Kameshwar Ray vs The State Of Bihar, Through The ...
2022 Latest Caselaw 742 Patna

Citation : 2022 Latest Caselaw 742 Patna
Judgement Date : 29 January, 2022

Patna High Court

Kameshwar Ray vs The State Of Bihar, Through The ... on 29 January, 2022

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No. 18404 of 2021
     ======================================================

Kameshwar Ray, Son of Satyanarayan Ray Resident of Village Ishupur, P.O. Manupur, P.S. Dighwara, District- Saran.

... ... 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 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 Assistant Director, District Mining Office, Bhojpur.

6. The District Magistrate, Bhojpur.

7. The Bihar State Mining Corporation Limited, through its Managing Director, Vikas Bhawan (New Secretariat), Bailey Road, Patna - 800015.

8. The Managing Director, The Bihar State Mining Corporation, vikas Bhawan (New Secretariat), Bailey Road, Patna- 800015.

9. The State Environment Impact Assessment Authority, through its Chairman, 2nd floor, Beltron, Baldev Bhawan Road, Shastri Nagar, Patna, Bihar 800023.

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

For the Petitioner/s : Mr.Suraj Samdarshi, Advocate For the Respondent/s : Mr.Gyan Prakash Ojha ( G.A.7 ) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR) (The proceedings of the Court are being conducted through Video Conferencing and the Advocates joined the proceedings through Video Conferencing from their residence.)

Date : 29-01-2022

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):- Patna High Court CWJC No. 18404 of 2021 dt.29-01-2022

i) To issue an appropriate writ . order or direction in the nature certiorari for quashing resolution contained in memo no. 3043 dated 01.10.2021 (Annexure 12) to the extent that on the basis of transferred environment clearance Respondent Bihar State Mining Corporation Limited has been authorised to operate the sand ghats in the District of Patna, Bhojpur, Saran, Rohtas, Aurangabad, Gaya. Jamui and Lakhisarai, through contractors.

ii) To issue an appropriate writ, order or direction in the nature of certiorari for quashing tender notice dated 01.10.2021 (Annexure 13) and the tender document (Annexure 14) issued by the Respondent Bihar State Mining Corporation Limited inviting bids for selection of contractors for operation of sand ghats in the district of Patna, Bhojpur, Saran, Rohtas, Aurangabad. Gaya, Jamui and Lakhisarai.

iii) During the pendency of this writ application to direct the Respondents to maintain status - quo regarding mining of sand in Patna, Bhojpur, Saran, Rohtas, Aurangabad, Gaya, Jamui and Lakhisarai and not proceed with tender notice dated 01.10.2021.

iv) To issue an appropriate writ, order or direction in the nature of certiorari for quashing letter no. 140 dated 22.09.2021 (Annexure 15) by which the prior environment clearances of the earlier settee have been transferred to Bihar State Mining Corporation Limited.

v) This Hon'ble Court may adjudicate and hold that the transfer of environment clearances to Bihar State Mining Corporation Limited is bad in law and therefore Bihar State Mining Corporation Limited cannot be allowed to sub-contract the operation of sand ghats.

vi) This Hon'ble Court may further adjudicate and hold that the prior environment clearances of the settles of sand ghats could not have been transferred without the no-objection of the project proponent thereof.

Patna High Court CWJC No. 18404 of 2021 dt.29-01-2022

vii) This Hon'ble Court may further adjudicate and hold that since on 22.09.2021 Bihar State Mining Corporation Limited was not authorised to undertake mining activity, it could not have applied for transfer of environment clearance in its favour.

viii) This Hon'ble Court may further adjudicate and hold that Rule 18(4) of the 2019 Rules, providing for transfer of environment clearance Rules is in direct conflict with paragraph 11(1) of S.0. 1533 dated 14.09.2006 and in light of Article 254 (1) of the Constitution of India, is void to the extent of this repugnancy.

ix) This Hon'ble Court may .further adjudicate and hold that Rule 17 (6)(vi) and Rule 18 (4) are beyond the rule making powers conferred on the State of Bihar.

x) This Hon'ble Court may further adjudicate and hold that since the prior environment clearances were granted under the notification S.O. 1533 dated 14.09.2006 issued by MoEF, the same could not have been transferred under Rule 18(4) of the 2019 Rules.

xi) This Hon'ble Court may further adjudicate and hold that since State of Bihar and /or Bihar State Mining Corporation Limited could not be project proponent for grant of environment clearances, therefore, the prior environment clearances could not be transferred to State of Bihar and /or Bihar State Mining Corporation Limited.

xii) This Hon'ble Court may further adjudicate and hold that in the garb of selection of contractor for operation of sand ghats, Bihar State Mining Corporation Limited intends to grant fresh settlement of sand ghats which is not permissible.

xiii) This Hon'ble Court may further adjudicate and hold that if the Respondents are allowed to proceed with the NIT dated 01.10.2021, the Petitioner shall be severely prejudiced.

xiv) To grant any other relief or reliefs which the Petitioner may be found entitled to in the facts and circumstances of the case." Patna High Court CWJC No. 18404 of 2021 dt.29-01-2022

Learned counsel for the respondents places on

record the government decision dated 10.12.2021, which reads

as under:-

In view of the same, we do not find any necessity of Patna High Court CWJC No. 18404 of 2021 dt.29-01-2022

adjudicating the issues raised in the present petition. The

respondents have intended to take action. However, learned

counsel for the petitioner states that the government's

notification, reproduced (supra), does not prescribe any time

limit for refund of the amount.