Patna High Court - Orders
M/S. Aditya Multicom Private Limited vs The State Of Bihar & Ors on 12 April, 2018
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5607 of 2018
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M/s. Aditya Multicom Private Limited
... ... Petitioner/s
Versus
The State Of Bihar & Ors
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Suraj Samdarshi
For the Respondent/s : Mr. Gyan Prakash Ojha- Ga7
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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL ORDER
4 12-04-2018Heard Mr. Suraj Samdarshi, learned counsel for the petitioner and Mr. Naresh Dixit, learned Special P.P., Mines.
Though the matter was heard on 3rd April, 2018, when the order was dictated, but subsequently, it was noticed that the petitioner did not bring on record the agreement of settlement made in favour of the petitioner for Sand Ghats for the District of Aurangabad, rather he brought on record the agreement of Settlement with regard to the sand Ghats of Rohtas, whereas through Annexure-6(series), the work order issued in favour of new settlee was brought on record instead of settlement made in their favour. Hence, the matter was reheard on 05.04.2018 and the petitioner was permitted to bring on record the agreement of settlement made in his favour with regard to Sand Ghats for the district of Aurangabad.
The present writ application has been filed for Patna High Court CWJC No.5607 of 2018(4) dt.12-04-2018 2/13 quashing the notice inviting Reverse e-Auction dated 23.12.2017 of the different Sand Ghats in the district of Aurangabad in pursuance to advertisement No. 11719 (Mines) 2017-18, dated 23.12.2017, issued under the signature of Under Secretary, Department of Mines and Geology, Government of Bihar and for quashing the letter of settlement with added prayer to reduce the amount of settlement to the extent the Sand Ghats of the District have been auctioned to third parties. The prayer made in the writ application, as stipulated in paragraph no.1 reads as follows:-
"(i) For issuance of a Writ in the nature of Certiorari quashing the notice inviting bids for Reverse E-Auction dated 23.12.2017 of the Sand Ghats of the petitioner, namely Dhamni, Karamkila, Anikaat, Sahaspur, Sheikhpura, Kochar, Upahara, Koiridhi, Naur, Devi, of the District of Aurangabad and as appended to Advertisement no. 11719 (Mines) 2047-18, dated 23.12.2017 issued by the Under Secretary, Department of Mines and Geology, Government of Bihar, whereby the aforesaid Ghats have been auctioned on 15.01.2018 for the period till 31.12.2019.
(ii) For a declaration that the various letters of settlement of various Sand Ghats in the District of Aurangabad Patna High Court CWJC No.5607 of 2018(4) dt.12-04-2018 3/13 vide memo no. 62 dated 27.01.2018, memo no. 63 dated 27.01.2018, memo no. 64 dated 27.01.2018, memo no. 65 dated 27.01.2018, memo no. 66 dated 27.01.2018, memo no. 67 dated 27.01.2018, memo no. 68 dated 27.01.2018, memo no. 69 dated 27.01.2018, memo no. 70 dated 27.01.2018, memo no. 71 dated 27.01.2018, are illegal and bad in law.
(iii) For issuance of a Writ in the nature of Mandamus directing the respondent authorities to reduce the amount of settlement to the extent 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.
I.A. No. 2933 of 2018 I.A. No. 2933 of 2018 has been filed with a prayer for amendment of prayer made in the writ application as the petitioner through writ application challenges the work order issued in favour of respondent nos. 4 to 13, as contained in Annexure-6(series) of the main writ application assuming it to be settlement order and not the decision taken by the respondent authorities to settle the sand Ghats in favour of the private respondents. Hence, in the present Interlocutory Application, the Patna High Court CWJC No.5607 of 2018(4) dt.12-04-2018 4/13 relief claimed by the petitioner, as stipulated in paragraph no.4 of the Interlocutory Application, reads as follows:-
"For quashing of the Memo No. 369, 270, 371, 372, 373, 374, 375, 376, 377 and 378 all dated 17.01.2018 issued by the respondent no.2 in favour of the private respondents and all consequential acts pursuant thereto."
I.A. No. 2855 of 2018 Through the above mentioned Interlocutory Application, prayer has been made for amendment of relief to the extent of quashing the decision dated 15.01.2018, taken by Selection Committee, whereby respondent nos. 4 to 13 have been selected as successful tenderers, as contained in Annexure- 1 to the Interlocutory Application and further quashing all consequential orders/communications, including the work order. The relief prayed for, as stipulated in paragraph no.5 of the Interlocutory Application, reads as follows:-
"5 (1)(iv). For quashing of the decision taken on 15.01.2018 by the Selection Committee constituted by the respondent Department of Mines, whereby and whereunder the respondent nos. 4 to 13 have been selected as successful tenderers, and all further consequential acts pursuant thereto including issuance of work orders all dated 27.01.2018 in favour Patna High Court CWJC No.5607 of 2018(4) dt.12-04-2018 5/13 of the private respondent nos. 4 to 13."
So far as the prayer for amendment of relief prayed for in the Interlocutory Applications is concerned, Mr. Naresh Dixit, learned Special P.P., Mines does not have any objection to the same.
Accordingly, I.A. Nos. 2933 and 2855 of 2018 are allowed to the extent of amendment of prayer as stipulated in paragraph nos. 4 and 5 of the respective Interlocutory Applications.
C.W.J.C. No. 5607 of 2018 It is submitted by learned counsel for the petitioner that the petitioner is a registered Private Limited Company, namely, M/s Aditya Multicom Private Limited.
An advertisement was published on behalf of respondent no.1, Commissioner-Cum-Principal Secretary, Department of Mines and Geology for settlement by auction of the Sand Ghats for several districts for the period 2015-2019 as per the New Sand Policy, 2013 wherein entire area of all the rivers of a particular district has to be considered as single stretch/unit. Hence, the tender was made for several districts of State of Bihar including the district of Aurangabad treating a district as a single unit.
Patna High Court CWJC No.5607 of 2018(4) dt.12-04-2018 6/13 In pursuance to the advertisement, the petitioner applied and participated in the bid and was declared the highest bidder and was accordingly awarded the tender. On compliance of all the conditions stipulated in the N.I.T., the work order was issued vide letter no. 44, dated 23.01.2015. On completion of all formalities, the petitioner entered into an agreement dated 21.04.2015 with the respondent-Department of Mines and Geology, as contained in Annexure-1(series). Subsequently, the petitioner started conducting mining operation after getting the environmental clearance. After change of the government in the year 2017, different types of objections were raised, as a result, the petitioner was obstructed from conducting the mining. Consequently, the respondent authorities, invited bids for Reverse e-Auction dated 23.12.2017 for several Sand Ghats within the district of Aurangabad, issued under the signature of respondent no.2, Under Secretary, Department of Mines and Geology, Government of Bihar till 31.12.2019, as contained in Annexure-4. Though the said notice inviting bids for Reverse e- Auction is contrary to the provision of Rule 11 (A) of the Bihar Minor Mineral Concession Rules, 1972 (hereinafter called 'the Rules, 1972') and Sand Policy, 2013 of the State Government.
Subsequently, the Collector, Aurangabad, vide order Patna High Court CWJC No.5607 of 2018(4) dt.12-04-2018 7/13 dated 19.09.2017, cancelled the settlement of 12 sand Ghats out of 24 sand Ghats settled in favour of the petitioner, on the ground of not getting the environmental clearance. The said order was challenged by the petitioner in Revision Case No. 04 of 2017 and vide order dated 25.01.2018, as contained in Annexure-5 (series), the Mines Commissioner declined to interfere till the petitioner obtained the environmental clearance. However, the petitioner filed Miscellaneous Case No. 01 of 2018 before the Mines Commissioner for review of the order dated 25.01.2018, passed in Revision Case No. 04 of 2017, wherein, vide order dated 06.02.2018, the Mines Commissioner set aside the order of the Collector dated 19.09.2017 as contained in Annexure- 5 (series) and directed the Collector to consider the modified mining plan submitted by the settlee.
In pursuance to Reverse e-Auction 10 sand Ghats were auctioned and settlement was made in favour of respondent nos. 4 to 13, but the settlement order was never circulated or published. However, a communication was made by Special Secretary-cum-Director to the District Magistrate, Aurangabad, vide memo no. 369 to 378 dated 17.01.2018, as contained in Annexure-1 to 9 of I.A. No. 2933 of 2018 intimating the names of successful tenderers i.e. respondent nos. Patna High Court CWJC No.5607 of 2018(4) dt.12-04-2018 8/13 4 to 13.
It is relevant to state here that Selection Committee, vide decision dated 15.01.2018, made selection of successful tenderers, i.e., respondent nos. 4 to 13 as contained in Annexure-1 to I.A. No. 2855 of 2018, consequently the work orders were issued in favour of respondent nos. 4 to 13, vide letter nos. 62 to 71, under the joint signature of District Magistrate, Aurangabad and District Transport Officer-cum-In- Charge, Mining Department Officer, Aurangabad, as contained in Annexure-6 (series) to the writ application.
It is submitted by learned counsel for the petitioner that initially, entire area of all the rivers of the district of Aurangabad was treated as one unit, as settlement was made in favour of the petitioner, but subsequently, with the change of Government, artificial segregation was made and in the District of Aurangabad, 24 units/Ghats were created which has subsequently, been enhanced to 60 units/Ghats.
It is further submitted that the issue of Reverse e- Auction and consequent settlement by segregating different ghats in one particular district contrary to the Provisions under Rule 11(A)(1)(a)(b) of the Rules, 1972 and Sand Policy 2013 and the terms of agreement of settlement was considered by this Patna High Court CWJC No.5607 of 2018(4) dt.12-04-2018 9/13 Court while passing interim order, restraining new setllee to conduct mining, vide order dated 27.02.2018, passed in C.W.J.C. No. 1002 of 2018. It is submitted that the authorities have initially tried to obstruct the setllee from conducting the mining by enacting Bihar Minor Mineral Rules, 2017. The same was challenged in C.W.J.C. No. 15965 of 2017 (Pushpa singh & Anothers Vs. The State of Bihar and Others) and other analogous cases, wherein vide order dated 27.11.2017, while admitting the writ applications, a Division Bench of this Court directed for stay of operation of Bihar Minor Mineral Rules, 2017, but in spite of the stay, re-tenders were issued and subsequently, vide order 18.12.2017 it was directed that even if any tender has been issued, the process shall not be finalized without the leave of the Court.
The interim order of the Division Bench dated 27.11.2017, passed in C.W.J.C. No. 15965 of 2017 and other analogous cases, was challenged before the Supreme Court in S.L.P., No. 33129 of 2017, but the Supreme Court, vide order dated 15.12.2017, while disposing the S.L.P., declined to interfere with the order of the Division Bench of this Court dated 27.11.2017.
Hence, Reverse e-Auction in the present case without Patna High Court CWJC No.5607 of 2018(4) dt.12-04-2018 10/13 leave of the Division Bench, is absolutely contemptuous, but in spite of the same, the settlement has been made in favour of private respondent nos. 4 to 13 and the work order has been issued, which is absolutely in derogation to the Sand Policy, 2013 as well as the terms of agreement of settlement with the petitioner.
Learned Special P.P., Mines submits that in other cases, they have cancelled all the resettlement or restrained the new setllee in pursuance to settlement made through Reverse e- Auction and if any such order is being passed, they shall not be given effect to.
Considering the rival submissions of the parties, this Court is of the view that Rule 11(A)(1)(a)(b) of the Rules, 1972 prescribes the mode of settlement of sand Ghat as minor mineral which clearly stipulates that the entire area of all the rivers in a particular district has to be treated as one unit/stretch. Rule 11(A) 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 Patna High Court CWJC No.5607 of 2018(4) dt.12-04-2018 11/13 treated as individual stretches and all such stretches in one district shall be combined into one single unit for the purpose of settlement................................
Similar is the stipulation in the Clause-I and II of the Sand Policy, 2013, which reads as follows:-
"izR;sd ftyk esa vofLFkr lEiw.kZ unh fo'ks'k dks ,d [kaM ekuk tk;sxkk k bl izdkj izR;sd ftyk esa vofLFkr lHkh ufn;ksa dks vyx vyx [kaM ekurs gq, mUgsa ,dhd`r :i ls ,d bdkbZ ds :i esa cnkscLrh dh dkjZokbZ dh tk;sxh k"
Similar is the stipulation in agreement of settlement dated 24th July, 2015, as contained in Annexure-1 to I.A. No. 2691 of 2018, which reads as follows:-
"Whereas a tender-Cum-auction dated 19.01.2015 and finalized on 23.01.2015 for the unit No. one comprising all rivers passing through the District-Aurangabad of Bihar"
Part-I "All the tract of settled sand ghat situated in all rivers passing through Aurangabad District."
Hence, there was no power or authority to the respondent authorities to segregate and devide the entire stretch of river in the district of Aurangabad into different units, which is contrary to the provisions of Rules, 1972 and Sand Policy, 2013 as well as terms of settlement.
Patna High Court CWJC No.5607 of 2018(4) dt.12-04-2018 12/13 In the circumstances, it appears that Reverse e- Auction and consequent settlement has been made contrary to the provisions of Rules and order of Division Bench and terms of agreement of settlement and Sand Policy of State Government.
In the circumstance, issue notice to respondent nos. 4 to 13 by ordinary process as well as by registered cover with A/D for which requisites must be filed within a period of two weeks, failing which this application shall stand rejected without further reference to the Bench.
In the meantime, since the agreement of settlement made in favour of respondent nos. 4 to 13 is not on record, hence the operation of the decision of the Selection Committee dated 15.01.2018, declaring the respondent nos. 4 to 13, as contained in Annexure-1 to I.A. No. 2855 of 2018, as well as work order issued in favour of private respondent nos. 4 to 13 through letter nos. 62 to 71, dated 27.01.2018, as contained in Annexure-6 (series) to the writ application are hereby stayed.
Authorities of Department of Mines and Geology and the District Magistrate, Aurangabad is directed not to allow the new settlees to conduct mining operation and, at the same time, allow the petitioner to conduct the mining operation as per the Patna High Court CWJC No.5607 of 2018(4) dt.12-04-2018 13/13 terms of agreement of settlement in his favour on payment/deposit of royalti amount as per the terms of agreement of settlement.
Respondent authorities, particularly respondent no.2, the Joint Secretary-cum-Director, Department of Mines and Geology is expected to restore the issuance of e-Challan in favour of the petitioner with regard to district of Aurangabad.
Learned Special P.P., Mines is permitted to file counter affidavit.
As jointly prayed for, put up this matter on service of notice along with C.W.J.C. No. 1002 of 2018.
(Dinesh Kumar Singh, J) Amrendra/-
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