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2022 DIGILAW 960 (JHR)

Niranjan Prasad v. State of Jharkhand

2022-08-03

RAJESH SHANKAR

body2022
JUDGMENT : The present writ petition has been filed for quashing the order dated 23.03.2018 (Annexure-12 to the writ petition) passed by the Mines Commissioner, Ranchi (the respondent no.2) in Revision Case No. 143 of 2017 whereby revision application preferred by the petitioner has been rejected affirming the order as contained in letter no. 1035/M dated 11.09.2017 issued by the Deputy Commissioner, Palamau (the respondent no.3). Further prayer has been made for quashing the order as contained in Letter No. 1035/M dated 11.09.2017 issued by the respondent no.3 whereby settlement of the sand ghat in favour of the petitioner over an area of 10.00 acres in Koyal river situated at Plot No. 2714 of village Redma under Redma South Gram Panchayat, Palamau (hereinafter to be referred as “the said sand Ghat”) has prematurely been terminated. 2. Mr. Indrajit Sinha, learned counsel for the petitioner, submits that the said sand Ghat was settled in favour of the petitioner for a period of three years i.e. from 01.02.2016 to 31.01.2019 finding him the highest bidder in the public auction held on 25.06.2015. The petitioner got environmental clearance from State Level Environment Impact Assessment Authority, Jharkhand on 30.12.2015. Thereafter, a deed of indenture with map of the granted area was executed on 01.02.2016 which was registered on 17.02.2016. The petitioner also obtained ‘consent to establish’ and ‘consent to operate’ the project from the Jharkhand State Pollution Control Board as per the condition laid down in the deed of indenture. After obtaining all the statutory clearances, the petitioner started extracting and dispatching sand for which monthly returns were being filed in the office of District Mining Officer, Palamau (respondent no.4). The petitioner submitted online application on 26.05.2017 before the respondent no.4 for grant of registration/storage licence under the provision as mandated in Rule 4(1) of the Jharkhand Mineral Dealer’s Rules, 2007 (in short “the Rules, 2007”) for storing, procuring and selling sand in Mouza Redma, Thana No. 188, Khata No. 496, plot nos. 2191 and 2194 over an area of 2.09 acres whereupon the respondent no.4 asked the Circle Officer, Palamau (respondent no.5) to send detailed report about the said land. Though the Halka Karamchari and the Circle Inspector submitted the report to the respondent no.5 on 02.06.2017, yet the said respondent did not submit the same to the respondent no.4 due to which the storage licence could not be granted to the petitioner. Though the Halka Karamchari and the Circle Inspector submitted the report to the respondent no.5 on 02.06.2017, yet the said respondent did not submit the same to the respondent no.4 due to which the storage licence could not be granted to the petitioner. Since the petitioner was in bonafide believe that storage licence was deemed to have been issued, it procured and stored sand over the area in question. Suddenly, the petitioner received a show cause notice as contained in letter no.630/M dated 16.06.2017 issued by the respondent no. 4 alleging that during inspection made on 09.06.2017 at about 3:45 p.m., a tractor was found near the sand ghat of the petitioner loaded with sand and the driver showed challan issued by the petitioner in which time of transportation of sand was mentioned as 6.00 a.m. to 8.00 a.m. On being asked, the driver of the said tractor stated that only one Challan was issued by the contractor by taking royalty of Rs.300/- however, the contractor of the said sand ghat used to create pressure upon the drivers of tractors engaged in transportation of sand to lift the same 6 to 7 times in a day on same Challan and the contractor used to collect Rs.100/- per trip. It was further alleged that the petitioner was also extracting sand from outside the sand ghat settled to him. It was also alleged in the show cause notice that during inspection, quantity of sand equivalent to approximately 1034 tractors was found outside the settled area of sand ghat for which no registration was obtained by the petitioner under the Rules, 2007 and as such he violated the provisions of the said Rules, moreover, the capacity of extraction of sand from the settled sand ghat was 80,700 CM per annum, but extraction of sand was being made more than the fixed capacity as mentioned in ‘consent to operate’ and ‘Environment Clearance Certificate’. 3. Learned counsel for the petitioner further submits that pursuant to letter dated 16.06.2017, the petitioner submitted his reply on 27.06.2017 denying all the allegations levelled against him. He claimed that no tractor was caught at the sand ghat settled to him, rather the same was caught from the road. 3. Learned counsel for the petitioner further submits that pursuant to letter dated 16.06.2017, the petitioner submitted his reply on 27.06.2017 denying all the allegations levelled against him. He claimed that no tractor was caught at the sand ghat settled to him, rather the same was caught from the road. It was explained that the said tractor was loaded with sand in the morning between 6.00 a.m. and 8.00 a.m. from his allotted sand Ghat and the transport challan was issued after receiving royalty of Rs.348/- as per the government instruction. It was further explained that the petitioner did not know as to from where the sand was subsequently loaded by the said tractor. It was also explained that the petitioner was extracting sand within the demarcated area. The sand-stock was made to ensure its supply during rainy season for various development works of the government with respect to the contracts taken by the petitioner which were in progress. An order of the Deputy Commissioner, Palamau was received on 04.06.2017 that there was prohibition of extracting sand from settled sand ghat in rainy season for the period from 10.06.2017 to 15.10.2017. In this regard, the sand-stock was made by the petitioner for transporting it with valid transporting challan during the period from 06.06.2017 to 08.06.2017 in view of the fact that the application for registration/storage was pending before the competent authority and the petitioner was not aware of the fact that before grant of storage licence, stocking of sand was wrong. Learned counsel for the petitioner further submits that the respondent no. 4, vide impugned letter dated 11.09.2017, prematurely terminated the settlement of sand ghat made in favour of the petitioner directing him to hand over the possession of the same to the Government and also to remove the machinery etc if any installed there. Aggrieved thereby, the petitioner preferred revision before the respondent no. 2 which was registered as Revision Case No. 143 of 2017, however the same was also dismissed. It is also submitted that the impugned order as contained in letter no. 1035/M dated 11.09.2017 has been passed by the respondent no. 3 without providing any opportunity of hearing to the petitioner or to cross-examine the witnesses which is in violation of the principles of natural justice. 4. Mr. It is also submitted that the impugned order as contained in letter no. 1035/M dated 11.09.2017 has been passed by the respondent no. 3 without providing any opportunity of hearing to the petitioner or to cross-examine the witnesses which is in violation of the principles of natural justice. 4. Mr. Mohan Kumar Dubey, learned A.C. to A.G. appearing on behalf of the respondents, submits that before issuance of impugned letter dated 11.09.2017 by the respondent no. 3, the petitioner was served a specific show cause notice vide letter no. 630/M dated 16.06.2017 and only after considering the reply submitted by him, the impugned letter dated 11.09.2017 has been issued which is in due compliance of the principles of natural justice. It is further submitted that the petitioner was extracting sand in violation of the relevant rules, regulations and instruction of the concerned authorities. He was not only extracting sand from the said Sand Ghat in excess of the permissible limit but was also extracting it from an adjoining area. The petitioner was not entitled to stock a huge quantity of sand out of his settled sand ghat which is also separately punishable under rule 8 of Rules, 2007. Moreover, rules 3(1) and 3(2) of the Rules, 2007 provide that all dealers shall register themselves as dealers under the Mines and Geology Department, Government of Jharkhand as per the procedure mentioned in the rules and no person other than a dealer or a mining lease holder shall buy or sell or offer for sell or engage in any transaction of buying and selling mineral at any place or transport mineral for purposes of sale or consumption without being registered as a dealer. 5. Heard learned counsel for the parties and perused the materials available on record. The petitioner is aggrieved with the cancellation of settlement of sand ghat in question. 6. The main argument of the learned counsel for the petitioner is that the respondent no. 3 has passed the impugned order as contained in letter no. 1035/M dated 11.09.017 in a mechanical manner without considering the explanation submitted by the petitioner in response to the show cause notice dated 16.06.2017. It is further submitted that the said aspect has been overlooked by the revisional authority- the respondent no. 3 has passed the impugned order as contained in letter no. 1035/M dated 11.09.017 in a mechanical manner without considering the explanation submitted by the petitioner in response to the show cause notice dated 16.06.2017. It is further submitted that the said aspect has been overlooked by the revisional authority- the respondent no. 2 who, while passing the order dated 23.03.2018, has fully accepted the allegation made in the show cause notice which was bereft of any evidence to prove the same. 7. Learned counsel for the petitioner puts reliance on a judgment rendered by the Hon’ble Supreme Court in the case of Elizabeth Jacob Vs. District Collector, IDUKKI & Others reported in (2008) 15 SCC 166 , wherein it has been held that the onus to prove fraud or collusion in respect of any property is clearly on the State and is not on the bonafide purchaser. 8. Learned counsel for the petitioner puts further reliance on the judgment of this Court rendered in the case of M/s Shiva Stone Chips Vs. The State of Jharkhand & Others [W.P.(C) No. 2377 of 2016] wherein, after referring the judgments of the Hon’ble Supreme Court, it has been held that the non-consideration of reply submitted by aggrieved person before the respondent authorities is violative of well settled principles of natural justice. 9. I have also perused the judgment of Asha Sharma Vs. Chandigarh Administration & Others reported in (2011) 10 SCC 86 wherein the Hon’ble Supreme Court has held as under:. “14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factors of the situations in question were identical. This uncertainty must be avoided” 10. In the case in hand, on bare perusal of the impugned order as contained in letter dated 11.09.2017 issued by the respondent no.3, it appears that the said order has been passed in a mechanical manner. The respondent no. 3 has fully relied upon the allegations made in the inquiry report and none of the explanations given by the petitioner has been discussed in the said order. It has summarily been observed that reply to the show cause notice submitted by the petitioner has not been found satisfactory. I am of the considered view that since the cancellation of the settlement of sand ghat has severe civil consequence, the respondent no.3 was required to consider the reply to the show cause notice submitted by the petitioner. It is a well settled principle of law that justice must not only be done, it must also be seen to be done. 11. Under the aforesaid facts and circumstance, the order dated 23.03.2018 passed by the respondent no. 2 in Revision Case No. 143 of 2017 and the order as contained in letter no. 1035/M dated 11.09.2017 issued by the respondent no.3 are hereby quashed. The matter is remanded to the respondent no.3 to pass a fresh reasoned order after providing due opportunity of hearing to the petitioner. 12. The writ petition is, accordingly, disposed of.