Patna High Court - Orders
M/S Sanjay Choudhary vs The State Of Bihar on 18 July, 2024
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7740 of 2023
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M/s Sanjay Choudhary a proprietorship firm having its place of business at
Gram- Kholua, Post- Gidhaur, District- Jamui through its proprietir namely
Sanjay Choudhary male aged about 49 years son of Mishri Choudhry resident
of Gram- Kholua, P.S.- Khaira, Post- Gidhaur, District- Jamui- 811305.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Mines and
Geology, Bihar, Patna.
2. The Additional Chief Secretary, Department of Mines and Geology, Bihar,
Patna.
3. The Director, Department of Mines and Geology, Bihar, Patna.
4. The District Magistrate cum Collector, Jamui.
5. The Mines Development Officer, District Mining Office, Jamui.
6. The Bihar State Mining Corporation Limited, Patna through its General
Manager.
7. Sanjeev Kumar, S/o Shyam Sundar Sah,at- Laxmipur, P.O.-Laxmipur, P.S.-
Laxmipur, District- Jamui.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. SD Sanjay, Sr. Advocate
Mr. Gautam Kumar Kejriwal, Advocate
For the Respondent/s : Mr. Gyan Prakash Ojha (Ga7)
For Dept. of Mines : Mrs. Kalpana, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
8 18-07-2024Learned counsel for the petitioner prays for and is allowed to implead Sanjeev Kumar as respondent no. 7 in course of the day.
2. Heard Mr. S.D. Sanjay, learned Senior Counsel duly assisted by Mr. Gautam Kumar Kejriwal for the petitioner and Mrs. Kalpana, learned counsel representing the respondents. Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 2/17
3. The petitioner has moved before this Court for the following reliefs:
a) for holding and declaring the letter of acceptance bearing reference number 2054/Khanan dated 02.12.2022 as cancelled and of no consequence and so do the award of settlement in favour of the petitioner for the sandghat covered by such letter in view of the mass scale illegal mining carried out by the concerned contractor of the respondent Bihar State Mining Corporation Limited (hereinafter referred to as the Corporation for short) in the same mining site resulting in substantial variance in the availability of minerable quantity of sand as was depicted in the notice inviting tender and also violation of several terms and conditions of the same;
b) for further issuance of an order or direction upon the respondent Department of Mines and Geology to refund the entire amount of earnest money deposited by the petitioner as per the settlement amount after auction within a time frame as may be directed by this honourable court in order to protect the financial interest of the petitioner as the respondent Department of Mines and Geology and its authorities have maintained silence despite multiple representations of the petitioner behind an effort to draw their attention towards illegal mining Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 3/17 being carried out by the concerned contractor of the respondent Corporation in the same mining site which has been settled in favour of the petitioner for a period of five years;
c) for further holding and a declaration that it is the respondent Department of Mines And Geology and its authorities who have frustrated the settlement awarded in favour of the petitioner and have brought it to such a point where the deal has remained no more feasible, reliable, safe and healthier for the petitioner and therefore cannot be compelled to bear the burden of the said settlement which harbours no interest of the petitioner owing to defaults committed by the respondent Department of Mines And Geology and its authorities in shunning away from their obligation to protect the mining site under settlement from illegal mining in breach of the conditions of environmental clearance as well as other rules and laws;
d) for grant of any other relief or reliefs to which the petitioner is found entitled to in the facts and circumstances of the case.
4. The facts leading to the present writ petition is/ are as follows:-
5. The petitioner is having a proprietorship firm Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 4/17 and pursuant to the tender dated 16.09.2022 published by the Department of Mines and Geology, Bihar Patna (henceforth for short 'the Department') for settlement of sand ghat in the district of Jamui for a period of five years, he also participated and succeeded, so far as the Block No. 12 Barnar river, (Simariya) is concerned. This followed the letter no. 2054 dated 02.12.2022 issued by the District Magistrate, Jamui (Annexure 2 to the writ petition).
6. He submits that when the proprietor went for an inspection of the site before signing the contract documents, he found illegal mining being done by a contractor, who was earlier granted tender for do mining work for the adjoining sites. As the area for which tender was allowed in favour of the petitioner, an illegal mining was being done, he made a complaint on 12.12.2022 i.e. within ten days of the letter issued by the District Magistrate, Jamui (Annexure-4 to the writ petition).
7. Learned Senior Counsel submits that there was no response from the said respondents and as such, the copies were also forwarded to the Bihar State Mining Corporation Limited (henceforth for short 'B.S.M.C.L.') and its authorities but again without any response. This followed his complaint to the Director of 'the Department' on 20.12.2022 (Annexure-5 to Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 5/17 the writ petition) as also the Additional Chief Secretary.
8. It is his submission that ignoring the aforesaid complaint, a demand has been raised against the petitioner details of which could be found in the counter affidavit filed on behalf of respondents no. 4 and 5. He submits that this is illegal in the backdrop of the fact that when no contract was signed, he cannot be forced to make such payment.
9. A counter affidavit has been filed on behalf of the respondent nos. 4 & 5 and paragraph nos. 11 to 21 read as follows:
"11. That it is further submitted that however, the petitioner, on 12.12.2022, just after 12 days of getting succeeded in the technical bid, submitted a representation before the Respondent No. 04, alleging that the contractor engaged by the Corporation is conducting mining on the site i.e. cluster 17, river Simariya, District- Jamui, illegally by conducting the mining operation 300 m beyond the geo-coordinates approved and specified as well as by transgressing the territorial limits of the environmental clearance as well as the rules relating to the permissible depth of excavation.
12. That it is further submitted that pursuant to such complaint of the petitioner, the Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 6/17 respondent authorities of the Department, by discharging their duty following the provisions of the Rules, 2019, conducted an inspection on site of the Cluster 17, situated at river Simariya in District Jamui, whereby the inspecting authority i.e., the District Mining Inspector, Jamui, was of the finding that the contractor engaged by the Corporation, namely M/s Shyam Enterprises having its proprietor namely Sanjeev Kumar, has conducted mining operation on the said site violating the relevant provision of the mining stipulated in the Rules, 2019.
13. That it is further submitted that during the inspection, after conducting measurement of the mining site, it was found that the said contractor has conducted the mining operation in the area 84'x 88.5' x 3' which was beyond the permissible area of mining, as a result, the contractor has conducted excess mining for quantity of 22,302 CFT, on the said site, causing loss of amount to the tune of Rs. 12, 29, 510/-.
14. That in pursuance to the said finding during the inspector, a notice vide Memo No. 105/Khanan dated 23.01.2023, was issued to the said contractor by the Respondent no. 05, the Mining Development Officer, Jamui, whereby the contractor, Sanjay Kumar was directed to make payment of the Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 7/17 penalty of amount to the tune of Rs. 12,29,510/- against the loss caused by him by conducting illegal mining on the cluster no. 17, river Simariya at District- Jamui.
15. That pursuant to such notice of the respondent issued to the contractor, the contractor, abided by the direction and made payment of the entire fine amount to the tune of Rs. 12,29,510/- as the said payment was acknowledged by the respondents. However, the contractor Sanjay Kumar, also submitted a letter dated 02.02.2023 with stipulation that the payment of fine amount against the illegal mining of sand at the site of cluster 17, has been made to the respondent Department.
16. That subsequently on 18.03.2023 and 19.03.2023, again inspection of the mining site situated at cluster 17 of River Simariya was conducted by the respondent authority when again the same contractor was found engaged in illegal mining of the sand beyond the environmental clearance area, causing loss of an amount to the tune of Rs. 53,02,025, consequently, the contractor was issued a notice by the Corporation vide Memo No. 935 dated 21.03.2023 directing the said contractor to make payment of the loss amount in view of the proviso to the Rule 56(2) of the Rules, 2019 within three days.
17. That in pursuance to the above-mentioned notice of the respondent, Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 8/17 the contractor, namely Sanjeev Kumar made payment of the said fine amount of the tune of Rs. 53,02,025/- by depositing the same into the bank account of the Corporation and submitted certificate of the payment issued by the bank on 22.03.2023 before the respondent authority.
18. That it is further submitted that in view of the above-mentioned facts, it is established that the respondent authorities carried out their statutory duty as well as the obligations caste upon them under the Rules, 2019 as well as took appropriate legal steps on the representation of the petitioner filed on 12.12.2022 and hence, the respondents cannot be held to have a lackluster attitude towards the illegal mining before conducted in the cluster of the mining which has been allotted to the petitioner in the bidding process.
19. That as a matter of fact, pits are created due to the sand mining on the sand ghats and subsequently during the rainy seasons sand excavation are refilled with sand by natural process of replenishment in a reasonable period of time so that the area is again available for mining.
20. That it is humbly submitted that at this stage during rainy season, and at Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 9/17 the time of filing of the present counter affidavit, the sand replenishment process is being taken place on all the sand ghats including the sand ghat situated at cluster 17 at river simariya, which has been allotted to the petitioner for conducting mining operation.
21. That even for the sake of argument, considering the excessive mining beyond the permissible area as well as by transgressing the area beyond the environmental clearance, the process of replenishment of the sand on the said ghat will cause the sand on the said sufficiently available for the petitioner and will allow him for conduction of mining operation therein. In the circumstance, the entire paraphernalia laid down by the petitioner in the present case is based on baseless assumptions to the effect that the petitioner would not be able to conduct considerable quantity of the sand on the said sand cluster resulting into his huge financial loss.
10. A bare perusal of the counter affidavit of the respondents would show that they have virtually accepted the fact that M/s Shyam Enterprises, who was engaged by 'the Corporation' to do mining work in the adjoining part was Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 10/17 violating the relevant provisions of Mining rules 29 (henceforth for short ' the 2019 Rules').
"29. Conditions on which the quarrying permit shall be granted. (1) Every quarrying pew the surface shal Rule 27 (1), shall contain a condition that the depth of the 13 the permat ordinarily exceed 3 metresition degging pits beyond [3 meters] the permit holder shall obtain the permissid that for Competent Officer. (2) Any quarrying permit granted under Rule 27 (1) may contain such other conditions as the Competent Officer.
(2) Any quarrying permit granted under Rule 27 (1) may contain such other conditions as the competent officer may deem necessary in regard to the following matters, namely:-
(a) Time limit, mode and place of payment of rents and royalties;
(b) Compensation for damage to the land covered by permit;
(c) Felling of trees in consultation with Divisional Forest Officers in case of forest areas and in consultation with the Additional Collector in other areas;
(d) Restriction on surface operation in any area prohibited by any authority;
Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 11/17
(e) Reporting of accidents;
(f) Indemnity to Government against claims of third parties;
(g) Period within which the minor mineral shall be extracted and removed and delivery of possession over lands on the expiry of such period or on the removal of the quantity of the minor mineral for which the permit is valid;
(h) Forfeiture of property left after cancellation of the permit; and
(i) Disposal of minerals in stock at site after expiry of the permit.] (3) In case of breach of any of the conditions subject to which the permit is granted, the Competent Officer may cancel the permit issued by him. On cancellation of the permit, the quarried material lying on the land from which they are extracted shall become the absolute property of the Government and may be sold by public auction by the Competent Officer.
[(4) The Competent Officer after such enquiry and verification, as they may deem necessary, shall assess amount of royalty and penalty for the excess quantity at the end of the prescribed period] [(5) Every permit holder shall obtain a prior environmental clearance as specified in Rule 21A (2).
Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 12/17 (6) Every permit holder shall also abide by the following conditions-
(i) The activity associated with mining/excavation of brick earth and ordinary clay/earth for purpose of brick manufacturing, construction of roads, embankments etc. shall not involve blasting.
(ii) The mining/excavation activity shall be restricted to a maximum depth of 3m below normal ground level at the site.
(iii) The mining/excavation activity shall be kept above the ground water table at the site.
(iv) The mining/excavation activity should not alter the natural drainage pattern of the area.
(v) The mined/excavated pit shall be restored by the project proponent for useful purpose(s).
(vi) Appropriate fencing all around the mined/excavated pit shall be made to prevent any mishap.
(vii) Measures shall be taken to prevent dust emission by covering of mined/excavated earth during transportation.
(viii) Safeguard shall be adopted against health risks on account of breeding of vectors in the water bodies created due to mining/ excavation of earth.
Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 13/17
(ix) Workers/labourers shall be provided with facilities for drinking water and sanitation.
(x) A berm shall be left from the boundary of adjoining field having a width equal to at least half the depth of proposed excavation.
(xi) A minimum distance of 15 m from any civil structure shall be kept from the periphery of any excavation area.
(xii) No mining of earth/excavation of 'brick earth' or ordinary earth shall be permitted in case the area of mining excavation is within 1km of boundary of national parks and wild life sanctuaries:
Provided that the permit holder shall abide by any other condition imposed or any instruction issued by the Central Government/State Government in this regard.]"
11. Initially a fine of Rs. 12,19,510/- was imposed upon him pursuant to the Notice No. 105 dated 23.01.2023, which he immediately paid.
12. However, pursuant to second inspection, again the said M/s Shyam Enterprises (Sanjeev Kumar) was found indulged in an illegal mining. Thus, vide memo no. 935 dated Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 14/17 23.03.2023, Rs. 53,00,025/- was again fined and this was also paid by him.
13. Learned Senior Counsel appearing for the petitioner submits that a bare perusal of the statement made by the respondents in their own counter affidavit would show that the allegation that was made by the petitioner immediately after the tender was allotted to him was/were true. He has drawn attention to this Court of Rule 56(2) of 'the 2019 rules' which reads as follows:-
"56(2) Whoever contravenes the above sub-rule shall be punished with an imprisonment for a term, which may extend to two years or with a fine which may extend to five lakh rupees, or with both:
Provided that the mining officer of the district or the Assistant, Deputy Additional Director or Director Mines, or any other office authorized by the Government, may either before or after the institution of the prosecution, compound the offence committed in contravention of the above rule, on payment of cost of mineral and compound fee as mentioned Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 15/17 below:-
Sl. Vehicle/Equipment Compound Fee
No (in Rs.) Per unit
1. Tractor trolley 25000/-
2. Matador/Half truck 407, 608 50000/-
3. Full body truck/Dumper (hydraulic 6 100000/-
wheeler vehicle)
4. 10 or more than 10 wheeler vehicle 200000/-
5. Crane, Excavator, Loader, Power 400000/-
hammer, Compressor, Drilling machine etc. Note.- Cost of the mineral shall be taken as twenty five times of royalty in lieu of rent, royalty, compensation for environmental degradation and tax chargeable on the land occupied without lawful authority, etc.:
Provided that the amount of compound fee in cases other than specified as above shall not be less than rupees twenty five thousand and shall be in addition to the cost of mineral."
14. Having gone through the facts of the case as also the materials on record and the submissions put forward by the parties, this Court finds it surprising that within ten days of issuance of tender, the petitioner made communication with all the respondents including the Additional Chief Secretary of the concerned department drawing their attention towards the illegal mining being done by the respondent no. 7.
15. The respondents as would be seen from the Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 16/17 counter affidavit which has been vetted by the District Magistrate, Jamui (Respondent No. 4) that the allegation of the petitioner was found true inasmuch as twice during the inspection, it was found that the respondent no. 7 was doing illegal mining in the area allotted to the petitioner. Neither on the first occasion nor after the second inspection, any F.I.R. was lodged against him. The role of the local official including the respondent no. 5, (the Mines Development Officer, Jamui) in this regard cannot be ignored.
16. Certainly, by allowing the respondent no. 7 to indulge in the illegal mining and allowing him to get away only with fine shows the alleged complicity of the local officials as they chose not to lodge any FIR on both the occasions.
17. In that background, before passing an appropriate order and disposing of the petition, this Court would like to go through the reply of the Departmental Secretary, the respondent no. 2 which shall be filed in next four weeks.
18. The comprehensive counter affidavit must include parawise reply to all the paragraphs of the writ petition. This Court would request the Departmental Secretary to go through the counter affidavit filed on behalf of the respondent nos. 4 and 5 which will help him/her to file the reply in a proper manner. Patna High Court CWJC No.7740 of 2023(8) dt.18-07-2024 17/17
19. The copy of the counter affidavit be served upon the petitioner in advance so that any reply, if he so wants, can come before the next date of hearing.
20. The interim order dated 02.11.2023 to continue till the next date of hearing.
21. Issue notice to the respondent no. 7 through both processes i.e. ordinary as well as registered cover with A/D for which requisites etc. must be filed within a period of two weeks from today failing which the application shall stand rejected without further reference to the Bench.
22. In case, the order passed is not complied and the matter accordingly stands dismissed, subsequently, the same be posted under the heading 'To be Mentioned' alongwith 'Tied Up' matters before the Bench on the 'TIED UP' day.
23. List this case on 29.08.2024.
(Rajiv Roy, J) Ranjeet/-
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