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2008 DIGILAW 593 (PAT)

Jehal Prasad v. State Of Bihar

2008-04-11

AJAY KUMAR TRIPATHI

body2008
Judgment 1. Heard counsel for the parties. 2. Petitioner seeks quashing of an order dated 10.9.2007 contained in Annexure-16, which is a revisional order passed by the Mines Commissioner, Government of Bihar in Revision Case No. 44/2007. He also wants quashing of the order dated 22.5.2007 annexed as Annexure-14 to the writ application, which was the original order of the Collector, Nawada by virtue of which the lease of stone and moram granted in favour of the petitioner had been cancelled. He has also prayed for a direction upon the respondent that the lease granted to him on 7.4.2001 for exercise of power under Rule 22 of the Bihar Minor Mineral Concession Rules, 1972 (hereinafter referred to as the Rules) shall remain to be valid for the next ten years. 3. By virtue of a mining lease petitioner was granted right of removal of stone and moram by the competent authority at Nawada for a period of ten years with effect from 1.10.1991 to 30.9.2001. The lease was granted under the provisions of Rule 22 of the Rules. The original lease was to expire on 30.9.2001 and in terms of Rule 22(1) an application for renewal of the same was made before the expiry of the said lease on 3.4.2001. The competent authority i.e. the Collector acted upon the request of the petitioner and on 7.4.2001 itself the lease was renewed for a further period of ten years from 1.10.2001 till 30.9.2011. As a confirmation of the said renewal a communication dated 7.4.2001 was made to the petitioner by the Assistant Mining Officer of Nawada. However, a formal lease deed was executed only on 25.5.2001 and 30.5.2001 between the petitioner and the Collector, Nawada as well as between the petitioner and the Assistant Mining Officer acting on behalf of the State of Bihar. 4. Petitioners contention is that based on the said renewal and execution he has made substantial investments and carried on his activities without any let or hindrance. Some problems, however, was raised by the Department of Mines and Geology, Government of Bihar as would be evident from the communication dated 3.5.2005 contained in Annexure-3. By this communication the Joint Secretary of the Department wanted details of renewal of leases made after the amendment brought about in the Rules on 23.3.2001. Some problems, however, was raised by the Department of Mines and Geology, Government of Bihar as would be evident from the communication dated 3.5.2005 contained in Annexure-3. By this communication the Joint Secretary of the Department wanted details of renewal of leases made after the amendment brought about in the Rules on 23.3.2001. The Mines Department was informed by the District Magistrate that the petitioners lease was renewed on 7.4.2001 after the Government Notification dated 23.3.2001. It seems matter was examined by the Department of Mines and Geology and the renewals were not viewed as a bonafide exercise in view of the amendments brought about in the various provisions of the Rules specially Rules 9A, 22A and 52. By virtue of such amendments the Government as a matter of policy decision as well as enactment decided that the renewal of leases for quarrying for minor minerals shall be by way of an auction and not by settlement as done earlier. This was a vital departure made by the legislators in the interest of better revenue generation for the State of Bihar. It seems that the renewals made after such amendments made in the Rules caught the attention even of the legislators. 5. Shorn of other details it seems that the Collector-cum-District Magistrate, Nawada issued a show cause notice to the petitioner on 9.4.2007 as to why the mining activity of the petitioner should not be stopped since the renewal was in violation of the law as amended by the Government on 23.3.2001. Petitioner filed his show cause and stated that in terms of the earlier Rule 22 he approached the authorities 180 days prior to expiry of the lease as amended and his application made on 3rd of April 2001 was acted upon and accepted on 7th April 2001. There was no illegality to the said exercise. However, the Collector, Nawada decided to cancel the lease granted to the petitioner vide order dated 22.5.2007 as contained in Annexure-14 to the writ application. Petitioner challenged the said order by way of a writ application but in view of an alternative statutory remedy he was directed to avail the same. Revision application, therefore, came to be filed before the Commissioner (Mines), Government of Bihar and the impugned order contained in Annexure-16 dated 10.9.2007 came to be passed. Petitioner challenged the said order by way of a writ application but in view of an alternative statutory remedy he was directed to avail the same. Revision application, therefore, came to be filed before the Commissioner (Mines), Government of Bihar and the impugned order contained in Annexure-16 dated 10.9.2007 came to be passed. Petitioner, therefore, has challenged both the order of the Collector as well as the revisional order in the present writ application. 6. Petitioner does not deny the fact that some vital amendments to the Rules specially Rules 9A, 22A and 52 notified by the Government on 23.3.2001. the amendments are reproduced below for ready reference: "9A - Notwithstanding anything contained in these rules the Govemment may by notification in Official Gazette direct that any mineral may be leased out or settled by Public auction/tender in the manner prescribed in rule-52." "22A. (1) An application for renewal of quarrying lease under Rule 52 shall be made in Form "AA to the competent officer at least ninety days before the expiry of the lease. The application shall be accompanied by all documents as referred in Rule 52(2) and a treasury challan as a fee of Rs. 5,000 (Five Thousand). (2) Renewal of the quarry lease shall be considered when the applicant offers to pay auction bid amount and twenty five percent or fifty percent of such amount shall be paid for the first and second renewal respectively. (3) A quarrying lease under Rule 52 may be renewed for two periods, each period not exceeding the period of original lease. (4) The existing quarrying leases shall not be renewed but it would be allowed to subsist for the remaining period for which they have already been granted on the same terms and condition; Provided that at the end of the period for which they had been granted the area settled for quarrying will be governed by Rule 52. Explanation I--The relevant rules of Bihar Mineral Concession Rules 1972 shall "Mutatis Mutandis" apply to quarry lease granted under rule 52. Explanation IIExisting leases shall not be renewed nor fresh lease permits shall be granted." "52(1)(i)For the purpose of grant of quarrying lease by auction in respect of the mineral notified under Rule 9A, the Collector shall notify the following particulars of the area, namely: (a) Toposheet No. extent of the area and boundaries. Explanation IIExisting leases shall not be renewed nor fresh lease permits shall be granted." "52(1)(i)For the purpose of grant of quarrying lease by auction in respect of the mineral notified under Rule 9A, the Collector shall notify the following particulars of the area, namely: (a) Toposheet No. extent of the area and boundaries. (b) Name of village, Circle, Plot No. Khata No. etc. (c) The period of quarrying lease. Provided that the period of quarrying lease shall not be less than five years and extent of the quarrying lease area shall not be more than 2 (two) acre. (ii) Date of auction shall be notified before period of one month from the date of auction. (2) Every bidder of mining lease shall file the following documents five days before the auction: (i) Clearance certificate in respect of mining dues, such as royalty or dead rent and surface rent as obtained from competent officer. (ii) Every application shall be accompanied by an affidavit stating that the applicant has: (a) Filed up-to-date income tax return. (b) Paid the income tax assessed on his total income. (iii) Deposited the amount equivalent to two percent of auction amount as security, which shall be adjusted with the last instalment of auction amount if the mining leaseholder is not otherwise defaulter in payment. In case of unsuccessful bidder the security deposit shall be refunded by the Collector within two months after the grant of quarry lease. (3) Withdrawal from biddingAny bidder, who once has submitted documents as mentioned in sub-rule (2) shall not be withdrawn till the grant of quarry lease is made in respect of the said area. (4) Payment of bid amountThe bid amount shall be deposited on yearly basis in equal instalments and each instalment shall be deposited before 31st January. (5) Default in paymentIf any instalment shall not be deposited before prescribed period, 24 percent simple interest shall be charged upto two months and after that action for cancellation shall be taken. (6) Preference in auctionThe Collector shall give preference to Public Sector Undertaking of the State or central Government, local bodies and"Cooperative Societies duly registered under Bihar & Orissa Cooperative Societies Act, 1935, for grant of quarry lease by public auction in the following manner: (a) When they have not participated in any Public Auction. (6) Preference in auctionThe Collector shall give preference to Public Sector Undertaking of the State or central Government, local bodies and"Cooperative Societies duly registered under Bihar & Orissa Cooperative Societies Act, 1935, for grant of quarry lease by public auction in the following manner: (a) When they have not participated in any Public Auction. (b) In case of Co-operative Societies, if they give written offer for more than 5 percent higher amount or minimum auction amount whichever is higher within 48 hours after Public auction. (c) In case of Public Undertaking of State or Central Government and local bodies, if they give written offer for more than 5 percent higher amount than the Co-operative Societies within 48 hours after Public auction, where Cooperative Societies do not give any written offer, in that case if Public Sector Undertaking of State or Central Govt. and local bodies give written offer for more than 10 percent higher amount than the highest bid amount or minimum auction whichever is higher within 48 hours after Public auction. Explanation.Preference shall be given to only those Co-operative Societies whose members/share-holders usually work as labourers in Panchayat/ Panchayats where such mineral deposit occur residing in the Panchayats for which the Societies have been formed and.do not own more than five acres of agricultural or homestead land." 7. The main thrust of the argument of the petitioner is that on a plain reading of amendment Rules 9A, 22A and 52 would show that these amendments could not be put into effect unless and until the corresponding notification are made in the official gazette notifying the minor minerals whose leases would be made by the public auction. According to him so long as the minerals in question were not notified in the official gazette this amendment has no meaning. His alternative submission is that till the notification in the official gazette was made the amendment cannot be made op erational and the amendment would remain a dead letter. According to him on 17.4.2001 for the first time in the official gazette stone was notified as one of the minerals for which leases would be granted on the basis of public auction/tender as envisaged by the State Government and in accordance with the amendments affected in the Rules. According to him on 17.4.2001 for the first time in the official gazette stone was notified as one of the minerals for which leases would be granted on the basis of public auction/tender as envisaged by the State Government and in accordance with the amendments affected in the Rules. Since the petitioners lease was renewed on 7.4.2001 prior to the notification in the official gazette bringing stone as one of the minerals there was no illegality committed by the district authorities. He also submits that the notification dated 17.4.2001 that moram has not been notified as one of the minerals. His lease is with regard to both stone and moram. Learned counsel for the petitioner relies on a Division Bench decision reported in the case of M/s Larsen & Toubro Ltd. V/s. State of Bihar, 2004 1 PLJR 350 with special emphasis on paragraph 9, 1 and 13. He also contends that any amendment would be only prospective in nature and the same shall not in any way affect the lease already granted to him on 7.4.2001. Since the Commissioner (Mines) has not taken all these aspects into consideration the revisional order is fit to be set aside. 8. Counter affidavit has been filed on behalf of the respondents. They have supported the action taken against the petitioner and they have categorically asserted that no renewal of lease could be affected in favour of the petitioner on 17.4.2001 after the law has undergone a change on 23.3.2001. Since the Government by virtue of the amendment had done away with the earlier procedure in matters of grant of lease and the same could only be done by way of a public auction which was not followed in the case of the petitioner the renewal made in his favour has no sanctity in the eyes of law. Any act of an agent of the Government which is contrary to the statute will not bind the Government and if the cancellation order has come to be passed it has only been done to protect the interest of the State as well as enforce a law in existence. They also submit that the renewal of lease made by the local authorities was done in haste and with the object of facilitating the renewal in favour of the petitioner to avoid the rigors of the amended law. They also submit that the renewal of lease made by the local authorities was done in haste and with the object of facilitating the renewal in favour of the petitioner to avoid the rigors of the amended law. They indicate that when the previous lease of the petitioner was to expire only on 30.9.2001 then there was no occasion for granting a fresh lease for ten years within 3-4 days of the date of application of the petitioner for such renewal on 7.4.2001. They further rely on a detailed order which has been passed by the Mines Commissioner in Revision Case No. 44/2007, which is one of the impugned orders. From a reading of the revisional order it is quite apparent that renewal in question was facilitated by the local authorities in hot haste ignoring the amendments already brought into place on 23.3.2001. May be it was done to neutralize the effect of the impending gazette notification with regard to the kind of minerals whose settlement could only be done by a public auction or tender. The said notification was issued on 17.4.2001 and it was not too distant in time from the initial amendment brought about on 23.3.2001. They further contend that when a basic change in law has already been notified which clearly indicated the intendment of the legislators, if not the Government, of renewing lease only by way of auction or tender, the district authorities should not have facilitated the execution of lease in due haste. 9. This Court has gone through the reasoning given by the Commissioner (Mines), Government of Bihar. The Court does not find any legal infirmity with the impugned order. The Court further record that the decision rendered in the case of M/ s Larsen & Toubro V/s. State of Bihar (supra) has no applicability to the present facts and issues of the case. The contention that in absence of the Gazette notification notifying the minerals which could be settled by public auction, the amendment was inoperative or unenforceable is misplaced. The intention to bring about changes in the modality of renewal or auction was well expressed. The contention that in absence of the Gazette notification notifying the minerals which could be settled by public auction, the amendment was inoperative or unenforceable is misplaced. The intention to bring about changes in the modality of renewal or auction was well expressed. If any authority tried to dilute, if not, nullify the effect of such amendment by rushing through certain renewal in total breach or violation then it is difficult for this Court to hold either in favour of the petitioner or to certify that the action taken by the concerned district authorities was a bona fide exercise of power. This Court surely gets an impression from the narration of the events and the pleadings that the renewal was stage managed by the petitioner with the help of obliging officials to overcome the effect of the amendments. 10. The Court is of the opinion that a thorough enquiry should be held by the Commissioner (Mines), Government of Bihar into the matter with the help of the Department of Personnel and Administrative Reforms and fix responsibility on the officials who are responsible for flagrant violation of law and award suitable punishment dependent on the outcome of the said enquiry. 11. This Court, therefore, in view of the above discussion and finding comes to a conclusion that any renewal made by any authority after the amendment brought about on 23.3.2001 to the Bihar Minor Mineral Concession Rules would be an illegal exercise of power and the same shall not confer any right upon the lessee in any manner. Any renewal will have to be made by following the procedure now established in terms of the amended provisions. In a matter where a renewal has been effected without following the process of auction/tender will be an illegal renewal of lease and same cannot be sustained. 12. In sum the Court does not find any merit in the present writ application and the same is dismissed.