Patna High Court
Amarnath Singh @ Amar Nath Singh vs The State Of Bihar on 16 December, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2787 of 2020
======================================================
Amarnath Singh @ Amar Nath Singh Son of Late Parshuram Singh, Resident
of Subhago Parshuram Kothi, Chuna Bhatta, Near Railway Station, Karma,
P.S. Dehri on Sone, District- Rohtas (Sasaram)
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Mines and Geology
Department, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.
2. The Principal Secretary cum Mines Commissioner, Mines and Geology
Department, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.
3. The Special Secretary cum Director, Mines and Geology Department,
Government of Bihar, Vikas Bhawan, Bailey Road, Patna.
4. The Additional Secretary cum Director, Mines and Geology Department,
Government of Bihar, Vikas Bhawan, Bailey Road, Patna.
5. The District Magistrate, Aurangabad.
6. The District Mining Officer, Aurangabad.
7. The State Level Environment Impact Assessment Authority, through its
Chairman, 2nd floor, Beltron, Baldev Bhawan Rd, Shastri Nagar, Patna,
Bihar 800023.
8. Aditya Multicom Private Limited, 12 Waterloo Street, Kolkata, West Bengal
700069.
... ... Respondent/s
======================================================
Appearance:-
For the Petitioner :- Mr. Ajit Kumar, Sr. Advocate
Mr. Rajeev Kumar Singh, Adv.
For the Mines Department:- Mr. Naresh Dixit, Special P.P.
For the State :- Mr. Gyan Praksh Ojha, GA-7
Mr. Uday Shankar Pandey, Advocate
For the S.L.E.I.A.A. :- Mr. Kumar Ravish, Advocate
For Respondent No. 8 :- Mr. Suraj Samrdarshi, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
CAV JUDGMENT
Date : 16-12-2021
The present writ petition was initially filed for
quashing the letter dated 27.12.2019 issued by the respondent
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
Special Secretary-cum-Director, Mines & Geology Department,
in exercise of Rule 77(2) of the Bihar Minerals (Concession,
Prevention of Illegal Mining, Transportation & Storage) Rules,
2019 (hereinafter referred to as 'the Rules, 2019') whereby the
settlement period of settlees of sand ghat in the State of Bihar,
which was ending on 31.12.2019, had been extended till
31.10.2020, as also to direct the respondents to allow the
petitioner to conduct the mining activity at the Aurangabad Sone
sand ghat bearing no. 32. The petitioner had also prayed to hold
that the settlement term of the respondent no. 8 cannot be
extended and no other person can be allowed to conduct mining
of sand in the District of Aurangabad without having obtained
an environmental clearance from the competent authority.
Subsequently the petitioner had also prayed for quashing the
decision of the Government of Bihar dated 29.12.2020 whereby
the settlement period of the existing settlees of sand ghat in the
State of Bihar has been extended till 30.03.2021. However, with
the efflux of time, the petitioner has now confined his relief and
only seeks a direction upon the respondent authorities to refund
the earnest money, security money and other amounts deposited
by the petitioner for the settlement of sand ghat no. 32 in the
Aurangabad district pursuant to the auction held in the year
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
2019, inasmuch as despite repeated request made by the
petitioner, the respondent authorities have failed to issue work
order in favour of the petitioner. In such view of the matter, the
writ petition has accordingly stood amended by an order dated
22.06.2021 passed by this Court in the present case.
2. The brief facts of the case according to the
petitioner are that in light of the new sand policy, 2013 the
respondent Department of Mines and Geology, Government of
Bihar (herein after referred to as the "respondent Mines
Department") had issued a notification dated 22.07.2014 by
which criteria and procedure for settlement of sand mines for
the period 01.01.2015 to 31.12.2019 was published in the
official gazette. The State Government had then, in exercise of
its power conferred by section 15 of the Mines & Minerals
(Development & Regulation) Act, 1957, had amended the Bihar
Minor & Minerals Concession Rules, 1972 to bring it in
consonance with the new sand policy, 2013 and the amendment
had come into effect from 11.08.2014. In view of the fact that
the settlement of the earlier successful bidders was in light of
the aforesaid policy of the State Government, an advertisement
was published on behalf of the Mines & Geology Department
for settlement of sand ghats by auction for a period of five years
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
i.e. from 01.02.2015 to 31.12.2019. The settlement of the
successful bidders ended on 31.12.2019 and for the period
2013-19, private respondent no. 8 was the settlee for the district
of Aurangabad. In the meantime, the State Government
formulated the Bihar Sand Mining Policy, 2019 which was
notified on 14.08.2019 and was made applicable with immediate
effect. The respondents then came out with the Bihar Minerals
(Concession, Prevention of Illegal Mining, Transportation &
Storage) Rules, 2019 which was published in the gazette on
17.09.2019. The respondents had then published a notice
inviting e-auction for settlement of 40 sand ghats in the district
of Aurangabad. The e-auction was held on 26.12.2019 and the
auction of 16 sand ghats was finalized. The petitioner had also
participated in the auction process and was declared highest
bidders "for Aurangabad Sone sand ghat No. 32". The Mineral
Development Officer, Aurangabad had then issued letter dated
30.12.2019, directing the petitioner to deposit a sum of Rs.
3,20,50,000/- being the auction amount, qua the settlement of
the sand ghat in question. Nonetheless, the Special Secretary-
cum-Director, Mines & Geology Department, by his letter dated
27.12.2019 had extended the settlement period of the existing
settlees of the sand ghats in Bihar, which was ending on
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
31.12.2019 till 31.10.2020 or till the new settles obtain
environmental clearance or whichever is earlier. It is also the
case of the petitioner that the mining plan and environmental
clearance granted to the respondent no. 8 for the sand ghats of
Aurangabad was valid only till 31.12.2019 and the same has
stood lapsed, hence no mining activity can be undertaken as per
Rule 17 & 18 of the Rules, 2019. It has also been pointed out
that during the pendency of the present writ petition, the State
Government, by press notice dated 29.12.2020 has extended the
settlement period till 30.03.2021. It is also pointed out that vide
notification dated 31.03.2021, the respondent Government of
Bihar has further extended the settlement of existing settlees till
31.09.2021, thus rendering the settlement made to the petitioner
and other similarly situated settlees nugatory without any lapse
on their part and only on account of the arbitrary and illegal
action of the respondent authorities.
3. The learned senior counsel for the petitioner Shri.
Ajit Kumar has referred to clause 17 & 23 of the notification
dated 14.08.2019 issued by the Government of Bihar,
Department of Mines & Geology with regard to the Bihar Sand
Mining Policy, 2019, to show that the State Mining Department
is required to obtain the environmental and other clearances in a
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
time bound manner for the various sand ghats and for the
purposes of obtaining statutory environmental and other
clearances, the District Mining Officer and Director, Mines has
to take necessary action. The learned senior counsel for the
petitioner has next referred to the Rules, 2019, the relevant rules
whereof are quoted herein below:-
"Rule 2(vi) "Department" means the
Department of Mines and Geology,
Government of Bihar;
Rule 17(4) (4) Approval and submission
of Mining Plan.--All Mineral
Concession Holders or the
Government/Corporation as the case
may be shall submit a mining plan
duly prepared by an RQP and
approved by the Director or any
officer / person/academic
institution/Govt. agency authorized by
the Department in this regard within a
period of three months from the date
on which communication regarding
grant of mineral concession is
received or such other period as may
be decided/ allowed by the department
for the submission of the approved
mining plan. Provided that in case
mine plan is prepared by the
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
department through agencies, the cost
shall be realized from the concerned
Mineral Concession holder/ settlee.
Rule 18(2) Environmental Clearance-
All Mineral Concession Holders or the
Government/ Corporation as the case
may be shall obtain prior
environmental clearance as per the
prevailing Environmental Impact
Assessment notification and latest
instructions issued by the Competent
Authority of the Ministry of
Environment and Forest, Government
of India in this regard and as per the
provisions of the Environment
Protection Act. Provided further that
the Mineral Concession Holder shall
obey and comply with such other
instructions, regarding environmental
protection and Environmental
Clearance issued from time to time by
the Government of India, State
Government, Central Pollution
Control Board, State Pollution Control
Board and the Collector of the
District.
Rule 29 (A) (1) Mode of Settlement.--
The settlement of sand as minor
mineral shall be done by public
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
auction-cum-tender through e-bidding
mode in favour of the highest bidder
by the Collector/any officer so
authorised by the State Government
(e) The successful bidder or the
Government/ Corporation as the case
may be shall obtain environmental
clearance from the competent
authority as per the prevailing
Environmental Impact Assessment
notification of the Ministry of
Environment, Forest & Climate
Change, Government of India and as
per the provisions of the Environment
Protection Act."
4. The learned senior counsel for the petitioner has
further referred to the tender document pertaining to the
settlement of the sand ghats for a period of five years with effect
from 01.01.2020 containing the terms and conditions for
settlement of the sand ghats which can be found at page no. 122
of the writ petition. The learned senior counsel for the petitioner
has referred to clause-9 thereof to show that the settlement of
the sand ghats would be valid for a period of five years starting
from 01.01.2020. Clause 10 thereof has also been referred to,
which prescribes the formalities to be carried out after selection
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
and clause- (ii) thereof pertains to mining plan and it clearly
states that the mining plan shall be prepared and endorsed by the
department as per the prevailing rules by means of an agency
and the expenditure meted out shall be realized from the
concerned settlees. The learned senior counsel for the petitioner
has next submitted that the existence of a valid District Survey
Report (DSR) is a sine qua non for making settlement of the
ghats and the said DSR is required to be prepared in terms of the
Sustained Mining Management Guidelines, 2016 and the
Enforcement and Monitoring Guidelines for Sand Mining, 2020
read with the notification dated 15.01.2016 issued by the
Ministry of Environment and Forest and Climate Change. The
learned senior counsel for the petitioner has referred to a
Judgment dated 14.10.2020, passed by the National Green
Tribunal, Principal Bench, New Delhi, in the case of Pawan
Kumar vs. The State of Bihar & Ors. (O.A. No. 40/2020/EZ),
relevant paragraphs whereof, i.e paragraphs nos. 55 to 66, 68 to
70, 79, 81, 84 and 101 to 103 are reproduced herein below:-
"55. According to the State, the action
taken in preparing DSR 2019 was a
studied scientific approach and,
therefore, legal and valid.
56. This submission, in our considered
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
opinion, clearly appears to be a
fallacious and a bald assertion. As
would be apparent from the process
for preparation of a DSR, there are
multiple factors that require to be
gone into with an approach attended
by scientific temper. The exercise is
aimed not only at exploitation of
mineral solely with the economic
objective but also to ensure
sustainable mining so that natural
resources can be utilized in an
environment friendly manner in a
scientific and systematic way for
protection of the environment and
ecology by following the principle of
Sustainable Development. In the
present case, we find that exercise
undertaken by the DLC was only to
access the quantum of the fresh sand
deposits accumulated during the
monsoons. Related to this, is the claim
of the State that the report of the DLC
is the 2019 DSR. We find it difficult to
accept this for the following reasons:
a) According to the State, the
DSR published on 10.12.2018 is
not an Interim DSR as claimed
by the Applicants but a final
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
one. This was expanded by
inclusion of 14 Sand Ghats
based on the report dated
19.09.2019 submitted by the
DLC. We have closely examined
the report of the DLC dated
19.09.2019 in hindi filed as
Annexure A-1 by the State in its
Counter Affidavit in O.A. No.
40/2020/EZ and find that far
from being a DSR, it has been
prepared only "for assessment
of plot and security deposits for
settlement of Sand Blocks of
rivers situated in Banka district
w.e.f. F.Y. 2020 to F.Y. 2024 and
to complete other procedures".
For convenience we may
reproduce the translated
version of the DLC report
below:
"Report of committee
constituted by the Collector
under the chairmanship of
Additional Collector, Banka for
assessment of plot and security
deposit for settlement of Sand
Blocks of rivers situated in
district-Bank w.e.f. next
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
financial year 2020 to financial
year 2024 and to complete
other procedures. In the light of
Sand Mining Policy, 2019
promulgated vide Notification
no. 02/M.M. (Ba)-227/18-
2650/M, Patna dated
14.08.2019 of the Mines &
geology Department, Bihar ,
Patna, today on 19.09.19, the
meeting of committee
constituted vide Memo No.
1132/Go., Banka dated 08.09.19
of Collector, Banka for
assessment of security deposit
after earmarking the plots for
settlement of Sand Ghats
situated in District - Banka for
the period of five years w.e.f.
next financial year 2020, was
called, wherein, all the
members of committee viz.
Additional Collector
(Chairman), Sub-Divisional
Officer, Banka (Member), Land
Reforms Deputy Collector,
Banka (Member), Executive
Engineer, Rural Works
Department, Works Division,
Banka-1 (Member) and Mineral
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
Development Officer-cum-
Incharge, mining Director,
Banka (Convener) were present.
In the light of aforesaid
notification and departmental
letters, the discussion for
earmarking the Sand Blocks in
the sand deposit rivers situated
in District - Banka and for
assessment of security deposit
rivers situated in District -
Banka and for assessment of
security deposit for settlement
of sand ghats for a period of 05
years w.e.f. next financial year
2020, took place amongst all
the members of committee.
During the discussion, this fact
came into the light that:
(01) The Consolidated
settlement amount of Sand Ghat
of District-Banka for the
current financial year 2019, is
Rs. 45,49,06,368/- (Rupees
Forty Five Crores, Forty Nine
Lakhs Six Thousand Three
Hundred & Sixty Eight Only).
(02) In the light of
Departmental Letter no,
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
2681/M, Patna, dated 16.08.19
the assessment of security
deposit for the settlement of
sand Ghats of District-Banka
for the year 2020 to 2024, has
to be done by increasing 20%
settlement amount of Rs.
45,49,06,368/- (Rupees Forty
Five Crores, Forty Nine Lakhs
Six Thousand Three Hundred &
Sixty Eight Only) of current
financial year 2019. Meaning
thereby is that, the minimum
consolidation security deposit
of Rs. 54,58,87,642.00 (Rupees
Fifty Four Crores Fifty Eighty
Seven Thousand Six Hundred &
Forty Two Only) has to be
assessed for all the proposed
blocks of Banka District for the
settlement of the financial year
2020 to 2024.
(03) During the Settlement of
Sand Ghats for the year 2015 to
2019, the sand area of Chanan
River from Ghogha Bear (Sub-
Division Amarpur) upto the
limits of Bhagalpur in
downstream, was restricted for
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
settlement due to irrigation
problems of farmers, due to
which, it's settlement was not
done. Similarly, the settlement
of sand areas of Gerual River
was also not done by treating
the same as restricted area. By
maintaining the status quo of
both these sand areas, and by
dividing, the sand areas of
Chanan River in the light of
para 5(i) and (iii) of
Departmental Letter No.
2681/M, dated 16.8.19 and
Departmental notification no.
02/M.MM.(Ba.)-227/18-
2650/M, Patna dated 14.8.19,
the consideration was made by
the committee on making Sand
Blocks. In this continuation, it
was discussed to keep Block-1
along with Block1, and Block-5
along with Block-4, but, on
doing so, according to para-6
of the Departmental
Notification i.e. procedure of
settlement of sand ghats - "(a)
Any person/ registered copy/
Partnership Society government
agency shall be entitled for
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
auction of maximum two Sand
Blocks or 200 hect. Area,
whichever is lesser", according
to which, the consolidated
Rakba of Block-1 and Block-2
of Chandan/ Chanan River
becomes 252 hect., and
similarly consolidated Rakba of
Block-4 and Block-5 becomes
275.8 hectares, which goes
contrary to the condition
mentioned in the aforesaid
paragraph. In this situation, in
view of the departmental letter
no. 3161/M, Patna dated
16.9.19, it was unanimously
decided by the committee to
make 7 Sand Blocks of sand
areas of Chanan River.
(04) Similarly, it was also
unanimously decided by the
committee to make Sand Blocks
by dividing Badula river in two
blocks, i.e. one-one blocks in
Up Stream and Down Stream
for the Dam, due to having
Hanuman Dam and Reservoir
in Badua River, and to make
Sand Blocks by treating the
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
other sand deposit rivers of
district as single stretch. In this
manner, it was decided by the
committee to make total 14
Sand Blocks in district - banka,
whose' details are as under:-
xxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxx
It was unanimously decided by
the Committee to send proposal
to the Collector, Banka for
making of Sand Blocks River
Units and according to assess
the proposed security deposit."
[Underlining supplied]
57. Therefore, the manner of
identifying the Sand Ghats/ Blocks
cannot be accepted as being
environmentally sound which is the
object of the SSMMG-2016 being the
only guideline applicable at that time.
This position is further strengthened
when, even according to the State, the
entire exercise for identifying the Sand
Ghats was undertaken in terms of the
Bihar Sand Mining Policy, 2019
which primarily deals with the
procedures for identification of Sand
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
Ghats after its physical identification
under sub-clauses (i) and (ii) of
Clause 5 of the said Policy and also
matters relating to its bidding. The
exercise also violates the very object
of preparing a DSR as decided by the
Hon'ble Supreme Court in the case of
Deepak Kumar (supra). In that case,
the Hon'ble Supreme Court was
dealing with auction notices in respect
of auction proposed by the
Government of Haryana in respect of
the extraction of minor minerals,
boulders, gravel and sand quarries
for an area not exceeding 4.5 ha in
each case in the districts of
Panchkula, Ambala and Yamuna
Nagar and quarrying of minor
minerals above 5 ha in Bhiwani
district and stone and sand mines in
the district of Mohindergarh, etc., by
circumventing the EIA Notification
14.09.2006 in breaking the
homogeneous area into pieces of less
than 5 ha against which no EIA was
required to be undertaken. The
Hon'ble Supreme Court noted that
there was no material to conclude that
such mining would not cause
environmental degradation or threat
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
to the biodiversity or destroy riverine
sites of the river. It was further noted
as under:
"..... 9. Extraction of alluvial
material from within or near a
streambed has a direct impact
on the stream's physical habitat
characteristics. These
characteristics include bed
elevation, substrate
composition and stability, in-
stream roughness elements,
depth, velocity, turbidity,
sediment transport, stream
discharge and temperature.
Altering these habitat
characteristics can have
deleterious impacts on both in-
stream biota and the associated
riparian habitat. The demand
for sand continues to increase
day by day as building and
construction of new
infrastructures and expansion
of existing ones is continuous
thereby placing immense
pressure on the supply of the
sand resource and hence mining
activities are going on legally
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
and illegally without any
restrictions. Lack of proper
planning and sand management
cause disturbance of marine
ecosystem and also upset the
ability of natural marine
processes to replenish the sand.
..... 26. We find that it is without
conducting any study on the
possible environmental impact
on/in the river beds and
elsewhere the auction notices
have been issued. We are of the
considered view that when we
are faced with a situation where
extraction of alluvial material
within or near a river bed has
an impact on the rivers physical
habitat characteristics, like
river stability, flood risk,
environmental degradation, loss
of habitat, decline in
biodiversity, it is not an answer
to say that the extraction is in
blocks of less than 5 hectares,
separated by 1 kilometre,
because their collective impact
may be significant, hence the
necessity of a proper
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
environmental assessment
plan."
[Underlining supplied]
58. A Core Group was constituted by
the MoEF & CC to look into the
environmental aspects associated with
the minor minerals vide its order
dated 24.03.2009. In its report, the
Core Group indicated unambiguously
that operation of mines of minor
minerals needs to be subjected to
strict regulatory parameters as that of
mines of major minerals and ought to
be permitted only under an approved
framework of mining plan, which
should provide for reclamation and
rehabilitation of mined out areas.
Taking into consideration location of
any eco-fragile zone(s) within the
impact zone of the proposed mining
area, the related rules/notifications
governing such zones as well as
judicial pronouncements, if any. The
Hon'ble Supreme Court further
observed as follows:
"25. Quarrying of river sand, it
is true, is an important
economic activity in the country
with river sand forming a
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
crucial raw material for the
infrastructural development and
for the construction industry but
excessive in-stream sand and
gravel mining causes the
degradation of rivers. In-stream
mining lowers the stream
bottom of rivers which may lead
to bank erosion. Depletion of
sand in the streambed and
along coastal areas causes the
deepening of rivers which may
result in destruction of aquatic
and riparian habitats as well.
Extraction of alluvial material
as already mentioned from
within or near a streambed has
a direct impact on the stream's
physical habitat characteristics.
26. We are of the considered
view that it is highly necessary
to have an effective framework
of mining plan which will take
care of all environmental issues
and also evolve a long term
rational and sustainable use of
natural resource base and also
the bio-assessment protocol.
Sand mining, it may be noted,
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
may have an adverse effect on
bio-diversity as loss of habitat
caused by sand mining will
effect various species, flora and
fauna and it may also
destabilize the soil structure of
river banks and often leaves
isolated islands. We find that,
taking note of those technical,
scientific and environmental
matters, MoEF, Government of
India, issued various
recommendations in March
2010 followed by the Model
Rules, 2010 framed by the
Ministry of Mines which have to
be given effect to, inculcating
the spirit of Article 48A, Article
51A(g) read with Article 21 of
the Constitution."
[Underlining supplied]
59. It is significant to note that
SSMMG-2016 was framed pursuant to
the decision in Deepak Kumar
(supra), in addition to MoEF & CC
Notification dated 15.01.2016
prescribing the procedure for
Environment Impact Studies in respect
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
of areas less than 5 ha by constitution
of DEIAA in the States.
60. While the SSMMG-2016 is relevant
for the purpose of DSR and issues
cognate thereto, MoEF & CC
Notification dated 15.01.2016 deals
with EIA process in respect of various
categories of mines by amending the
schedule thereto. Appendix X of the
said Notification prescribes that the
DEIAA is also the authority for
preparing the DSR. On a conjoint
reading of the decision in the case of
Deepak Kumar (supra) and the
SSMMG-2016, it will be apparent that
the exercise undertaken by the DLC as
reflected in its report dated
19.09.2019 to prepare the DSR 2019,
as claimed by the State, cannot be
considered as a valid exercise for
preparation of DSR since the requisite
studies have obviously not been
carried out. The exercise is lacking in
the process prescribed in the SSMMG-
2016 (supra) and the structure of the
DSR set out therein. Merely
quantifying mineable minerals cannot
be considered as complete studies for
preparation of DSR as there are other
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
critical and crucial environmental
factors which require to be gone into
as would appear from the process
prescribed under SSMMG-2016
reproduced earlier11 and the decision
of the Hon'ble Supreme Court in
Deepak Kumar (supra).
61. We find resonance of this even in
the EMGSM-2020 referred to by the
MoEF & CC in its reply as one of the
key points for preparation of a
comprehensive DSR for sand mining
includes preparation of DSR, auditing
of rivers and the necessity to prepare
a DSR in such a way that it not only
identifies the mineral bearing area but
also defines the mining and no mining
zones considering various
environmental and social factors.
62. Next is the issue pertaining to the
difference in lease areas and the
quantum of mineable mineral in the
DSR and the NIT, we find the
explanation given by the State in this
regard also to be quite unsatisfactory.
This also requires to be considered in
the light of the stand of the State that
the DSR filed by the Applicant in O.A.
No. 40/2020/EZ as being undated and,
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
therefore, not reliable. We find that a
copy of a DSR has also been filed by
the State as Annexure A-6 to its reply.
Upon examination of the two DSRs,
we find that in both the cases the last
sentence in the conclusion reads as
follows:
Conclusion of the DSR filed by
the Applicant in O.A. No.
40/2020/EZ: "Since it is an
interim report, it is proposed to
identify such potential areas at
certain interval and get the data
bank of DSR to be updated."
Conclusion of the DSR filed by
the State Respondents in O.A.
No. 40/2020/EZ:
"Since it is an interim report, it
is proposed to identify such
potential areas at certain
interval and get the data bank
of DSR to be updated."
[Underlining supplied]
63. Both the DSRs are undated and
are stated to have been prepared
under para 7(iii) of S.O. 141(E) dated
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
15th January 2016, as amended on
S.O.3611(E), dated 25th July 2018 of
Ministry of Environment, Forest and
Climate Change Notification. The
only difference is that in the first part
of the conclusion in the one filed by
the Applicant, the total Sand Ghat
area in the Chandan/ Chanan river
has been mentioned as 226 ha with
mineable mineral potential of
12,82,451.94 MT and 109 ha of area
with 6,17,576.4 MT mineable mineral
potential for Cheer river where the
sand mining can be done. In the DSR
filed by the State on the other hand,
the total area for Sand Ghat has been
mentioned as 719 ha with
approximate mineable mineral
potential of 35,36,236.94 MT in
Chandan/Chanan, Cheer, Badua,
Ribani, Dakai and Kudar river. The
DSR filed by the State thus indicates
that the total mineable area is 719 ha
for 5 years in respect of the 6 rivers,
i.e., Chandan/ Chanan, Cheer, Badua,
Ribani, Dakai and Kudar.
64. However, in the NIT we find
mention of four other rivers namely,
Sukhania, Odhni, Darbashan and
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
Kurar river which do not figure in the
DSR of the State and the mineable
area. According to the Respondents,
increase in the area to about 946 ha
was on account of inclusion of the 7
remaining rivers mentioned in the
auction at Sl. No. 8-14 which had
been auctioned river-wise in terms of
Clause 5(ii) of the Policy, 2019 being
minor rivers and tributaries and not
stretch-wise under Clause 5(i) of the
said Policy providing for major rivers
including Chandan/ Chanan. The
mining leases in river Chandan/
Chanan at Sl. No. 1-7 was 719 ha but,
the area had increased to 946 ha in
the NIT due to inclusion of the minor
river stretches of which those
mentioned at Sl. No. 8-14 are some of
them.
65. This explanation also does not
appear to be satisfactory as we find
that as per the DSR referred to by the
State, with total mineable area has
been shown as 719 ha, also includes
other rivers besides Cheer and
Chandan/ Chanan, namely, Badua,
Ribani, Dakai and Kudar rivers.
66. Again, in the NIT, except for river
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
Chandan / Chanan, the other rivers
mentioned therein are quite different
from those referred to in the
conclusion part of the DSR 2019.
68. The above manifests gross
contradictions and inconsistencies in
the version of the State with regard to
the exercise undertaken by them for
preparation of DSR 2019 in the
manner adumbrated above. Such
contradictions and inconsistencies
unmistakably demonstrate want of the
nature of studies implicit in the
preparation of a DSR. The action of
the State is apparently unguided,
whimsical and arbitrary. The Sand
Blocks appear to have been identified
merely on the basis of visual
assessment with the revenue of the
State as the sole criteria as the report
of DLC would reveal.
69. The aforesaid position gets further
compounded against the State when
we carefully examine the DSR 2018
filed by the State. We find that the said
DSR contains three different
categories of Sand Ghats-under the
head "List of Mining Lease in the
District" in Ch. No. 3. Ch. No. 3.3
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
contains (i) "List of Existing Sand
Ghats as per Departmental Record"
and (ii) "Proposed Sand Ghats
(Potential Area)" under which there is
also a separate head for "Potential
Sand Ghats awaiting Statutory
Clearances" which is the third one.
70. On a close examination, these
lists belie the submission of the State
that the minor rivers were being
auctioned stream-wise, as we find that
different blocks have been identified
even in the minor rivers namely,
Cheer, Badua, Odhni and Sukhaniya.
Under the head "Proposed Sand
Ghats (Potential Area)", we find that
minor rivers namely, Kudar, Cheer
and Dakai also have different Sand
Blocks. In fact, river Cheer has as
many as 9 Sand Blocks with varying
mineable areas. Under the head
"Potential Sand Ghats awaiting
Statutory Clearance" we also find
reference of different Sand Ghats in
such rivers. For instance Badua has
as many as 6 Sand Ghats, Odhni 2,
Sukhania 4, Cheer 7, Kurar 2 and
Darbashan 4 Sand Blocks with
varying mineable areas in each of the
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
Sand Ghats.
79. The facts and circumstances set
out above clearly indicate that firstly
the permissible area for mining has
grossly exceeded even going by the
DSR 2019 filed by the State. Secondly,
the mineable mineral has not been
quantified in the NIT leaving it in the
realm of speculation. We have already
rejected the explanation of the State
on the increase of the mineable area
earlier and, therefore, need not delay
ourselves on this except to observe
that the stand of the Respondents has
been inconsistent, contradictory and
lacking in clarity.
81. Thus, the facts and circumstances
would unmistakably imply that the
Sand Ghats had been auctioned even
before being included in the DSR as
claimed by the State rendering the
stand of the State seriously
questionable.
84. As noted above, the manner in
which the Sand Ghats have been
identified and the gross
inconsistencies in the stand of the
State Government, we are of the firm
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
opinion that the process for DSR was
still on and was yet to finalized as
would be confirmed by the words
"Interim report" at the end of the very
DSR filed by the State.
101. For all the reasons aforesaid, we
are of the firm view that the DSR 2019
and the other related exercise
undertaken by the State fail to pass
the muster of the Environmental Laws
and the procedures laid down therefor.
102. In the result, we allow the
applications and hold that:
(a) DSR 2018 cannot be
considered as a final DSR and
is only an Interim report.
(b) The DSR 2019
incorporating the 14 Sand
Ghats also cannot be
considered as a final DSR and
is hereby quashed.
(c) All actions taken pursuant to
DSR 2018 and DSR 2019
referred to in (a) and (b) above
are hereby held to be void and a
nullity.
103. In the light of the above
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
findings, we direct as follows:
(i) Having regard to the
findings at (a), (b) and (c)
above, we direct the State to
undertake further exercise for
preparation of a fresh DSR for
the Banka district.
(ii) As the DEIAA is not
functioning as a consequence of
the decision of the Tribunal in
Satendra Pandey (supra), the
DSR shall be prepared through
a consultant(s) accredited by
the National Accreditation
Board of Education and
Training/ Quality Control
Council of India in terms of
O.M. of MoEF & CC dated
16.03.2010.
(iii) The DSR so prepared shall
be submitted to the District
Magistrate who shall verify the
DSR only in respect of the
relevant facts pertaining to the
physical and geographical
features of the district which
shall be distinct from the
scientific findings based on the
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
parameters prescribed in the
SSMMG-2016. After such
verification, the District
Magistrate shall forward the
DSR for examination and
evaluation by the State Expert
Appraisal Committee (SEAC)
having regarding to the fact that
the SEIAA comprises of
technical/scientific experts. The
SEAC after appraisal of the
report shall forward it to the
SEIAA for consideration and
approval if it meets all
scientific/technical
requirements.
(iv) While preparing the DSR,
the MoEF & CC Accredited
Agency/Consultant shall
scrupulously follow the
procedure and the parameters
laid down under the SSMMG-
2016 and EMGSM-2020 read in
sync with each other."
5. Thus, the learned senior counsel for the petitioner
has contended that as per the provisions of clause-10 (ii) of the
Tender Document and as per clause 17 & 23 of the Bihar Sand
Mining Policy, 2019 as also Rules 17(4), 18(2) and 29(A)(1)(e)
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
of the Rules, 2019, the primary responsibility to prepare mining
plan and obtain environmental clearance is that of the State
Mining Department, hence it was obligatory upon the State
Mining Department to have obtain environmental and other
clearances in a time bound manner for the sand ghats which
have been auctioned. It is stated that it is a matter of record that
the State Mining Department has also taken a sum of Rs. One
lac from the petitioner to get the mining plan prepared and
approved, however, till date neither the mining plan has been
prepared nor the same has been approved whereas on the
contrary the National Green Tribunal in its judgment rendered in
the case of Pawan Kumar (supra) has already held that the DSRs
have not been prepared properly by the State of Bihar and are
defective, as such no environment clearance can be granted to
the State Mining Department. Consequently, mining plan and
environmental clearance are not in existence as far as the sand
ghat no. 32 at Aurangabad is concerned, which has been settled
in favour of the petitioner, nonetheless, the respondent State has
already taken security deposit from the petitioner to the tune of
Rs. 3,20,50,000/- apart from having taken a sum of Rs.
27,48,000/- on the head of earnest money and a sum of Rs. one
lac in the name of the Under Secretary of the Department, as
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
processing fees.
6. The learned senior counsel for the petitioner has
further submitted that the oblique motive of the State
Government is further clear from the fact that the letter of
settlement, pursuant to the auction held by the respondent State
pertaining to sand ghat no. 32 in the Aurangabad district, was
issued to the petitioner on 30.12.2019, however, prior to that on
27.12.2019, the settlement period of the existing settlees of the
sand ghats was extended from 31.12.2019 to 31.10.2020,
circumventing the settlement made in favor of the petitioner. It
is further pointed out that the illegal and arbitrary act of the
respondent State did not stop there inasmuch as the said
settlement period of the existing settlees of the sand ghats was
further extended till 31.09.2021 de hors the order dated
14.10.2020 passed by the National Green Tribunal in the case of
Pawan Kumar (supra), thus the respondent State has illegally
extended the settlement period of the existing settlees of the
sand ghats without there being any environmental clearance
inasmuch as the DSR prepared by the respondent State has been
held to be illegal.
7. The learned senior counsel for the petitioner has
thus submitted that the respondent State has usurped/
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
misappropriated the money of the petitioner without having any
intention of allowing the petitioner to conduct the mining
activity at Aurangabad Sone sand ghat No. 32, hence the only
way out for the petitioner is to seek refund of the earnest money,
security money and the other amounts deposited by the
petitioner for the purposes of settlement of Aurangabad Sone
sand ghat No. 32, pursuant to the auction held in the year 2019
inasmuch as despite repeated request made by the petitioner, the
respondent authorities have failed to issue work order in favour
of the petitioner.
8. In this connection, the learned senior counsel for
the petitioner has relied upon various judgments, which are
being detailed hereinbelow along with their relevant
paragraphs:-
(i) (1986) 3 SCC 156 (Central Inland Water
Transport Corporation Ltd. & Anr. Vs. Brajo Nath Ganguly &
Anr.), paragraph no. 89 whereof is relevant hereinbelow:-
"89. Should then our courts not
advance with the times? Should they
still continue to cling to outmoded
concepts and outworn ideologies?
Should we not adjust our thinking
caps to match the fashion of the day?
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
Should all jurisprudential
development pass us by, leaving us
floundering in the sloughs of 19th
century theories? Should the strong be
permitted to push the weak to the
wall? Should they be allowed to ride
roughshod over the weak? Should the
courts sit back and watch supinely
while the strong trample underfoot the
rights of the weak? We have a
Constitution for our country. Our
judges are bound by their oath to
"uphold the Constitution and the
laws". The Constitution was enacted
to secure to all the citizens of this
country social and economic justice.
Article 14 of the Constitution
guarantees to all persons equality
before the law and the equal
protection of the laws. The principle
deducible from the above discussions
on this part of the case is in
consonance with right and reason,
intended to secure social and
economic justice and conforms to the
mandate of the great equality clause
in Article 14. This principle is that the
courts will not enforce and will, when
called upon to do so, strike down an
unfair and unreasonable contract, or
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
an unfair and unreasonable clause in
a contract, entered into between
parties who are not equal in
bargaining power. It is difficult to give
an exhaustive list of all bargains of
this type. No court can visualize the
different situations which can arise in
the affairs of men. One can only
attempt to give some illustrations. For
instance, the above principle will
apply where the inequality of
bargaining power is the result of the
great disparity in the economic
strength of the contracting parties. It
will apply where the inequality is the
result of circumstances, whether of the
creation of the parties or not. It will
apply to situations in which the
weaker party is in a position in which
he can obtain goods or services or
means of livelihood only upon the
terms imposed by the stronger party
or go without them. It will also apply
where a man has no choice, or rather
no meaningful choice, but to give his
assent to a contract or to sign on the
dotted line in a prescribed or standard
form or to accept a set of rules as part
of the contract, however unfair,
unreasonable and unconscionable a
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
clause in that contract or form or
rules may be. This principle, however,
will not apply where the bargaining
power of the contracting parties is
equal or almost equal. This principle
may not apply where both parties are
businessmen and the contract is a
commercial transaction. In today's
complex world of giant corporations
with their vast infrastructural
organizations and with the State
through its instrumentalities and
agencies entering into almost every
branch of industry and commerce,
there can be myriad situations which
result in unfair and unreasonable
bargains between parties possessing
wholly disproportionate and unequal
bargaining power. These cases can
neither be enumerated nor fully
illustrated. The court must judge each
case on its own facts and
circumstances."
(ii) (2016) 13 SCC 561 (DDA v. Kenneth Builders &
Developers (P) Ltd.), paragraph nos. 14 and 28 to 36 whereof are
reproduced herein below:-
"14. Faced with this impasse
and unable to obtain the Ridge
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
Demarcation Report and therefore the
"consent to establish" from DPCC,
Kenneth Builders approached the
Delhi High Court by way of a writ
petition on 1-8-2009 resulting in the
impugned judgment and order
[Kenneth Builders & Developers
Ltd. v. Union of India, 2010 SCC
OnLine Del 2540]. In the writ
petition, Kenneth Builders prayed,
inter alia, for setting aside of the
tender/auction notice dated 20-3-2006
as also the allotment letter dated 15-
6-2006 and a declaration that the
project was incapable of performance.
It was further prayed that the auction
had become void and that Kenneth
Builders was entitled to a refund of
the amount paid to DDA along with
interest @ 18% p.a. till realisation.
28. Be that as it may, it appears
to us that Kenneth Builders did take
all necessary steps to commence the
construction activity on the project
land but due to the impasse created by
the governmental agencies, it could
not proceed in the development
activity. We agree with the learned
counsel for Kenneth Builders that
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
under these circumstances, the
provisions of Section 56 of the
Contract Act, 1872 (the Contract Act)
would be attracted to the facts of the
case.
29. Section 56 of the Contract
Act reads as follows:
"56. Agreement to do impossi-
ble act.--An agreement to do an act
impossible in itself is void.
Contract to do act afterwards
becoming impossible or unlawful.--A
contract to do an act which, after the
contract is made, becomes impossible,
or, by reason of some event which the
promisor could not prevent, unlawful,
becomes void when the act becomes
impossible or unlawful.
Compensation for loss through
non-performance of act known to be
impossible or unlawful.--Where one
person has promised to do something
which he knew, or, with reasonable
diligence, might have known, and
which the promisee did not know, to
be impossible or unlawful, such
promisor must make compensation to
such promisee for any loss which such
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
promisee sustains through the non-
performance of the promise."
30. The interpretation of Sec-
tion 56 of the Contract Act came up
for consideration in Satyabrata
Ghose v. Mugneeram Bangur & Co.
[Satyabrata Ghose v. Mugneeram
Bangur & Co., AIR 1954 SC 44 : 1954
SCR 310] It was held by this Court
that the word "impossible" used in
Section 56 of the Contract Act has not
been used in the sense of physical or
literal impossibility. It ought to be in-
terpreted as impracticable and useless
from the point of view of the object
and purpose that the parties had in
view when they entered into the con-
tract. This impracticability or useless-
ness could arise due to some interven-
ing or supervening circumstance
which the parties had not contem-
plated. However, if the intervening cir-
cumstance was contemplated by the
parties, then the contract would stand
despite the occurrence of such circum-
stance. In such an event, "there can
be no case of frustration because the
basis of the contract being to demand
performance despite the happening of
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
a particular event, it cannot disappear
when that event happens". This is
what this Court had to say: (AIR pp.
46-49, paras 9-10 & 17)
"9. The first paragraph of the
section lays down the law in the same
way as in England. It speaks of some-
thing which is impossible inherently
or by its very nature, and no one can
obviously be directed to perform such
an act. The second paragraph enunci-
ates the law relating to discharge of
contract by reason of supervening im-
possibility or illegality of the act
agreed to be done. The wording of this
paragraph is quite general, and
though the illustrations attached to it
are not at all happy, they cannot dero-
gate from the general words used in
the enactment.
This much is clear that the word
"impossible" has not been used here
in the sense of physical or literal im-
possibility. The performance of an act
may not be literally impossible but it
may be impracticable and useless
from the point of view of the object
and purpose which the parties had in
view; and if an untoward event or
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
change of circumstances totally upsets
the very foundation upon which the
parties rested their bargain, it can
very well be said that the promisor
finds it impossible to do the act which
he promised to do.
10. Although various theories
have been propounded by the Judges
and jurists in England regarding the
juridical basis of the doctrine of frus-
tration, yet the essential idea upon
which the doctrine is based is that of
impossibility of performance of the
contract; in fact impossibility and
frustration are often used as inter-
changeable expressions. The changed
circumstances, it is said, make the
performance of the contract impossi-
ble and the parties are absolved from
the further performance of it as they
did not promise to perform an impos-
sibility.
The parties shall be excused, as
Lord Loreburn says [F.A. Tamplin
Steamship Co. Ltd. v. Anglo-Mexican
Petroleum Products Co. Ltd., (1916) 2
AC 397 (HL)] : (Tamplin case [F.A.
Tamplin Steamship Co. Ltd. v. Anglo-
Mexican Petroleum Products Co. Ltd.,
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
(1916) 2 AC 397 (HL)] , AC p. 406)
'... If substantially the whole
contract becomes impossible of per-
formance or in other words impracti-
cable by some cause for which neither
was responsible.'
***
17. It must be pointed out here
that if the parties do contemplate the
possibility of an intervening circum-
stance which might affect the perfor-
mance of the contract, but expressly
stipulate that the contract would stand
despite such circumstance, there can
be no case of frustration because the
basis of the contract being to demand
performance despite the happening of
a particular event, it cannot disappear
when that event happens. As Lord
Atkinson said in Matthey v. Curling
[Matthey v. Curling, (1922) 2 AC 180
(HL)]:(AC p. 234)
'... a person who expressly con-
tracts absolutely to do a thing not nat-
urally impossible is not excused for
non-performance because of being
prevented by the act of God or the
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
King's enemies ... or vis major.'
This being the legal position, a
contention in the extreme form that the
doctrine of frustration as recognised
in English law does not come at all
within the purview of Section 56 of the
Contract Act cannot be accepted."
(emphasis supplied)
31. Insofar as the present case
is concerned, DDA certainly did not
contemplate a prohibition on con-
struction activity on the project land
which would fall within the Ridge or
had morphological similarity to the
Ridge. It is this circumstance that
frustrated the performance of the con-
tract in the sense of making it imprac-
ticable of performance.
32. It is true that the Govern-
ment of India had notified the project
land as "residential" and that the
project land was shown as "residen-
tial" in MPD, 2001 and MPD, 2021.
But that fact alone would not change
the position at law. The exact bound-
aries of the Ridge do not appear to
have been demarcated and in the ab-
sence of demarcation, it could not be
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
said with any degree of certainty by
DDA that merely because of the two
notifications issued by the Ministry of
Urban Development the project land
could be used for residential purposes
even if it fell within the Ridge. This
would be ignoring the position at law
and would be stretching the argument
a little too far. DDA was unaware that
even if the project land did not fall
within the Ridge yet any development
activity thereon would require permis-
sion from the Ridge Management
Board as well as from this Court since
there was morphological similarity
between the Ridge and the project
land. It is this intervening circum-
stance which eventually frustrated the
implementation of the contract.
33. It is one thing for DDA to
now contend before us that Kenneth
Builders could have applied to the
Ridge Management Board for permis-
sion to carry out development activity
and also approached this Court for
necessary permission but it is another
thing to say that these requirements
were not within the contemplation of
DDA and certainly not within the con-
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
templation of Kenneth Builders. For a
statutory body like DDA to contend
that in the face of the legal position
(with which DDA obviously does not
agree), Kenneth Builders ought to
have persisted and perhaps initiated
or invited litigation cannot be appre-
ciated.
34. When DDA informed Ken-
neth Builders that the project land was
available on an "as is where is basis"
and that it was the responsibility of
the developer to obtain all clearances,
the conditions related only to physical
issues pertaining to the project land
and ancillary or peripheral legal is-
sues pertaining to the actual construc-
tion activity, such as compliance with
the building bye-laws, environmental
clearances, etc. The terms and condi-
tions of "as is where is" or environ-
mental clearances emphasised by the
learned counsel for DDA certainly did
not extend to commencement of con-
struction activity prohibited by law ex-
cept after obtaining permission of the
Ridge Management Board and this
Court. On the contrary, it was the
obligation of DDA to ensure that the
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
initial path for commencement of con-
struction was clear, the rest being the
responsibility of the developer. The
failure of DDA to provide a clear pas-
sage due to an intervening circum-
stance beyond its contemplation went
to the foundation of implementation of
the contract with Kenneth Builders
and that is what frustrated its imple-
mentation.
35. Reliance by the learned
counsel for DDA on the "as is where
is" concept as well as Clauses 6 and
11 of the Development Agreement in
this context is misplaced. As men-
tioned above, this primarily pertains
to physical issues at site. This is clear
from the following passage referred to
by the learned counsel from Punjab
Urban Planning & Development Au-
thority v. Raghu Nath Gupta [Punjab
Urban Planning & Development Au-
thority v. Raghu Nath Gupta, (2012) 8
SCC 197 : (2012) 4 SCC (Civ) 397] :
(SCC p. 201, para 14)
"14. ... Evidently, the commer-
cial plots were allotted on "as-is-
where-is" basis. The allottees would
have ascertained the facilities avail-
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
able at the time of auction and after
having accepted the commercial plots
on "as-is-where-is" basis, they cannot
be heard to contend that PUDA had
not provided the basic amenities like
parking, lights, roads, water, sewer-
age, etc. If the allottees were not inter-
ested in taking the commercial plots
on "as-is-where-is" basis, they should
not have accepted the allotment and
after having accepted the allotment on
"as-is-where-is" basis, they are
estopped from contending that the ba-
sic amenities like parking, lights,
roads, water, sewerage, etc. were not
provided by PUDA when the plots
were allotted. Over and above, the
facts would clearly indicate that there
was not much delay on the part of
PUDA to provide those facilities as
well. As noted, the electrical works
and health works were completed by
24-12-2002 and 22-11-2002 respec-
tively and all the facilities like park-
ing, lights, roads, water, sewerage,
etc. were also provided."
36. On a conspectus of the facts
and the law placed before us, we are
satisfied that certain circumstances
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
had intervened, making it impractica-
ble for Kenneth Builders to commence
the construction activity on the project
land. Since arriving at some clarity on
the issue had taken a couple of years
and that clarity was eventually and
unambiguously provided by the report
of CEC, it could certainly be said that
the contract between DDA and Ken-
neth Builders was impossible of per-
formance within the meaning of that
word in Section 56 of the Contract
Act. Therefore, we reject the con-
tention of DDA that the contract be-
tween DDA and Kenneth Builders was
not frustrated."
(iii) Judgment dated 28.06.2018 rendered by the
learned single Judge of the Hon'ble Jharkhand High Court in
W.P.(C) No. 7226 of 2017 (Raj Kumar Gupta vs. State of
Jharkhand & others), paragraph no. 8 whereof is reproduced
herein below:-
"8. Considering the aforesaid
facts and circumstance, the
respondents are directed to
immediately refund the amount of
settlement received from the petitioner
after deducting the proportionate
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
amount for one month during which
the petitioner is alleged to have lifted
the sand."
(iv) Judgment dated 21.02.2018 rendered by the
learned single Judge of the Hon'ble Jharkhand High Court in
W.P.(C) No. 486 of 2017 (M/s Dhanbad Wine vs. The State of
Jharkhand &Ors.), paragraph nos. 7 to 10 whereof are
reproduced herein below:-
"7. Vide order dated
23.01.2018, learned counsel for the
respondent no. 3 was directed by this
Court to file supplementary counter
affidavit bringing on record the final
order passed by the National Green
Tribunal, Eastern Zone Bench,
Kolkata in O.A. No. 108 of 2015/EZ
(Niranjan Sharma and others Vs. Min-
istry of Environment, Forest and oth-
ers). The respondent no.3 was further
directed to specify as to whether the
Environment Clearances are being is-
sued for the sand mining projects in
Geruwariver in District-Godda. In
pursuance of the order dated
23.01.2018, a supplementary counter
affidavit has been filed on behalf of
the respondent no. 3 stating in para-
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
graph-5 that the Assistant Mining Of-
ficer, Godda (the respondent no. 5)
vide letter no. 269/M dated
05.02.2018, informed the Member
Secretary of SEIAA, Jharkhand (re-
spondent no.3) that no Environment
Clearance is being given to any Sand
Mining Project in River Geruwa in the
District of Godda as there is no sand
ghat settlement in the said river.
8. A copy of the order dated
09.11.2017 passed by the NGT,
Kolkata in O.A. No. 108 of 2015/EZ
has also been annexed as Annexure-B
to the said supplementary counter affi-
davit filed on behalf of the respondent
no.3. On perusal of the said order, it
appears that the learned NGT,
Kolkata has observed that during the
pendency of the said case, the state re-
spondents in due compliance of the di-
rections of the Tribunal, has with-
drawn mining leases and licences ear-
lier granted in violation of the direc-
tions of the Hon'ble Supreme Court.
Moreover, disciplinary proceedings
under relevant service rules have also
been initiated against the officers who
were responsible for granting such
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
leases and licences.
9. In the present writ petition,
the petitioner's prayer is confined to
the issue of forfeiture of its security
deposit and 40 % of the bid amount at
the instance of the respondent no.2. It
is a settled law that the order of forfei-
ture of security deposit cannot be
passed in violation of the principles of
natural justice. On perusal of the im-
pugned show cause notice contained
in letter No. 1393/M dated
29.11.2010, it appears that in the said
show cause notice itself, the respon-
dent no.2 has mentioned that the NGT,
Kolkata in O.A No. 108/2015/EZ has
directed for cancellation of settlement
of the sand ghats. The petitioner in its
reply to the said show cause notice ex-
plained the reason for not submitting
the environment clearance by stating
that in view of pendency of O.A No.
108/2015/EZ, the SEIAA was not
granting the environment clearance.
However, while passing the impugned
order of termination of settlement of
sand ghat as well as forfeiture of secu-
rity and 40 % of the bid amount, the
respondent no. 2 has not dealt with the
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
said reply of the petitioner and has
passed the impugned order in a cryp-
tic manner. The entire exercise by the
respondents indicate that the said ac-
tion was taken as mere formality and
they appear to have started the pro-
ceeding with a pre-occupied notion.
The compliance of principles of natu-
ral justice is not a mere formality,
rather the same must be followed in
true sense. One of the essential re-
quirements of the principles of natural
justice is due consideration of the re-
ply of the delinquent, which has not
been followed in the present case.
Though, learned counsel for the re-
spondent no. 3 has submitted that no
application was received from the pe-
titioner for grant of environment
clearance, the same would not have
changed the position as it is the spe-
cific stand of the respondent no.3 that
at the relevant time, the environment
clearance was not being granted in
view of the orders passed by the NGT,
Kolkata in O.A No. 108/2015/EZ.
Thus, the petitioner cannot be held re-
sponsible for not submitting the envi-
ronment clearance before the respon-
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
dent authorities as per the terms and
conditions of the public auction no-
tice.
10. Under the aforesaid facts
and circumstance, the impugned Let-
ter No. 1423/M dated 03.12.2016 is
quashed to the extent of forfeiture of
security money and 40 % of the bid
amount deposited by the petitioner.
The respondents are directed to refund
the amount deposited by the petitioner
as security money and 40 % of the bid
amount for settlement of the sand ghat
forthwith."
(v) Judgment dated 15.01.2018, rendered by the
learned single Bench of the Hon'ble Patna High Court in CWJC
No. 13618 of 2017 (M/s. Sainik Food Private Limited & Ors.
vs. The State of Bihar &Ors.), relevant paragraphs whereof are
reproduced herein below:-
"It is undisputed rather an ad-
mitted position that except for the re-
port issued by the Circle Officer vide
letter bearing No. 395 dated 8.6.2017
which in turn referred to the report of
the Revenue Karamchari and was for-
warded by the Assistant Director,
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
Mines and Geology through letter
No.1623 dated 9.8.2017 on the direc-
tions of the District Magistrate passed
on 7.8.2017,copies of which are
present at Annexure-24 to the writ pe-
tition, there is no certificate issued by
the District Magistrate, Gaya. A plain
reading of the directions of "SEAC"
would confirm that the report of the
Circle Officer had to be routed
through the District Magistrate, Gaya.
It is unfortunate that despite re-
minders given by the petitioner to the
District Magistrate cum Collector,
Gaya to discharge this obligation on
10.2.2017 vide Annexure-16, on
29.6.2017 vide Annexure-21 and lastly
on 5.9.2017 vide Annexure-25 yet he
failed to appreciate his obligation and
instead proceeded to issue a show
cause notice to the petitioner under
Rule 25(1), 21(5) of "the Rules" read
alongside Clause 7(ii) of the Notice
Inviting Tender vide Notice dated
6.9.2017 at Annexure 26 and which is
followed by the cancellation order
dated 12.10.2017 upholding the alle-
gations vide Annexure-28. It is unfor-
tunate that the District Magistrate,
Gaya even after taking note of the di-
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
rection of the "SEAC" in paragraph 8
of the impugned order at running page
144 of the proceedings and although
refers to his order dated 7.8.2017 but
it is admitted by learned counsel for
the respondents that the order dated
7.8.2017 referred to by the Collector
in the impugned order is an order
passed in the file and no formal orders
were issued on 7.8.2017.
The fact remains that at the first
instance, the delay has been caused by
the "SEIAA" in granting Environmen-
tal clearance to the petitioner which
remained pending since 17.6.2015
when the petitioner applied for envi-
ronmental clearance and even when
the "SEAC" a Sub committee of the
"SEIAA" put the matter in motion and
reiterated its direction of production
of a certificate issued by the Circle
Officer of the Area through the Dis-
trict Magistrate regarding the status
of habitation and following which re-
peated reminders were given by the
petitioner but the District Magistrate,
Gaya has failed in his duty, rather has
shifted the onus on the petitioner when
in fact the default is by the District
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
Magistrate, Gaya. A plain reading of
the obligations to be discharged by the
petitioner as present at paragraph
7(ii) of the Notice Inviting Tender
would confirm that the petitioner
could not have proceeded without ob-
taining an environmental clearance as
present at paragraph 7(ii)([k) for
making the deposits which were con-
sequent upon obtaining the environ-
mental clearance after approval of the
Mining plan. Obviously, when the
"SEAC" required the petitioner to pro-
duce a report from the Circle Officer
through the District Magistrate as re-
garding the status of the habitation,
the object was clear because a report
duly certified by the District Magis-
trate on the issue of habitation within
an area of 500 meters of the project
area had the authenticity attached to
it. Unfortunately, the District Magis-
trate, Gaya has failed to appreciate
this object and in absence whereof the
report of the Circle Officer failed to
satisfy the "SEAC". The petitioner was
a looser from either side. The "SEAC"
would not proceed without obtaining a
habitation certificate from the District
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
Magistrate, Gaya and the District
Magistrate, Gaya without discharging
his obligation, charges the petitioner
of statutory violation.
The default is entirely attribut-
able to the District Magistrate, Gaya
for the prejudice caused to the peti-
tioner for which the application of the
petitioner for Environmental Clear-
ance remains pending awaiting the
certificate from the District Magis-
trate. The delay has led to a situation
where the "SEIAA" itself stands dis-
solved. In my opinion, in the circum-
stances discussed, neither the peti-
tioner can be held guilty of violation
of Rule 25(1) and 21(5) of "the Rules"
nor he can be held guilty of violation
of paragraph 7(ii) of the Conditions of
Notice Inviting Tender.
The circumstances discussed
leave no room for confusion that the
District Magistrate cum Collector,
Gaya is solely responsible for failing
the petitioner to complete his exercise
of producing the Environmental
Clearance. The irony is that perpetu-
ating the illegality, the District Magis-
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
trate, Gaya in gross abuse of statutory
powers has cancelled the letter of ac-
ceptance of the petitioner for a default
which is entirely attributable to
him.....................
It is noticed that the report sub-
mitted by the Circle Officer, Manpur
through his letter No.395 dated
8.6.2017 which was forwarded by the
Assistant Director, Mines and Geology
through letter dated 9.8.2017 at An-
nexure-24 to the writ petition is not a
report of the Circle Officer rather he
merely encloses the report of a Rev-
enue Karamchari and thus the report
is not in tune with the directions of the
"SEAC" which requires a report pre-
pared by the Circle Officer himself on
verification of the situation and issued
through the District Magistrate. The
petitioner has been wronged by the
District Magistrate, Gaya, who having
failed to discharge his own duty to is-
sue the habitation certificate which
has deprived the petitioner of the
mandatory Environmental Clearance,
he has encashed his default by holding
the petitioner guilty of statutory viola-
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
tions.
For the reasons so discussed
above, the show cause notice dated
6.9.2017 of the District Magistrate
cum Collector, Gaya impugned at An-
nexure-26 together with the order of
cancellation of the letter of accep-
tance and forfeiture of the security de-
posit bearing Memo No.2258 dated
12.10.2017 impugned at Annexure 28,
cannot be upheld and are accordingly
quashed and set aside. The District
Magistrate cum Collector Gaya is di-
rected to issue the habitation certifi-
cate in tune with the direction of the
State Level Expert Appraisal Commit-
tee, after obtaining a report from the
Circle Officer, Manpur, afresh within 6
weeks of receipt/production of a copy
of this judgment.
The writ petition is allowed
with the direction aforementioned."
9. Per contra, the learned Special P.P. Mines Shri.
Naresh Dixit has submitted that there is no provision for refund
of the amount in question, in the entire tender documents and
the terms and conditions mentioned therein, hence the
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
respondents are not in a position to make any refund to the
petitioner. Nonetheless, it is submitted that the respondent State
has challenged the judgment rendered by the National Green
Tribunal in the case of Pawan Kumar (supra), before the
Hon'ble Apex Court vide C.A. No. 3661 of 2020, hence the
only option for the petitioner is to await the final disposal of the
said case by the Hon'ble Supreme Court of India. It is submitted
that without a valid and legal DSR, environmental clearance
cannot be obtained, hence the respondent State is also not in a
position to issue any work order to the petitioner with regard to
the sand ghats settled in his favour, thus the only option for the
petitioner is to wait for the verdict of the Hon'ble Apex Court.
10. Per contra, the learned counsel for the State Shri.
Gyan Prakash Ojha, GA-7 has referred to the various counter
affidavits filed on behalf of the State and has submitted that the
E-auction for the Aurangabad district was held on 26.12.2019
and auction of 16 sand ghats was finalized vide order dated
30.12.2019 in favour of the petitioner inasmuch as he was
declared as the highest bidder for the Aurangabad Sone sand
ghat No. 32, subject to the condition that the work order will be
issued only after obtaining the environmental clearance. It is
further submitted that as per the prevailing provisions, no lease
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
can be executed in favor of the successful bidder/settlee, unless
the mining plan is prepared and the environmental clearance is
obtained, as is required under the Rules, 2019. It is also
submitted that it takes up 270 days to get the environmental
clearance. As far as the issue of extension of the settlement
period of the existing settlees is concerned, it has been
submitted that the same has been done in order to protect the
interest of the public at large and that too with an increase of 50
per cent in the settlement amount for the calendar year 2019. It
is submitted that the petitioner has been authorized by the
department to take necessary action regarding grant of
environmental clearance, which is his sole responsibility, but
nothing has been done by him, hence the respondent State
cannot be faulted. The learned counsel for the respondent State
has also adopted the arguments advanced by the learned Special
P.P. Mines and has admitted that environmental clearance cannot
be obtained without a valid DSR and the DSRs pertaining to the
State of Bihar have been declared to be illegal by the National
Green Tribunal in the case of Pawan Kumar (supra), which has
been challenged before the Hon'ble Apex Court by the
respondent State, hence the petitioner will have to await the
final outcome of the pending appeal before the Hon'ble Apex
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
Court. It is also submitted that there is no provision of refund of
money deposited by the petitioner.
11. The learned counsel for the private respondent no.
8 Shri. Suraj Samdarshi has submitted that since the petitioner is
not challenging the continuance of the respondent no. 8 as a
Settlee of the Aurangabad Sone sand ghat No. 32 and he is only
seeking refund of the sums deposited by him with the
respondent State, he has got nothing to say.
12. As far as the State Environmental Impact
Assessment Authority, Bihar (SEIAA), is concerned, its learned
counsel Shri Kumar Ravish, has submitted that first of all the
tenure of SEIAA has expired and secondly no relief has been
sought for by the petitioner as against the SEIAA and the
petitioner has challenged the decision taken by the State
Government, by which the period of settlement of sand Ghats
pertaining to the existing settlees has been extended as also has
sought refund of the amount deposited by him with the
respondent-State, hence SEIAA has got no role to play in the
present case.
13. I have heard the learned counsel for the parties
and perused the materials on record from which it is apparent
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
that certain facts are not in dispute inasmuch as admittedly the
E-auction of the sand ghats pertaining to Aurangabad district
was held on 26.12.2019, whereafter the settlement of 16 sand
ghats were finalized vide order dated 30.12.2019, in favor of the
petitioner since he was the highest bidder for the Aurangabad
Sone Sand Ghat No. 32. Thereafter, the Mineral Development
Officer, Aurangabad had issued a letter dated 30.12.2019
directing the petitioner to deposit a sum of Rs. 3,20,50,000/-,
being the auction amount/security deposit, qua the settlement of
the sand ghats in question, which the petitioner is stated to have
deposited apart from having deposited a sum of Rs. 27,48,000/-
on the head of earnest money and a sum of Rs. one lakh in the
name of the Under Secretary of the Department by way of
processing fees. It is also an admitted position that as per clause-
9 of the Tender Document, the settlement of sand ghats was to
be valid for a period of five years, starting from 01.01.2020,
however, despite the respondent Mines Department having
taken the security deposit, earnest money and the processing
fees etc. from the petitioner herein, it failed to either issue the
work order or execute the mining lease and the same position is
prevailing till date. On the contrary, the Special Secretary-cum-
Director, Mines & Geology Department, Government of Bihar,
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
by a letter dated 27.12.2019 had extended the settlement period
of the sand ghats in question, qua the existing settlees, in the
State of Bihar, which was ending on 31.12.2019, till 31.10.2020
and the said period was subsequently, vide press communiqué
dated 29.12.2020, extended till 31.03.2021 and then the same
was further extended up to 31.09.2021, thus rendering the
settlement made in favour of the petitioner and other similarly
situated settlees nugatory. This Court, thus, finds that first of all,
since the respondent Mines Department had received the full
amount of security deposit, earnest money, processing fees etc.
from the petitioner, it was obliged to issue the work order to the
petitioner and execute the mining lease with effect from
01.01.2020 but in an arbitrary and illegal manner, the same was
obliterated and secondly the intention of the respondent Mines
Department was/is also clear from its act of extending the
existing settlement of the sand ghats in question qua the existing
settlees, which had expired on 31.12.2019, firstly up to
31.10.2020, then up to 31.03.2021 and finally up to 31.09.2021.
Thus it is apparent from the deeds of the respondent-State/the
respondent Mines Department that it had never intended to
either issue any work order or execute mining lease qua the
petitioner herein but had still clandestinely got the security
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
deposit, earnest money and the processing fees etc. deposited
from the petitioner, apparently only with a view to usurp and
misappropriate the same resulting in its unjust enrichment at the
cost of the petitioner and to his detriment. This Court further
finds that the only plea taken by the Mines Department as also
by the respondent-State for not issuing the work order to the
petitioner with regard to the sand ghats settled in his favour is
that on account of the judgment rendered by the National Green
Tribunal in the case of Pawan Kumar (supra), since the DSRs
pertaining to the State of Bihar have been declared to be illegal,
no environmental clearance can be obtained, hence unless and
until a valid mining plan is prepared and the environmental
clearance is obtained, no lease can be executed in favour of the
successful bidders/settlees/the petitioner herein.
14. This Court, at this juncture, deem it appropriate to
refer to clause 10 (ii) of the Tender Document in question which
clearly states that the mining plan is required to be prepared and
endorsed by the department as per the prevailing rules by means
of an agency and the expenditure meted out shall be realized
from the concerned settlees. This Court, thus, finds that as per
the provision contained in clause 10 (ii) of the Tender Document
as also as per clause 17 & 23 of the Bihar Sand Mining Policy,
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
2019 as also Rules 17(4), 18(2) and 29(A)(1)(e) of the Rules,
2019, the primary responsibility to prepare mining plan and
obtain environmental clearance is that of the State Mining
Department. It is thus clear that the State Mining Department
has miserably failed to comply with its statutory obligations not
only under the Tender Document but also under the Act, 1957,
Rules, 2019 and the Bihar Sand Mining Policy, 2019. This Court
also finds that the respondent-State/the respondent Mines
Department had been extending the settlement period of the
sand ghats qua the existing settlees in the State of Bihar from
time to time and in fact the settlement period of the existing
settlees which was to expire on 31.12.2019 was extended for the
very first time, by a letter dated 27.12.2019, issued by the
Special Secretary-cum-Director, Mines & Geology Department,
Government of Bihar, prior to even accepting the security
deposit to the tune of Rs. 3,20,50,000/- and other amounts from
the petitioner herein for the purposes of settlement of the sand
ghats for a period of five years with effect from 01.01.2020 as
per clause-9 of the tender document, hence it is clear that the
intention of the respondent-State was deceitful and dishonest
from the very inception. In case the respondent-State/ the
respondent Mines Department knew that neither the work order
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
could be issued to the petitioner nor the mining lease could be
executed in his favour, it should not have accepted the aforesaid
amount from the petitioner herein. It is a trite law that a wrong
doer ought not be permitted to make profit out of his own
wrong. In this connection, it would be relevant to refer to a
judgment rendered by the Hon'ble Apex Court in the case of
Kusheshwar Prasad Singh vs. State of Bihar reported in
(2007) 11 SCC 447, paragraph nos. 12, 13, 14 and 16 whereof
are reproduced herein below:-
"12. Having considered the rival sub-
missions of the learned counsel for the
parties, in our opinion, the appeal de-
serves to be partly allowed. So far as
the contention of the appellant that the
proceedings had been initiated in
1973-1974 and final order was passed
on 7-1-1976 is not disputed and can-
not be disputed. If it is so, submission
of the appellant is well founded that
final statement as required by sub-sec-
tion (1) of Section 11 ought to have
been issued and effect ought to have
been given to the final order. Admit-
tedly, no appeal was filed. Nor the or-
der was challenged by any party. The
appellant is right in contending that
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
final statement ought to have been is-
sued immediately or in any case
within "reasonable time". The author-
ity cannot neglect to do that which the
law mandates and requires doing. By
not issuing consequential final state-
ment under Section 11(1) of the Act,
the authority had failed to discharge
its statutory duty. Obviously, therefore,
the appellant is justified in urging that
such default in discharge of statutory
duty by the respondents under the Act
cannot prejudice him. To that extent,
therefore, the grievance of the appel-
lant is well founded.
13. The appellant is also right in con-
tending before this Court that the
power under Section 32-B of the Act
to initiate fresh proceedings could not
have been exercised. Admittedly, Sec-
tion 32-B came on the statute book by
Bihar Act 55 of 1982. The case of the
appellant was over much prior to the
amendment of the Act and insertion of
Section 32-B. The appellant, therefore,
is right in contending that the authori-
ties cannot be allowed to take undue
advantage of their own default in fail-
ure to act in accordance with law and
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
initiate fresh proceedings.
14. In this connection, our attention
has been invited by the learned coun-
sel for the appellant to a decision of
this Court in Mrutunjay Pani v. Nar-
mada Bala Sasmal [AIR 1961 SC
1353] wherein it was held by this
Court that where an obligation is cast
on a party and he commits a breach of
such obligation, he cannot be permit-
ted to take advantage of such situa-
tion. This is based on the Latin
maxim commodum ex injuria sua
nemo habere debet (no party can take
undue advantage of his own wrong).
16. It is settled principle of law that a
man cannot be permitted to take un-
due and unfair advantage of his own
wrong to gain favourable interpreta-
tion of law. It is sound principle that
he who prevents a thing from being
done shall not avail himself of the
non-performance he has occasioned.
To put it differently, "a wrongdoer
ought not to be permitted to make a
profit out of his own wrong."
15. This Court would also refer to a judgment
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
rendered by the Hon'ble Apex Court in the case of Jai Durga
Finvest Pvt. Ltd. vs. State of Haryana & Ors. reported in
(2004) 3 SCC 381, paragraph nos. 10 to 12 whereof are
reproduced herein below:-
"10. The question, thus, which was re-
quired to be posed and answered was
as to whether clause 18-A of the
agreement would remain enforceable
despite the fact that the appellant al-
legedly could not extract any sand by
reasons of omission and commission
on the part of the respondents con-
cerned. The appellant herein has
raised a plea that the contract became
impossible to be performed as the
landowners of the area in question did
not receive compensation and despite
request, the third respondent did not
enforce clause 27 of the agreement.
11. It is not in dispute that the grant of
mining lease in favour of the appellant
herein for the extraction of mineral
sand by the respondents is governed
by the provisions of the Punjab Minor
Mineral Concession Rules, 1964. In
terms of Rule 33 the bidder is required
to execute a deed in Form 'L'. Clause
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
27 of the agreement in Form 'L' obli-
gates the respondents to comply with
the request made in terms thereof. The
Appellate Authority had not consid-
ered this aspect of the matter. The
High Court also did not apply its mind
in this behalf. The first question that
arises is whether the respondents
complied with their statutory obliga-
tions when the request was made by
the appellant. If not, the second ques-
tion would be the effect of non-compli-
ance with the statutory obligation of
the respondents which formed part of
the contract insofar as they did not
comply with the appellant's request as
aforementioned which had a direct
bearing on the right of the appellant
to raise sand. The High Court, as no-
ticed hereinbefore, has merely pro-
ceeded on the basis that the appellant
had entered into the contract with his
eyes wide open; but, the same would
not, in our opinion, mean that they
were bound to pay the contract
amount, get its security amount for-
feited, as also pay interest at the rate
of 24 per cent, although it could not,
by reason of acts of omission and
commission on the part of the respon-
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
dents, carry out the mining operation
as per the terms of the agreement.
12. Whether in such a situation the
doctrine of frustration will be invoked
or not should have been considered by
the High Court. [See M.D., Army Wel-
fare Housing Organisation v. Suman-
gal Services (P) Ltd. [(2003) 8 Scale
424 (2)] ]"
16. This Court is not oblivious of the fact that the
aforesaid judgment rendered by the learned National Green
Tribunal, Principal Bench, New Delhi in the case of Pawan
Kumar (supra) has been challenged by the respondent-State
before the Hon'ble Apex Court by preferring an Appeal bearing
Civil Appeal No. 3661-3662 of 2020 and the Hon'ble Apex
Court by an interim order dated 10.11.2021 has substituted the
aforesaid directions issued by the learned Tribunal vide
judgment and order dated 14.10.2020, with the following
directions which are contained in paragraph No. 15 thereof and
are being reproduced herein below:-
"14. We therefore find it appropriate
to substitute the directions issued by
the Tribunal vide judgment and order
dated 14th October 2020, with the fol-
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
lowing directions:
(i) The exercise of preparation of
DSR for the purpose of mining in
the State of Bihar in all the districts
shall be undertaken afresh. The draft
DSRs shall be prepared by the sub-
divisional committees consisting of the
SubDivisional Magistrate, Officers
from Irrigation Department, State
Pollution Control Board or Commit-
tee, Forest Department, Geological or
mining officer. The same shall be pre-
pared by undertaking site visits and
also by using modern technology. The
said draft DSRs shall be pre-
pared within a period of 6 weeks
from the date of this order. After the
draft DSRs are prepared, the District
Magistrate of the concerned District
shall forward the same for examina-
tion and evaluation by the SEAC. The
same shall be examined by the SEAC
within a period of 6 weeks and its re-
port shall be forwarded to the SEIAA
within the aforesaid period of 6 weeks
from the receipt of it. The SEIAA will
thereafter consider the grant of ap-
proval to such DSRs within a period
of 6 weeks from the receipt thereon;
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
(ii) Needless to state that while pre-
paring DSRs and the appraisal
thereof by SEAC and SEIAA, it should
be ensured that a strict adherence to
the procedure and parameters laid
down in the policy of January 2020
should be followed;
(iii) Until further orders, we permit
the State Government to carry on
mining activities through Bihar State
Mining Corporation for which it may
employ the services of the contrac-
tors. However, while doing so, the
State Government shall ensure that
all environmental concerns are taken
care of and no damage is caused to
the environment."
17. At this juncture, it may be stated that the
aforesaid order dated 10.11.2021 passed by the Hon'ble Apex
Court in Civil Appeal No. 3661-3662 of 2020 would have no
bearing on the case in hand inasmuch as the facts and
circumstances of the present case are distinguishable, moreso
since the issue under consideration is discernible.
18. Having considered the rival submissions of the
learned counsel for the parties, this Court is of the considered
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
view that an obligation had been casted on the respondent-
State/the respondent Mines Department, not only to prepare the
mining plan and obtain the environmental clearance but also to
issue work order to the petitioner, who is a successful bidder and
execute a mining lease in his favor, more so after the
respondent-State/the respondent Mines Department had got the
security money, earnest money and other amounts deposited
from the petitioner for the purposes of settlement of the sand
ghats in question for a period of five years with effect from
01.01.2020 as per clause-9 of the tender document, however, the
respondent-State/the respondent Mines Department has
committed a breach of such statutory obligation, hence it cannot
be permitted to take advantage of such a situation and make a
profit out of its own wrong, thus the only just and legal course
left to this Court, to set right the wrong, is to direct the
respondent-State/the respondent Mines Department to refund
the security money, earnest money and processing fees
deposited by the petitioner for the purposes of being granted
settlement of Aurangabad Sone Sand Ghat No. 32, pursuant to
the E-auction held on 26.12.2019, along with interest @ of 9%
per annum with effect from the day, the said amounts were
deposited, till the date of payment, especially considering the
Patna High Court CWJC No.2787 of 2020 dt.16-12-2021
fact that the respondent-State/the respondent Mines Department
has illegally and in an unjust manner retained the aforesaid
amount deposited by the petitioner. It is directed accordingly.
19. Having regard to the facts and circumstances of
the case and for the reasons mentioned herein above, the present
writ petition stands allowed to the aforesaid extent.
(Mohit Kumar Shah, J)
S.Sb/-
AFR/NAFR AFR
CAV DATE 29.06.2021
Uploading Date 16.12.2021
Transmission Date
