 to the writ
petition, by which the respondents have
demanded royalty from the petitioner on
the supply of Stones and similar relief in
the nature of mandamus directing the
respondents not to with-hold payment of
the petitioner in pursuance of the said
letter.

2. We have heard Sri I.P. Singh,
learned counsel for the petitioner and
Smt. Sarita Singh, learned Standing
Counsel appearing for respondents.

3. From the contents of the writ
petition, it appears that the petitioner is a
registered
Contractor
in
District
Bulandshahr. The Executive Engineer
(Flood Division), Irrigation Department
invited tenders for supply of the stone
bolders
for
the
construction
of
"
Chandanpur Husainpur Tatbandh". The
tender of the petitioner was accepted and
in pursuance of the order he supplied
stone
bolders
to
the
Irrigation
Department. He purchased stone bolders
through agents and paid the price. This
fact is not disputed that the petitioner
being registered contractor was given
work order by the respondent no.3 and he
supplied the materials. By the impugned
order/letter dated 4.10.2007, the Project
Manager
U.P.
Projects
Corporations
Limited, Bareilly has demanded the
royalty at the rate of Rs. 30 per cubic
meter on the supply of the stone bolders
from the petitioner. The petitioner has
urged that he has purchased the stone
bolders from the mining lessee through
their agents and have paid the price and
had got the receipts. He is not liable to
pay royalty because the royalty is to be
paid by the license holder of the mines.

A very substantial question of law
has been raised by the petitioner in this
writ petition regarding liability to pay
royalty on the stones taken out from the
mines. Section 9 of Mines and Mineral
(Regulation and Development) Act 1957
lays down provisions for payment of
royalty. For ready reference, section 9 is
quoted below:

Section 9: Royalties in respect of
mining lease-(l) The holder of a mining
lease granted before the commencement
of
this
Act
shall,
notwithstanding
anything contained in the instrument of
lease or in any law in force at such
commencement, pay royalty in respect of
(any mineral removed by or consumed by
him or by his agent, manager, employee,
contractor or sub-lease ) from the leased
area after such commencement, at the rate
for the time being specified in the Second
Schedule in respect of that mineral.
(2) The holder of a mining lease
granted on or after commencement of this
Act shall pay royalty in respect of (any
mineral removed by or consumed by him
or by his agent, manager, employee,
contractor or sub-lessee) from the leased
area t the rate for the time being specified
1 All] M/s Om Contractors V. State of U.P. and others
63
in the second schedule in respect of that
mineral.
(2A) The holder of a mining lease,
whether granted before or after the
commencement
of
the
Mines
and
Minerals (Regulations and Development)
Amendment act, 1972 shall not be liable
to pay any royalty in respect of any coal
consumed by a workman engaged in a
colliery provided that such consumption
by the workman does not exceed one third
of a tonne per month).
(3) The Central Government may,
by notification in Official Gazette amend
the Second Schedule so as to enhance or
reduce the rate at which royalty shall be
payable in respect of any mineral with
effect from such date as may be specified
in the notification:
Provided
that
the
central
Government shall not enhance the rate of
royalty in respect of any mineral more
than once during any period of (three
years)".

4.

Rule 21 of U.P. Minor
Minerals(Concessions) Rules, 1963 also
lays down provision for royalty which is
quoted below:

Royalty- (1) The holder of a mining
lease
granted
on
or
after
the
commencement of these rules shall pay
royalty in respect of any mineral removed
by him from the leased area at the rates
for the time being specified in the First
schedule to these rules.
(2) The State Government may, by
notification, in the Gazette amend the
First Schedule so as to include therein or
exclude there from or enhance or reduce
the rate of royalty in respect of any
mineral with effect from such date as may
be specified in the notification:
Provided that the State Government shall
not enhance the rate of royalty in respect
of any mineral for more than once during
any period of three years and shall not fix
the royalty at the rate of more than 20 per
cent of the pit's mouth values.
(3) Where the royalty is to be charged on
the pit's mouth value of the mineral the
State Government may assess such value
at the time of the grant of the lease and
the rate of royalty will be mentioned in
the lease deed. It shall be open to the State
Government to re-assess not more than
once in a year the pit's mouth value, if it
considers
that
an
enhancement
is
necessary".

5. As is evident from the contents of
writ petition and the affidavit filed in
support thereto that the petitioner is not a
lease holder of mine but he has purchased
the stone bolders through agents namely
M/s Amar Stone Company, M/s Naina
Devi Stone Supplier, M/s Archana Stone
Company, M/s Rekha Stone Company,
M/s Atendra Traders and M/s Balbir
Stone Company Fatpur, Agra. There is no
provision in the aforesaid Act and Rules
regarding payment of royalty by the
purchaser of stones from the lease holder
of mines. This is for the lease holder to
pay royalty to the Government. Nowhere,
it has come that any lease was granted in
favour of the petitioner. The purchaser of
products of mines is not obliged to pay
royalty. The respondent no.3 is duty
bound to scrutinize the receipt and
Rawannas, if submitted by the petitioner
and to release his payment. If there was
any lacuna in the bills, the petitioner
should have been asked to remove it.

6. In view of above legal position,
we are of the view that the demand by
respondent no.3 from the petitioner to pay
64 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
royalty on the supply of the stone bolders
is not in accordance with law.

7. Accordingly, the writ petition is
finally disposed of with the direction to
the respondent no.3 to consider the case
of the petitioner after getting bills and
Rawannas and make his payment without
delay. If there is any lacuna in the bills or
Rawannas the petitioner may be asked to
remove it. The petitioner shall file details
of bills and Rawannas before the
respondent no.3 within fifteen days from
today and respondent no.3 will decide his
payment within a further period of six
weeks by passing a detailed and reasoned
order.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.01.2008

BEFORE
THE HON'BLE V.D. CHATURVEDI, J.

Criminal Misc. Application No. 149 of 2008

Devendra

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Applicant:
Sri Shashi Dhar Pandey

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section 173
(2)-Re-investigation first charge sheet
submitted
disclosing
offence
under
Section
354
IPC-on
re-investigation
charge sheet u/s 376 IPC filed-HeldMagistrate committed no illegality-no
error in direction for re-investigation.

Held: Para 7 & 8

In view of what has been discussed
above, I find no illegality in the order
directing re-investigation nor I find any
illegality in the investigation wherein the
statement of a witness was re-recorded
by the I.O.

The Magistrate committed no error in
taking the cognizance on a police report
submitted under Section 173 (2) Cr.P.C.
The petition is devoid of merits. It is
therefore dismissed.
Case law discussed:
2006 (55) ACC-180 distinguished, AIR 1999
SC-2332 relied on.

(Delivered by Hon'ble V.D. Chaturvedi, J.)

1. Learned counsel for the petitioner
contends that in Case Crime No.197 of
2007, under Section 376 IPC the I.O.
earlier submitted a charge sheet under
Section 354 IPC but the Circle Officer by
his order dated 8.8.2007 directed for reinvestigation
hence,
the
I.O.
reinvestigated the case, re-recorded the
statement
of
the
prosecutrix
and
submitted the subsequent charge sheet
under Section 376 IPC. Learned counsel
for
the
petitioner
relied
upon
the
judgement given by the another single
bench of this Court in the case of Krishna
Kumar Gupta Vs. State of U.P.
reported in 2006(55) ACC 180.

2. The earlier charge sheet dated
6.6.2007 for offence under Section 354
IPC did not reach the Court when the
Circle Officer passed the order dated
8.8.2007. The Court took the cognizance
on the charge sheet dated 15.8.2007 and
not on the charge sheet dated 6.6.2007.
Thus, the Magistrate took the cognizance
on a police report submitted under Section
173 (2) Cr.P.C. The charge sheet
consisted of the statements of the
prosecutrix recorded times under Section