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2013 DIGILAW 1469 (PAT)

Ajay Singh v. State Of Bihar

2013-12-17

NAVANITI PRASAD SINGH

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Order Pursuant to advertisement issued by Government of Bihar in the Department of Mines and Geology through the Collector-cum-District Magistrate, Rohtas, two acres of land was advertised for being leased for mining stone boulders for which this petitioner applied. There were bids held and petitioner, admittedly, outbid the competitors. Accordingly, on behalf of State of Bihar, a lease was to be executed by the Collector, Rohtas as the lessor in favour of the petitioner. It cannot be disputed that in order to win mineral in the shape of stone boulders, blasting operations have to be undertaken with the help of explosives otherwise the lease cannot be exploited. Accordingly, petitioner applied for explosive licence to the licensing authority who again happens to be the Collector, Rohtas. He waited. It is a matter of record that over three years have gone by and the Collector, Rohtas had slept over the matter. At whose instance or for whose benefit, this Court cannot speculate? The consequence was that the petitioner, who had agreed to pay large sums for having got the mining right, defaulted. Using this as an excuse, his mining lease was cancelled. He filed application before the Mines Commissioner, Government of Bihar. He granted installments. As explosive licence was not being granted, petitioner again defaulted. This time, the Mines Commissioner, even though fully aware of the facts, refused to grant any further indulgence and affirmed the cancellation of lease. This brought the petitioner to this Court in a writ petition. This Court, having noticed the problem, granted installments and compensatory interest to compensate the State clearly pointing out that if the lease was cancelled and efforts to make resettlement was taken, State would lose immense amount of revenue. 2. Once this issue was settled, it is then that the Collector –cum- District Magistrate, Rohtas agreed to execute the lease deed in favour of the petitioner on 06th of February, 2010 though it was granted in 2008 itself. Even thereafter what happened to the petitioner’s explosive licence is not known? The fact of the matter is that it was kept pending and not granted. Now in February 2011, once again the lease was cancelled. A new ground was invented by the Collector, who had issued the advertisement, made the settlement and executed the lease. Even thereafter what happened to the petitioner’s explosive licence is not known? The fact of the matter is that it was kept pending and not granted. Now in February 2011, once again the lease was cancelled. A new ground was invented by the Collector, who had issued the advertisement, made the settlement and executed the lease. This time he states that the lease had been granted without the consent of the Water Resources Department to whom the land belonged. A spacious plea on the face of it verging on mala fide. The Water Resources Department took a stand that they had granted permission to one Nagarjun Construction Company Limited for mining stone boulders of the same area but after that lease expired, they had not consented to the grant of lease to the petitioner. The Collector woke up to this issue after having realized substantial amount of money from the petitioner and having executed lease in favour of the petitioner. Petitioner challenged this before this Court but petitioner was relegated to the Mines Commissioner, Government of Bihar. When the matter was taken up before the Mines Commissioner, Government of Bihar, the Mines Commissioner has affirmed the order of cancellation, as passed by the Collector on the singular ground of there being no permission from the Water Resources Department. The petitioner came to this Court again and challenged the order, as passed in revision by the Mines Commissioner. This time, this Court set aside the order and remanded the matter to the Collector, Rohtas for fresh consideration. The Collector, Rohtas once again cancelled the lease this time on two grounds, (i) default in payment of installments as agreed and (ii) that no permission of the Water Resources Department was taken to lease out the area for mining even though they had granted permission to the earlier lessee. Petitioner, being fed up and having burnt his fingers, lost enormous amount of money, has thus come to this Court. 3. When this matter was taken up, by detailed order noticing the salient facts as noted above, by order dated 21.11.2013, a comprehensive counter affidavit was required to be filed duly sworn by the Commissioner (Mines), Government of Bihar himself, both as to the facts and as to the law. 3. When this matter was taken up, by detailed order noticing the salient facts as noted above, by order dated 21.11.2013, a comprehensive counter affidavit was required to be filed duly sworn by the Commissioner (Mines), Government of Bihar himself, both as to the facts and as to the law. Today, a supplementary counter affidavit has been filed under affidavit of the Commissioner (Mines), Government of Bihar which, to say the least, is an apology for an affidavit. The facts in relation to the plea of non-grant of explosive licence has not even been adverted to but what surprises this Court is that the Commissioner (Mines) maintains that the land belongs to Water Resources Department and not to Mining Department and, as such, the Mining Department could not have leased it out without permission or consent of the Water Resources Department. According to the learned Commissioner, the owners are different entities, even though this Court had already observed in the order dated 21.11.2013 requiring him to file affidavit, that the land does not belong to any Department. It belongs to the Government. These facts should have been looked into by the Collector before advertisement was issued. State cannot play hot and cold at the same time. If the stand of the Collector and the Mines Commissioner is correct that they had wrongly advertised for the lease having no authority to do it then they would be entitled to rescind the lease but upon refunding every single rupee paid by the petitioner alongwith compensatory interest for having misled the petitioner into a void lease. 4. However, once again reverting to the facts. Learned counsel for the petitioner urges that this is a case which exemplifies the gross arbitrariness on the part of the Government at all levels, firstly advertisement is issued on 06.02.2008 and bids are finalized on 26.03.2008. It takes two years to get the lease deed executed. The lease deed is ultimately executed on 06.02.2010 by the Collector, Rohtas for a period of five years from the date of execution of the lease. Thus, the lease is valid upto 05.02.2015. When petitioner applies for explosive licence which, I am sure both the Collector and the Commissioner know, is necessary for mining stone without which the lease is as good as a scrap of paper, the Collector decides to sleep till today. Thus, the lease is valid upto 05.02.2015. When petitioner applies for explosive licence which, I am sure both the Collector and the Commissioner know, is necessary for mining stone without which the lease is as good as a scrap of paper, the Collector decides to sleep till today. He has neither refused to grant the licence nor pointed out any deficiency but for over three years, he has kept it pending as if waiting for something. There is always premium for delay. Court cannot say more. Neither the Collector nor the Commissioner (Mines) chose to reflect upon this serious aspect of the matter but chose to wipe the petitioner each time. Petitioner defaulted. I am sure, authorities realize that in such matters, there are reciprocal responsibilities. Once lease is granted then both lessor and lessee are under legal obligation to see that there is no impediment in exploitation of the lease. It is only if petitioner is permitted to enjoy the lease and exploit the same can he develop a capacity to pay amounts fixed under the lease but if the lessor effectively stop him from mining the lease area or winning the minerals then he denies him the capacity to pay under the lease and then the Collector makes that a ground to cancel the lease. This, on the face of it, is most arbitrary. It would have been a different matter if the explosive licence has been granted to the petitioner and there were no further impediments but petitioner failed to exploit the lease but that was not to be. Thus, holding out that because of default, I can cancel the lease in such a fact situation, cannot be said to be anything but arbitrary. That ground cannot be sustained. 5. The next ground I have already indicated how fallacious it is in law. In this 21st century, to argue that Water Resources Department and Department of Mines are totally different entities and the property vests in the Department and not of Government cannot be heard. Governmental work is sub divided departmentally for convenience. It is the same Government when it is Water Resources Department or when it is Mines Department. In this 21st century, to argue that Water Resources Department and Department of Mines are totally different entities and the property vests in the Department and not of Government cannot be heard. Governmental work is sub divided departmentally for convenience. It is the same Government when it is Water Resources Department or when it is Mines Department. When the land is transferred from one Department of the Government to the another Department of the Government, I am sure learned Commissioner would appreciate, that no sale deed is required because the land belongs to the Government and there cannot be a transfer from Government to Government. Transfer is a bilateral act. Thus, to say that consent from Water Resources Department was required by the Mining Department, cannot be an excuse to punish the petitioner. It is virtually like saying that because the Collector defaulted, the petitioner lost his right. All I can do is to recall what Chief Justice Chagla said 60 years back in the case of All India Groundnut Syndicate Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 : “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” 6. This is height of arbitrariness. I may further note that facts have revealed and even the affidavit of the Commissioner (Mines) reveals that the Water Resources Department accepted that they had given consent to the previous lessee. Probably, they wanted the present lessee to approach them before they could consider granting permission. I am simply surprised. 7. This is height of arbitrariness. I may further note that facts have revealed and even the affidavit of the Commissioner (Mines) reveals that the Water Resources Department accepted that they had given consent to the previous lessee. Probably, they wanted the present lessee to approach them before they could consider granting permission. I am simply surprised. 7. In the facts aforesaid, if the Commissioner (Mines) is correct then in all fairness, before penalizing the petitioner, he should have initiated departmental proceedings against the Collector, Rohtas for having unauthorisedly put on auction property which he was not competent to do. He was playing a fraud. If the Commissioner had approved such a stand, he was party to the fraud. I am sorry but when the highest functionaries of the State act in this manner, the legal consequences must follow. State functionaries are repository of faith of people. They must know what they are doing. They cannot play with public finance, the way this case illustrates. 8. The inaction on the part of the Collector to grant explosive licence has directly resulted in tremendous loss to the exchequer. There is no explanation given anywhere in the counter affidavits filed as to why Collector sat over the matter and virtually denied the right of mining to the petitioner. It is not a loss which is ten or hundred rupees. The loss to the State exchequer runs into crores. Someone has to answer. 9. I may also notice the stand taken by the Commissioner in his supplementary counter affidavit. He states that the lease has been granted under Rule 9A of the Bihar Minor Mineral Concession Rules, 1972 and not under Rule 9. The reason for this stand is obvious. Rule 9 specifically provides that if the land leased is Government land then no permission of the Government is required. That was the stand of the petitioner as well that Water Resources Department is not alien to Government. It is a part and parcel of Government. To get out of this, it is said that the lease was granted in terms of Rule 9A read with Rule 52. If that be the stand, the matter is worst for the State because Rule 9A or for that matter Rule 52 does not contemplate of permission at all. Commissioner has then referred to Rule 53 again with the solitary intention to frustrate this lease. If that be the stand, the matter is worst for the State because Rule 9A or for that matter Rule 52 does not contemplate of permission at all. Commissioner has then referred to Rule 53 again with the solitary intention to frustrate this lease. I have examined Rule 53 as amended. That does not come in way of the petitioner in enjoying the lease for complete five years inasmuch as the lease was granted in favour of the petitioner on 26.03.2008 but was only executed on 06.02.2010 clearly stipulating that it was valid for five years from the date of its execution meaning thereby it would be upto 05.02.2015. It is not a case of renewal or a fresh grant after 04.02.2010 which is not permitted in terms of Rule 53 as amended. 10. These are all attempts by the State to frustrate the lease while demanding payments without permitting working of lease which cannot be sustained. It is for the State to choose if they do not want the lease to continue or the lessee to function, it is up to them to refund all that the lessee has paid without being permitted to work alongwith interest and abandon the lease as frustrated and if they cannot do that then they must permit unhindered access to mining by the petitioner under the lease, including grant of explosive licence to make the lease meaningful. It is for the Commissioner to decide which course State would take. Such a decision has to be taken peremptory within one month from today. If no such decision is taken and communicated to the petitioner within one month from today, it will be deemed that this Court has set aside the order of cancellation of lease of the Collector which is impugned in the present writ petition with a direction to grant petitioner appropriate explosive licence for meaningful exploitation of the lease. The licence will have to be granted in accordance with law within a period of one week from the reminder to the Collector by the petitioner after expiry of one month, if the lease is to continue. 11. With these observations and directions, the writ petition is disposed of.