Jharkhand High Court
M/S. Dhanbad Wine vs The State Of Jharkhand Through The ... on 21 February, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.-486 of 2017
M/s. Dhanbad Wine, having its office at Flat No. 402, 4th Floor, Kaushik
Radhika Regency Apartment, PO- Jharudih, P.S.- Hirapur, District- Dhanbad
through its Proprietor Shankar Singh, son of Naresh Singh, resident of Flat
No. 402, 4th Floor, Kaushik Radhika Regency Apartment, PO- Jharudih, P.S.-
Hirapur, District- Dhanbad
...Petitioner
-V e r s u s-
1. The State of Jharkhand through the Principal Secretary, Department of
Mines & Geology, Dhurwa, Ranchi
2. The Deputy Commissioner, Godda
3. The State Level Environment Impact Assessment Authority (SLEIAA),
Jharkhand through its Member Secretary having its office at C-70,
Road No. 4, Ashok Nagar, Ranchi
4. District Mining Officer, Godda
5. Assistant Mining Officer, Godda
.... Respondents
CORAM: - HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner :- Mr. R.S.Mazumdar, Sr. Advocate Mr. Kumar Vaibhav, Advocate For the State-respondents:- J.C. to A.G. For the Respondent no. 3 :- Mr. Bhanu Kumar, Advocate Order No.-05 Dated: 21.02.2018 The present writ petition has been filed for quashing the Letter No. 1423/M dated 03.12.2016 issued by the Deputy Commissioner, Godda (the respondent no.2) to the extent it stipulates that the security amount and the other amount deposited by the petitioner towards settlement of sand ghat at Pathargama Circle, Geruwa river at Mouza Sanathan admeasuring 16.18 acres have been forfeited. Further prayer has been made for issuance of direction upon the concerned respondents to forthwith refund an amount of Rs. 93,85,500/- to the petitioner which was deposited towards security money and 40% of the bid amount for settlement of the aforesaid sand ghat.
2. The factual background of the case as stated in the writ petition is that vide letter no. 505 dated 17.03.2015, certain instructions were issued by the Department of Mines and Geology pertaining to operation of Sand Beds and the auction procedure. An 2 advertisement was issued by the Office of the Deputy Commissioner, Godda, Mineral Section for settlement of sand ghats in the District of Godda by way of public auction. The sand ghat of Geruwa river situated at Korka Panchayat admeasuring 16.18 acres at Mouza Sanathan was also included. The petitioner participated in the public auction and on being declared successful, it was awarded a Letter of Intent by the Office of Assistant Mining Officer, Godda vide letter no. 480/M dated 07.05.2015. The petitioner was directed to deposit a security amount of Rs.18,77,100/- and 40% of the bid amount i.e. Rs.75,08,400/- and it was further directed to get the concerned mining plan approved and to obtain environment clearance. The petitioner deposited the security amount of Rs.18,77,100/- and the aforesaid 40% of the bid amount i.e. Rs.75,08,400/- (in total Rs.93,85,500/-) and its mining plan was also approved. In the meantime, one application being O.A No. 108/2015/E2 was filed by one Niranjan Sharma before the National Green Tribunal, Eastern Zone Bench, Kolkata (in short "NGT, Kolkata") challenging the sand mining operation in the Geruwa river, District Godda, wherein interim orders were passed restraining operation of sand mining without valid consent to operate from the State Pollution Control Board and the environment clearance. The State Level Environment Impact Assessment Authority (in short "SEIAA") took a decision to put the environment clearance on hold for sand ghats of Geruwa river in Godda District in view of the pendency of the said O.A in the NGT, Kolkata. The contention of the petitioner is that in spite of its best efforts, its application for grant of environment clearance was not accepted and due to non-availability of the environment clearance, the petitioner could not commence the mining activities. Thus, the petitioner preferred representations on 24.05.2016 and 27.09.2016 before the respondent no.2 for refund of its security money and other deposits but nothing was done. Subsequently, the respondent no.2 vide letter no. 1393/M dated 29.11.2016 issued show cause notice to the petitioner as to why the allotment of sand ghat in favour of the petitioner be not cancelled and it's security amount and the 40% of the bid amount be not forfeited as it did not deposit the requisite papers pertaining to environment clearance.
3The petitioner duly replied the said show cause notice on 01.12.2016 stating all the facts in detail and explaining inter alia that it was unable to obtain environment clearance on account of the orders of NGT, Kolkata and without any fault on its part, the security and other deposits should not be forfeited. However, the respondent no. 2 vide impugned letter no. 1423/M dated 03.12.2016 terminated the petitioner's allotment of the sand ghat and forfeited the security deposit as well as 40% of the bid amount deposited towards settlement of aforesaid sand ghat.
3. The learned Senior Counsel appearing on behalf of the petitioner submits that the respondents cannot forfeit the security amount as well as 40 % of the bid amount deposited by the petitioner without any fault on its part. It is further submitted that the petitioner also cannot be blamed for non-issuance of environment clearance by the SEIAA. The respondents ought to have considered that the non-production of environment clearance by the petitioner was on account of the orders passed by the NGT, Kolkata in O.A No. 108/2015/E2. It is also submitted that the forfeiture of petitioner's security and other deposits is de hors the terms and conditions of the letter of intent as well as those mentioned in the advertisement for auction. The petitioner had in fact submitted its application in the office of the respondent no. 3 for grant of environment clearance but, the said application was neither accepted nor acknowledged on the pretext of pendency of the said matter before the N.G.T., Kolkata. It is also submitted that the respondents are again going to auction the sand bed, which was earlier settled to the petitioner. Thus, the respondents ought to have refunded the security amount and 40% of the bid amount deposited by the petitioner.
4. Per contra, the learned counsel appearing on behalf of the respondent no. 3 submits that since the matter relating to sand mine ghats at the bank of Geruwa River in the District of Godda was still sub-judice before the NGT, Kolkata in O.A No. 108/2015/EZ, the SEIAA vide its 42nd meeting held on 14.12.2015 decided that the environment clearance already granted would be withdrawn and no further environment clearance will be granted and accordingly, the 4 said decision was implemented. It is further submitted that since no application for grant of environment clearance was submitted by the petitioner, there was no question to grant or reject the same.
5. Learned J.C. to A.G. appearing on behalf of the respondent nos. 1, 2, 4 and 5 submits that since the petitioner did not submit the environment clearance certificate in pursuance of settlement of the sand ghat in Geruwa river, the security and 40% of the bid amount were forfeited due to violation of terms and conditions of auction and departmental directions issued with regard to settlement of the sand ghats.
6. Heard the learned counsel for the parties and perused the materials available on record. Vide letter of intent dated 07.05.2015 issued by the respondent no.5, the petitioner was settled a sand ghat situated at Geruwa river, Korka Panchayat, , Mouza Sanathan, District Godda and as per the terms and conditions of the allotment, it deposited the security amount of Rs.18,77,100/- and 40% of the bid amount i.e. Rs.75,08,400/-. Admittedly, as per the terms and conditions of the contract, the petitioner was required to submit the environment clearance but the same was not submitted. Resultantly, the settlement of the sand ghat was cancelled and the security and other deposits were forfeited. The contention of the learned senior counsel for the petitioner is that an application being O.A No. 108/2015/E2 was filed before the NGT, Kolkata challenging the settlement of the sand ghats including the sand ghat in question. Since SEIAA (respondent no.3) was not granting environment clearance, the petitioner was not at fault in not submitting the environment clearance before the respondent authorities. SEIAA in its counter affidavit has also admitted that in view of the interim order(s) passed by the N.G.T., Kolkata in O.A No. 108/2015/E2, as per the decision taken in 42nd meeting dated 14.12.2015, the grant of environment clearance was put on hold and environment clearances earlier granted were also withdrawn. However, the contention of the learned counsel for the respondent no.3 is that the petitioner die not file any application for grant of environment clearance. The said averment has been denied by the petitioner.
57. Vide order dated 23.01.2018, learned counsel for the respondent no. 3 was directed by this Court to file supplementary counter affidavit bringing on record the final order passed by the National Green Tribunal, Eastern Zone Bench, Kolkata in O.A. No. 108 of 2015/EZ (Niranjan Sharma and others Vs. Ministry of Environment, Forest and others). The respondent no.3 was further directed to specify as to whether the Environment Clearances are being issued for the sand mining projects in Geruwa river in District-Godda. In pursuance of the order dated 23.01.2018, a supplementary counter affidavit has been filed on behalf of the respondent no. 3 stating in paragraph-5 that the Assistant Mining Officer, Godda (the respondent no. 5) vide letter no. 269/M dated 05.02.2018, informed the Member Secretary of SEIAA, Jharkhand (respondent no.3) that no Environment Clearance is being given to any Sand Mining Project in River Geruwa in the District of Godda as there is no sand ghat settlement in the said river.
8. A copy of the order dated 09.11.2017 passed by the NGT, Kolkata in O.A. No. 108 of 2015/EZ has also been annexed as Annexure-B to the said supplementary counter affidavit filed on behalf of the respondent no.3. On perusal of the said order, it appears that the learned NGT, Kolkata has observed that during the pendency of the said case, the state respondents in due compliance of the directions of the Tribunal, has withdrawn mining leases and licences earlier granted in violation of the directions of the Hon'ble Supreme Court. Moreover, disciplinary proceedings under relevant service rules have also been initiated against the officers who were responsible for granting such leases and licences.
9. In the present writ petition, the petitioner's prayer is confined to the issue of forfeiture of its security deposit and 40 % of the bid amount at the instance of the respondent no.2. It is a settled law that the order of forfeiture of security deposit cannot be passed in violation of the principles of natural justice. On perusal of the impugned show cause notice contained in letter No. 1393/M dated 29.11.2010, it appears that in the said show cause notice itself, the respondent no.2 has mentioned that the NGT, Kolkata in O.A No. 108/2015/EZ has directed for cancellation of settlement of the sand 6 ghats. The petitioner in its reply to the said show cause notice explained the reason for not submitting the environment clearance by stating that in view of pendency of O.A No. 108/2015/EZ, the SEIAA was not granting the environment clearance. However, while passing the impugned order of termination of settlement of sand ghat as well as forfeiture of security and 40 % of the bid amount, the respondent no. 2 has not dealt with the said reply of the petitioner and has passed the impugned order in a cryptic manner. The entire exercise by the respondents indicate that the said action was taken as mere formality and they appear to have started the proceeding with a pre-occupied notion. The compliance of principles of natural justice is not a mere formality, rather the same must be followed in true sense. One of the essential requirements of the principles of natural justice is due consideration of the reply of the delinquent, which has not been followed in the present case. Though, learned counsel for the respondent no. 3 has submitted that no application was received from the petitioner for grant of environment clearance, the same would not have changed the position as it is the specific stand of the respondent no.3 that at the relevant time, the environment clearance was not being granted in view of the orders passed by the NGT, Kolkata in O.A No. 108/2015/EZ. Thus, the petitioner cannot be held responsible for not submitting the environment clearance before the respondent authorities as per the terms and conditions of the public auction notice.
10. Under the aforesaid facts and circumstance, the impugned Letter No. 1423/M dated 03.12.2016 is quashed to the extent of forfeiture of security money and 40 % of the bid amount deposited by the petitioner. The respondents are directed to refund the amount deposited by the petitioner as security money and 40 % of the bid amount for settlement of the sand ghat forthwith.
11. The writ petition is accordingly allowed with the aforesaid observation and direction.
(Rajesh Shankar, J.) Ritesh/N. A.F.R