Patna High Court - Orders
M/S Shambhu Nath 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.7753 of 2023
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M/s Shambhu Nath Choudhary a partnership firm having its place of business
at 705 Luv Kush Tower Exhibition Road Patna-800001 through its authorised
representative namely Gourav Choudhary male aged about 24 years, son of
Ashok Kumar Choudhary, resident of Purani Bazar, Ward No.-13,
Madhepura-852113.
... ... 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. M/s Sanjay Kumar, Village, P.O.- Karki, P.S.- Ariyari, District- Sheikhpura-
811105.
... ... 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 Sanjay Kumar as respondent no. 7 in course of the day.
2. Heard Mr. S.D. Sanjay, learned Senior Counsel Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 2/16 duly assisted by Mr. Gautam Kumar Kejriwal for the petitioner and Mrs. Kalpana, learned counsel representing the respondents.
3. The petitioner has moved before this Court for the following reliefs:
a) For holding and declaring the letter of acceptance bearing reference number 2053/Khanan dated 02.12.2022 and another letter bearing reference number 2092/Khanan dated 06.12.2022 as cancelled and of no consequence and so do the award of settlement in favour of the petitioner for the sandghats covered by such letters 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 theCorporation for short) in the same mining site resulting in substantial variance in the availability of mineable 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 Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 3/16 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 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 obligations 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.
4. The facts leading to the present writ petition is/ are as follows:-
Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 4/16
5. The petitioner is having a proprietorship firm 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. 13 Barnar river, (Kolhua) is concerned. This followed the letter no. 2053 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 to do the 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 Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 5/16 but again without any response. This followed his complaint to the Director of 'the Department' on 20.12.2022 (Annexure-5 to 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. 16 to 23 read as follows:
16. That pursuance of the said inspection and finding thereof to the effect that the contractor engaged by the Corporation conducting mining activity on the said mining area at cluster 30, illegalities as stipulated above have been found, a letter vide Memo No. 2120 dated 09.12.2022 under the signature of the Respondent No. 5, the Mining Development officer, Jamui was issued to the said contractor namely Sanjay Kumar, who was found conducting the excavation at beyond the permissible extent and area, whereby in view of the provision under Rules 30 and 56 of the Rules, Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 6/16 2019, such illegal excavation of sand was found illegal causing loss of an amount to the tune of Rs.
37,12,025/- by the said contractor Sanjay Kumar and the said contractor was directed to make payment of the said amount of fine against the loss caused due to illegal excavation by him.
17. That pursuant to the afore-mentioned letter issued by the Respondent No. 5, issued to the contractor namely Sanjay Kumar, 25.12.2022, the contractor Sanjay Kumar accepted the loss caused by him by conducting illegal excavation beyond the permissible area and made payment of fine to the tune of Rs. 37,12,025/-.
18. That subsequently, again on 18.03.2023, inspection of the cluster 30 at Garsanda Sandghat was conducted by the inspecting authority when again mining beyond the permissible area and beyond the prescribed area under the Environmental Clearnce was found conducted by the contractor, namely Sanjay Kumar, causing the loss of amount to the tune of Rs.
20,16,000/-.
19. That in view of the illegality found during the inspection, a notice vide Memo no. 461 dated 21.03.2023, was issued under proviso to Rule 56(2) of the Rules, 2019, whereby the said contractor was directed to make Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 7/16 payment of the above-mentioned fine amount.
20. That pursuant to issuance of such notice, on 21.03.2023, the contractor made payment of the fine by depositing the amount in four instalments, thereby complied the direction of the mining authority.
21. That it is further submitted that in view of the representation of the petition whereby illegal mining on the mining site which was allotted to the petitioner, was brought to the notice of the mining authorities, in pursuance to which, again the on 04.05.2023, again as an abundant caution, the inspection of the sand ghat of cluster 30 at river Garsanda was conducted by the mining authority, during which, NO illegal mining was found conducted on the said sand ghat. Furthermore, it was found that the said contractor, namely Sanjay Kumar has excavated 4788 CFT excess soil, violating the terms and conditions as well as the beyond the permissible area prescribed by the environment clearance in pursuance to the said inspection, a letter vide Memo no. 01 dated 18.05.2023 was issued by the Mining Inspector, Jamui to the Mineral Development Officer, Jamui whereby recommendation was made to levy penalty upon the said contractor against excessive illegal mining of sand, causing loss of Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 8/16 amount to the tune of Rs. 53,8650/-.
22. That in pursuance of the said letter, the Mineral Development Officer, Jamui, issued a letter to the contractor vide Memo no. 712 dated 22.05.2023, whereby the said contractor was directed to make payment of the above-
mentioned fine amount.
23. That the said contractor made payment of the fine amount, complying the directions issued by the above-mentioned letter.
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 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.
Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 9/16 (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;
(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 Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 10/16 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).
(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 Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 11/16 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.
(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 Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 12/16 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. Accordingly, initially a fine of Rs. 37,12,025/-
was imposed upon him pursuant to the Notice No. 2120 dated 09.12.2022, 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. 01 dated 18.05.2023, Rs. 53,8650/- 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 found 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 Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 13/16 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 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 Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 14/16 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 having their attention towards the illegal mining being done by the respondent no. 7.
15. The respondents as would be seen from the 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 though he was fined which the respondent no. 7 promptly said. 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 further to get away only with fine shows the alleged complicity of the local officials as they Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 15/16 repeatedly chose not to lodge any FIR on both the occasions despite Rule 56 (2) of 'the Rules' talking about it.
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.
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 Patna High Court CWJC No.7753 of 2023(8) dt.18-07-2024 16/16 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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