Jharkhand High Court
Lalchand Mahto vs The State Of Jharkhand on 16 August, 2023
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra, Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 1793 of 2022
Lalchand Mahto ... ... ... ... Petitioner
Versus
1. The State of Jharkhand
2. The Secretary, Department of Mines and Geology, Government of
Jharkhand, Ranchi
3. The Mines Commissioner, Jharkhand at Ranchi, Department of
Mines and Geology, Govt. of Jharkhand, Ranchi
4. The Director of Mines, Department of Mines and Geology
Government of Jharkhand, Ranchi
5. The Deputy Commissioner, Dhanbad
6. The District Mining Officer, Dhanbad
... ... ... Respondents
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CORAM: SRI SANJAYA KUMAR MISHRA, C.J.
SRI ANANDA SEN, J.
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For the Petitioner: Mr. Shashi Kumar Verma, Advocate
For the Respondents: Mr. Piyush Chitresh, A.C. to A.G.
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06/Dated: 16.08.2023
Upon hearing the learned counsel for the parties, this Court
passed the following, (Per, Sanjaya Kumar Mishra, C.J.)
ORDER
1. By filing the present writ application, the petitioner has prayed for issuance of an appropriate writ(s), order(s) and/or direction(s) for quashing the order as contained in Letter No. 1051/M, Dhanbad dated 30.03.2022 (Annexure-24) issued by the District Mining Officer, Dhanbad whereby and whereunder it is stated that the Deputy Commissioner, Dhanbad vide order dated 29.03.2022 has terminated the settlement of the Jamuniya Sand Ghat of the petitioner situated over an area of 58.68 acres in Chaita Panchayat of Topchanchi Circle in the district of Dhanbad on the ground that in view of the provisions under Rule 9(1)(E) of the Jharkhand Minor Mineral Concession Rules, 2017 as amended in 2017, after 180 days, no officer had the power to condone the delay caused in receiving the Environmental Clearance 2 Certificate, but after condoning the said delay, the agreement for the Sand Ghat was executed on 30.10.2019 at the district level, which is not in accordance with law and the petitioner has been directed to close all the works and to remove all the materials from the said sand ghat, whereas the Deputy Commissioner, Dhanbad has no power to review and set aside its own decision/order relating to the executed Contract dated 30.10.2019 and the judicial order dated 07.05.2019 passed by the learned Mines Commissioner, Jharkhand at Ranchi under Rule 62 of the J.M.M.C. Rules, 2004.
2. The facts of the case leading to filing of this writ application may be enumerated as follows:-
(i) On 21.02.2015, a general notice of auction for settlement of different Sand Ghats for 03 financial years were issued under Rule 12 of the Jharkhand Minor Mineral Concession (Amendment) Rules, 2014.
(ii) On 22.03.2015, the general notice was published in a daily newspaper, Dainik Jagaran. The petitioner participated in the auction held on 25.03.2015. He was declared as the highest bidder for the amount of Rs.21,50,000/- for the Jamuniya River Sand Ghat, situated over an area of 58.68 acres (23.75 hectares) bearing plot No. 192, Khata No. 257 of Mouza-Chaita and Plot No. 01, Khata No. 129 in Mouza-Kherabera of Topchanchi Circle in the District of Dhanbad, total two plots.
(iii) A Letter of Intent was issued to the petitioner on 30.03.2015 in the light of the approval given by the Deputy Commissioner, Dhanbad, on 27.03.2015.
(iv) The Sub-Divisional Forest Officer, Dhanbad vide letter No. 1337 dated 13.08.2015, submitted forest clearance.3
(v) Mining Plan along with Progressive Mine Closure Plan for the said Jamuniya River Sand Ghat was approved by the Assistant Mining Officer, Dhanbad vide letter dated 03.10.2015.
(vi) The petitioner submitted application on 05.10.2015 before the Member Secretary, State Environmental Impact Assessment Authority (hereinafter referred to as 'SEIAA' for brevity) for grant of Environmental Clearance for Jamuniya River Sand Ghat.
(vii) The petitioner submitted the Land Verification Certificate on 29.12.2015 in the office of the SEIAA, Jharkhand along with an application dated 30.12.2015.
(viii) Environmental Clearance Certificate was not issued to the petitioner for one year due to non-functioning of the Old Committee of SEIAA, Jharkhand.
(ix) The Joint Secretary, Government of Jharkhand vide memo No. 226/M dated 25.01.2016 directed all the Deputy Commissioners of Jharkhand to grant settlements of Sand Ghats for a period of three years with effect from the date of execution of the settlement agreement.
(x) The petitioner was called by the newly constituted Committee of SEIAA on 23.11.2016. Thereafter, the Deputy Secretary, Government of Jharkhand on 07.12.2016 directed the SEIAA, Jharkhand to take appropriate step in the matter.
(xi) The Member Secretary, SEIAA, Jharkhand Ranchi vide Letter No. 106 dated 27.12.2016 called for forest clearance from the Sub- Divisional Forest Officer, Hazaribagh Wildlife Sub-Division, District- Hazaribagh.
(xii) The Sub-Divisional Forest Officer, Hazaribag Wildlife Sub- Division, District Hazaribag on 19.08.2017 submitted its reports. 4
(xiii) The petitioner submitted representation dated 06.11.2017 in detail before the District Mining Officer, Dhanbad stating that he would submit the Environmental Clearance Certificate as soon as the same is granted by the SEIAA, Jharkhand.
(xiv) The Member Secretary of the SEIAA, on 22.11.2017 again called for reports from the Sub-Divisional Forest Officer, Wildlife Sub- Division, Hazaribagh and the Sub-Divisonal Forest Officer, Dhanbad, Forest Sub Division, Dhanbad.
(xv) Thereafter, the Sub-Divisional Forest Officer, Wildlife Sub Division, Hazaribagh on 21.02.2018 submitted its report to the Member Secretary, SEIAA, Jharkhand and on the basis of the same, Environmental Clearance Certificate was granted in favour of the petitioner on 05.06.2018 by the Member Secretary, SEIAA, Jharkhand and the petitioner submitted the same along with an application on 05.07.2018.
(xvi) The Deputy Commissioner, Dhanbad vide order dated 10.11.2018, cancelled the settlement of the said Jamuniya River Sand Ghat which was communicated to the petitioner on 17.11.2018 by the District Mining Officer, Dhanbad.
(xvii) The petitioner filed Revision Case No. 114 of 2018 in the court of the Mines Commissioner, Jharkhand for setting aside the rejection order dated 10.11.2018 passed by the Deputy Commissioner, Dhanbad and for condoning the delay in submitting Environmental Clearance Certificate and for other reliefs.
(xviii) The petitioner challenged the order passed by the Deputy Commissioner, which was communicated to him by the District Mining Officer, before the Commissioner, Mines, Jharkhand at Ranchi. (xix) The Commissioner on 07.05.2019 held that the delay cannot be attributed to the petitioner for submission of Environmental Clearance 5 Certificate and remanded the matter back to the Deputy Commissioner, Dhanbad with a direction to examine the matter within 30 days of receipt of the order and to dispose the matter subject to the provisions laid down in the Rules.
(xx) The Deputy Commissioner, Dhanbad executed a contract dated 30.10.2019 granting settlement of the aforesaid Sand Ghat in favour of the petitioner for three financial years. A deed of lease was executed on 30.10.2019.
(xxi) The petitioner along with an application dated 26.02.2022 deposited the third installment of Rs. 1,72,000/- and Rs.43,000/- in the shape of two demand drafts. However, the respondent closed the Jamuniya River Sand Ghat of the petitioner on 15.03.2022. (xxii) The District Mining Officer, Dhanbad vide letter dated 16.03.2022 issued a notice to the petitioner directing him to submit show cause within three days, which was received at the petitioner's office on 22.03.2022. The petitioner submitted application on the same day before the District Mining Officer as well as before the Deputy Commissioner. The petitioner also submitted show cause on 24.03.2022 before the District Mining Officer, Dhanbad. (xxiii) The District Mining Officer, Dhanbad thereafter issued the impugned order which is at Annexure-24.
3. Learned counsel for the petitioner would assail both Annexure- 20, i.e., the show cause notice and the final order at Annexure-24 on the ground that the show cause notice was not proper inasmuch as the show cause notice did not contain any ground on which the authorities proposed to cancel the lease granted in favour of the petitioner. Secondly, the learned counsel for the petitioner would further submit that Annexure-24 is bad in the eye of law in view of the fact that the delay that has been caused to obtain the environmental 6 clearance is not attributable to the petitioner and on that ground, especially after the amendment of Rule 9 of the Jharkhand Minor Mineral Concession Rules, 2004 and especially the proviso to 9(1)(E) by amendment dated 28.09.2020.
4. Mr. Piyush Chitresh, learned counsel for the State, would submit that the order passed by the District Mining Officer is legal and no error has been committed by the respondents. He would also submit that as the order under challenge, i.e., Annexure-24 is appealable order, the petitioner has an alternative and efficacious remedy for redressal of his grievances and so the writ application should not be entertained.
5. Coming to the last submissions made by the learned counsel for the State, this Court takes recourse to the judgment passed by the Hon'ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & others (1998) 8 SCC 1, in which the Hon'ble Supreme Court has held that not entertaining the writ application under Article 226 of the Constitution, in case of availability of efficacious and alternative remedy, is internal restrain created by the courts and there is no such provision anywhere in the Constitution of India or any other statute. The Hon'ble Supreme Court has further laid down four different situations in which the Court may be inclined to entertain an application under Article 226 of the Constitution of India even if there is alternative and efficacious remedy is available to the petitioner. When there is a violation of fundamental rights, violation of principles of natural justice, and where the order passed is without jurisdiction or that the vires of the statute is challenged, a writ application is maintainable. In this case, learned counsel for the petitioner would submit that the order passed by the 7 Deputy Commissioner, which is communicated to the petitioner, is without jurisdiction and therefore, the writ application is maintainable.
6. Learned counsel for the petitioner would submit that the Jharkhand Minor Mineral Concession Rules, 2004 do not provide for review of the order, earlier passed by the Deputy Commissioner and, therefore, the order impugned in this case is without jurisdiction.
7. Prima facie, we are satisfied that there is no provision available for review of the order already passed by the Deputy Commissioner especially when the order has been passed in compliance with the order passed by the Revisional authority, i.e., the Commissioner of Mines, Jharkhand, Ranchi, therefore, we are inclined to entertain the writ application.
8. Coming to the first contention, raised by the learned counsel for the petitioner, we would take into consideration the exact words used in the alleged show cause notice, i.e., Annexure-20 to the writ application, which reads as follows:-
" xx xx xx mi;qZDr fo"k;d izklafxd i= ds vkyksd esa lwfpr djuk gS fd vkids }kjk rksipk¡ph vapy ds pSrk iapk;r vUrxZr teqfu;k ckyw?kkV ds jdck&58-68 ,dM+ {ks= /kkfjr ckyw?kkV] ftldk vof/k fnukad 30-10-2019 ls rhu o"kksZa ;Fkk fnukad 29-10-2022 rd gS] dks 'ks"k vof/k ds fy, ifjlekIr djus dk fu.kZ; foHkkx }kjk fy;k x;k gSA vr% mik;qDr egksn; ds funs'kkuqlkj mijksDr ds lanHkZ 03 fnukas ds vanj dk;kZy; esa mifLFkr gksdj viuk i{k izLrqr djsa] vU;Fkk ,drjQk dkjZokbZ dh tk,xh] tks vkidks ekU; gksxkA bls vR;ko';d le>saA"
Thus, a plain reading of the show cause reveals that the authority issuing notice, i.e., the District Mining Officer, Dhanbad has not indicated the reasons for which the authorities wanted to revoke the lease granted in favour of the petitioner which on the face of it is erroneous.
9. In this connection, we rely upon the observations made by the Hon'ble Supreme Court in the case of UMC Technologies Private 8 Limited Vs. Food Corporation of India & Anr., (2021) 2 SCC 551:
2020 SCC OnLine SC 934, which was a case of a tender and blacklisting/down trading of a contractor. While considering the show cause notice and the contents thereof, the Hon'ble Supreme Court has observed that it must be noted that the first principle of civilised jurisprudence that a person against whom any action is sought to be taken or whose rights or interests are being affected should be given a reasonable opportunity to defend himself. The basic principle of natural justice is that before adjudication starts, the authority concerned should give to the affected party a notice of the case against him so that he can defend himself. The Hon'ble Supreme Court further held that such notice should be adequate and the grounds necessitating action and the penalty/action proposed should be mentioned specifically and unambiguously. An order travelling beyond the bounds of notice is not permissible and without jurisdiction to that extent. The Hon'ble Supreme Court taken into consideration its earlier observations made by it on an earlier occasion, i.e., in the case of Nasir Ahmad Vs. Assistant Custodian General, Evacuee Property, Lucknow and another, (1980) 3 SCC 1 and held that it is essential for the notice to specify the particular grounds on the basis of which such action is proposed to be taken so as to enable the noticee to answer the case against him. If these conditions are not satisfied, the Supreme Court further held that the person cannot be said to have been granted any reasonable opportunity of being heard.
10. The case in hand is squarely covered by the issue decided by the Hon'ble Supreme Court. In this case not only the notice (Annexure-20) has not specified the grounds on which the case of the petitioner was to be reconsidered for cancellation of lease but also the impugned final order, i.e., Annexure-24 travels beyond the notice in 9 the sense that it has taken into consideration the limitation, as was originally there in Rule 9(1)(E) which was never the case of the authorities even issuing the notice against the petitioner.
11. For better appreciation of the case, we feel it appropriate to take into consideration the exact words used by the District Mining Officer while communicating the order (Annexure-24) which is as follows:
" xx xx xx mi;qZDr fo"k;d izklafxd i= ds vkyksd esa dguk gS fd vkids }kjk /kuckn ftykUrxZr rksipkaph vapy ds pSrk iapk;r vUrxZr teqfu;k ckyw?kkV] jdck&58-68 ,dM+ dks 'ks"k vof/k ds fy, ifjlekIr djus dk fu.kZ; foHkkx }kjk fy;k x;k gSA mDr ds vkyksd esa mik;qDr egksn; ds vkns'kkuqlkj dk;kZy; i=kad 879@,e0] fnukad 16-03-2022 }kjk vkidks 03 fnukas ds vanj dk;kZy; esa mifLFkr gksdj viuk i{k izLrqr djus gsrq uksfV'k fuxZr fd;k x;k Fkk] ds vkyksd esa vkids }kjk fnukad 24-03-2022 dks tokc nkf[ky fd;k x;k Fkk] tks rF;kRed ,oa larks'ktud ugha jgus ds dkj.k [kkfjt dj fn;k x;k gSA izklafxd i=kuqlkj >kj[k.M y?kq [kfut leuqnku fu;ekoyh] 2004 ;Fkk la'kksf/kr 2017 ds fu;e 9¼1½¼M+½ ds izko/kkuksa esa mDr le; ;Fkk 180 fnu ds ckn izkIr i;kZoj.kh; Lohd`fr esa gq, foyEc dks {kkUr djus dh 'kfDr fdlh inkf/kdkjh esa fufgr ugha FkkA mDr foyEc dks {kkUr dj bl ckyw?kkV dk ,djkjukek ftyk Lrj ls fnukad 30-10-2019 dks fd;k x;k] ;g fu;ekuqdwy fof/k ekU; ugha gSA bl dkj.k mDr ckyw?kkV dks mik;qDr egksn; ds vkns'k fnukad 29-03-2022 }kjk 'ks'k vof/k ds fy, ifjlekIr dj fn;k x;k gSA vr% vkidks funs'k fn;k tkrk gS fd mDr ckyw?kkV ls lHkh izdkj ds dk;Z dks can djrs gq, lHkh lekxzh dks gVk ysaA"
12. Thus, it is clear that the notice issued by the authorities to the petitioner about the grounds on which his case is to be considered, so that he can effectively defend himself. It is also apparent that the authority has taken a decision of cancelling the lease, which has already been executed in his favour on the ground that it has not been executed within 180 days of issuance of Letter of Intent because of not obtaining of the Environmental Clearance.
13. There is another aspect of the case. In the year 2020, with effect from 28.09.2020 an amendment has been brought in to the aforesaid provision of Rule 9(1)(E), wherein, the Commissioner has been given the jurisdiction to condone the delay and take a decision on the basis of the merits of the case, depending upon the facts of this 10 case. Thus, it is erroneous on the part of the Deputy Commissioner to take a decision that in no case the lease can be executed after expiry of 180 days of issuance of Letter of Intent. There is an exception to the same and in this case, the Commissioner has remanded the matter back to the Deputy Commissioner on this issue only.
14. The Commissioner while remanding the matter has observed that the petitioner has applied for the environmental clearance on 05.10.2015 thereafter, Environmental Clearance was issued on 05.06.2018 after a long delay due to non-furnishing of SEIAA for one year. Non submission of forest clearance report by the Sub Divisional Forest Officer, Wildlife Sub-division, Hazaribagh and also non- submission of other wanting reports by the concerned authorities for which the petitioner is not responsible, hence, the Commissioner observed that the delay cannot be attributed to the petitioner for submission of Environmental Clearance Certificate. Though, the Commissioner observed that without going into the merits of the case of the petitioner, remanded the matter, in our considered opinion though the Commissioner, Mines, Jharkhand, Ranchi has stated in the final operative portion of the order of remand that he has not entered into the merits of the case, in fact, he has given categorical finding in the preceding paragraphs about the delay being caused for the reasons not attributable to the petitioner for submission of Environmental Clearance Certificate.
15. In that view of the matter, we are inclined to allow the writ petition, hence, writ petition is allowed. Both Annexure-20, i.e., the show cause and the consequential Annexure-24, i.e. the final order cancelling the lease in favour of the petitioner are, hereby, quashed. The petitioner is entitled of the benefits flowing from the lease agreements entered into by the authorities for the petitioner. 11
16. There shall be no orders as to costs.
17. Pending application, if any, stands disposed of.
18. Grant urgent certified copy of this order as per the Rules.
(Sanjaya Kumar Mishra, C.J.) (Ananda Sen, J.) N.A.F.R. APK/VK