Patna High Court - Orders
Md. Israil vs The State Of Bihar & Ors on 14 May, 2018
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8307 of 2018
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Md. Israil
... ... Petitioner
Versus
The State Of Bihar & Ors
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Sanjeev Ranjan
For the Respondent/s : Mr. Naresh Dixit, Spl.P.P.
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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL ORDER
3 14-05-2018Learned counsel for the petitioner is permitted to make necessary correction in the petition.
Heard Mr. Sanjeev Ranjan, learned counsel for the petitioner and Mr. Naresh Dixit, learned Special P.P., Mines.
The present writ application has been filed for quashing the notice dated 22.12.2017 inviting bids for Reverse e-Auction and consequent settlement of Sand Ghats in the District of Kishanganj in favour of Respondent nos. 7 to 9. The prayer made in the writ application as stipulated in paragraph no.1, reads as follows:-
" 1. i. For issuance of a writ in the nature of certiorari quashing the notice inviting bids for Reverse E-Auction dated 22.12.2017 of the Sand Ghats of the petitioner, namely Belwa, Baldiya, Baksa and Thakurganj in the District of Kishanganj dated 22.12.2017 issued by the Under Secretary, Department of Mines & Geology, Government of Bihar, whereby the aforesaid Ghats have Patna High Court CWJC No.8307 of 2018(3) dt.14-05-2018 2/11 been auctioned on 06.01.2018 for the period till 31.12.2019.
ii. For a writ of certiorari to quash the order of settlement dated 19.01.2018 issued in favour of private respondent of the ghat earlier settled in favour of the petitioner to be illegal, arbitrary and liable to be set aside. iii. For a declaration that the various letters of settlement of various Sand Ghats in the District of Kishanganj vide memo no.35 dated 19.01.2018, memo no.36 dated 19.01.2018, memo no.37 dated 19.01.2018 memo no.38 dated 19.01.2018 are illegal and bad in law. iv. For issuance of a writ in the nature of mandamus directing the respondent authorities to reduce the amount of settlement to the extent that the Sand Ghats of the District have been auctioned to third parties, as the entire river bed of the District was settled with the petitioner for a period of five years; and for such relief(s) to which the petitioner is found entitled in the facts and circumstances of the case.
v. And for any other relief or reliefs to which the petitioner is found entitled. "
I.A. No. 3572 of 2018 The above Interlocutory Application has been filed for amendment of prayer to the extent of quashing the order of settlement in pursuance to Reverse e-Auction in favour of Respondent nos. 7 to 9, The prayer made in the above Interlocutory Application, as stipulated in paragraph no.1, reads as follows:-
" 1. a. to quash the order of settlement issued under the Patna High Court CWJC No.8307 of 2018(3) dt.14-05-2018 3/11 signature of respondent no.3 as contained in memo no.137 dated 19.01.2018 (Annexure-12) for Baldiya Sand Ghat through e-auction reverse bidding in the district of Kishanganj in favour of respondent no.8.
b. to quash the order of settlement issued under the signature of respondent no.3 as contained in memo no.138 dated 09.01.2018 (Annexure-13) for Belwa Sand Ghat through e-auction, reverse bidding, in the district of Kishanganj, in favour of respondent no.7. c. to quash the order of settlement issued under the signature of respondent no.3 as contained in memo no.139 dated 19.01.2018 (Annexure-14) for Baksa Sand ghat through e-auction, reverse bidding in the district of Kishanganj in favour of respondent no.8. d. to quash the order of settlement issued under the signature of respondent no.3 as contained in memo no.140 dated 19.01.2018 (Annexure-15) for Thakurganj sand ghat through e-auction, reverse bidding, in the district of Kishanganj, in favour of respondent no.9."
I.A. No.3752 of 2018 The above Interlocutory Application has been filed with a prayer for quashing the part of the order dated 19.02.2018, passed in Revision Case No. 05 of 2018, by Mines Commissioner, Patna, as contained in Annexure-10, whereby though the petitioner was permitted to resume the sand mining but with certain conditions. The prayer made in the above mentioned Interlocutory Application, as stipulated in paragraph no.1 reads as follows:-
Patna High Court CWJC No.8307 of 2018(3) dt.14-05-2018 4/11 " 1. a. to quash the part of the order dated 19.02.2018 passed in Revision Case No.5 of 2018 by Mines Commissioner, Patna (Annexure-10) whereby the Mines Commissioner, imposed condition not to cause obstruction to any of the existing settlee, who were awarded ghats in the recent auction conducted by the department in the month of December, 2017, January, 2018 and February, 2018 which direction is unlawful and illegal as it is opposed to public policy and in the teeth of restraint order dated 18.12.2017 and is fit to be set aside. "
It is submitted by learned counsel for the petitioner that the conditions, incorporated in the revisional order are not only contrary to terms of Settlement with the petitioner, but are contrary to the mode of Settlement prescribed under Rule 11A of Rules, 1972.
Learned Special P.P.,Mines submits that he does not have any objection, if the above mentioned Interlocutory Applications are allowed to the extent of amendment of prayer in the main writ application.
Accordingly, the above mentioned Interlocutory Applications are allowed to the extent of amendment of prayer in the main writ application.
Learned counsel for the petitioner is permitted to amend the prayer in the main writ application accordingly.
The factual matrix of the case is that the petitioner being the highest bidder in public auction, entered into the Patna High Court CWJC No.8307 of 2018(3) dt.14-05-2018 5/11 Agreement of Settlement for sand mining in the District of Kishanganj for the period of 06.01.2015 to 31.12.2019. Consequently, the petitioner completed all formalities, like submission of mining plan and deposit of security amount, commenced conducting sand mining.
Subsequently, show cause was issued to the petitioner with regard to breach of condition of issuance of e-Challan and ultimately the District Magistrate, Kishanganj vide order dated 16.12.2017, as contained in Annexure-4, cancelled the settlement made in favour of the petitioner for the rest of the settlement period. The petitioner challenged the order of the Collector dated 16.12.2017, passed in C.W.J.C. No. 13768 of 2017 which was permitted to be withdrawn with a liberty to the petitioner to prefer revision before the Mines Commissioner. Consequently, the petitioner challenged the said order of the Collector in Revision Case No. 05 of 2018. The Mines Commissioner, vide order dated 19.02.2018, as contained in Annexure-10, virtually allowed the Revision Application by permitting the petitioner to resume the sand mining on payment of BSMC charges for all the sand sold by him and on payment of pending royalty as well as the penalty, along with the interest before 20.03.2018 as per the Schedule annexed with the order. Patna High Court CWJC No.8307 of 2018(3) dt.14-05-2018 6/11 The petitioner was further directed to conduct the mining within the earmarked boundaries by the Mines Department with a further condition not to obstruct the new settlees in conducting mining beyond the earmarked area. The petitioner then undertook to comply with the conditions incorporated in the revisional order by submitting an affidavit to that effect before the respondent authority.
However, in the meantime, the notice was issued inviting bids for fresh settlement of sand ghats in the District of Kishanganj through Reverse e-Auction dated 22.12.2017, as contained in Annexure-5. Consequently, the Departmental Committee declared Respondent Nos. 7 to 9 as successful bidder, which gets reflected from the minutes of the meeting dated 06.01.2018, as contained in Annexure-9. Ultimately, Respondent no.6, the Mines Inspector-cum-Competent Officer, Kishanganj vide Memo No. 35, dated 19.01.2018, as contained in Annexure-11 intimated to Respondent No.7 about the approval of the settlement in favour of Respondent nos. 7 to 9 with certain conditions. Similar intimation was given to the District Magistrate, Kishanganj vide Memo Nos. 137 to 140, dated 09.01.2018, issued under the signature of Special Secretary-cum-Director, as contained in Annexures- 12 to 15. Patna High Court CWJC No.8307 of 2018(3) dt.14-05-2018 7/11 It is submitted by learned counsel for the petitioner that in pursuance to the Agreement of Settlement made in favour of the petitioner for the period 2015 to 2019 and subsequent thereto on approval of the mining plan, the petitioner started conducting mining, but subsequently, 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.) The petitioner challenged the said Rules in C.W.J.C. No. 17413 of 2017, which was heard along with the above mentioned writ application. 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. Subsequently, when it was brought to the acknowledgment of the Division Bench that the authorities of the Department of Mines are still processing the fresh settlements, then vide order dated 18.12.2017, passed in C.W.J.C. No. 15965 of 2017, the Division Bench directed not to finalize the process even if the tender has been issued without leave of the Court.
Patna High Court CWJC No.8307 of 2018(3) dt.14-05-2018 8/11 It is further submitted that the settlement of sand ghats 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(1)(a)(b) of Rules, 1972 as well as the guidelines under New Sand Policy, 2013 and terms of agreement of Settlement made in favour of the petitoner. Rules 11A(1)(a)(b) clearly stipulates that entire stretch of all the rivers in a particular district has to be treated as one unit, but contrary to the stipulation under the Rules, the settlement in favour of Respondent nos. 7 to 9 through Reverse e-Auction has been made by segregating the Sand Ghats in the District of Kishanganj into several units. Moreover, the action of the respondent authorities would jeopardize the huge investment of the petitioner.
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. Moreover, the petitioner gave an undertaking in pursuance to the order of Mines Commissioner passed in Revision No. 05 of 2018 to the effect that the petitioner will not obstruct the new settlees in conducting mining. However, the Department of Mines have Patna High Court CWJC No.8307 of 2018(3) dt.14-05-2018 9/11 stayed the mining of sand by new setlees in pursuance to Reverse e-Auction in all such case where interim orders have been passed by this Court. It is lastly submitted that some reasonable time may be granted for filing counter affidavit.
Considering the rival submissions of the parties, this Court is inclined to quote Rule 11(A)(1)(a)(b) which reads as follows:-
" 11 A (1)-Mode of Settlement : -
The settlement of sand as minor mineral shall be done by public auction-cum-tender in favour of the highest bidder by the Collector/any officer so authorized by the State Government in the underlined manner:-
(a) Each river as a whole situated in each district shall be considered as a single stretch, the minimum area of which shall not be less than 5 hectares in any case.
(b) Likewise, all rivers in a district shall be treated as individual stretches and all such stretches in one district shall be combined into one single unit for the purpose of settlement."
Rule 11A(1) (a)(b) of Rules, 1972 provides the mode of settlement of sand as minor mineral through public auction to the highest bidder. The prescribed mode of settlement is mandatory in nature. Rule 11A(1) (a)(b) of Rules, 1972 further stipulates that entire stretch of entire 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 Patna High Court CWJC No.8307 of 2018(3) dt.14-05-2018 10/11 petitioner. It is well settled principle of law, that if a statute or law prescribes a thing to be done in a particular manner, then it has to be done in that particular manner and not in any other manner at all. A useful reference in this regard may be made to the decision of the Supreme Court 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 Kishanganj, work order has been issued in favour of Respondent Nos. 7 to 9, in pursuance to Reverse e- Auction without a proper settlement being made as mandated in Rule 11A of the Rules, 1972, which is not only contrary to Rule 11A, which prescribes the mode of settlement of sand ghats by public auction, but also amounts to over reaching the above mentioned orders of the Division Bench.
Issue notice to Respondent nos. 7 to 9 by ordinary post as well as by registered cover with A/D for which requisites must be filed within a period of three weeks failing which this application, as against the concerned Respondents, shall stand rejected without further reference to the Bench.
In view of the discussion made above, the operation Patna High Court CWJC No.8307 of 2018(3) dt.14-05-2018 11/11 of the so called settlement or work orders made or issued in favour of Respondent Nos.7 to 9 are stayed. They are restrained, forthwith, from conducting any sand mining in the District of Kishanganj.
It is expected from Respondent Nos. 2 and 3 to ensure the strict 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 Kishanganj as per the terms of Agreement of Settlement.
List this matter after service of notice to Respondent Nos. 7 to 9.
In the meantime, it is expected from the learned Special P.P., Department of Mines to file counter affidavit.
(Dinesh Kumar Singh, J) Amrendra/-
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