Patna High Court - Orders
Westlink Trading Private Limited vs The State Of Bihar & Ors on 27 February, 2018
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1002 of 2018
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Westlink Trading Private Limited
.... .... Petitioner/s
Versus
The State of Bihar & Ors
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Jitendra Singh, Sr. Advocate
Mr. Mrigank Mauli, Advocate
Mr. Sanket, Advocate
Mr. Prince Kumar Mishra, Advocate
For the State : Mr. G.P. Ojha- GA7
For the Mines Department: Mr. Naresh Dikshit, Special P.P.
Mr. Lalan Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR
SINGH
ORAL ORDER
03/ 27-02-2018Heard Mr. Jitendra Singh, learned Senior counsel for the petitioner and Mr. Naresh Dikshit, learned Special P.P. for Department of Mines.
The writ application was initially filed for reliefs as stipulated in paragraph no. 1 of the writ petition which read as -
(i) For issuance of writ in the nature of Certiorari quashing the Press Notice Inviting Bids for Reverse e-Auction, dated 12.01.2018, of Sand Ghats of the petitioner namely Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 2 Kenduai-1 (4.39 hectares), Ghuhari Tand-1 (2.86 hectares), Bhusanda-1 (2.4 hectares) of District of Gaya and as appended to letter no. 18/17-263 dated 12.01.2018 issued by the Under Secretary, Department of Mines and Geology, Government of Bihar whereby the aforesaid Ghats are to be auctioned on 24.01.2018 for period till 31.12.2019.
(ii) For issuance of writ in the nature of Mandamus directing the respondent authorities not to auction the Sand Ghats of the district of Gaya - otherwise than in manner prescribed by law - which has been settled for the period of 2015-2019, in favour of the petitioner, after following the due procedure under Bihar Minor Mineral Concession Rules, 1972 and Sand Policy-2013.
(iii) For such other writ(s), order (s), relief (s) under the facts stated herein-below, as your lordships may deem fit and proper.
I.A. No. 695 of 2018 Through the above mentioned Interlocutory application, additional relief has been prayed for as stipulated in paragraph no. 1 thereof which reads as follows-
(i) For issuance of writ in the nature of Certiorari quashing Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 3 the various letters of Settlement of various sand-ghats in the District of Gaya being - (i) Memo No. 540 dated 25.01.2018 settling Sand Ghat named Kenduai-1; (ii) Memo No. 541 dated 25.01.2018 settling Sand Ghat named Guhari Tand-1; (iii) Memo No. 539 dated 25.01.2018 settling Sand Ghat named Bhusunda-1.
(ii) To allow the following to be arraigned as Party-
Respondents in the present proceedings:-
5. Mriglaya Enterprises Private Limited, R/o Vill. + P.O. Datiyana, P.S. - Vikram, Dist. - Patna - 801104.
6. Rajendra Singh, S/o Not known, R/o S.K. Puri, P.O. + P.S. Sri Krishnapuri, Patna - 800013.
7. Ganesh Kumar, S/o Not known, R/o Vill. + P.O. Rupaspur, P.S. Saguna Mor, Dist. Patna - 801506.
So far as the prayer for amendment of relief made in the Interlocutory Application is concerned, Mr. Naresh Dikshit, learned counsel for the respondents does not have any objection to the same.
Learned counsel for the petitioner is permitted to amend the prayer and to implead the new settlee, named in Interlocutory Application, as Respondent Nos. 5 to 7.
Issue notice to respondent nos. 5 to 7 by Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 4 ordinary process as well as registered cover with A/D for which requisites must be filed within a period of ten days, failing which this application as against respondent nos. 5 to 7 shall stand dismissed without further reference to the Bench.
Let ordinary process of notice be served upon respondent nos. 5 to 7 through Dasti service. Let the office issue Dasti in favour of learned counsel for Department of Mines. Such Dasti must be issued within four days of submission of the requisites.
Accordingly, I.A. No. 695 of 2018 is allowed. Learned Senior counsel for the petitioner submits that petitioner is a registered Private Limited Company.
An advertisement was published on behalf of Respondent No. 2 for settlement by auction of the Sand Ghat for entire district of Gaya for period 2015-2019 as per the New Sand Policy, 2013 wherein every river as a whole situated in each district has to be considered as single stretch (single unit). Hence, the tender was made for the entire stretch of river in the district of Gaya as a single unit.
In pursuance to the advertisement, the petitioner applied and participated in the bid, was declared highest bidder and was awarded tender also. On compliance of all the Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 5 conditions stipulated in the N.I.T., the work order was issued vide letter dated 28.03.2015 as contained in Annexure-P/1. Subsequently the petitioner submitted the mining plan to the State Government and after approval of the plan, the Environment clearance was approved by the State Environment Impact Assessment Authority, hereinafter referred to as ‗SEIAA'. Since the Ghuhari Tand Ghat was adjacent to Bhaderia Ghat and not a separate ghat, hence the environment clearance was not required to be obtained as per the norms under the sand policy of the State Government and the Environmental Laws.
Consequently on approval and issuance of work order by respondent authorities the petitioner got engaged in the mining activities as per the terms of the contract. In the meantime, Bihar Minor Mineral Concession Rules, 2017 (hereinafter called the Rules, 20217) came into force with effect from 10.10.2017 repealing the Bihar Minor Mineral Concession Rules, 1972 (hereinafter called the Rules, 1972). The respondents first stopped the issuance of E. challan and thereafter restrained the petitioner from selling the minerals in terms of the agreement. Thereafter the petitioner was directed by the District Mining Officer to deposit the enhanced bid amount for the year 2018 and the same was deposited on 22.12.2017, and 01.01.2018. But in Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 6 gross violation of the terms of agreement, Press Notice inviting bids for ‗Reverse e.Auction' for Sand Ghats namely Kenduai (4.39 Hectares), Ghuhari Tand (2.86 Hectares), Bhusanda (2.4 Hectares) of the Gaya district vide letter no. 18/17-263 dated 12.01.2018 contained in Annexure-P/4 was issued under the signature of Under Secretary, Department of Mines and Geology, Govt. of Bihar, whereby the aforesaid Ghats were to be auctioned for the period 31.12.2019, the period for which the settlement of such Ghats were already made in favour of the petitioner.
The respondent authorities, in pursuance to the press notice for ‗Reverse e.Auction' dated 12.01.2018 as contained in Annexure-P/4, settled the aforementioned three Ghats in favour of the newly added Respondent Nos. 5 to 7 vide Memo No. 540 dated 25.01.2018, Memo No. 541 dated 25.01.2018 and Memo No. 539 dated 25.01.2018 as contained in Annexure-P/6. The above settlement was made without cancelling the settlement of the petitioner and contrary to the Sand Policy 2013, notified on 27.08.2013 and Amended Rule 11(A) of the Rules, 1972 as neither the new settlees are highest bidders, nor the part of the area which has already been settled with the petitioner, could have been settled.
The respondent authorities issued the work Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 7 order in favour of new settlee vide letter No. 531 dated 14.02.2018, letter No. 529 dated 14.02.2018 and letter No. 530 dated 14.02.2018 and consequently, the new settlees started excavation which has not only jeopardized the vested rights of the petitioner but is causing huge financial loss.
It is further submitted by learned counsel for the petitioner that virus of Bihar Minor Mineral Rules, 2017 was under challenge before Division Bench of this Court in CWJC No. 15965 of 2017 and other analogous cases wherein the petitioner was also one of the writ petitioners and the Division Bench vide order dated 27.11.2017 while admitting the writ applications directed for stay of operation of the Bihar Minor Mineral Rules, 2017 in its totality until further orders, but in spite of the stay the Re Tenders were issued by the respondent authorities, pursuant to which the Division Bench vide order dated 18.12.2017 passed in CWJC No. 15965 of 2017 directed that even if ‗any tender' has been issued, the process shall not be finalized without the leave of the Court. The operative portion of the order reads as--
―In the meanwhile, we direct that even any tender has been issued, the process shall not be finalized without the leave of this Court.‖ It is further brought to the notice of this Court Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 8 that abovementioned order dated 27.11.2017, passed in CWJC No. 15965 of 2017 whereby operation of Rules 2017 was stayed, was challenged in SLP No. 33129 of 2017 but the Supreme Court vide order dated 15.12.2017 disposed of the SLP declining to interfere with the interim order dated 27.11.2017.
Hence, it is submitted that the respondent authorities be restrained from making such piecemeal auction of the settlement in the district of Gaya and the new settlee i.e. Respondent Nos. 5 to 7 be restrained from conducting any excavation in pursuance to the settlement of the abovementioned three Ghats, as the work order has been issued in their favour. Hence, settlement is not only contrary to the Sand Policy 2013, amended Rule 11(A) of the Rules 1972, but is also violative of the terms of the agreement entered into between the petitioner and respondent authorities, and above all the settlement in favour of respondent nos. 5 to 7 is in derogation to the above noted order of the Division Bench.
Mr. Naresh Dikshit, learned counsel for the respondents, however, submits that he may be permitted to file counter affidavit meeting the contentions raised by the petitioner in the writ application, Interlocutory Application and the supplementary affidavit which has been served upon him today. It Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 9 is further submitted that under the provisions of Rule 11A(1)(d)(e) of the Rules, 1972, the Collector of the district or any officer authorized by the State Government can issue the work order in favour of settlee on submission of required documents i.e. approved mining plan, environment clearance, bank draft of due installment of auction amount and other taxes. Hence the settlement in favour of respondent nos. 5 to 7 has been made as prescribed under Rule 11A(1)(d) and (e) of the Rules, 1972. Moreover, settlement has been made in favour of respondent nos. 5 to 7 only for those areas, which were not settled with the petitioner. Hence, any interim order, at present, will not only cause a public inconvenience due to non-supply of sand for the construction purposes but will also cause huge loss to the public exchequer.
Considering the rival submissions of the learned counsels for the parties, it appears that counsels for both sides have relied upon the provision of Rule 11A of the Rules, 1972 to justify their respective case. Hence, Rule 11A of the Rules, 1972 is quoted hereunder for a better appreciation of the issue involved. It 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 Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 10 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 treated as individual stretches and all such stretches in one district shall be combined into one single unit for the purpose of settlement.
(c) The highest bidder shall deposit 25% of the auction amount immediately after the auction, following which an in-principle sanction order shall be issued in his favour by the Collector / any officer so authorized by the State Government.
(d) The highest bidder shall submit the required documents (approved mining plan, environmental clearance, bank draft of the due installment of auction amount and other taxes within the prescribed time limit as referred to in the prevailing notification issued by the State Government in this regard, following which the work order shall be issued in his favour by the Collector/ any Officer so authorized by the State Government.
(e) The successful bidder shall submit a mining plan prepared for the respective sandghat unit and duly approved by the State Government or by the Officer/ committee so authorized in this regard.
(f) The successful bidder shall obtain environmental Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 11 clearance from the competent authority as per the prevailing Environmental Impact Assessment notification of the Ministry of Environment and Forest, Government of India and as per the provisions of the Environment Protection Act.
Provided that the State Government may direct for the combined settlement of two or more districts as one single unit keeping in view specific geographical disposition, practical difficulties in district-wise demarcation of river bed and sand mining areas located therein, law and order situation, interest of revenue, checking of illegal mining and other relevant factors into consideration.
Provided further that in case of non-settlement of anyone or more units, the Mines Commissioner may decide collection of royalty through any public sector undertaking or zila parishad or gram panchayat on recommendation of the Collector.
Provided further that such sand deposits in insolated and far flung areas, which reasonably and conveniently could not be settled by auction shall be identified by the Collector and on approval of the same by the Mines Commissioner, the competent officer (as defined in the rules) may issue permits for extraction of sand from such areas, period for which will not exceed one year.
Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 12(2) Restricted areas for sand quarrying- (i) The quarrying of sand shall be prohibited within 300 (three hundred) metres on both sides of any railway bridge or any bridge falling under any National Highway/ State Highway and shall be prohibited within 100 (one hundred) metres of both sides of any other bridge.
However the prohibited zone in respect of any particular bridge may be extended by the State Government through a notification in this regard, if so required for reasons of safety.
(ii) No quarrying shall be permitted within 50 (fifty) metres of any public place i.e. cremation ghat or any religious place etc.
(iii) No quarrying shall be permitted within 5 (five) meters from both banks of the river.
(iv) The quarrying of sand shall be prohibited within 100 (one hundred) metres upstream and downstream from any dam/ weir or any other structure erected for irrigation purpose.
(v) No quarrying shall be permitted within 46 (forty six) metres distance from Flood control embankments. The quarrying shall be restricted upto Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 13 a depth of 1.80m within 46 (forty six) metres to 61(sixty one) metres distance from the said embankments and shall be further restricted upto a depth of 2.40 metres within 61 (sixty one) metres to 91 (ninety one) metres distance from the abovesaid embankments.
(vi) The irrigation outlet shall be maintained at the same level as that of the river bed and in no case the river bed level shall be per mitted to be below the irrigation outlet level. No quarrying shall be permitted around the infiltration well/ intake well up to a distance of 5 metres.
(vii) The extraction of sand shall be permitted only after obtaining a No Objection Certificate from the Water Resources Department in the case of rivers where from irrigation channels are out flowing.
(viii) No quarrying of sand shall be permitted in any private land owned by a person other than the settlee unless the settlee obtains the consent of the concerned land owner / raiyat.
(ix) No quarrying of sand shall be permitted in any area which the State Government notifies as a restricted area.
Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 14(3) Maximum permissible depth for sand quarrying - The maximum depth of sand quarrying in the river bed shall not exceed three metres measured from the unmined bed level at any point of time or the water table whichever is less.
(4) Fixation of Minimum Reserve Value -
(i) The minimum reserve value of a sandghat unit shall be fixed by increasing such amount over the previous year's auction amount of the sandghat unit as decided by the Department.
Provided that in case of any sandghats unit which remained unsettled during the previous year, the minimum reserve value shall be fixed, increasing by such amount over the last settlement amount of the said sandghat unit as is decided by the Department.
(ii) If no bidder turns up during the auction process on the so fixed minimum reserve value even after trying for more than one time, the minimum reserve value will be revised by the department on the basis of a report of a district level committee comprising of Additional Collector of the district, district level representative of Mines Department and Commercial Taxes Department and headed by the Collector.
Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 15
The said sand ghat unit shall be put to re-auction on the basis of the above said revised minimum reserve value after obtaining the approval of the Department.
(5) Procedure for settlement- The State Government shall issue a notification regarding detailed procedure for settlement of sand ghat units from time to time as and when required.
(6) Failure on the part of the highest bidder - In case the highest bidder fails to submit the duly approved mining plan and/ or the environmental clearance as referred to in sub-rule 1(e) and 1(f) or fails to deposit the required security deposit and the advance installment amount along with other payable taxes within the prescribed time limit as referred to in the prevailing notification of the State Government in this regard, his security deposit shall be forfeited and the Collector / Office so authorised by the State Government shall give an opportunity to the second highest bidder to deposit his respective bid amount and submit the required documents within the prescribed time limit as referred to in the above said notification. On failure of the second bidder to comply with the same, his security deposit too shall be forfeited and a fresh settlement process for the concerned sand ghat unit through public auction shall be initiated.‖ .
Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 16
From perusal of the aforequoted Rule, it transpires that it is a complete code which provides mode of settlement of sand as minor mineral.
As per the Rule 11A(1)(a)(b) each river as a whole situated in each district has to be considered as a single stretch/single unit, the minimum area of which shall not be less than 5 hectares. However, all the rivers in a district has to be treated as individual stretches and all such stretches in one district has to be combined into one single unit for the purpose of settlement and, thirdly, the settlement has to be made with the highest bidder. Prima facie, it does not appear that the settlement in favour of respondent nos. 5 to 7 has been made in consonance to the procedure laid down under amended Rule 11 A of the Rules, 1972 as the entire stretch of river/rivers in the district of Gaya has been treated as one unit while making settlement with the petitioner, hence there was no scope of piecemeal settlement in favour of respondent nos. 5 to 7. This is admitted position that the settlement of the petitioner has not been cancelled, hence, the whole exercise, prima facie, appears to be not in consonance to the State Sand Policy of 2013.
The writ application was registered on 16.1.2018, obviously after service of copy of the writ application Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 17 upon learned counsel for the respondents, challenging the Press Notice dated 12.1.2018 inviting bids for Reverse e-Auction of the aforementioned three Ghats, but no counter affidavit has been filed till date. On the contrary, the auction/settlement was made on 25.1.2018 and work order was issued on 14.2.2018 which, prima facie, appears to be contrary to the direction dated 18.12.2017 passed by the Division Bench of this Court, as quoted above, the purport of the said order being ‗in rem'.
From the discussion made above, it further appears that major part of the exercise undertaken by the respondent authorities for settlement of the abovementioned three Sand Ghats in favour of respondent nos. 5 to 7 lacks the element of fair play and reasonableness.
In view of the discussions made above, respondent nos. 5 to 7 are restrained from conducting any mining/excavation on Kenduai, Ghuhari Tand and Bhusanda Sand Ghats in pursuance to settlement orders dated 25.1.2018, as contained in Annexure P/6 series and Work Orders dated 14.2.2018, as contained in Annexure P/7 series.
As prayed for by learned counsel for the respondents to file counter affidavit, list this matter on 26th March, 2018.
Patna High Court CWJC No.1002 of 2018 (3) dt.27-02-2018 18
Let copy of this order be served upon learned counsels for the parties and also be transmitted to the District Magistrate, Gaya and Superintendent of Police, Gaya for necessary action.
(Dinesh Kumar Singh, J) DKS/-
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