Paropkar Consultant Private Limited v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4160 of 2022 ====================================================== Paropkar Consultant Private Limited A company registered under the Companies Act, having its office at Village Bag Majhauwan, P.s. Koilwar, District Bhojpur, through its authorized signatory, Bablu Kumar, aged about 38 years (Male), son of Sri Yogendra Singh, Resident of Bag Majhauwan, P.S. Koilwar, Town and District Bhojpur.
... ... Petitioner/s
Versus
1.
The State of Bihar Through the Commissioner - Cum- Principal Secretary, Department of Mines and Geology, government of Bihar, Vikas Bhawan, Bailey Road, Patna 800001.
2.
The Principal Secretary cum Commissioner Mines, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna - 800001.
3.
The Director, Mines and Geology Department, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.
4.
The Assistant Director, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.
5.
The District Magistrate - cum- Collector, Bhojpur. 6.
The Mineral Development Officer, Bhojpur.
7.
The Mines Inspector, District Mining Office, Bhojpur. 8.
The Bihar State Mining Corporation Limited, Through its Managing Director, Room No. 164, Vikas Bhawan, (New Secretariate), Bailey Road, Patna 800015.
... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr.Suraj Samdarshi, Advocate For the Respondent/s :
Mr.Gyan Prakash Ojha, GA-7 Mr. Naresh Dikshit, Spl. P.P. (Mines) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 05-05-2022 Petitioner has prayed for the following relief(s): "(i) For issuance of a writ, order or direction in the nature of mandamus commanding the Respondents
2/8 to forthwith remove the restriction from mining activity and also from generating e-transit challans from the portal http://portal.biharmines.in/ for sand ghat (Sone Cluster 44 TV Senetorium) falling in the district of Bhojpur and to allow the petitioner to sell sand therefrom after generating e-challans.
(ii) To issue an appropriate writ, order or direction in the nature of mandamus commanding the Respondents to refund proportionate royalty equivalent to the quantum of sand which the Petitioner Company has been precluded from winning from Sone Cluster 44 TV Senetorium sand ghat, from the royalty already paid by the Petitioner; or alternatively the petitioner's capping limit for the aforesaid cluster should be rolled over if the settlement is further extended.
(iii) This Hon'ble Court may adjudicate and hold that the action of the Respondent Authorities in suspending/blocking the generation of e-challans on the portal http://portal.biharmines.in/ for Sone Cluster 44 TV Senetorium sand ghat and thereby restricting the petitioner to sell sand therefrom for which the petitioner has already paid advance royalty, is completely dehors the provisions of Mines and Minerals (Development and Regulation) Act, 1957; the Bihar Mineral (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules, 2019, the work order dated 15.12.2021 and the Agreement dated 03.01.2022 and thus completely illegal, arbitrary and non-est in the eyes of law.
(iv) This Hon'ble Court may further adjudicate and hold that extreme measures like suspending/blocking the generation of e-challans on the portal http://portal.biharmines.in/, if at all permissible,
3/8 needs to be necessarily proceded with an express show cause in this regard and on opportunity to the petitioner to present its case.
(v) This Hon'ble Court may further adjudicate and hold that the action of the Respondent Authorities in this matter is violative of the principle of natural justice inasmuch as the generation of e-transit challans was suspended without any express show cause in this regard?
(vi) This Hon'ble Court may further adjudicate and hold that the action of the suspending/blocking the generation of e-transmit challans is violative of the principles of natural justice inasmuch as the alleged inspections were not conducted in the presence of the Petitioner and the petitioner was not provided with the inspection reports, on the basis of which the action of suspension has been taken. (vii) This Hon'ble Court may adjudicate and hold that the action of the Respondents in this matter is completely unjustified and unwarranted.
(viii) To award any other relief or reliefs for which the Petitioner is found entitled in the facts and circumstances of the case."
After the matter was heard for some time, finding the Bench not to be agreeable with the submissions made by learned counsel for the petitioner, learned counsel for the petitioner, under instructions, states that petitioner shall be content if a direction is issued to the authority concerned to consider and decide the
4/8 representation which the petitioner shall be filing within a period of four weeks from today for redressal of the grievance(s). Learned counsel for the respondents states that if such a representation is filed by the petitioner, the authority concerned shall consider and dispose it of expeditiously and preferably within a period of four months from the date of its filing along with a copy of this order.
Statement accepted and taken on record.
The Hon'ble Supreme Court in D. N. Jeevaraj Vs. Chief Secretary, Government of Karnataka & Ors, (2016) 2 SCC 653, paragraphs 34 to 38 observed as under:- "34. The learned counsel for the parties addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard.
35. However, we note that generally speaking, procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P. [Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504] to this effect as follows: (SCC p. 515, para 16) "16. The writ petitions before us are not inter parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be remembered
5/8 that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court."
36. A considerable amount has been said about public interest litigation in R&M Trust [R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91] and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance, the courts ought to be somewhat more liberal in entertaining public interest litigation. However, in matters that may not be of moment or a litigation essentially directed against one organisation or individual (such as the present litigation which was directed only against Sadananda Gowda and later Jeevaraj was impleaded) ought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies.
37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra [Union of India v. S.B. Vohra, (2004) 2 SCC 150: 2004 SCC (L&S) 363] that: (SCC p. 160, paras 12-13) "12. Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.
13. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific
6/8 remedy and whether justice despite demanded has not been granted."
38. A salutary principle or a well-recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India [Saraswati Industrial Syndicate Ltd. v. Union of India, (1974) 2 SCC 630] in the following words: (SCC pp. 641-42, paras 24-25) "24. ... The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice.
Nevertheless, the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd Edn.), Vol. 11, p. 106:
'198. Demand for performance must precede application.-As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.'
25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution."
As such, petition stands disposed of on the following terms:-
7/8 (a) Petitioner shall approach the authority concerned i.e. Respondent No.3, namely The Director, Mines & Geology Department, Government of Bihar, Vikas Bhawan, Bailey Road, Patna within a period of four weeks from today by filing a representation for redressal of the grievance(s);
(b) The authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably within a period of four months from the date of its filing along with a copy of this order; (c) The order assigning reasons shall be communicated to the petitioner;
(d) Needless to add, while considering such representation, principles of natural justice shall be followed and due opportunity of hearing afforded to the parties;
(e) Also, opportunity to place on record all relevant materials/documents shall be granted to the parties; (f) Equally, liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law;
(g) We are hopeful that as and when petitioner takes
8/8 recourse to such remedies, as are otherwise available in law, before the appropriate forum, the same shall be dealt with, in accordance with law and with reasonable dispatch;
(h) Liberty reserved to the petitioner to approach the appropriate forum/Court, should the need so arise subsequently on the same and subsequent cause of action;
(i) We have not expressed any opinion on merits. All issues are left open;
(j) The proceedings, during the time of current Pandemic- Covid-19 shall be conducted through digital mode, unless the parties otherwise mutually agree to meet in person i.e. physical mode;
The petition stands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, shall stand disposed of.
(Sanjay Karol, CJ) ( S. Kumar, J) K.C.Jha/-DKS U