Case Law Details
Simplex Infrastructures Ltd Vs State of Assam And 5 ors (Guwahati High Court)
Gauhati High Court in case of recovery of royalty stayed the recovery by stating that as an ad-interim measure no coercive action shall be initiated against the petitioner for recovery of amount till the next returnable date.
Facts- By a communication dated 31.12.2022, the Divisional Forest Officer, Sonitpur East Division (respondent no. 4) had informed the Deputy General Manager (P), NHIDCL PMU (respondent no.6), that a sum of 15,58,76,034/- was due and recoverable from Simplex Infrastructures ltd, the petitioner on account of royalty against (i) ordinary earth, (ii) stone aggregate, and (iii) sand, used in four laning Dolabari to Jamuguri from Km 17.30 of NH-37A to 182.00 of NH-52 and therefore, the said authority was requested to deposit the said due amount through an online portal.
By another communication dated 16.03.2023, the Divisional Forest Officer, Sonitpur East Division (respondent no. 4) had informed the Deputy General Manager (P), NHIDCL PMU (respondent no.6), that in respect of the herein before referred work, a sum of Rs. 40,04,04,926.60 was due and recoverable from the petitioner on account of (i) payment of royalty, (ii) price of materials, and (iii) fine, and therefore, as the contract between the petitioner and the NHIDCL was foreclosed, the said authority was requested to ensure that the said due amount is immediately paid to the State Government exchequer before making any final payment to the petitioner.
Conclusion- The Deputy Conservator of Forest, Bureau of Investigation (EO), Assam had re-assessed and re-calculated the pending dues, and in the exercise of power under Rule 63, 64(i), 64(ii), 65(i) and 65(ii) of the Assam Minor Mineral Concession Rules, 2013, determined the dues to the extent of Rs.3,00,24,540/.
As an ad-interim measure that no coercive action shall be initiated against the petitioner for recovery of the said amount of Rs.3,00,24,540/- till the next returnable date, as a natural sequel, would have to provide as an interim measure that till the next returnable date, the respondent nos. 2 to 4 shall not initiate coercive action against the petitioner for recovery of the amount indicated in the communication under memo no. FSET/G-51/B/Simplex/2023/1450-51 dated 16.03.2023 till the next returnable date.
FULL TEXT OF THE JUDGMENT/ORDER OF GAUHATI HIGH COURT
Heard Dr. A. Saraf, learned senior counsel, assisted by Mr. N.N. Dutta, learned counsel for the petitioner and Mr. D. Gogoi, learned standing counsel for the Forest and Environment Department, representing respondent nos. 1 to 4.
2. The legality of the following two communications are under challenge in this writ petition filed under Article 226 of the Constitution of India:-
a. By a communication dated 31.12.2022, the Divisional Forest Officer, Sonitpur East Division (respondent no. 4) had informed the Deputy General Manager (P), NHIDCL PMU (respondent no.6), that a sum of 15,58,76,034.00 (Rupees fifteen crore fifty eight lakh seventy six thousand thirty four only) was due and recoverable from the petitioner on account of royalty against (i) ordinary earth, (ii) stone aggregate, and (iii) sand, used in four laning Dolabari to Jamuguri from Km 17.30 of NH-37A to 182.00 of NH-52 and therefore, the said authority was requested to deposit the said due amount through online
b. By another communication dated 16.03.2023, the Divisional Forest Officer, Sonitpur East Division (respondent no. 4) had informed the Deputy General Manager (P), NHIDCL PMU (respondent no.6), that in respect of the herein before referred work, a sum of 40,04,04,926.60 (Rupees forty crore four lakh four thousand nine hundred twenty six and paise sixty only) was due and recoverable from the petitioner on account of (i) payment of royalty, (ii) price of materials, and (iii) fine, and therefore, as the contract between the petitioner and the NHIDCL was foreclosed, the said authority was requested to ensure that the said due amount is immediately paid to the State Government exchequer before making any final payment to the petitioner.
3. Issue notice of motion returnable on 23.06.2023.
4. Requisite extra copies of the writ petition be served on the learned departmental counsel as well as the learned standing counsel for respondent nos. 5 and 6 within 2 days.
5. Heard both sides on the prayer for interim relief.
6. The learned senior counsel for the petitioner had submitted that vide letter dated 15.07.2022, the Deputy Conservator of Forests, Bureau of Investigation (EO), Assam had demanded a sum of Rs.12,97,46,245/- from the petitioner towards (i) earth, (ii) coarse aggregate, and (iii) sand. Later on, the said authority vide communication dated 28.07.2022, by referring to correspondence dated 10.06.2022, 15.07.2022, and 27.07.2022, had re-assessed and re-calculated the dues of the petitioner and scaled down the demand from Rs. 12,97,46,245/- to Rs.3,00,24,540/-. It was submitted that the said revised demand was challenged by the petitioner by filing W.P.(C) 5631/2022 and this Court by order dated 02.09.2022, as an ad-interim measure, provided that no coercive action shall be initiated against the petitioner for recovery of the said amount till the next returnable date.
7. It is submitted that thereafter, the Divisional Forest Officer, Sonitpur East Range (respondent no. 4) vide impugned communication dated 31.12.2022 addressed to the Deputy General Manager (P), NHIDCL PMU (respondent no.6), demanded a sum of 15,58,76,034.00. Thereafter, by the second impugned communication dated 16.03.2023, the demand had escalated to Rs.40,04,04,926.60.
8. Per contra, the learned standing counsel for the forest department has submitted that it was the liability of the works contractor to make payment of the forest royalty and as the petitioner had not paid such forest royalty and price of the forest produce, i.e. earth, gravel and sand, the petitioner was also liable to pay price of such produce, forest royalty, fine, GST, IT, etc., which has amounted to Rs.40,04,04,926.60. It was submitted that the petitioner had left the four laning NH work from Dolabari to Jamuguri from Km 30 of NH-37A to 182.00 of NH-52 and the NHIDCL had foreclosed the contract with the petitioner on 20.08.2021 and thus, there was reasonable apprehension that the petitioner might withdraw his payment without liquidating the forest dues. To support his contention that ordinary earth would be “minor mineral”, the learned standing counsel for the respondent nos. 1 to 4 has placed reliance on the case of Som Dutt Builders Ltd. v. Union of India & Ors., (2010) 1 SCC 311.
9. The bifurcation of the dues demanded from the petitioner at different point of time was as follows:-
a. Demand as per letter dated 15.07.2022:
|
Sl |
minor mineral | Royalty | Price | Total with GST, IT and Fine |
| 1. | Earth 6,81,448.00 cum | 204,43,440.00 | 340,72,400.00 | 561,59,319.72 |
| 2 | Coarse aggregate 1,13,425.70 cum | 226,85,140.00 | 453,70,280.00 | 698,68,148.07 |
| 3 | Sand 8,404.62 cum | 11,76,646.80 | 23,53,293.60 | 37,18,777.23 |
| Total rounded off | 12,97,46,245.00 |
b. Demand as per letter dated 28.07.2022:
| Sl | Minor mineral | Royalty | Price | Total with GST, IT and Fine |
| 1. | Earth 3,18,553.00 cum | 95,56,590.00 | 159,27,650.00 | 263,05,762.55 |
| 2 | Sand
8,404.62 cum |
11,76,647.00 | 23,53,294.00 | 37,18,777.23 |
| Total rounded off | 3,00,24,540.00 |
c. Demand as per letter dated 3 1.12.2022:
| Sl | Minor mineral | Royalty | ||
| 1. | Earth 7,68,421.00 cum | 230,52,630.00 | ||
| 2 | Stone aggregate 1,20,701.00 cum | 241,40,200.00 | ||
| 3 | Sand 12,826.00 cum | 3,95,640.00 | ||
| 4. | Total: | 475,88,470.00 | ||
| 5. | MMDRR 10% | 47,58,847.00 | ||
| 6. | DMFT 10% | 47,58,847.00 | ||
| 7. | GST 5% | 23,79,424.00 | ||
| 8. | Income Tax 2.55% | 12,13,506.00 | ||
| 9. | Monopoly 200% | 95 1,76,940.00 | ||
| Grand Total | 15,58,76,034.00 |
d. Demand as per letter dated 16.03.2023:
| Sl | Minor mineral | Royalty | Price and Fine | Total |
| 1. | Earth 7,68,421.00 cum | 230,52,630.00 | Price: 15,21,47,358 Fine: 4,61,05,260 | 22,13,05,248.00 |
| 2 | Stone aggregate 1,20,701.00 cum | 241,40,200.00 | Price: 6,90,40,972 Fine: 482,80,400 | 14,14,61,572.00 |
| 3 | Sand 12,826.00 cum | 17,95,640.00 | Price: 41,42,798 Fine: 35,91,280 | 95,29,718.00 |
| 4. | GST 5% | 1,86,14,826.90 | ||
| 5. | Income Tax 2.55% | 94,93,561.719 | ||
| 6. | Grand Total | 40,04,04,926.60 |
10. It is noted that the Deputy Conservator of Forest, Bureau of Investigation (EO), Assam vide communication dated 28.07.2022, had re-assessed and re-calculated the pending dues, and in exercise of power under Rule 63, 64(i), 64(ii), 65(i) and 65(ii) of the Assam Minor Mineral Concession Rules, 2013, determined the dues to the extent of Rs.3,00,24,540/- (Rupees three crore twenty four thousand five hundred forty only).
11. The said dues has been assailed by the petitioner by filing W.P. (C) 563 1/2022.
12. The learned standing counsel for the forest department has not been able to show the source of power in exercise of which the respondent no. 4 had re-calculated the dues allegedly payable by the petitioner from Rs.3,00,24,540/-, as determined by letter dated 28.07.2022 to Rs.40,04,04,926.60, as demanded vide letter dated 16.03.2023. It is also seen that the demand made by communication dated 28.07.2022, referred to herein before, has not been recalled and/or set aside by subsequent impugned communication dated 16.03.2023. It could also not been shown that the Deputy Conservator of Forest, Bureau of Investigation (EO), Assam did not have power and authority to make demand vide communication dated 28.07.2022.
13. Thus, when the co-ordinate Bench of this Court by order dated 02.09.2022, passed in W.P.(C) No. 5631/2022, had provided as an ad-interim measure that no coercive action shall be initiated against the petitioner for recovery of the said amount of Rs.3,00,24,540/- till the next returnable date, as a natural sequel, would have to provide as an interim measure that till the next returnable date, the respondent nos. 2 to 4 shall not initiate coercive action against the petitioner for recovery of the amount indicated in the communication under memo no. FSET/G-51/B/Simplex/2023/1450-51 dated 16.03.2023 till the next returnable date.
14. List on 23.06.2023.
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