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2004 DIGILAW 112 (PAT)

Ashok Kumar Singh v. State Of Bihar

2004-01-23

RADHA MOHAN PRASAD

body2004
Judgment 1. In this writ petition, the petitioner prays for quashing of notice dated 14.11.2003 issued by the Collector, Patna (respondent no. 3) for auction of Balughats within the district of Patna for the year 2004. Later, vide I.A.No. 5619 of 2003 the petitioner sought for amendment praying for setting aside settlement of mining rights of sand for Patna District and also prayed for stay of any further action by the respondents in pursuance of the said settlement of mining right of sand. 2. Vide I.A. No. 5654 of 2003 one Vishnu Deo Rai, Son of Deen Dayal Rai, Resident of Mohalla Nasriganj, PS. Digha, District Patna has sought for intervention for being impleaded as the writ petitioner and by another I.A. bearing No. 18 of 2004 one Subhash Prasad Yadav has sought for intervention under Rule 5 of Chapter XXIC of Part V of the Patna High Court Rules to oppose the prayer made in the writ petition and the relief sought for by the intervenor petitioner Vishnu Deo Rai. 3. In so far as LA. of Vishnu Deo Rai learned counsel for the intervenor has failed to show any provision for intervention in the writ petition in the category of the petitioner, that too without consent of the writ petitioner of the substantive writ petition. If the said intervenor petitioner is aggrieved he should have filed the independent substantive writ petition by paying the requisite court fee but cannot be allowed to intervene and added as petitioner in the present writ petition more so when no such provision has been brought to the notice of this Court. Accordingly, the prayer for intervention of Vishnu Deo Rai is rejected. 4. The intervenor of the other LA. application is the settlee of all Balughats of different rivers in the district of Patna, the validity of which has been challenged by the writ petitioner by filing an amendment petition and as such, he has been heard in opposition of the writ petition. 5. This Court vide order dated 19.12.2003 after hearing the learned counsel for the parties, the Secretary, Department of Mines and Geology and Dr. 5. This Court vide order dated 19.12.2003 after hearing the learned counsel for the parties, the Secretary, Department of Mines and Geology and Dr. Deepak Prasad, District Magistrate, Patna, who personally appeared in Court, while adjourning the matter due to paucity of time for listing after X-mas Holidays and considering the facts and circumstances and balance of convenience, directed the respondents not to allow mining of sand in the area in question after 31st December, 2003 till further orders by anyone, including the new settlees, if any, on furnishing Bank Guarantee of Rs. 45,00,000/- by 31.12.2003 by the petitioner for the area in question for adjustment by way of compensation for loss of Revenue of the State, if any, in case the writ petition is dismissed. However, it was made clear that in case Bank Guarantee is not furnished within the stipulated time, the interim order shall automatically stand vacated. 6. A supplementary affidavit has been filed on behalf of the petitioner and a separate supplementary affidavit has been filed on behalf of the intervenor Vishnu Deo Rai alleging that despite deposit of security respondent no. 3 allowed mining of sand in the area in question after 31.12.2003 by the new settlee Subhash Prasad Yadav. As the intervention of Vishnu Deo Rai has already been rejected I do not consider it necessary to consider the said grievance raised by him in the supplementary affidavit. 7. In so far as the grievance of the writ petitioner in that regard the State has filed a counter affidavit in which it is admitted that the Guarantee bond was furnished on 30.12.2003 with Patliputra Gramin Bank Branch, Kankarbagh, Patna. However, it is stated that the Patliputra Gramin Bank Branch Kankarbagh subsequently cancelled the Bank Guarantee itself vide letter no. 1520 dated 31.12.2003 and cancellation was confirmed by the Bank vide letter no. 1526 dated 31.12.2003 (Annexures B and C respectively), whereafter the information of cancellation of the Bank Guarantee was communicated to the petitioner by the Assistant Mining Officer, Patna vide letter no. 925/M dated 31.12.2003 (Annexure D). It is, thus, contended that the validity of Bank Guarantee lost its existence and the petitioner is not entitled to get the benefit of interim order. 925/M dated 31.12.2003 (Annexure D). It is, thus, contended that the validity of Bank Guarantee lost its existence and the petitioner is not entitled to get the benefit of interim order. It is further stated that in view of loss of revenue to the State Government possession of the disputed Sandghats have been given on 31.12.2003 midnight to Subhash Prasad Yadav by Mining Inspector under A.M.O. Office, Patna (Annexure E). 8. However, on merit it is contended that in fact the impugned tender notice has been issued in gross violation of Rule 11E and 11F of the Bihar Minor Mineral Concession Rules, 1972 as the condition for deposit of 50% of the settlement amount by the next working day of the auction is in the teeth of specific payment schedule provided under the Rules. It is also contended that the impugned notice inviting tender is in gross violation of Rule 11A of the said Rules, as the condition for providing Bank Guarantee of 50% of the bid amount one day prior to the bid is contrary to the specific provision requiring deposit of only 10% of the bid amount as security and, therefore, the entire process of awarding contract pursuant thereto is illegal, arbitrary, malafide and in violation of Articles 19 and 21 of the Constitution. In the amendment petition, it is contended that the Mining Rights of Sand for Patna district has been settled in haste with one Rambadpatila Shramik Sahyog Samiti, Patna without holding any public auction by respondent no. 3 in his chamber without allowing other eligible bidders including the petitioner to participate in the bid. It is further contended that the Mining Rights have been settled for an amount of Rs. 5.44 crores, i.e. only about 7 lacs above the minimum bid amount of Rs.5,37,000/- and odd when in case of public auction as contemplated under 1972 Rules as well as in the notice the bid amount should have been much higher and this has resulted in huge financial loss to the State Government. 9. A counter affidavit has been filed on behalf of respondents no. 1 to 3 in which it is stated that a notice for public auction for the settlement of sandghats falling within the jurisdiction of Patna District for the calendar year 2004 was published in the newspaper Aaj dated 27.11.2003 fixing 10.12.2003, 12.12.2003 and 15.12.2003 as the date for public auction. 1 to 3 in which it is stated that a notice for public auction for the settlement of sandghats falling within the jurisdiction of Patna District for the calendar year 2004 was published in the newspaper Aaj dated 27.11.2003 fixing 10.12.2003, 12.12.2003 and 15.12.2003 as the date for public auction. The time for holding the public auction was fixed at 11.00 AM in the conference hall of the Collector. The public notice specifically in clear terms contained the terms and conditions. It is stated that scheduled public auction was held on 10.12.2003 at 1.00 PM and the same was conducted by the Addl. Collector, Patna. According to the respondents, five persons made application for participating in the auction and after scrutiny it was found that only three persons, namely, Ashok Kumar, Prabandhak, Paraco Shramik Sahyog Samiti Limited, Paraco, Patna, Subhash Prasad Yadav, Rambag Patiala Shramik Sahyog Samiti, Maner, Patna and Shrishti Developers Pvt. Ltd., Krishi Utpadan Bazar Samiti Katra Bazar, Patna City, represented by the Director Sri Shailendra Kumar were qualified for participating in the auction. According to the respondents, their papers as per the terms and conditions of auction notice were complete and were in order. The application of Sri Bishnudeo Rai, Nasriganj, Digha and Sri Sunil Kumar, Member, Bishnupur Shramik Sahyog Samiti, Bishnupur, Madhepur, Patna were rejected as they were not found in order. According to the said respondents, their papers were not in confirmity with the terms and conditions ot auction notice. As per the terms and condition of notice the bidders were required to furnish Bank Guarantee/ solvence certificate obtained from the Bank to the tune of 50% of the reserve Jama before participating in the auction. Bishundeo Rai and Sunil Kumar did not deposit the Bank Guarantee/ solvence certificate of Rs. 268.29 lacs which was 50% of the reserve Jama. It is stated that the bid was signed on 10.12.2003 after conclusion of the auction and Subhash Prasad Yadav, Prabhandhak of Rambag Patiala Shramik Sahyog Samiti, Maner, Patna emerged as the highest bidder among the three participants. His highest bid was of Rs. 544.11 lacs and as per terms and conditions of auction notice he deposited Rs. 2,80,12,050/- and accordingly, settlement order was issued in his favour on 12.12.2003 for the period 1.1.2004 to 31.12.2004. His highest bid was of Rs. 544.11 lacs and as per terms and conditions of auction notice he deposited Rs. 2,80,12,050/- and accordingly, settlement order was issued in his favour on 12.12.2003 for the period 1.1.2004 to 31.12.2004. It is stated that in the administrative exigency and in the interest of State revenue all the sandghats of Patna district have been settled to the highest bidder in accordance with the provisions of Bihar Minor Mineral Concession Rules, 1972 and in accordance with the terms and conditions of the auction. In paragraph 20 it is stated that the writ petitioner neither made any application for participation in the auction nor deposited the security money as required under the Rules and the auction notice for participation in the auction. According to the said respondents, the writ petitioner is complete stranger and thus, it is contended that the allegations made by the petitioner are maliciously false. The petitioner has not filed any reply to the said counter affidavit. 10 Learned counsel for the petitioner contended that the entire action of the respondents in proceeding with the settlement right from the time of issuance of tender notice has been in gross violation of the provisions of Bihar Minor Mineral Concession Rules, 1972 and the law settled in numerous decisions and he made reference to the decision of the Apex Court in the case of Ram & Shyam Company V/s. The State of Haryana & Ors., reported in AIR 1985 SC 1147 (para 12) and the decision of the Division Bench of this Court in the case of Satya Murmu V/s. The State of Bihar & Ors., reported in 2000 (1) PLJR 147 . He submitted that paragraphs 11 and 12 of the tender notice provide that in case the bid amount is above Rs. 10,000/- and below Rs. 50,000/- then 50% of the bid amount should be deposited on the next working day of the bid and the remaining 50% should be deposited by 31st March, 2004 and in case it exceeds Rs. 50,000/- then 50% of the highest bid amount should be deposited on the next working day of the date of bid and the remaining 50% in two equal instalments by 15th April, 2004 and 15th July, 2004. He submitted that this is clearly in violation of Rule 11B. 11. 50,000/- then 50% of the highest bid amount should be deposited on the next working day of the date of bid and the remaining 50% in two equal instalments by 15th April, 2004 and 15th July, 2004. He submitted that this is clearly in violation of Rule 11B. 11. I fail to appreciate as to how the said Rule 11B has any relevance to paragraphs 11 and 12 of the tender notice. Rule 11B (1) provides that every settlee of sand as minor mineral shall deposit the amount equivalent to ten percentum of auctioned amount as security for due observance of terms and conditions of settlement which shall be refunded after the expiry of the period of settlement by the competent officer unless the same will be withheld in part or in full by the competent officer for reasons to be recorded in writing including non-payment of mining dues, whereas paragraph 11 and 12 provides for the manner in which the deposits of the bid amount are to be made. In fact paragraph 8 of the tender notice is in terms of Rule 11B which provides for deposit of security amount. 12. Learned counsel contended that the illegal benefits and undue favour have been given to the settlee by settling mining rights for an amount of Rs. 5.44 crores, i.e. only about 7 lacs above the minimum bid amount whereas in the case of public auction as contemplated under 1972 Rules the bid amount should have been much higher. According to the learned counsel, proviso to Rule 11C provides that the settlement to the society can be made only if the society undertakes in writing to deposit an amount which is 20% higher than the amount realised as royalty from the same area in the calendar year immediately preceding, whereas in the present case the settlement has been made on increase of only 10% with the settlee which is a society. 13. I am unable to appreciate as to how proviso to Rule 11C is at all relevant in the present case. It is nobodys case that the settlement with the new settlee has been made by giving any preference being a society. 13. I am unable to appreciate as to how proviso to Rule 11C is at all relevant in the present case. It is nobodys case that the settlement with the new settlee has been made by giving any preference being a society. The said proviso, in my opinion, relates to settlement with co-operative society duly registered under the Bihar & Orissa Co-operative Societies Act by giving preference to it and not if any such society participates in open bid and gets settlement by virtue of his offer of highest bid. In the present case it is wrong to allege that the settlement has been made behind closed door without holding any public auction. The notice was published and five persons offerred to participate in the bid and there was no such offer from the petitioner among the persons who offerred. The application of two were not found in conformity with the requirement and thus, three remaining participated and the settlement was made with the highest bidder. As such, in my opinion, proviso to Rule 11C is not at all relevant. Learned counsel then argued that there has been violation of Rule 11F. I fail to appreciate as to how Rule 11F which provides for manner of making payment of settlement amount in instalment after possession is at all relevant. Learned counsel in support of his said contention referred to paragraph 7 of the amendment petition, but I do not find that there is any such allegation even made about violation of Rule 11F. In fact from reading of sub-para B of paragraph 7 shows that the petitioner is canvassing the case of Vishnu Deo Rai. 14. However, learned counsel for the State has submitted that in fact the petitioner is stranger and thus has no locus standi to even maintain this writ petition. He further submitted that in any view of the matter Rule 36 of the Rules gives wide power to the Government for relaxation of rules in special cases and if the Government is of the opinion that the public interest so requires, it can grant a mining lease or authorise the grant of a quarrying permit on terms and conditions other than those prescribed in the Rules. According to the learned Standing counsel for the respondent Mines and Geology Department, in fact in the present case there has been no violation of Rules either in publication of notice, contained in Annexure 1, or in the matter of settlement with the settlee. 15. I find substance in the submission of the learned counsel for the respondents. As I have already noticed, bare reading of the impugned tender notice contained in Annexure 1 and the relevant provisions contained in the Rules show that there is no infirmity or violation of any of the said Rule in the notice. 16. This Court finds no substance in the submission of the learned counsel for the petitioner that it could have fetched more amount and as such, the State has suffered a huge financial loss on which ground the settlement should be set aside. The reliance in support of this placed by him upon the decision of the Division Bench in the case of Satya Murmu V/s. State of Bihar & Ors. and of the Supreme Court in the case of Ram & Shyam Company V/s. The State of Haryana & Ors. (supra) is completely misplaced. It is true that as per decision of the Apex Court the endeavour must be made to fetch the best available price in public interest but at the same time the Supreme Court had deprecated the acceptance pf an unsuccessful bidders subsequent offer, being higher than the highest bid made in the auction, without affording opportunity to the highest bidder. In the present case, it is not disputed by the petitioner that he neither made any application for participation in the auction nor deposited the security money as required under the Rules and the auction notice for participation in the auction. The respondents, thus, are right in their contention that he is completely stranger and has no locus even to maintain this writ petition. 17. This Court thus finds no merit in the writ petition and it is, accordingly, dismissed.