Trancemarine And Confreight ... vs The State Of Bihar
2023 Latest Caselaw 5071 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.13560 of 2023
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Trancemarine and Confreight Logistics Private Limited a company registered under the Companies Act, having its registered office at 1033, Bimla Complex, Kalamboli, Navi Mumbai-410218, Maharashtra, through its Authorised Signatory, Ashish Kumar Srivastava, aged about 44 years (male), son of Jata Shankar Srivastava, Resident of Village Sathawara, PO Sarnath, P.S. Saranath, District Varanasi, Uttar Pradesh 221007.

... ... 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 District Magistrate, Rohtas.

4. The Mineral Development Officer, Rohtas.

5. Bihar State Mining Corporation Limited through its Managing Director, Room No. 164, Vikas Bhawan (New Secretariate) Bailey Road, Patna 800015.

6. The Managing Director, Bihar State Mining Corporation Limited, Room No. 164, Vikas Bhawan (New Secretariate) Bailey Road, Patna 800015.

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

For the Petitioner/s : Mr. Avinash Shekhar, Adv. For the State : Mr. Gyan Prakash Ojha ( GA 7 ) with Ms. Sanghmitra Ghose, AC to GA 7 For the Mines : Mr. Naresh Dikshit, Spl. P.P. Mines with Ms. Kalpana and Mr. Utsav Anand, Advocates ====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR

ORAL JUDGMENT Date : 05-10-2023

Heard Mr. Avinash Shekhar, learned counsel for the

petitioner and Mr. Naresh Dikshit, learned Special P.P. for the Patna High Court CWJC No.13560 of 2023 dt.05-10-2023

Mines. Learned counsel for the State is also present.

2. By filing the present writ application, the petitioner

seeks following relief(s):

" i) To issue an appropriate writ, order or direction in the nature of certiorari for quashing letter no. 517 dated 24.02.2023 issued by the Respondent Mineral Development Officer, Rohtas whereby and whereunder a penalty of Rs. 86,86,113/- has been levied upon the petitioner for allegedly excavating 81325 cubic feet sand from beyond the permissible environment clearance area.

ii) This Hon'ble Court may further adjudicate and hold that Respondent Mineral Development Officer is not the competent authority to levy penalty upon a settlee under Rule 30(1) of the 2019 Rules.

iii) This Hon'ble Court may further adjudicate and hold that penalty cannot be levied upon a valid settee under Rule 56(2) of the 2019 Rules.

iv) This Hon'ble Court may further adjudicate and hold that letter no. 517 dated 24.02.2023 issued by the Respondent Mineral Development Officer is bad in the eyes of law since the same has been issued in glaring violation of the principles of natural justice as the petitioner has not been afforded any show cause notice whatsoever to controvert the allegations upon which the penalty has been levied.

v) This Hon'ble Court may further adjudicate and hold that the levy of penalty contained in letter no.

517 dated 24.02.2023 is in gross violation of the maxim audi alteram partem as the petitioner has Patna High Court CWJC No.13560 of 2023 dt.05-10-2023

been condemned unheard without an opportunity to defend the charges against it.

vi) This Hon'ble Court may further adjudicate and hold that the imposition of penalty upon the petitioner is in violation of the 2019 Rules?

vii) To grant any other relief or reliefs which the Petitioner may be found entitled to in the facts and circumstances of the case."

3. Learned counsel for the petitioner submits that the

aforenoted impugned order has been assailed by the petitioner

on the ground, inter alia, that the impugned letter issued by

respondent no.4, the Mineral Development Officer, Rohtas

imposing penalty under Rule 56(2) of the Bihar Minerals

(Concession, Prevention of Illegal Mining, Transportation and

Storage) Rules, 2019 (for brevity "the Rules, 2019) as against

the petitioner is wholly without jurisdiction as the respondent(s)

have no jurisdiction in terms of the aforenoted Rules to initiate

any proceeding against him as he is contractor with valid licence

to carry out mining activities in terms of agreement with the

Corporation. He further submits that the impugned decision is

an ex-parte and has been taken without any show-cause notice

served upon him. No opportunity of hearing has been afforded

to the petitioner before taking such decision with serious

financial implications was taken against him. Further, neither Patna High Court CWJC No.13560 of 2023 dt.05-10-2023

any inspection of the alleged mining area was carried out in

presence of the petitioner nor the inspection report has ever been

served to him, which defeated the sanctity and credibility of

such exercise of inspection. He also submits that there is no

reference that the previous records and reports of the mining

area of the petitioner has been considered before taking the

impugned decision. That apart, the impugned decision is

mechanical and non-speaking and based on simple technical

inference of the respondent-Corporation without any findings

based on acceptable materials. It is the case of the petitioner that

he has never violated the terms and conditions of the

environmental clearance meant for the mining site given to him

under contract. He has maintained the integrity and limitations

of the mining area under the contract. He has never crossed the

limits/boundary of the mining area awarded to him under the

contract and, as such, the allegation of mining done by him

beyond the mining site under environmental clearance are

absolutely false and baseless. There is no eyewitness of such

mining activity allegedly done by the petitioner.

4. Learned counsel for the petitioner by elaborating

his submissions further submits that neither any plant,

machinery and tool installed by the petitioner have been seized Patna High Court CWJC No.13560 of 2023 dt.05-10-2023

from the mining area where the petitioner had allegedly carried

out mining activity beyond the area under environmental

clearance nor any vehicle of the petitioner has been intercepted

by the district administration on the ground of non-availability

of transportation challan or stock of mineral illegally extracted

from any mining site being transported by such vehicle. While

concluding his submissions, he drew the attention of this Court

on a judgment passed in the case of M/s Uma Associates vs.

The State of Bihar and Others (CWJC No. 3400 of 2023)

vide order dated 09.05.2023, wherein while adjudicating the

similar issue, the Court has held as follows:

"8. On perusal of the said order, the Court does not find that either the inspection by the so called departmental team was carried out in presence of the petitioner, whether the copy of the inspection report was provided to the petitioner or that proper opportunity to show-cause was issued to the petitioner prior to passing the order of penalty. In view of these facts, in the opinion of the Court the order of penalty dated 24.2.2023 issued under the signature of the Mineral Development Officer, Rohtas, Sasaram, is not sustainable and is hereby quashed, with liberty to the respondents that if so advised, they will be at liberty to proceed afresh in accordance with law."

Patna High Court CWJC No.13560 of 2023 dt.05-10-2023

5. On the other hand, Mr. Naresh Dikshit, learned

Special P.P. for the Mines Department while refuting the

contention of the petitioner, submits that the demands raised by

the respondent no.4 are based upon the inspection conducted by

the joint inspection team, who found various irregularities at the

site and accordingly penalty has been imposed proportionate to

the irregularities/illegality committed by the petitioner.

However, on a query made by this Court with regard to the

submission made on behalf of the petitioner that in identical

circumstance, the Court while adjudicating the similar issue has

been pleased to set aside the impugned order, he fairly submits

that the learned coordinate Bench has elaborately answered the

issue raised in the aforenoted judgments and interfered in the

impugned order of imposition of penalty.

6. Having considered the aforesaid facts and

circumstances and the settled position of law, this Court also

feels it appropriate to dispose of the writ petition in terms of the

order passed by the learned coordinate Bench of this Court in

the case of Uma Associates (supra) and accordingly in

consequence thereof, the impugned order of penalty as

contained in letter no. 517 dated 24.02.2023 by respondent no.4,

the Mineral Development Officer, Rohtas, is hereby quashed Patna High Court CWJC No.13560 of 2023 dt.05-10-2023

and cancelled with a liberty to the respondents that if so advised,

they will be at liberty to proceed afresh in accordance with law.

7. It is needless to observe that consequent to

quashing of the impugned order, the respondent would be under

obligation to return the amount of penalty to the petitioner

within a period of two weeks from the date of receipt or

production of a copy of this order.

(Harish Kumar, J) Anjani/-

AFR/NAFR                N.A.
CAV DATE                N.A.
Uploading Date           06.10.2023
Transmission Date       N.A.