Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 517 (JHR)

Mahadev Enclave Pvt. Ltd. v. State of Jharkhand

2023-04-17

SANJAY KUMAR DWIVEDI, SANJAYA KUMAR MISHRA

body2023
ORDER : 1. By filing the instant writ application under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of mandamus directing the respondent authorities to refund the full amount of security deposit and 40 % of the bid amount amounting to Rs.30,10,000/-and Rs.1,20,40,000/-, respectively, totaling to Rs. 1,50,50,000/-pertaining to Narottampur Sand Ghat Mining Project on Sundar River, situated at Mouza Narottampur in the district of Godda, having an area of 22.72 acres in view of the fact that the respondent-authorities have never entered into an agreement with the petitioner pertaining to the said sand Ghat and the petitioner was further not allowed to excavate sand from the mining side. It is also prayed for a writ in the nature of mandamus directing the respondent authorities to pay interest @ 18 % per annum on the amount to be refunded to the petitioner towards security deposit amount and other dues, as stated above. The petitioner has confined his prayer to the aforesaid extent. 2. The facts of the case lies in a narrow compass: It appears that the Respondent-Deputy Commissioner, Godda vide Public Notice dated 30.03.2015 invited applications in terms of Rule 12 of the Jharkhand Minor Mineral Concession Rules, 2004 for allotment/settlement of various Sand Ghats of district of Godda for the financial years 2015-16 to 2017-18. The petitioner participated in the bid and was declared successful pertaining to Narottampur Sand Ghat, having area of 22.72 acres situated at Mouza Narottampur in the district of Godda. Accordingly, the petitioner was issued a Letter of Intent vide letter No. 458/M dated 02.05.2015. The petitioner in pursuance of the said letter, deposited a sum of Rs. 30,10,000/-being the security deposit with the respondent authority and further an amount of Rs.1,20,40,000/-being the bid amount was further deposited by the petitioner on the same i.e. on 13.05.2015. The petitioner duly intimated the aforesaid fact with respondent authority vide his letter dated 13.05.2015. The petitioner was issued online acknowledgement in evidence of the fact that it has already uploaded its application for grant of environmental clearance, which was uploaded by the petitioner on 30.06.2015. The petitioner applied for grant of environmental clearance with the competent authority but, there was inordinate delay in processing the application by the concerned authority. The petitioner was issued online acknowledgement in evidence of the fact that it has already uploaded its application for grant of environmental clearance, which was uploaded by the petitioner on 30.06.2015. The petitioner applied for grant of environmental clearance with the competent authority but, there was inordinate delay in processing the application by the concerned authority. Hence, the petitioner intimated regarding filing of application for grant of environmental clearance and duly intimated the aforesaid fact to the respondent authority vide its letter dated 22.08.2015. The petitioner applied afresh before the State Environment Level Impact Assessment Authority (‘SEIAA’ in short) for grant of environmental clearance and pursuant to the said application, the petitioner was granted environmental clearance on 31.08.2018. The Deputy Commissioner, Godda vide letter dated 06.02.2019 sought clarification from respondent no. 1-Secretary, Department of Mines and Geology, Ranchi seeking clarification regarding execution of agreement in favour of the petitioner. The petitioner filed repeated reminders before respondent i.e. the Deputy Commissioner, Godda vide its representations dated 13.07.2019 and 30.07.2019 to execute the agreement with the petitioner for carrying out the work of excavation of sand. However, the petitioner’s prayer did not yield any result. On 14.10.2020, the petitioner again filed representation before the respondent authority requesting the authority to execute the agreement in question with the petitioner. Despite such representation being filed by the petitioner, no step was taken by the respondents in execution of the agreement of the petitioner. On 02.03.2017, the provisions of the Jharkhand Minor Mineral Concession Rules, 2004 was amended vide Jharkhand Minor Mineral Concession (Amendment) Rules, 2017, wherein Rule 9(1)(e) was inserted and by virtue of such amendment, it was provided that if a Letter of Intent has been issued and the environmental clearance is not obtained within a period of 180 days then the Letter of Intent shall be deemed to have lapsed/withdrawn etc. On 21.09.2020 the petitioner filed a representation before the Deputy Commissioner, Godda requesting the said authority to either enter into an agreement with the petitioner and/or to refund the security deposit of the petitioner along with the bid amount. The petitioner was informed through letter dated 15.07.2021 that the guidelines have been issued by the office of the Director, Mines, Jharkhand vide letter no. The petitioner was informed through letter dated 15.07.2021 that the guidelines have been issued by the office of the Director, Mines, Jharkhand vide letter no. 1507/M Ranchi dated 27.10.2020 wherein, direction was issued for execution of work towards operation of sand Ghat of the petitioner in terms of the Jharkhand Minor Mineral Concession (Amendment) Rules, 2020. On 28.09.2020, a further amendment was made vide Jharkhand Minor Mineral Concession (Amendment) Rules, 2020 and a proviso was inserted under Rule 9(1)(e) of the aforesaid Rules, inter alia, providing that in appropriate cases, where an environmental clearance could not be obtained within a period of 180 days, for no fault of the intending lessee, the Commissioner of Mines have the power to direct for execution of Lease Deed even beyond the period of 180 days from the date of issuance of the Letter of Intent. In other words, a power to condone the limitation of execution of obtaining the environmental clearance within 180 days was vested with the Commissioner of Mines. Thereafter, the petitioner on several occasion requested the respondent authority to enter into compromise but, it yielded no result. The petitioner also claimed that in similar cases i.e. in W.P. (C) No. 486 of 2017 and W.P. (C) No. 2754 of 2018, directions have been issued by this Court in favour of some other intending lessee for refund of the security deposit and 40 % of the bid amount. 3. A counter affidavit has been filed by the State. 4. The main contention therein is that the petitioner has an alternative forum of approaching the Commissioner of Mines in terms of the proviso added by virtue of amendment in the year 2020 to condone the delay and to execute the lease agreement in favour of the petitioner and therefore, it is contended that the writ application is not maintainable. 5. However, it is not disputed by the State as well as the Deputy Commissioner, Godda that in fact, the petitioner was declared as the successful bidder and that he had made the deposit at a particular date, the amount of which has been specified in the preceding paragraphs. It is also not disputed that no agreement was executed in pursuance to the auction floated by the respondents and that the petitioner has never taken a benefit of the mining lease granted in his favour, as no agreement was executed in his favour. It is also not disputed that no agreement was executed in pursuance to the auction floated by the respondents and that the petitioner has never taken a benefit of the mining lease granted in his favour, as no agreement was executed in his favour. 6. In that view of the matter, this Court is of the opinion that the petitioner should be refunded with the amount, he has already deposited with the respondents. The State of Jharkhand being a welfare State should not gain unreasonable benefit at the risk of rendering financial losses to its citizens or Companies operating within the jurisdiction of the State of Jharkhand. As unreasonable gain on the part of the State Government is not within the compass of the constitutional Scheme provided to us by the Constituent assembly. 7. It is also brought to our notice that a similar question arose before the Hon’ble Supreme Court in Popatrao Vyankatrao Patil vs. State of Maharashtra and Others, (2020) 19 SCC 241 , wherein, the Hon’ble Supreme Court has time and again held that the State should act as a model litigant. In that respect, the Hon’ble Apex Court further took into consideration the observations made by it in the earlier decided cases viz. Urban Improvement Trust, Bikaner vs. Mohan Lal, (2010) 1 SCC 512 , Dilbagh Rai Jarry vs. Union of India, (1974) 3 SCC 554 , Madras Port Trust vs. Hymanshu International, (1979) 4 SCC 176 , wherein, the Hon’ble Apex Court reiterated time and again that the Government and public authorities should adopt the practice of relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, the Hon’ble Supreme Court further held that, if a Government or a public authority takes a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what the Hon’ble Supreme Court felt is that a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. 8. 8. The three Judges Bench of the Hon’ble Supreme Court in the case of Bhag Singh vs. State (UT of Chandigarh), (1985) 3 SCC 737 has held that the State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of its citizens. 9. We are in respectful agreement with the observations made by the Hon’ble Apex Court. Indisputably, in this case, the money has been deposited by the petitioner with the State Government, specifically with the Deputy Commissioner, Godda. It is also not disputed that he would not operate the sand sources because of delay in obtaining the environmental clearance. It is also not disputed that the amendment that was made to the Jharkhand Minor Mineral Concession Rules are applicable prospectively and it does not have any retrospective effect and that is the reason, we are of the opinion that even if the petitioner has not made an application in terms of the second amendment, as referred to above, the petitioner can claim for recovery of the money already deposited by him in favour of the respondents. 10. In that view of the matter, the writ application is allowed. The Respondent No. 2 is directed to refund the sum of Rs.30,10,000/-deposited as security deposit and 40% of the bid amount i.e. Rs.1,20,40,000/-, totaling to Rs. 1,50,50,000/-within a period of two months hence, along with simple interest at the rate of 6 % per annum to be calculated from 14.08.2015, till the actual payment. 11. Let the order be communicated at the cost of the petitioner for which requisites etc. shall be filed in the Registry. 12. There shall be no orders as to costs. 13. Pending application, if any, stands disposed of. 14. Grant urgent certified copy of this order as per the Rules.