S. Chandrashekhar, J.@mdashAggrieved by deduction from their running Account Bills on account of royalty for "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building", batch of writ petitions has been filed seeking a declaration that until and unless, Scheduled-II to the Jharkhand Minor Mineral Concession Rules, 2004 is amended and rate of royalty for "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building" is fixed, no royalty for the same is payable to the State of Jharkhand. A common question of law has been raised in all the writ petitions and prayer in all the writ petitions are almost identical. Therefore, it is not necessary to discuss, in detail, facts of each case separately and, suffice would be to notice facts of any one case. The nature of work carried by the writ petitioners is noticed below:
W.P. (C) No. 2117 of 2014
2. The petitioner is a registered contractor under the railways and with the Government of Jharkhand and it is engaged in construction work and other allied activities. The petitioner was awarded the work for "earth work in cutting, filling, blanketing, drafting, construction of minor bridges, major bridges and other ancillary work between 11.5 Km. and 16 Km." in connection with construction of new business line between Tori-Shivpuri in Latehar district. The aforesaid work involves extensive use of earth work in leveling purposes, for construction of embankment for railways etc. The petitioner procures ordinary earth from local agriculturists and land holders in and around the area of construction. No lincese has been granted by the State of Jharkhand for mining of the ordinary earth. The South Eastern Railways deducts lump-sum payment from contractors'' bill for those contractors, who are not submitting M and N Forms for earth work and the said amount is paid to the State Government on account of royalty for earth work. It is stated that the Assistant Mining Officer, Hazaribagh issued letters to the petitioner-Company for disclosing the quantity of minor minerals used in construction. The Mines Inspector inspected the work carried by the petitioner under contract and he furnished details of bricks, sand, metal boulder, ordinary earth etc. used in the construction and accordingly, letter dated 17.03.2011 directing the petitioner to deposit a sum of Rs. 5,66,400/- was issued.
3. The learned counsel for the petitioners submits that in exercise of powers conferred under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957, the then State of Bihar issued notification dated 28.09.1994 whereunder, royalty for Ordinary Clay used in manufacturing of Raniganj tiles and used for commercial purposes, was fixed @ Rs. 15 per cubic mtr. In the Notification dated 28.09.1994 under Sl. No. 3(ii), it is indicated that no royalty would be charged for "Ordinary Clay" used for any other purposes. The Government of Jharkhand framed Jharkhand Minor Mineral Concession Rules, 2004 and adopted Notification dated 28.09.1994 of the State of Bihar however, after the Notification dated 03.02.2000 was issued by the Government of India, the Government of Bihar though amended the Schedule by providing rate of royalty for "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building", the Government of Jharkhand did not amend Second Schedule to the Jharkhand Minor Mineral Concession Rules, 2004 and therefore, royalty for "ordinary earth" which has been declared a minor minerals by the Notification dated 03.02.2000, cannot be collected from the petitioners. The learned counsel for the petitioners relied on decisions in
4. As against the above, Mr. Ajit Kumar, the learned AAG submits that the expression used in the Notification of the Government of Jharkhand is "Sadharan Mitti" which is the expression used in the Notification dated 03.02.2000 of the Government of India and thus, the respondent-State has rightly demanded payment of royalty for ordinary earth used by the petitioners for filling or leveling purposes in construction of embankment, roads, railways, buildings etc. It is further submitted that the ordinary and natural meaning of the expression "Sadharan Mitti" is "ordinary earth" and not "Ordinary Clay" and the English version of the Jharkhand Notification is not correct. Trying to distinguish the judgment in "Hindustan Steel Works", the learned AAG submits that the said decision is not binding and this Court can interpret the expression "Sadharan Mitti" once again. It is further submitted that the issue involved in the present case is covered by the decision in "Som Datt Builders" case.
5. In reply, Mr. Rajiv Ranjan, the learned counsel for the petitioners states that the decision in "Hindustan Steel Works Construction Ltd." has been affirmed by the Hon''ble Supreme Court in SLP (c) No(s). 16330-16333/2007.
6. The question which arises for consideration is, "whether in view of the notification dated 03.02.2000 issued by the Ministry of Mines, Government of India declaring the "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, buildings", a minor mineral in addition to the minerals already declared as minor minerals, a consequent amendment in the Second Schedule to the Jharkhand Minor Mineral Concession Rules, 2004 is necessary for fixing and collecting royalty for the "ordinary earth" which has been declared a minor minerals by the aforesaid notification?"
7. Before considering the rival contentions, it is necessary to notice the relevant provisions in the Mines and Minerals (Development and Regulation) Act, 1957. Section 2 of the Act declares that the Union should take under its control the regulation of mines and development of minerals. In
8. Section 15 of the Act confers power on the State Governments to make rules in respect of minor minerals. In exercise of power under Section 15 of the Act, the State Government can make rules for fixing and collection of rent, royalty, fees, dead-rent, fines or other charges and the time within which and the manner in which these are payable. The expression "Minor Mineral" has been defined in Section 3(e) to mean building stone, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes. Section 3(e) further provides that the Central Government may, by notification in official gazette declare "any other mineral", to be a minor mineral. Thus, the power to declare any other mineral which is not included in the definition of minor minerals in Section 3(e), is vested in the Central Government. As noticed above, vide Notification dated 03.02.2000, the Central Government declared "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building", a minor mineral. Thus, in exercise of powers under Section 15 of the Act the State Government is required to fix the rate of royalty for "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building". The learned counsel for the petitioners has contended that though the State of Bihar amended the Schedule, the State of Jharkhand which adopted Notification dated 28.09.1994 of the State of Bihar, did not amend its Rules and therefore, royalty for "ordinary earth" declared as a minor mineral by the Central Government cannot be charged by the State of Jharkhand. Per contra, the learned AAG contended that in view of the Notification dated 03.02.2000 of the Central Government and the decision of the Hon''ble Supreme Court in "Som Datt Builders" case, the respondent-State has rightly issued demand letters directing the petitioners to pay royalty for the "ordinary earth used by them for filling or leveling purposes in construction of embankment, roads, railways, building".
9. In the counter-affidavit, the respondent-State of Jharkhand has stated that, "in exercise of the powers conferred by Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957, the State Government of Jharkhand published Notification No. 2332/M dated 27.12.2010 (Annexure-6 of the writ application) amending the Schedule-2 of the JMMC Rules, 2004 whereby and whereunder, at Serial No. 5, the rate of charging royalty for use of Ordinary Clay- clay used for manufacturing of Raniganj tiles and its commercial use, was fixed @ Rs. 24.00 per cubic metre. Prior to this Notification, the rate of charging royalty on Ordinary Clay was @ 15.00 per cubic mtr.". It is further stated that the Notification dated 03.02.2000 is binding on the State Government and the State Government is bound to follow the provision wherein the definition of Ordinary Clay also brings ordinary earth under its purview i.e., Ordinary Clay includes 23 ordinary earth if the ordinary earth is being used for commercial purposes. It is contended that, since the use of ordinary earth by the petitioners is for commercial purposes, the petitioners cannot evade payment of royalty at the rate of Rs. 24 per cubic mtr.
10. In Som Datt Builders case, the State of U.P. in exercise of powers under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 framed rules, which adopted the definition of minor mineral. It appears that the Government of U.P. issued Notification dated 20.03.2001 whereby, the 1st Schedule appended to the 1963 Rules was amended and rate of royalty for "ordinary clay"/"ordinary earth" was fixed at Rs. 4 per cubic mtr. In Som Datt Builders case, the issue before the Hon''ble Supreme Court was whether, "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building", is a minor mineral and the Hon''ble Supreme Court held the inclusion of "ordinary earth" as a minor mineral, valid. In Hindustan Steel Works Construction Ltd., a Division Bench of Patna High Court considered the expression "Sadharan Mitti" and "Ordinary Clay". The Court referred to dictionary meaning of the word "Clay" in Chambers Dictionary, Oxford Dictionary, Standard Dictionary of the Hindi language by Bhargava etc. It has been held that,
7. "It is indisputable that both the Hindi and the English versions would refer to one and the same thing. It is, therefore, apparent that the Hindi expression ''Sadharan Mitti'' was used to describe ordinary clay referred to in the English version of the notification and that was included as one of the minor minerals as defined in Section 3(e) of the Act".
11. The Division Bench of Patna High Court finally held that, "royalty for ordinary earth can be charged after 18.04.2006, when the State Government issued notification including the ordinary earth declared vide Notification dated 03.02.2000, a minor mineral and fixed royalty for the same under Schedule II". In Banarasi Das Chadha, the issue was whether "brick earth" is a minor mineral within the meaning of the expression in Section 3(e) of Mines and Minerals (Development and Regulation) Act, 1957.
12. The State of Jharkhand vide Notification dated 27.12.2010 amended Schedule-II whereby, the royalty for "Ordinary Clay-clay used for manufacturing of Raniganj tiles and commercial use" was fixed at the rate of Rs. 24 per cubic mtr. By the said amendment, "ordinary earth" declared vide Notification dated 03.02.2000 by the Central Government as a minor mineral has not been incorporated in the 2nd Schedule and no rate of royalty has been fixed by the State of Jharkhand for the "ordinary earth" within the meaning of Notification dated 03.02.2000. It is thus, apparent that the State of Jharkhand can collect royalty for "Ordinary Clay" as appearing at Sl. No. 5 in the 2nd Schedule to the Jharkhand Minor Mineral Concession Rules, 2004 and not for "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building".
13. In the writ petition the petitioners have sought a declaration that "Ordinary Clay used for Raniganj tiles and other commercial use" is different from "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building" and also for a declaration that without amending the 2nd Schedule to the Jharkhand Minor Mineral Concession Rules, 2004, no royalty can be charged for "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building". Vide order dated 28.07.2014, the petitioners were directed to make payment of royalty at the rate fixed for "Ordinary Clay used for manufacturing Raniganj tiles and commercial purposes". The respondent-State has pleaded that besides, not paying royalty for "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building", the petitioners have not paid royalty for other minerals also. Though, copies of demand notices have been produced on record, it does not appear from the record that the petitioners have made payment in compliance of order passed by this Court. The State of Jharkhand has raised objection stating that the petitioners did not furnish details of consumption of minor minerals. It is further stated that the petitioners are required to procure ordinary earth used for commercial purposes from the authorised lease holder/permit holder/dealer and permit in Form-G can be obtained from the District Mining Officer however, the petitioners have not applied for permit in order to avoid payment of royalty. In view of the fact that no prayer challenging the demand notice/notices has been made in the writ petitions, I am not required to deal with the aforesaid objections of the respondent-State. From a reading of the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and the judgment of Hon''ble Supreme Court in "Som Datt Builders", there cannot be a dispute that the State Government has power to fix the rate of royalty for "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building" and to enforce the payment of royalty for the same however, the exercise of power by the Government of Jharkhand under Section 15 of the Act fixing the rate of royalty for a minor mineral must be reflected through a notification amending 2nd Schedule to the Jharkhand Minor Mineral Concession Rules, 2004. Admittedly, the State Government has not fix the rate of royalty for "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building" and, it has sought to recover royalty for the same contending that "Ordinary Clay" would include "ordinary earth used for commercial purposes. From the definition of "minor mineral" in Section 2(e) of the Act and notification dated 03.02.2000 of the Central Government, it is apparent that "Ordinary Clay" is different from "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building". The distinction between the two is reflected in issuance of the said notification itself in as much as, the Central Government has issued a separate notification notifying "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building", a minor mineral. The distinction is further clarified in view of decision of the Hon''ble Supreme Court in "Banarasi Das Chadha" wherein, "brick earth" has been held to be a minor mineral. Thus, it is apparent that "ordinary earth" and "Ordinary Clay" have different uses and the uses of "ordinary earth" in a particular form has been the determinative factor whether it is a minor mineral or not. In view of the specific prayer made in the writ petitions, it is hereby declared that "Ordinary Clay" occurring in notification dated 27.12.2010 of the State of Jharkhand is different from "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building" for which rate of royalty has not been fixed by the Government of Jharkhand. In the result, the respondent-State of Jharkhand is restrained from realizing royalty for "ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building" without amending Second Schedule to the Jharkhand Minor Mineral Concession Rules, 2004 and without prescribing rate of royalty for the same.
14. The writ petitions are allowed in the above terms. Accordingly, I.A. No. 3837 of 2014 (in W.P. (C) No. 2117 of 2014), which has been filed for the stay of deduction from running and final bills, also stands disposed of.
