M/S Absolute Auto Pvt. Ltd vs The State Of Bihar
2023 Latest Caselaw 4568 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.5233 of 2023
     ======================================================

M/S Absolute Auto Pvt. Ltd. through its Proprietor Animesh Sanwaria (Male), aged about 38 years, son of Anil Kumar Sanwaria, resident of Bungalow No. 7, Chanchani Colony, Dhaiya, Bhawardaha, Nannagar, Dhanbad, Jharkhand- 826004.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

2. The Principal Secretary-cum-Mines Commissioner, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

3. The District Magistrate, Patna.

4. The Mineral Development Officer, Patna.

5. The Bihar State Mining Corporation Ltd., through its Managing Director, Vikas Bhawan (New Secretariat), Bailey Road, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 5601 of 2023 ====================================================== Rohit Agarwal Son of Ashok Kumar Agarwal resident of 35 Post Office Road, Near Purana Fari, Motinagar, Hetkandra, Dhanbad, Jharkhand -828 120.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

2. The Principal Secretary-cum-Mines Commissioner, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

3. The District Magistrate, Jamui

4. The Mineral Development Officer Jamui.

5. The Bihar State Mining Corporation Ltd. through Its Managing Director, Vikas Bhawan (New Secretariat), Bailey Road, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 5761 of 2023 ====================================================== Ankit Agrawal Son of Ashok Kumar Agrawal, Resident of House No.36, Arjun Road, Goushalla, Sindri, Hetkandra, Motinagar, Dhanbad, Jharia, Jharkhand-828004.

... ... Petitioner/s Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

Versus

1. The State of Bihar through the Principal Secretary, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

2. The Principal Secretary-Cum-Mines Commissioner, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

3. The District Magistrate, Arwal.

4. The Mineral Development Officer, Arwal.

5. The Bihar State Mining Corporation Ltd. through its Managing Director, Vikas Bhawan (New Secretariat), Bailey Road, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 5773 of 2023 ====================================================== Ankit Agarwal Son of Ashok Kumar Agarwal, Resident of House No. 36, Arjun Road, Goushalla, Sindri, Hetkandra, Motinagar, Dhanbad, Jharia, Jharkhand-828 004.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

2. The Principal Secretary-cum-Mines Commissioner, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

3. The District Magistrate, Arwal.

4. The Mineral Development Officer, Arwal.

5. The Bihar State Mining Corporation Ltd. through its Managing Director, Vikas Bhawan (New Secretariat), Bailey Road, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 5777 of 2023 ====================================================== Kumar Harsh Son of Shiv Shankar Singh, Resident of Behind Nirsa High School, Post Heriajam, Nirsa Chatti, Dhanbad, Jharkhand- 828205.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

2. The Principal Secretary-cum-Mines Commissioner, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

3. The District Magistrate, Aurangabad.

4. The Mineral Development Officer, Aurangabad. Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

5. The Bihar State Mining Corporation Ltd., through its Managing Director, Vikas Bhawan (new Secrertariat), Bailey Road, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 5905 of 2023 ====================================================== Kumar Harsh Son of Shiv Shankar Singh Resident of Behind Nirsa High School, Post Heriajam, Nirsa Chatti, Dhanbad, Jharkhand-828205,

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secrerary, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

2. The Principal Secretary-Cum-mines Commissioner, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

3. The District Magistrate, Arwal

4. The Mineral Development Officer, Arwal.

5. The Bihar State Mining Corporation Ltd. through its Managing Director, Vikas Bhawan (New Secretariat), Bailey Road, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 5926 of 2023 ====================================================== Shailesh Transport Corporation through its Proprietor Shailesh Kumar Singh (Male), aged about 20 years, son of Sanjay Kumar Singh, resident of Om Bhawan, Beside Lakshmi Narayan Mandir, Dhansar, Rajasbera, Dhanbad, Jharkhand 828 106.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

2. The Principal Secretary-cum-Mines Commissioner, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

3. The District Magistrate, Bhojpur

4. The Mineral Development Officer, Bhojpur.

5. The Bihar State Mining Corporation Ltd. through Its Managing Director, Vikas Bhawan (New Secretariat), Bailey Road, Patna..

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 6008 of 2023 ====================================================== Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

Rohit Agrawal Son of Ashok Kumar Agrawal, Resident of 35 Post Office Road, Near Purana Fari, Motinagar, Hetkandra, Dhanbad, Jharkhand-828120.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

2. The Principal Secretary-Cum-Mines Commissioner, Department of Mines and Geology, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

3. The District Magistrate, Jamui.

4. The Mineral Development Officer, Jamui.

5. The Bihar State Mining Corporation Ltd. through its Managing Director, Vikas Bhawan (New Secretariat), Bailey Road, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 6203 of 2023 ====================================================== M/S Harkrishan Singh Chopra and Co. through Harshit Jindal, (Male), aged about 34 years, son of Surendra Kumar Jindal, resident of 5A, Surma Villa, Chanchani Colony, Dhaiya, Opposite S.B.I. Bank Dhaiya Branch, Dhanbad, Jharkhand - 826004.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

2. The Principal Secretary-cum-Mines Commissioner, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna.

3. The District Magistrate, Bhojpur.

4. The Mineral Development Officer, Bhojpur.

5. The Bihar State Mining Corporation Ltd. through its Managing Director, Vikas Bhawan (New Secretariat), Bailey Road, Patna.

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

(In Civil Writ Jurisdiction Case No. 5233 of 2023) For the Petitioner/s : Mr. Jai Vardhan Narayan, Advocate For the Respondent/s : Mr. Gyan Prakash Ojha, GA-7 For the Mines : Mr. Naresh Dikshit, Spl. P.P. (Mines) (In Civil Writ Jurisdiction Case No. 5601 of 2023) For the Petitioner/s : Mr. Jai Vardhan Narayan, Advocate For the Respondent/s : Mr. Gyan Prakash Ojha, GA-7 For the Mines : Mr. Naresh Dikshit, Spl. P.P. (Mines) (In Civil Writ Jurisdiction Case No. 5761 of 2023) For the Petitioner/s : Mr. Jai Vardhan Narayan, Advocate Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

For the Respondent/s : Mr. Gyan Prakash Ojha, GA-7 For the Mines : Mr. Naresh Dikshit, Spl. P.P. (Mines) (In Civil Writ Jurisdiction Case No. 5773 of 2023) For the Petitioner/s : Mr. Jai Vardhan Narayan, Advocate For the Respondent/s : Mr. Gyan Prakash Ojha, GA-7 For the Mines : Mr. Naresh Dikshit, Spl.P.P. (Mines) (In Civil Writ Jurisdiction Case No. 5777 of 2023) For the Petitioner/s : Mr. Jai Vardhan Narayan, Advocate For the Respondent/s : Mr. Gyan Prakash Ojha, GA-7 For the Mines : Mr. Naresh Dikshit, Spl.P.P. (Mines) (In Civil Writ Jurisdiction Case No. 5905 of 2023) For the Petitioner/s : Mr. Jai Vardhan Narayan, Advocate For the Respondent/s : Mr. Gyan Prakash Ojha, GA-7 For the Mines : Mr. Naresh Dikshit, Spl.P.P. (Mines) (In Civil Writ Jurisdiction Case No. 5926 of 2023) For the Petitioner/s : Mr. Jai Vardhan Narayan, Advocate For the Respondent/s : Mr. Gyan Prakash Ojha, GA-7 For the Mines : Mr. Naresh Dikshit, Spl.P.P. (Mines) (In Civil Writ Jurisdiction Case No. 6008 of 2023) For the Petitioner/s : Mr. Jai Vardhan Narayan, Advocate For the Respondent/s : Mr. Gyan Prakash Ojha, GA-7 For the Mines : Mr. Naresh Dikshit, Spl.P.P. (Mines) (In Civil Writ Jurisdiction Case No. 6203 of 2023) For the Petitioner/s : Mr. Jai Vardhan Narayan, Advocate For the Respondent/s : Mr. Gyan Prakash Ojha, GA-7 For the Mines : Mr. Naresh Dikshit, Spl.P.P. (Mines) ====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT Date : 14-09-2023

Heard Mr. Jai Vardhan Narayan, learned counsel for

the petitioners in all the batch cases and Mr. Naresh Dikshit,

learned Special P.P. for the Mines as well as learned counsel for

the State

2. Since in each of these cases, the issue involved

and the relief prayed by the petitioners is identical, hence the

same has been taken up together for analogous hearing and

disposal with the consent of all the parties.

3. The petitioners, who have been engaged as

contractor to carry out Mining activities on behalf of the Bihar Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

State Mining Corporation Limited (hereinafter referred to as

'the Corporation') wherein the Corporation is a concessionaire/

lease holder as defined under Rule 2(XVII) of the Bihar

Minerals (Concession, Prevention of Illegal Mining,

Transportation and Storage) Rules, 2019 (hereinafter referred to

as 'the Rules, 2019 being aggrieved by the order(s) issued by

the Chief Executive Officer, Bihar State Mining Corporation

Limited, Patna approached before this Court seeking quashing

of the order whereby the petitioners have been saddled with

penalties under Rule 56 of the Rules, 2019 along with a

direction debarring the petitioners from participating in the

auction process for sand ghats in the State of Bihar till such

payment is made. The writ petitioners also prayed for a direction

upon the Corporation to refund the whole of the security deposit

made by the petitioners in course of completion of formalities

while executing the agreement, which has been adjusted against

the aforesaid penalty and also for refund of the remaining

amount recovered from the petitioners in the name of aforesaid

penalty.

4. The petitioners having been declared successful

bidder, awarded the contract for operation of different sand

ghats till 31.03.2022 or till further orders of the Hon'ble Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

Supreme Court in the case of State of Bihar and Ors. Vs. Pawan

Kumar and Others (Civil Appeal Nos. 3661-3662 of 2020).

5. After having completed all the paraphernalia,

including the payment of auction amount in installment,

execution of agreement and its registration of payment of stamp

duty, payment of Income tax etc. with an undertaking to strictly

observe the terms and conditions of approved Mining plan and

environmental clearance, the respondent Corporation issued

work order(s) in favour of the petitioners in connection with the

contract awarded for mining operations. The engagement of the

petitioners as contractors was to carry out mining operations in

terms of the provisions of Mines and Minerals (Development

and Regulation) Act, 1957 (hereinafter referred to as 'the Act,

1957'), the Corporation had engaged the petitioners to extract

minerals from the sand ghat identified by the corporation and to

sell/supply the same to the purchasers/customers. The quantity

of sand exist in the sand ghat was already assessed by the

respondent Corporation and the minimum reserve price of such

stock of sand was indicated in the auction notice. The auction

amount was the actual cost of minerals already recovered by the

Corporation from the petitioners. As per the relevant terms of

the tender notice, especially Clause 24 thereof it prescribes that Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

every vehicle (including boat) engaged in transportation of sand

shall have to be registered with the respondent Department of

Mines and Geology. All such vehicles, which are registered with

the Department would have to install GPS (which can be

communicated with the monitoring system of the Department)

so that its movement can be monitored by the department.

Further Clause 31(i) deals with obligation to the contractor to

issue E Challan to the driver of the vehicle for transportation of

sand.

6. Thus, the role and obligation of the petitioners

were confined to the sale of sand to a purchaser, who would be

allowed to collect such sand from the petitioners' sandghats in a

vehicle, which is registered with the Department of Mines and

Geology. In case, such vehicle would not be registered with the

Department, no challan would be generated by the portal of the

department and vice versa would hold true that a challan

generated by the portal of the Department implies that such

vehicle had appropriate registration with the department

entitling it to transport sand from one place to other.

7. It is the case of the petitioners that all on a

sudden they received show-cause notices wherein the

respondent Corporation alleged the petitioners of having issued Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

E-challan in favour of unrealistic vehicles for transportation of

sand. By the aforesaid show-cause notice, the petitioners have

been shown liable for penalty in terms of Rule 56 of Rules

2019. The petitioners submitted a detailed reply in response to

the said show-cause notice, vehemently opposing the proposed

penalty, that the terms of Rule 56 of Rules 2019 is not at all

applicable in the case of the petitioners, who happens to be a

valid licensee in terms of the agreement executed by the

respondent Corporation. Pursuant to the reply submitted by the

petitioners, the respondents has passed the impugned order(s)

whereby the liability of penalty to the tune of alleged excess of

transportation of sand has been imposed in exercise of powers

under Rule 56 of the Rules, 2019 on the ground of each challan

having been incorrectly/wrongly issued by the petitioners to the

unrealistic vehicles and also debarred the petitioners from

participating in tenders of sand ghat in the State of Bihar till

such time, the payment is made.

8. It is submitted on behalf of the petitioners that

the impugned orders issued by the respondent Chief Executive

Officer of the Corporation imposing penalty under Rule 56 of

the Rules, 2019 as against the petitioners is wholly without

jurisdiction and unsustainable in the eyes of law on the grounds Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

enumerated in their respective petitions. Some of the relevant

grounds, inter alia, are that the respondent Corporation and its

authority had no jurisdiction to impose penalty under Rule 56 of

the Rules, 2019 for an offence allegedly committed in terms of

Section 192 of the Motor Vehicles Act, 1988. That apart, the

authority had no jurisdiction in terms of the Rule 56 of the

Rules, 2019. The petitioners in their respective writ petitions

have raised various other grounds, including the grounds quoted

hereinbelow:

"(c) No jurisdiction in terms of rule 56 of rules 2019 to initiate any proceeding as against the petitioner as the petitioner is a contractor with valid license to carry out mining activities in terms of agreement with the Corporation. Besides, the petitioner is not a transporter engaged in transportation of sand nor has caused such transportation of sand.

Rule 56 of the rules 2019 is in two parts- one is that which applies to a case of persons carrying out mining activities and another to persons engaged in transportation of minerals. Petitioner herein is a mining contractor and not at all a transporter. As such it is the said part of rule 56 dealing with engagement of a person in mining operations which would apply and not that which applies to the case of Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

transporter.

(d) The petitioner is simply a contractor engaged by the Corporation to carry out mining operations which includes excavation and extraction of sand from the sandghats wherein the last activity to be performed is sale of sand from the sandghats. The petitioner is not concerned at all with the mode and mean of transportation of such sand from the point of sale. The petitioner is simply a seller of sand from the sandghats awarded under contract."

9. While concluding the arguments, as discussed

hereinabove, it is submitted that in similar circumstance, the

learned coordinate Bench of this Court while adjudicating the

identical issue vide order dated 02.05.2023 passed in C.W.J.C.

No. 111 of 2023 (M/S Harsh Construction Vs. The State of

Bihar and Others) has put a quietus to the issue/claim and held

as follows:

"21. On the other hand Rule 56 of the Rules deals with penalty for unauthorized extraction and removal of minor minerals. Rule 56(1) of the Rules as quoted herein above is quite clear when it provides that whoever is found to be extracting or removing minor minerals or on whose behalf such extraction or removal is being made, otherwise than in accordance of Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

these Rules, he would be liable for punishment, as provided under the said provision. Thus, in the opinion of this Court, the very heading of Rule 56 which talks about penalty for unauthorized extraction and removal of minor minerals, contemplates that the same is with respect to persons not having a valid license/agreement for extraction of minor minerals. In case, the person is having a valid license, the permission for extraction already being there, in case there is any breach, the provision of Rule 30 which deals with penalty in case of breach of terms would come into play.

22. So far as the facts of the instant case is concerned, there is no dispute that pursuant to the petitioner being the highest bidder for the mine in question, work order dated 8.12.2021 (Annexure-1) was issued in his favour and subsequently an agreement was also entered into on 29.3.2022 (Annexure-2) between the BSMCL and the petitioner. Thus in the opinion of the Court the case of the petitioner would not come under Rule 56 of the Rules and the order impugned is not sustainable on this ground alone.

23. It may further be stated here that so far as the ground of incorrect e-

challans being issued is concerned, it was submitted by learned senior counsel Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

appearing for the petitioner that the petitioner was required to fill up Form-G and on the same being accepted that the mineral transit pass / e-challans is generated by the Department of Mines and Geology, Government of Bihar. Besides the details mentioned in Form-G, at Sl. no. 16 thereof the vehicle number is required to be given. Learned senior counsel submitted that it is the categorical case of the petitioner that in absence of the registration number of the vehicle being available, with respect to the vehicle the petitioner supplied the chassis number of the vehicle and the respondents issued the e-challans for transportation of the mined sand."

10. Needless to observe that in the aforenoted case

Mr. Naresh Dikshit, learned Special P.P. for the Mines

Department was representing the case of the respondents. Today,

he fairly submits that the issue involved in the batch of these

writ applications has been elaborately answered by the learned

co-ordinate Bench in the case of M/S Harsh Construction

(supra).

11. Taking note of the aforesaid facts, this Court

also feels it apt and proper to dispose of the batch of these writ

petitions in terms of the order passed by the learned Coordinate

Bench of this Court in the case of M/S Harsh Construction Patna High Court CWJC No.5233 of 2023 dt.14-09-2023

(supra) and accordingly in consequence thereof the order(s)

under challenge passed by the concerned respondent authority in

all the writ petitions are hereby quashed and cancelled. The

Chief Executive Officer, Bihar State Mining Corporation

Limited, Patna is directed to refund the respective security of all

the petitioners within a period of three months from the date of

receipt/production of a copy of this order. Further, in case, those

petitioners, who were forced to make additional payment of fine

besides the security deposits, shall also be entitled for refund

from the respondents.

12. All the writ petitions stand disposed of.

(Harish Kumar, J) uday/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          18.09.2023
Transmission Date       NA