Banshidhar Construction Pvt. Ltd., v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.5598 of 2022 ====================================================== Banshidhar Construction Pvt. Ltd., a Company incorporated Under the provisions of the Companies Act, 1956 having its Office at 2nd Floor, Plot No. 388/389, Near Biscuit Factory More, Nasriganj, Digha, Danapur, Patna through its Authorized Signatory, Prakash Kumar Singh, about 41 Years, Son of Late Ram Naresh Singh, Resident of Azad Nagar, Primary School, Bhuli, Dhanbad, Jharkhand.

... ... 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, Patna800001. 3.

The Deputy Secrertary, Mines and Geology Department, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

4.

The District Magistrate-Cum-Collector, Aurangabad. 5.

The Mineral Development Officer, Aurangabad.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Suraj Samdarshi, Advocate Mr.Avinash Shekhar, Advocate Mr.Rajan Prakash, 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 SATYAVRAT VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 18-05-2022 Heard learned counsel for the parties.

Petitioner has prayed for following relief(s) : - "(1) For issuance of a writ, order or direction in the nature of mandamus commanding the Respondents to permit the Petitioner to remove and sell the stock of minerals which has been validly and legally excavated by

2/8 the petitioner during the settlement period and which has already suffered the incidence of royalty and is currently lying at the mining site i.e. tracts of land situated at Mauja Sadhil, Circle Madanpur, P.O. Madanpur, District Aurangabad Khata 28, Thana 839, Plot 1168 (P), Block 1 admeasuring 13.32 acres.

(ii) This Hon'ble Court may adjudicate and hold that even after expiry of settlement period, a settlee is entitled to remove mineral excavated during the concession period and lying at the mining site in accordance with the capping limit fixed in the environment clearance. (iii) This Hon'ble Court may further adjudicate and hold that the action of the Respondent Authorities in not allowing the petitioner to remove and sell the stock of minerals which has been validly and legally excavated by the petitioner during the concession period is without any legal basis and bad in the eyes of law.

(iv) This Hon'ble Court may further adjudicate and hold that the action of the Respondents in not allowing removal/selling of stock lying at the mining site is completely illegal and arbitrary particularly in view of letter no. 488 dated 09.03.2022 in which the claim of the Petitioner has been virtually accepted by the Respondents.

(v) The Hon'ble Court may further adjudicate and hold that in light of Part IX Clause 6 of the settlement agreement dated 04.04.2016, the Petitioner is entitled to remove his property on the expiry of concession period, if the mineral concession holder has already been paid the rent and royalty.

(vi) This Hon'ble Court may further adjudicate and hold that in absence of any outstanding dues, the mineral

3/8 excavated in terms of the settlement agreement dated 04.04.2016, which has already suffered incidence of royalty, becomes the property of the settlee and the Respondents are obligated to facilitate the Petitioner for removal of such stocks of stone by providing necessary transit pass.

(vii) This Hon'ble Court may adjudicate and hold that the action of the Respondents in the matter is an act of unreasonableness and arbitrariness on the part of the Respondents.

(viii) To award any other relief or reliefs for which the petitioner is found entitled in the facts and the circumstances of the case."

After the matter was heard for some time, finding the Bench not to be in favour with the submissions made across the Bar, 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 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.

4/8 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 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

5/8 (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 1213) "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 remedy and whether justice despite demanded has not been granted."

38. A salutary principle or a wellrecognised 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

6/8 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:- (a) Petitioner shall approach the authority concerned i.e. Respondent No. 4, namely the District

7/8 Magistrate-cum-Collector, Aurangabad within a period of four weeks from today by filing a representation for redressal of the grievance(s);

(b) The said authority 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 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

8/8 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, stands disposed of. (Sanjay Karol, CJ) ( Satyavrat Verma, J) Rishi/- U