Patna High Court - Orders
M/S Broad Son Commodities Pvt. Ltd. vs The State Of Bihar & Ors on 11 May, 2018
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6494 of 2018
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M/s Broad Son Commodities Pvt. Ltd., Dr. Himanshu Complex, Block Road,
Koilwar Chowk, P.S. Koilwar, District- Ara(Bhojpur) through its Director,
Punj Kumar Singh, Son of Ram Ballabh Prasad near Suraksha Clinic , Hetli
Bandh, Jharia, Amtal, Dhanbad, Baliapur, Jharkhand.
... ... Petitioner/s
Versus
1. The State of Bihar, through the Principal Secretary, Mines and Geology
Department, Government of Bihar, New Secretariat, vikash Bhawan, Patna.
2. The Mines Commissioner, Mines and Geology Department, Government of
Bihar, New Secretariat, vikash Bhawan, Patna.
3. The Special Secretary-cum-Director, Mines and Geology Department,
Government of Bihar, New Secretariat, vikash Bhawan, Patna.
4. The Joint Secretary, Mines and Geology Department, Government of Bihar,
New Secretariat, vikash Bhawan, Patna.
5. The Under Secretary, Mines and Geology Department, Government of Bihar,
New Secretariat, vikash Bhawan, Patna.
6. The District Magistrate-cum-Collector, Bhojpur.
7. The Assistant Director, District Mining Office, Bhojpur.
8. M/S. Tara Rajat Enclave Pvt. Ltd. Madhopur, Maner, Patna.
9. M/S Maa Jagdemba Engicon LLP, Bhundi, Tekari, Kaimur.
10. Sri Rohit Kumar Singh, KG Road, Nawada, Ara District- Bhojpur.
11. Sri Pramod Kumar, S/o Narayan Yadav Village- Eqbalganj, Panchayat
Eqbalganj Nisarpura, P.S. Ranitabal (Kanpa), District- Patna.
12. Sri Rajesh Kumar S/o Sri Prem Kishore Singh Village & P.O. Kishunpur, P.S.
Bihta, District- Patna.
13. Sri Guddu Kumar S/o Sri RamKumar Singh Village- Jalpura, Panchayat-
Masaudha, P.S. Paliganj, District- Patna.
14. Sri Dhiraj Kumar S/o Sri Rajkumar Singh Karkatbigha, Panchayat
Karkatbigha, P.O. Ranipur, P.S. Paliganj, Distrit- Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Bimlendu Shekher Thakur
For the Respondent/s : Mr. G.P. Ojha- Ga7
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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL ORDER
5 11-05-2018Heard learned Senior counsel for the petitioner, learned Special P.P. Mines and learned counsel for private Respondent nos. 11 and 12.
This writ application was heard on 01.05.2018 along Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 2/17 with CWJC Nos. 6503 of 2018 of 2018 and CWJC No. 7763 of 2018 out of turn with the consent of learned counsel for the parties since in all these writ applications, the petitioner is one and the same person and in all the three writ applications settlment/work order of Sand Ghats in the District of Bhojpur and Patna, in pursuance to Reverse e-auction, as well as allowing the conduction of mining by issuing permits in the District of Patna are under challenge.
The interim order was dictated in Court but before the order could be typed, it was noticed that through I.A. No. 3110 of 2018, the relief prayed for in C.W.J.C. No. 6494 of 2018 has been sought to be amended to the extent of setting aside the work order issued in favour of Respondent Nos. 8 to 14, but it was found that though the above writ applications relates to Reverse e-auction in Bhojpur District, but the pleadings and the annexures of aforementioned I.A. relates to the District of Patna. Hence, C.W.J.C. No. 6494 of 2018 was directed to be placed under the heading 'To be Mentioned' on 2nd of May, 2018, but on the prayer of the counsel for the petitioner, writ application being C.W.J.C. No. 6494 of 2018 was placed on 04.05.2018 under the same heading. Thereafter C.W.J.C. No. 6494 of 2018, was taken up on 08.05.2018, but it was directed to be listed Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 3/17 along with C.W.J.C. Nos. 6503 of 2018 and 7763 of 2018, under the same heading on 09.05.2018. On 09.05.2018, since the I.A. Nos. 3111 of 2018 and 3562 of 2018 were not on record, hence the office was directed to place the I.As. on record and the matter was directed to be listed on 10.05.2018 under the same heading.
I.A. No. 3566 of 2018 Consequently I.A. No. 3566 of 2018 filed in C.W.J.C. No. 6494 of 2018, with a prayer to treat the I.A. No. 3111 of 2018 filed inadvertently in C.W.J.C. No. 6503 of 2018 and the same being brought on record as Annexure-14 to the I.A. but since I.A. No. 3840 of 2018 has been filed with a separate prayer, hence the counsel for the petitioner is not pressing I.A. No. 3566 of 2018 and I.A. No. 3111 of 2018, hence, both the I.As. are dismissed as not pressed.
The present Writ application has been filed for quashing of the letter Nos. 1228, 1233 dated 05.12.2017 and letter Nos. 26, 27, 28, 29, 30 dated 10.01.2018, as contained in Annexure 1 series, whereby the Sand Ghats in the District of Bhojpur have been approved for settlements through 'Reverse e-Auction' in favour of private Respondent nos. 8 to 14. The prayer made in paragraph no. 1 of the writ application reads as follows:-
Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 4/17 "1. That in the present writ application petitioner seeks following reliefs:-
(i) For issuance of writ in the nature of Certiorari for setting aside letter No. 1228, 1233 both dated 05.12.17; letter No. 26, 27, 28, 29, 30 all dated 10.01.18; issued in favour of Respondent nos. 8 to 14 whereby and whereunder they have been accorded sanction in principle in regard to settlement of sand ghats in the District of Bhojpur through reverse e-auction until 31.12.19 namely, (1) T.B. Sanatorium Sand ghat, (Mauja Suraundha, Thana No. 131, Khata No. 256, Khesra -1 and 311) having 5 mining plots, out of which area of four mining plot is 5 hector, and remaining one mining plot has an area of 4.8 hector; (2) Dhandiha Sand Ghat (Mauja Dhandiha, Thana No. 148, Khata No. 311, Khesra - 1358, 1359, 1360, 1361 and 1364) having 5 plots, out of which area of four mining plot is 5 hector, and remaining one mining plot has an area of 4.8 hector: (3) Kirkiri Sand Ghat (Mauja kirkiri, having 4 mining plot area of each mining plot is 5 hector; (4) Imadhpur Sand ghat (Mauja Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 5/17 Imadpur) having 4 mining plot area of each mining plot is 5 hector; (5) Gauraiya Sand Ghat (Mauja Gauraiya) having 5 mining plot area of which mining plot is 5 hector; (6) Sarimpur Sand Ghat (Mauja Sarimpur) having 5 mining plot area of each mining plot is 5 hector; and (7) Chilhauns Sand Ghat (Mauja - Chilhauns) having 5 mining plot area of each mining plot is 5 hector respectively.
(ii) For issuance of a writ in the nature of Mandamus allowing the petitioner to excavate and transport minor mineral 'sand' from all the sand ghats in the District of Bhojpur in the light of work order contained in Letter No. 651/M dated 31.12.14 until 31.12.2019 since the petitioner is the sole settlee being the highest bidder in public auction for entire sand ghats in the District of Bhojpur being one unit for a period of 5 years commencing from 01.01.2015 to 31.12.2019.
(iii) For any other relief or reliefs to which the petitioner is entitled on the facts and circumstances of the case."
I.A. No. 3840 of 2018 Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 6/17 The aforementioned I.A. has been filed for amendment of prayer to the extent of setting aside the settlement order issued in favour of Respondent nos. 8 to 14 dated 13.11.2017, as contained in Annexure-11, under the signature of Special Secretary -cum- Director, Mines intimating the Collector, Bhojpur with regard to settlement made in favour of Respondent nos. 8 and 9 through 'Reverse e-Auction'. The amendment sought for has been stipualted in paragraph 11 of the I.A.,which reads as follows:-
"11. That in the aforesaid circumstances, petitioner has been advised to challenge the settlement orders dated 13.11.2017 issued in favour of Respondent no. 8 to 14 by making following prayer:-
"It is, therefore, prayed that lordships may graciously be pleased to set aside the settlement orders issued in favour of Respondent no. 8 to 14 dated 13.11.2017 (Annexure-11 series) they be restrained from conducting any mining/excavation of sand at the sand ghats mentioned in the settlement order dated 13.11.2017 (Annexure-11 series) and work order dated 05.12.2017 and 10.01.2018 (Annexure-1 series) possession of aforesaid sand ghats be handed over to Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 7/17 the petitioner and petitioner be allowed to excavate minor mineral 'sand' from those sand ghats in the District of Bhojpur."
It is submitted by learned Senior counsel for the petitioner that the petitioner could get a copy of the order with regard to the intimation by the Special Secretary -cum- Director, Mines to private Respondent no. 8 and 9 and with regard to rest of the Respondents, it was uploaded on the e.mail account of the concerned Respondent hence it could not be made available to the petitioner.
I.A. No. 3810 of 2018 The above mentioned I.A. has been filed for amendment of prayer for quashing the order dated 25.1.2018 passed in Revision Case No. 3 of 2018 by the Commissioner, Mines, as contained in Annexure 5, whereby the petitioner was directed to resume mining operation for the remaining period subject to certain conditions, as the petitioner was directed to pay the pending royalty as well as the penalty for exceeding the environmental cap in certain ghats along with interest as per schedule annexed with the said order.
Learned Special P.P., Mines has no objection with regard to amendment of prayer made in both the above Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 8/17 mentioned I.As. Accordingly both I.A. Nos. 3840 of 2018 and 3810 of 2018 are allowed.
Learned counsel for the petitioner is permitted to amend the prayers accordingly.
It is submitted by learned Senior Counsel for the petitioner that the petitioner is a Private Limited Company and the writ application has been filed through one of its Directors. In pursuance to the judgment of the Supreme Court in the case of Deepak Kumar and Ors Vs. State of Haryana and Ors., reported in (2012) 4 Supreme Court Cases 629, whereby all the State Governments were directed to frame Rules for conducting sand mining in terms of recommendation of the Ministry of Environment, Forest and Climate Change and draft rule framed by the Mines Department, Government of India, the Department of Mines and Geology, Government of Bihar notified new Sand Policy, 2013 vide Memo No.2214 dated 27.8.2013 settling various guidelines for sand mining in the State of Bihar. Consequently, the Department of Mines and Geology, Government of Bihar issued a notification dated 22.7.2014 for settlement of sand mines in different Districts of Bihar. The State Government, in exercise of its power conferred under Section 15 of the Mines and Minerals (Development and Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 9/17 Regulation) Act, 1957, Bihar Minor, Mineral Concession Rules, 1972 (hereinafter called amended Rules, 1972). The amendment was notified vide Memo No. 3085 dated 11.8.2014 and the relevant amendment with regard to the mining lease/settlement, particularly, with regard to sand mining was brought in by substituting Rule 7 and Rule 11 A of Rules 1972. Rule 7 prescribes the minimum period for grant of mining lease or settlement for five years, whereas Rule 11 A prescribes the mode of settlement of sand as minor mineral through public auction-cum-tender in favour of the highest bidder by the Collector or any officer authorized by the State Government. Rule 11 A(1)(a)(b) of Rules 1972 mandates treating the entire stretch of all the river of a particular District as one unit for the purposes of settlement through auction.
Subsequently, the State Government notified the auction. The petitioner participated in the auction and being the highest bidder was granted settlement for the District of Patna, Bhojpur and Saran. The present writ application is concerned with the settlement of sand ghats through Reverse e-auction in the District of Bhojpur. Subsequently, the petitioner deposited the security amount and registered Agreement of Settlement was executed between the Department of Mines and the petitioner in Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 10/17 Form 'O' for the period 1.1.2015 to 31.12.2019. The mining plan was approved in phased manner. The petitioner also got environmental clearance in similar manner. Consequently the petitioner started conducting mining operation.
The Collector, Bhojpur, all of a sudden, vide Memo No. 904/M dated 05.10.2017, as contained in Annexure 3, cancelled the settlement of all sand ghats in the District of Bhojpur without giving any opportunity of hearing to the petitioner, as provided under Rule 24(3) of Rules 1972. The said order of cancellation of settlement was challenged by the petitioner in C.W.J.C. No. 16952 of 2017 and the said writ application was disposed of by a Bench of this Court vide order dated 15.12.2017 by setting aside the order of cancellation of settlement dated 05.10.2017 passed by the Collector, Bhojpur and the matter remitted back to the Collector for passing fresh order after giving due opportunity of hearing to the petitioner. On remand, the Collector, Bhojpur again reiterated the cancellation of settlement and the said order was challenged in Revision Case No. 3 of 2018 before the Mines Commissioner, Bihar, wherein vide order dated 25.01.2018 the petitioner was permitted to resume the mining operation for the remaining period subject to certain conditions, as the petitioner was Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 11/17 directed to pay B.S.M.C. charges at the prevailing rates for all the Sand sold, the pending royalty as well as the penalty for exceeding the environmental cap in certain ghats along with interest as per schedule annexed with the said order the petitioner will not obstruct the new settlee in conducting mining in pursuance to Reverse e-Auction. The petitioner will conduct the mining only within the area earmarked by Deputy Director, Mines and his team through survey. Accordingly, the Collector, Bhojpur issued work order in favour of the petitioner after taking an affidavit of undertaking for the conditions mentioned in revisional order.
In the meantime, the Respondent authorities initiated process of fresh settlement of sand ghats through Reverse e- Auction vide Memo dated 05.12.2017 and 10.01.2018 by issuing NIT holding auction and issuing work order in favour of Respondent nos. 8 to 14, as contained in Annexure 1 series.
The Respondent Department of Mines and Geology, Government of Bihar, in exercise of power under Section 15 of the Act 1957, framed Bihar Minor Mineral Rules, 2017 (hereinafter referred to as Rules 2017). The said Rules 2017 was challenged in CWJC No. 15965 of 2017 and analogous cases (Pushpa Singh and Ors. Vs. The State of Bihar and Ors. Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 12/17 Considering the provisions of Rules 2017 being unreasonable, a Division Bench of this Court, while admitting the writ application stayed the operation of Rules 2017 in its totality in the following words:
"We admit this appeal and direct for stay of the new Bihar Minor Mineral Rules, 2017 in its totality until further orders."
The Division Bench allowed Rules 1972 to revive and vide order dated 11.12.2017 directed the Respondents concerned not to obstruct sand mining in accordance with the provisions of Rules, 1972 in the following terms:
"......Any action taken in creating hindrance with regard to carrying out mining operation in accordance to the unamended rule shall be viewed seriously and the officer concerned shall be personally held responsible for the same."
The Division Bench also directed vide order dated 18.12.2017 passed in CWJC No. 15965 of 2017 and its analogous cases, not to finalize the process of tender in the following words:
".....In the meanwhile, we direct that even any tender has been issued, the process shall not be finalized without the leave of this Court."
Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 13/17 It is further submitted that the settlement or issuance of work order through Reverse e-Auction amounts to over reaching the above mentioned orders of Division Bench and contrary to the provisions of Rule 11A of Rules, 1972 as well as the guidelines under New Sand Policy, 2013.
Mr. Naresh Dikshit, learned special P.P. for the Department of Mines submits that settlement through Reverse e- auction has been made in terms of the provisions of Rule 11 A(1) (d)(e) and (f) of the Rules 1972 and only those sand ghats have been settled which were not already settled in favour of the petitioner. Moreover, the petitioner gave an undertaking in pursuance to the order of Mines Commissioner passed in Revision No. 03 of 2018 that the petitioner will not obstruct the new settlee through Reverse e-Auction in conducting mining.
It is submitted by learned counsel for Respondent nos. 11 and 12 that they participated in the bid of 'Reverse e- Auction' and thereafter the settlement has been made in their favour and petitioner undertook not to disturb the conduction of mining by the Respondents which gets reflected from the revisional order passed by the Commissioner, Mines. Moreover, any interim will jeoparadise their huge investment made in Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 14/17 pursuance to the settlement in their favour.
Considering the rival submissions of the parties, the only issue in the present writ application is whether the Respondent Department of Mines can segregate the part of stretch of river in a particular District for the purpose of 'Reverse e-Auction. Prima facie, in view of the provisions under Rule 11A(1)(a)(b) of Rule 1972 the entire stretch of all the rivers in a particular District has to be treated as single unit. It is needless to say that Rule 11A is a complete code so far as settlement of sand mining through public auction is concerned. Moreover, similar stipulation has been incorporated in the new State Sand Policy, 2013, as also in the Agreement of Settlement entered into between the petitioner and the Department of Mines. Above all this Court at present feels that entire exercise of settlement through the Reverse e-Auction amount to over reaching the orders of the Division Bench as there is nothing on record to suggest that while settling the sand ghats in question with respondent nos. 8 to 14 during subsistence of lease in favour of the petitioner any leave of Division Bench was taken.
Having heard the learned counsels for the parties, on conjoint reading of Rule 11A(1) (a)(b) of Rules, 1972, clearly mandates that the rule provides the mode of settlement of sand Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 15/17 and minor mineral through auction to highest bidder. The prescribed mode is mandatory in nature. It further stipulates that entire stretch of area of all the rivers in a particular District has to be treated as one unit.
Similar is the stipulation in the New Sand Policy, 2013 and in the Agreement of Settlement made in favour of the petitioner. It is well settled cannon of law, that if the statute or law prescribes a thing to be done in a particular manner, then it has to be done in that particular manner or not at all. A useful reference, in this regard, may be made to the decision of Apex Court passed in the case of Selvi J. Jayalalitha and Ors. Vs. the State of Karnataka and Ors, 2014(1) PLJR SC 531.
This is not in dispute that during subsistence of settlement of sand ghats in favour of the petitioner with regard to the District of Bhojpur, the fresh settlement has been made in favour of Respondent Nos. 8 to 14, through Reverse e-Auction, which is not only contrary to Rule 11A, which prescribes the mode of settlement of sand ghats by auction, but also amounts to over reaching the above quoted orders of the Division Bench.
Issue notice to Respondent nos. 8 to 14 except Respondent nos. 11 and 12 by ordinary post as well as by registered cover with A/D for which requisites must be filed Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 16/17 within a period of three weeks failing which this application, as against the concerned Respondents, shall stand rejected without further reference to the Bench.
It is also expected from Respondent nos. 2 and 3 to ensure that private Respondent nos. 8 to 14 are not allowed to conduct any sand mining/excavation in the District of Bhojpur henceforth and further that the petitioner is not obstructed from conducting mining/excavation as per the terms of settlement in his favour.
In view of the discussion made above, the order of settlement or work orders issued in favour of Respondent Nos.8 to 14 are stayed. They are forthwith restrained to conduct any sand mining in the District of Bhojpur.
It is expected from Respondent Nos. 2 and 3 to ensure that compliance of the order of this Court.
The respondent nos. 2 and 3 will further ensure that the petitioner may not be obstructed in conducting sand mining in the District of Bhojpur as per the terms of agreement of settlement.
List this matter after service of notice to Respondent Nos. 8 to 14.
In the meantime, it is expected from the learned Patna High Court CWJC No.6494 of 2018(5) dt.11-05-2018 17/17 Special P.P., Department of Mines and learned counsel for Respondent nos. 11 and 12 to file counter affidavit.
(Dinesh Kumar Singh, J) anil/-
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