Judgment:
ORDER
1. Having heard the learned Counsel for the parties, we are of the opinion that this appeal shoud itself be disposed of as it involves a pure question of law .
2. This appeal is directed against a judgmentand order dated 23-12-98, whereby and whereundei- the writ application filed by the respondent-writ petitioners was allowed. The writ-petitioners respondents are the contractors. They are not holder of any mining lease nor had they been granted any quarry permit. According to the writ petitioners-respondents, they purchased minor minerals for their use in execution of their contract. The respondents had directed them to produce royalty clearance certificate as condition precedent for passing their bills. Such a condition imposed in the impugned Memo dated 28-8-97 was questioned in this writ application. By reason of the impugned judgment the learned trial Judge has held that the said condition is illegal.
3. Mr. Sen, the learned Counsel appearing on behalf of the appellant, inter alia, submitted that in terms of item No. 9 of IIIrd Schedule appended to the West Bengal Minor Minerals Rules 1973, the District authority had been granted power to impose such conditions. The learned counsel has placed strong reliance upon a decision of the Apex Court in State of Karnataka v. Subhas Rukmayya Guttedar reported in : AIR1993SC860 . Mr. Chakraborty. learned Counsel appearing on behalf of the respondent on the other hand submitted that the aforementioned provision has been declared ultra vires by this Court in Midnapore District Contractor's Association v. State of West Bengal reported in (1998) 1 Cal HN 32 as also in an unreported decision of this Court in Purulia District Contractors' Association v. State of West Bengal disposed of on 23-12-98.
4. In view of the aforementioned rival contention of the parties, the question which arises for consideration in this appeal is as to whether the State as Principal can impose a condition that unless royalty clearance certificate is filed by the contractors, who are not holders of any mining lease or quarry permit and restriction can be imposed in respect of payment of their bills. Parliament in terms of Entry 54 List I of the 7th Schedule of the Constitution of India enacted Mines and Minerals (Regulation and Development) Act. Section 9 of the said Act reads thus :--
'9. Royalties in respect of mining leases :-- (1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee from the leased area after such commencement, at the rate for the time being specified in the Second Sched-ule in respect of that mineral.
(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lease from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2A) The holder of a mining lease, whether granted before or after commencement of the Mines and Minerals (Regulation and Development) Amendment Act, 1972. 56 of1972 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 the Official Gazette, amend the Second Schedule so as to enhance or reduce the rate of which royalty shall be payable in respect of any material 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 four years.
5. The West Bengal Minor Minerals Rules,1973 was made by the State of West Bengalin exercise of its power conferred upon it under Section 15 of the said Act. Rule 24 of the said Rules provides for procedure for grant of quarry permit which reads thus :--
'Rule 24. Grant of Quarry Permits.-- (1) The District Authority or any officer authorised in this behalf by the State Government may grant, as per procedure laid down in Schedule III, quarry permits in Form F to any person to extract or remove from any specified land within the limits of his jurisdiction any mineral on pre-payment of royalty at the rate specified in the Schedule I.
(2) Such quarry permit may be granted for a specified area not exceeding five acres and for a period not exceeding three months and for a quantity as may be specified by the District Authority or any officer authorised in this behalf by the State Government.
6. The procedure, for grant of mining lease had been laid down in 3rd Schedule. Item No. 9 of the Schedule reads thus :--
'9. District Authority may, so far as they do not materially conflict with these instructions and subject to future directions of the Government, adopt any procedure and delegate so much of his power to such officer as he thinks fit for the purpose of better administration, revenue collection and less loss due to unauthorised workings.'
7. A bare perusal of the aforementioned provisions leaves no manner of doubt that relying on or on the basis of the said Item No. 9 of the Third Schedule, the State cannot impose any restriction in the matter of payment of bills to the contractors unless they file royalty clearance certificate. Rule 24 as noticed hereinbefore provides for grant of quarry permits. Item No. 9 of the Third Schedule which lays down procedure must be read as one of such procedures which are required to be followed with a view to grant quarry permit and not with a view to realise royalty from the permit holders. Rule 18(1) of the West Bengal Minor Mineral Rules on the other hand deals with payment of royalty etc. which in no uncertain terms imposes obligation on the holder of mining lease to pay royalty etc. Rule 5(4) of the West Bengal Minor Minerals Rules, provides for grant of clearance certificate of payment of mining dues to the holders of mining lease. There cannot therefore, be any doubt whatsoever that the contractors who are not mining leasees or holder of quarry permits are neither statutorily obliged to obtain the samenor the same in view of Sub-rule (4) of Rule 5 of the said Rules can be granted in their favour. This aspect of the matter has been considered by one of us in Midnapore District Contractors' Associaiton v. State of West Bengal, reported in (1998) 1 Cal HN 32, wherein upon taking into consideration this Court held that such a condition is invalid in law. This aspect of the matter has also been considered by another learned single Judge of this Court in Bankura District Contractors' Association v. State of West Bengal being W. P. No. 10287(W) of 1998 disposed of on 17-6-98 wherein it has been held-
'I have also heard the learned Advocate appearing for the State respondents who submits that the impugned clauses are all legal, valid and introduced in the interest of public and are also reasonable. I, however, cannot accept his contention for the simple reason that since a contractor is not liable to pay royalty for the purchase of minor minerals extracted by the lessee from the quarry or the mines, obviously, the contractor also cannot supply the certificate regarding payment of royalty which is only the obligation of the lessee or the contractor appointed by him to extract minor minerals from the quarry or the mines but the contractors who are merely the purchasers of minor minerals extracted by the lessee of a mine, they are not at all required either to pay royalty as has been held by this Court as referred to above or to suply royalty certificate which is not in their hands. As such, I find that the above two clauses are ultra vires the Minor Minerals Rules, 1973, itself and the same are therefore quashed.'
8. We are, therefore, of the opinion that paragraph 9 of the Schedule III appended to the West Bengal Minor Minerals Rules, has no manner of application in the instant case.
9. In State of Karnataka v. Subhas Rukmayya Guttedar reported in : AIR1993SC860 , the fact of the matter was absolutely different, in that case the State had granted permission to the contractors to remove the appropriate minor minerals from quarries of the State Government under the Contract. The writ petitions were filed before the Karnataka High Court on the ground that no royalty was payable to the State Government as mining leases had not been ganted in terms of the provisions of Mines and Minerals (Regulations and Development) Act, nor such leases conform to the provisions ofSection 105 of the Transfer of Property Act. While dealing with the aforementioned contention, the Apex Court held at page 864 :--
'We are unable to agree with the High Court on either ground. It is undoubtedly true that the rules specify a procedure to enter into a mining lease for winning over the minor minerals and in terms to be complied with. On the question of liability to pay the royalty for the minerals removed and consumed by a contractor is to be considered in terms of the contract. In the light of the above restricted rules, terms of the contract and the legal position, we are of the opinion that the respondents-contractors are liable to pay royalty in terms of the contract.'
10. It is now well settled principle of law that each decision has to be read on the basis of the facts involved therein. In the Regional Manager v. Pawan Kumar Dubey reported in : (1976)IILLJ266SC the Apex Court held, 'We think that the principles involved in applying Article 311(2) having been sufficiently explained in Samsher Singh's case : (1974)IILLJ465SC (supra) it should no longer be possible to urge that Sughar Singh's case : (1974)ILLJ260SC (supra) could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared and applied so often have really changed. But, the application of the same law to the differing circumstances and facts of various cases which have come into this Court could create the impression sometimes that there is some conflict between different decision of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts, 'Yet recently a Division Bench of this Court in Jaya Sen v. Sujit Kumar Sarkar reported in : AIR1998Cal288 has held at page 292 :--
'It is now well known that a decision is an authority for what it decides and not whatcan logically be deduced therefrom. It is also well known that even a slight distinction in fact or an additional fact may make a lot of difference in decision making process. See Quinn v. Leathaim (1900-1903) AER (Rep) 1 Krishna Kumar v. Union of india, : (1991)ILLJ191SC , Commissioner of Income-tax v. Sun Engineering Co. Ltd. reported in : [1992]198ITR297(SC) , Regional Manager v. Pawan Kumar Dubey reported in : (1976)IILLJ266SC and Municipal Corporation of Delhi v. Gurnam Kaur reported in : AIR1989SC38 .'
11. For the reasons aforementioned, we are of the opinion that the learned trial Judge was right in allowing the writ application. There is no merit in this appeal, which is accordingly, dismissed; but in the facts and circumstances of this case, there will be no order as to costs.
12. Xerox certified copy of this order, if applied for urgently, shall be supplied on priority basis.