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2019 DIGILAW 553 (PAT)

Madhav Rao v. State of Bihar

2019-04-10

SANJAY PRIYA

body2019
SANJAY PRIYA, J.:–Petitioners have filed instant writ applications for issuance of appropriate writ for quashing the order contained in Memo No.3649 dated 12.09.2018 issued by the Under Secretary, Department of Mines & Geology, Government of Bihar, Patna, whereby and whereunder direction has been issued to cancel all the allotments of the Balughats including the Ghats allotted to the petitioners. 2. It has been submitted that allotment of sand ghats have been made to the different allottees as per Bihar Minor Minerals Concession Rules, 1972. Due to failure in compliance of certain terms and conditions, allotment for certain ghats were cancelled. Advertisement was published on 23.02.2018 (CWJC No.20099 of 2018) and on 08.03.2018 (CWJC No.19967 of 2018) by the Respondent No.2 for publication of reverse e auction notice for certain sand ghats under the district of Jamui including the sand ghats of the petitioners. In pursuance of the said advertisement, standard bid document for reverse e auction was issued by the Department of Mines and Geology as per provision of the Bihar Minor Minerals Concession Rules, 1972. Xerox copy of the letter dated 23.02.2018 (CWJC No.20099 of 2018) and dated 08.03.2018 (CWJC No.19967 of 2018) along with reverse e auction notice and Xerox copy of standard bid document are enclosed as Annexure-1 and 2 respectively to the writ applications. 3. Petitioners of both the writ applications participated along with others in the said reverse e auction, purchased the bid documents, deposited the required registration fee etc. After proper scrutiny and verification, bid was opened and finally allotted in favour of the petitioner by a duly constituted State Level Committee comprising of (I) Under Secretary, Mines and Geology Department (Member), (II) The Deputy Director, Mines and Geology Department (Member), (III) The Special Secretary, Mines and Geology Department (Chairman). Through e auction, Nariyana Chacho Block 1 sand ghat was finally allotted to the petitioner (CWJC No.20099 of 2018), Bariyarpur sand ghat was allotted to Petitioner No.1 and Satgama sand ghat was allotted to the Petitioner No.2 (CWJC No.19967 of 2018) in the district of Jamui up to the period of 31.12.2019. The Petitioners deposited Rs.10 lac as earnest money as well as also given adequate bank guarantee and meet out the required necessary formalities. It is further submitted that after completion of all formalities, the Petitioners submitted their separate planning of mining for approval before the Respondent No.2. 4. The Petitioners deposited Rs.10 lac as earnest money as well as also given adequate bank guarantee and meet out the required necessary formalities. It is further submitted that after completion of all formalities, the Petitioners submitted their separate planning of mining for approval before the Respondent No.2. 4. Vide Letter No.259 dated 05.04.2018 issued by the Minerals Development Officer, Jamui, approval for settlement of the concerned sand ghats up to the period of 31.12.2019 and a provisional work order was issued with respect to Petitioner of CWJC No.20099 of 2018. The Respondent No.2 vide letter No.1997 dated 07.05.2018 approved the planning of mining of Petitioners of CWJC No.19967 of 2018 with certain terms and conditions. Finally, vide Letter No.456 dated 19.06.2018 issued by the Minerals Development Officer, Jamui, approval for settlement of the concerned sand ghats up to the period of 31.12.2019 and provisional work order was issued in their favour. 5. The Petitioners after getting allotment of sand ghats in their favour have spent huge amount of money etc. in constructing path from sand ghats to road, arranging machinery and fulfilling all other basic amenities as per terms and conditions incorporated under the provisions of the law and rules. It is further submitted that due to national ban by the Green Tribunal, the mining operation for the period from 1st July, 2018 up to 30th September, 2018, could not be done. The Petitioners have again spent huge amount of money for starting the sand ghats from 1st October, 2018. It is further submitted that all of a sudden vide order contained in Memo No.3649 dated 12.09.2018, Annexure-5 to CWJC No.20099 of 2018 and Annexure-6 to CWJC No.19967 of 2018, the sand ghats allotted to different settlees in the State has been cancelled with immediate effect in the light of several orders and judgments passed by Hon’ble Court. The petitioners filed representation before Respondent No.2 on 18.09.2018 for review of its order dated 12.09.2018 so far as it relates to the sand ghats allotted to them under the district of Jamui, but till date no final order has been passed. It has further been submitted that settlement of sand ghat was done by State Level Committee consisting of the Respondent No.2 as a Member. However, cancellation order has been passed only by Respondent No.2 without approval or sanction of the State Level Committee. It has further been submitted that settlement of sand ghat was done by State Level Committee consisting of the Respondent No.2 as a Member. However, cancellation order has been passed only by Respondent No.2 without approval or sanction of the State Level Committee. It has been submitted that impugned order has been passed without authority and jurisdiction. It has further been submitted that before passing aforesaid order no notice or opportunity of hearing was given to the Petitioners. It has further been submitted settlement obtained by the Petitioners in their favour was not on the basis of any fraud, misrepresentation, coercion, threat, malafide or any other unlawful means. It has further been submitted that action of the Respondent is in violation of the terms of agreement as well as provision of Bihar Minor Mineral Concession Rules, 1972. Action of the Respondents is also in violation of the provisions of Articles 19, 21 and 200 of the Constitution of India as well as principles of natural justice. 6. Detailed Counter Affidavit has been filed by Respondents in both the cases. It has been submitted in the Counter Affidavit that in accordance with Bihar Minor Mineral Rules, 2017, the Bihar State Mining Corporation was authorized to direct all the settlees to sell all or any portion of their produce to the Bihar State Mining Corporation, and in furtherance of this objective, the process of reverse e auction was introduced, in order to ensure that the excavated sand/ minor mineral could be sold to the Bihar State Mining Corporation at a predetermined rate. 7. The validity of the said Bihar Minor Mineral Rules, 2017, was challenged before the Hon’ble Court vide CWJC No.15965 of 2017 along with other analogous cases. By order dated 27.11.2017 passed by the Hon’ble Court in the said batch cases, the said Bihar Minor Mineral Rules, 2017 was stayed in its totality until further orders. It was further directed that existing rules, namely, Bihar Minor Mineral Concession Rules, 1972, would come into force for the time being. Web copy of the order dated 27.11.2017 passed in CWJC No.15965 of 2017 and its analogous cases is annexed as Annexure- A to the Counter Affidavits. 8. It was further directed that existing rules, namely, Bihar Minor Mineral Concession Rules, 1972, would come into force for the time being. Web copy of the order dated 27.11.2017 passed in CWJC No.15965 of 2017 and its analogous cases is annexed as Annexure- A to the Counter Affidavits. 8. Respondents have further submitted that by another order dated 18.12.2017 passed in CWJC No.15965 of 2017 along with other analogous cases, direction was given that in the event of a tender having already been issued, the process with respect to the same was not to be finalized without the leave of the Court. Web copy of the order dated 18.12.2017 passed in CWJC No.15965 of 2017 is annexed as Annexure- B to the Counter Affidavits. 9. It has further been submitted that validity of exercise of reverse e auction carried out by the Department in furtherance of the objective of the aforesaid Bihar Minor Mineral Rules, 2017, was challenged before the Hon’ble Court by way of CWJC No.1002 of 2018. The Hon’ble Court was pleased to pass order dated 27.02.2018 in CWJC No.1002 of 2018 stating that in the light of the fact that Bihar Minor Mineral Rules, 2017, was stayed by an earlier judicial order, Rule- 11A of the Bihar Minor Mineral Concession Rules, 1972, governing the procedure relating to the mode of settlement of sand as a minor mineral, and under the said rules, it was prescribed that each river as a whole situated in each district, the minimum area of which is not less than 5 hectares, was to be considered as a single stretch/single unit, whereas, all the rivers in the District were to be treated as individual stretch and all such stretches in one district were to be combined into one single unit for the purpose of settlement, and, therefore no sand ghats could be settled in favour of any party in a piecemeal/ part by part manner. Web copy of the order dated 27.02.2018 passed in CWJC No.1002 of 2018 is annexed as Annexure- C to the Counter Affidavits. 10. Web copy of the order dated 27.02.2018 passed in CWJC No.1002 of 2018 is annexed as Annexure- C to the Counter Affidavits. 10. Counsel for the Respondents further submitted that tender notice dated 23.02.2018/08.03.2018 (Annexure-1 to the writ petitions) inviting bids for reverse e auction for settlement of certain sand ghats, interalia, of district of Jamui would indicate that reverse e auction pertained to certain sand ghats only, and not the entire stretch/unit and, therefore, was in contravention to the aforesaid order dated 27.02.2018 passed in CWJC No.1002 of 2018. In the light of aforesaid judicial orders, the Department issued Office Order bearing Memo No.3649 dated 12.09.2018 by which lease of the sand ghats settled in favour of the present Petitioners amongst others by the process of reverse e auction was cancelled. The said order was passed in compliance of the judicial pronouncements of the Hon’ble Court in the light of which exercise of reverse e auction became impermissible in the eye of law. 11. Counsel for the Respondents have further submitted that, in the circumstances, action on the part of the concerned authorities of the Department in issuing impugned order bearing Memo No.3649 dated 12.09.2018 bears no infirmity of law. It has further been submitted that upon issuance of impugned order bearing Memo No.3649 dated 12.09.2018, the Department has undertaken steps to refund the bank guarantee/ earnest money to the Petitioners in order to ensure that no prejudice and/ or financial loss is suffered by any of the parties involved. Submission of the Respondents is that present writ application is devoid of any merit. 12. This Court after looking into the order dated 27.11.2017 passed in CWJC No.15965 of 2017 (Annexure- A to the Counter Affidavit) finds that Division Bench of this Court has stayed the new Bihar Minor Mineral Rules, 2017, in its totality until further orders. The Division Bench in the same writ application by order dated 18.12.2017 directed that even any tender has been issued, the process shall not be finalized without the leave of this Court. The Division Bench in the same writ application by order dated 18.12.2017 directed that even any tender has been issued, the process shall not be finalized without the leave of this Court. A Bench of this Court by another order dated 27.02.2018 passed in CWJC No.1002 of 2018 has observed that in the light of the fact that the new Bihar Minor Mineral Rules, 2017, was stayed earlier by judicial pronouncement, Rule- 11A of the Bihar Minor Mineral Concession Rules, 1972, governing the procedure relating to the mode of settlement of sand as a minor mineral and under the said rules, wherein, it was prescribed that each river as a whole situated in each district, the minimum area of which is not less than 5 hectares, was to be considered as a single stretch/single unit, whereas, all the rivers in the District were to be treated as individual stretches and all such stretches in one district were to be combined into one single unit for the purpose of settlement, and, therefore no sand ghats could be settled in favour of any party in a piecemeal/ part by part manner. 13. In the instant case, From Annexure-1, which is tender notice dated 23.02.2018/08.03.2018, it appears that advertisement was published on 23.02.2018/08.03.2018 for publication of reverse e auction notice for certain sand ghats under district of Jamui and not for the entire stretch. Therefore, the same was in contravention to the order dated 27.02.2018 passed in CWJC No.1002 of 2018. Therefore, impugned order as contained in Memo No.3649 dated 12.09.2018 issued by the Under Secretary, Department of Mines & Geology, Government of Bihar, Patna, whereby and whereunder direction has been issued to cancel all the allotments of the Balughats including the Ghats allotted to the petitioners, does not suffer from any illegality. 14. It has been submitted by the Respondents that the Department has undertaken steps to refund the bank guarantee and earnest money to the Petitioner in expedient manner in order to ensure that no prejudice and/or financial loss is caused to any of the parties involved. 15. Therefore, this Court does not find any illegality in the impugned order contained in Memo No.3649 dated 12.09.2018 issued by the Under Secretary, Department of Mines & Geology, Government of Bihar, Patna, (Annexure-5 to CWJC No.20099 of 2018 and Annexure-6 to CWJC No.19967 of 2018). 16. Both the writ applications are, accordingly, dismissed.