IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.11678 of 2023

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M/s Balaji Enterprises a Proprietorship Firm having its Registered Office at

Babu Bazar, Ara, Bhojpur through its Signing Authority Sri. Chandan Kumar,

aged about 35 years, Gender- Male, Son of Sri Ashok Kumar, resident of

Village and Post Pareo, P.S. Bihta, District- Patna- 802160.

... ... Petitioner/s

Versus

1.The State of Bihar through the Chief Secretary, Government of Bihar, Old

Secretariat Building, Patna.

2.The Additional Chief Secretary-cum- Commissioner Mines, Department of

Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road,

Patna.

3.The District Magistrate, Sheikhpura.

4.The Mineral Development Officer, Sheikhpura.

... ... Respondent/s

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Appearance :

For the Petitioner/s: Mr. Suraj Samdarshi, Advocate

Mr. Jai Vardhan Narayan, Advocate

For the Mines Department: Mr. Naresh Dixit, Spl. P.P. Mines

For the State : Mr. Gyan Prakash Ojha ( GA- 7 )

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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH

C.A.V. JUDGMENT

Date : 02-05-2024

Heard Mr. Suraj Samdarshi alongside Jai Vardhan

Narayan, learned counsel appearing on behalf of the petitioner,

Mr. Gyan Prakash Ojha, learned GA-7 appearing on behalf of

the State and Mr. Naresh Dixit, learned Spl. P.P appearing on

behalf of Mines Department.

2. The petitioner has prayed for following relief(s) in

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paragraph no. 1 of the writ petition:

“I. Issuance of directions, orders or writs in the

nature of certirorari setting aside the order dated 14.07.2023

passed by the Mines Commissioner, Department of Mines

and Geology, Bihar in Appeal No. 01/2023 whereby and

whereunder the Appeal filed by the petitioner agianst the

order dated 23.01.2023 passed by the Collector, Sheikhpura

was rejected and the order passed by the Collecotr,

Sheikhpura was upheld cancelling the princpal approval vis

a vis Letter of Intent (LOI) for stone Block No. 27 situated

at Mauza Hazaratpur Mandro Chandi, Thana Sheikhpura,

District-Sheikhpura in an utmost arbitrary manner against

the spirit of Rule 28 of the Bihar Minerals (Concession,

Prevention of Illegal Mining, Transportation & Sotrage)

Rules, 2019 without appreciating the fact that the petitioner

had taken all necessary steps for grant of Environmental

Clearance and is not responsible for delay in execution of

the formal lease and a security deposit in the tune of Rs.

2,90,00,000/- (Two Crore Ninety Lakh) has also been

ordered to be forfeited and the Collector, Sheikhpura has

further been directed to take necessary steps for re-auction

of the Stone Block No. 27 situated at Mauza Hazaratpur

Mandro Chandi, Thana Sheikhpura, District-Sheikhpura as

per the present applicable rules and regulations.

II. Issuance of directions, ordes or writs in the

nature of mandamus directing the respondents not to annul

the settlement of Block Stone of the petitioner firm by

cancelling the Principal Approval vis a vis Letter of Intent

(LOI) for Stone Block No. 27 situated at Mauza Hazaratpur

Mandro Chandi, Thana Sheikhpura, District-Sheikhpura and

allow the petitioner to submit the environmental clearance,

payment of instalments and other payments and all other

necessary documents so that Form B be executed in between

the Petitioner and the Respondent in accordance with law.

III. Any other relief or reliefs for which the

petitioner may be deemed entitled to.”

BRIEF FACTS

3. The petitioner is a proprietorship firm registered

under the Ministry of Micro, Small and Medium Enterprises

having (Registration No. UDYAM-BR-08-0002321) and is

running in the name of M/s Balaji Enterprises,

4. Pursuant to a Notice Inviting Tender (NIT)

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issued under the seal and sign of the District Magistrate,

Sheikhpura for settlement of 9 Stone Blocks, the petitioner had

participated in the auction proceeding conducted on 18.03.2017,

in which, he was declared the highest bidder for Stone Block

No. 27, situated at Mauza Hajratpur, Mandro Chandi

appertaining to Khata no. 296 and Plot No. 2068 (P) areas 12.50

acres at District Sheikhpura, at a highest bidding amount of 29

crores.

5. A Letter of Intent (LOI) vide Letter No. 783

dated 21.09.2017, was issued in favour of the petitioner by the

District Magistrate, Sheikhpura. As per the terms and conditions

of the Letter of Intent (LOI), the Stone Block was settled in

favour of petitioner for 5 years from the date of execution of

lease deed. Further, the petitioner was required to make payment

of 10% of the bid amount as security deposit, submission of

Form B within 120 days from the date of LOI, mining plan,

environmental clearance and other payments as per the LOI

(Annexure -P2). However, Environmental Clearance could not

be granted due to non submission of DSR.

6. It is the specific case of the petitioner that the

District Magistrate, Sheikhpura has passed order contained in

Memo No. 73 dated 23.01.2023, annulling the “In Principal

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Approval” granted in favour of the petitioner for Stone Block

No. 27 situated at Mauza Hajratpur, Mandro Chandi

appertaining to Khata no. 296 Plot No. 2068 (P) measuring

areas 12.50 acres at District Sheikhpura and the earnest money

in the tune of Rs.2,90,00,000/- was directed to be forfeited

(Annexure- P23). It was rejected on the ground that there has

been delay of five years and three months on the part of the

petitioner.

7. Aggrieved by the order of the District

Magistrate, Sheikhpura dated 23.01.2023, the petitioner

preferred statutory appeal before the Commissioner of Mines,

Bihar and vide order dated 14.07.2023 passed in Appeal No.

01/2022, the Commissioner Mines has rejected the appeal filed

and upheld the order of the DM, Sheikhpura. Further, the

Commissioner issued direction to the DM, Sheikhpura for

arranging a re-auction of the Stone Block. (Annexure- P24)

SUBMISSIONS

8. Learned counsel for the petitioner submitted that

LOI was issued on 21.09.2017. The petitioner, vide letter dated

10.08.2018 (Annexure- P4) had requested the Mineral

Development Officer, Sheikhpura for inspection of the disputed

Stone Block No. 27, situated at Mauza Hajratpur, Mandro

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Chandi appertaining to Khata no. 296 and Plot No. 2068 (P)

areas 12.50 acres at District Sheikhpura by the Circle Officer,

Ariari and for a report thereto on six issues that were required to

be answered and inquired into.

i. Whether the applied area is recorded as pahad

and gair majarua in the column of type and Khata respectively

in the revenue records of the Government?

ii. Whether the applied area comes within the

schedule area or not?

iii. Whether the applied area is a forest land or not?

iv. Whether any river, educational institute, hospital

exists within 500 meters of the applied area?

v. Whether any archaeological structure of national

importance exists within 500 meters of the applied area?

vi. Acreage and type of applied area?

9. Reminder applications were also sent to the

department by the petitioner vide letter dated 22.09.2018 and

17.07.2019. (Annexure- P4)

10. It has been further informed that vide letter

dated 11.08.2018, the Divisional Forest Officer, Jamui was

requested for providing information regarding National Park,

Forest Land and Wild Life Sanctuary, required for grant of the

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Environmental Clearance, and in response vide Letter No. 1285

dated 14.08.2018, the Divisional Forest Officer, Jamui, had

informed that the district of Sheikhpura had no wild life and the

nearest Wild Life Sanctuary is located at Bhim Bandh situated

under the jurisdiction of Munger Forest Division, Munger and

relevant information may be sought from the Munger Forest

Division (Annexure- P6). The Mining Plan was approved in

favour of the petitioner vide Letter No. 3695 dated 13.09.2018,

by the Department of Mines and Geology, Government of Bihar

(Annexure- P3 to the writ petition), after a lapse of 12 months

since the date of LOI. The petitioner, vide letter dated

26.12.2019 and 27.12.2019, addressed to Mineral Development

Officer, District Mining Officer, Sheikhpura had made a request

for grant of Environmental Clearance Certificate viz-a-viz in

regard to providing clearance of 500 meters radius and

Inspection Certificate from the Circle Officer, Ariari (Annexure-

P7 to the writ petition).

11. It has further been informed that the petitioner

had submitted an application dated 28.01.2020, for approval of

the Terms of Reference (TOR) before the Member Secretary,

State Environmental Impact Assessment Authority (SEIAA),

Bihar, for the proposed mining block No.27, along with From I,

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Principle Feasibility Report (POR), proposed TOR for the Stone

Mining under B1 Category and other necessary documents in

the prescribed format. The petitioner vide Letter dated

29.01.2020 informed the Mineral Development Officer, District

Mining Officer, Sheikhpura about the submission of documents

for obtaining environmental clearance to the SEIAA, Bihar.

(Annexure – P9) Thereafter, the petitioner once again made

request to the Mineral Development Officer, District Mining

Officer, Sheikhpura for making available the 500 meters radius

letter, vide letter dated 31.01.2020 and in the same letter, the

petitioner also acknowledged that Circle Officer (CO) letter vide

Patrank- 82 dated 24.01.2020 (Annexure- P10 to the writ

petition) was received by him.

12. The petitioner again reminded vide a letter

dated 28.02.2020, to the Member Secretary, SEIAA, Bihar for

revision of TOR and its rectification in view of the error in the

approved mining plan. The petitioner also requested for

granting him permission to start Baseline Data Monitoring from

March to May 2020(Annexure- P11 to the writ petition). In

respect of obtaining the Cluster Certificate (500 Meters radius

certificate) from the Mineral Development Officer, District

Mining Officer, Sheikhpura, the petitioner had wrote another

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letter dated 07.03.2020 (Annexure- P12 to the writ petition).

13. Learned counsel further informed that the

petitioner had requested the Member Secretary, Bihar State

Pollution Control Board, for convening public hearing and had

deposited the requisite amount in the form of demand draft on

account of fee for public hearing. The public hearing was

scheduled on 24.04.2021, but was deferred to 17.12.2021, due

to COVID 19 pandemic. Thereafter, the public hearing was held

on 17.12.2021 and several suggestions were given. The

petitioner, vide letter dated 30.06.2022 had informed the

Mineral Development Officer, District Mining Officer,

Sheikhpura about the public hearing and also mentioned therein

that District Survey Report (DSR) was required for obtaining

environmental clearance and the same had not been issued to

him. Learned counsel submitted that instead, a Show Cause was

issued by Mineral Development Officer, District Mining

Officer, Sheikhpura vide Letter No. 733 dated 06.07.2022,

demanding explanation from the petitioner for the delay in

obtaining the environmental clearance and warned him of

annulment of the LOI and forfeiture of the security deposit as a

result of failure to do the needful (Annexure- P17). The reply to

this show cause was filed by the petitioner on 01.08.2022

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(Annexure - P18). Subsequently, petitioner received another

show cause issued by Mineral Development Officer, Sheikhpura

bearing Letter No. 954 dated 11.08.2022, directing the petitioner

to submit his reply within one week, giving reasons, as to why,

the LOI should not be cancelled and the security deposit be

forfeited in lieu of failure to submit the environmental clearance

installment amount and other amounts as well as documents and

Form B (Annexure- P19). The petitioner, in response, had filed

his reply to the show cause on 22.08.2022 (Annexure- P20).

Thereafter, The District Magistrate vide Letter No. 1068 dated

01.09.2022, again directed the petitioner to submit his

explanation, as to why, the "In Principal Approval" granted in

favour of the petitioner be cancelled and the earnest money be

forfeited for not complying with the directions of the

Department as far as submission of the environmental clearance

was concerned (Annexure – P21).

14. Learned counsel for the petitioner submitted

that the DSR of Sheikhpura Stone Mineral prepared by the

Institute of Environment & Eco-Development, Patna which had

been submitted to the Under Secretary, Mines & Geology

Department, Government of Bihar contains the details of list of

LOI Holders in the district along with its validity. The details of

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petitioner’s LOI has been listed at Sr. No. 17 at internal Page

No. 17, but the details about the Location of the Mining Lease

(i.e Latitude & Longitude) has not been mentioned and as such

the DSR for the petitioner’s Stone Block No.17 remained

incomplete as would appear from Annexure- P25 to the writ

petition being published without providing the geo-coordinates

of the proposed mining site. Due to the said discrepancy, the

environmental clearance could not be obtained by petitioner

from SEIAA within time and as a result, the SEIAA could not

issued environmental clearance without specifying the geo-

coordinates. Learned counsel emphatically submitted that no

reason has been assigned in the impugned order as to why, the

respondent has not given any reason why details of geo-

coordinates was left blank in the DSR and submitted that on this

sole ground the SEIAA has not given the Environmental

Clearance to the petitioner.

Respondent’s Arguments

15. Per Contra, learned counsel for the respondent

submitted that as per the Mining Plan issued vide Letter no.

3695 dated 13.09.2018, by the Department, under Clause 04 the

petitioner was required to furnish ‘Environmental Clearance’, as

well as, other documents and requisite deposits for execution of

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mining lease. Since the petitioner failed to do so even after lapse

of about 05 years and 03 months from the date of in principal

approval in petitioner’s favour, the annulment of ‘Principal

Approval’ and forfeiture of security deposit is therefore

justified.

16. He further submitted that the petitioner took

more than one year from the date of approval of mining plan,

i.e. 13.09.2018, after he had submitted his application before the

Mining Development officer, Sheikhpura to get report from the

Circle Officer concerned for the mining site for a circular area

of 500 meters inspite of the fact that and the Report was made

available to the petitioner on 25.01.2019 within 28 days of his

submission of application. Petitioner presented his application

before the State Environment Impact Assessment Committee

(SEIAA) on 28.01.2020 and before the Bihar State Pollution

Control Board on 29.01.202, and it shows the deliberate delay

and latches on petitioner’s part. The explanation provided by the

petitioner in reply to the show cause issued by the Collector,

Sheikhpura vide Letter No. 1068 dated 01.09.2022, was found

to be unsatisfactory. In support, learned counsel submitted that

as per the provision of Rule 25(1) of the Bihar Minor Mineral

Rules, 1972, the mining lease is required to be executed within

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120 days from the date of approval and according to Rule 28 of

the Bihar Minor Minerals (Concession, Illegal Mining, and

Storage) Rules, 2019 it can be extended for further period of

120 days to 180 days. As per Clause 06 of the tender

Documents, the responsibility to obtain environmental clearance

lies upon the settlee/auctioneer. Learned counsel, on these

grounds, submitted that petitioner has failed to abide by the

terms and conditions of LOI and "In Principle Sanction Order".

Learned Special P.P. Mines although don’t deny that the DSR

relating to the Block No. 27 don’t contain Geo-Coordinates,

which is important for issuance of Environmental Clearance.

ANALYSIS

17. Heard the parties.

18. Nowadays, the ecological imbalances and the

consequent environmental damage has become alarming due to

reckless mining operations.

19. In M.C. Mehta Vs. Union of India & Ors.,

(2006) 11 SCC 582, the Apex Court directed the Monitoring

Committee to inspect the mining activity being carried on in the

area in question and report the impact, if any, of continuing

mining activity on the environment and the safeguards, if any,

adopted to minimize the adverse effects on the environment and

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any other suggestions relevant to the issue of impact of mining

activity on degradation of the environment.

20. In T.N. Godavarman Thirumulpad (104) Vs.

Union of India & Ors., (2008) 2 SCC 222, the Apex Court

held that adherence to the principle of sustainable development

is now a constitutional requirement. The courts are required to

balance development needs with the protection of the

environment and ecology. It is the duty of the State under the

Constitution to devise and implement a coherent and

coordinated programme to meet its obligation of sustainable

development based on inter-generational equity.

21. In my opinion, imposing reasonable restriction

in the interest of general public and reasonable restriction on

exercise of rights enshrined under Article 19(1)(g) is

unassailable in view of Article 19(6) of the Constitution of

India. Any development has to be sustainable. The rights of the

petitioner to carry on mining operations are subjected to the

directives under Article 48A and fundamental duties enshrined

under Article 51A(f) and 51A(g) which are also supreme and

cannot be violated under the guise of rights under Article 19(1)

(g).

22. It is admitted that the petitioner had

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participated in bidding process and he was declared highest

bidder on 18.03.2017, and the LOI was issued bearing Letter

No. 783 dated 21.09.2017. The Mining Plan was approved vide

Letter No.3695 dated 13.09.2018, by the Under Secretary,

Department of Mines and Geology, Government of Bihar and as

per Clause 04, the petitioner was required to furnish

environmental clearance as well as other documents and

deposits for execution of mining lease.

23. The petitioner had filed his detailed

representation on 09.09.2022 before the District Magistrate,

Sheikhpura, who had found the representation to be

unsatisfactory and passed order contained in Memo No. 73

dated 23.01.2023 (Annexure-P23 to the writ petition) directing

for forfeiture of the security deposit and to take steps for re-

auction, and the same was affirmed by the Commissioner of

Mines, Bihar vide order dated 14.07.2023 passed in Appeal No.

01/2022, by which earnest money to the tune of

Rs.2,90,00,000/- was forfeited annulling the settlement granted

in favour of petitioner on ground of delay and latches that even

after lapse of 05 years and 03 months, the petitioner failed to

produce the Environmental Clearance and the installment

amount and other amount, as well as, requisite documents for

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execution of Form-B, which is in violation of Rule 28 of the

2019 Rules.

24. There is no discussion in the order about non

mentioning of geo-coordinates. The Commissioner of Mines,

Bihar in his order dated 14.07.2023, has observed in paragraph

no. 11 that in light of the Order passed by the Hon’ble Supreme

Court in Civil Appeal No. 3661-3662/2020 dated 10.112021, the

DSR is to be prepared by the Sub-Divisional Level Committee,

which will be reviewed by the State Expert Assessment

Committee (SEAC) and post approval action is to be taken by

the State Environment Impact Assessment Authority (SEIAA).

This procedure would have to followed to re-prepare the DSR as

desired by the appellant, which may take about 6 to 12 months

and even if the appellant is given more time, he will not be able

to complete the actual mining work as he will be able to start

only after about a year. In paragraph no. 12, it has been stated

that since the time the public auction was conducted i.e on

18.03.2017, six and a half years have lapsed. After such long

time there have been changes in the demand and supply of stone

minerals and related market parameters. Hence, in such a

situation it would not be appropriate from the revenue point of

view to give more time to the appellant on the basis of the

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highest bidder after delay of six and half years. The

Commissioner has dealt with the procedure for preparation of

District Survey Report (DSR), but he has not appreciated the

fact that it is the Department, which has defaulted in providing

details of geo-coordinates in the DSR, which is relevant for

issuance of Environmental Clearance. In the counter affidavit,

the ground taken for denying the settlement of stone mines is

that in accordance with Clause 06 of the tender documents, the

responsibility to obtain environmental clearance is of the

petitioner.

25. It has not been denied in the counter affidavit

that the petitioner had already submitted the requisite documents

having been approved by the competent authority in regard to

mining plan. The public hearing was also undertaken by the

competent authority and the suggestions were accepted and

incorporated for the working improvement of the site. It is

admitted that the Divisional Forest Officer, Jamui vide Letter

No. 1285 dated 14.08.2018 (Annexure P5 to the writ petition),

had informed that the district of Sheikhpura had no wild life and

the nearest Wild Life Sanctuary is located at Bhim Bandh

situated under the jurisdiction of Munger Forest Division,

Munger and relevant information was to be given by the

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Munger Forest Division (Annexure- P6). The petitioner had

made repeated request to Mineral Development Officer,

Sheikphpura for grant of Cluster Certificate of 500 meters

radius (DMO Letter) and Inspection Certificate from the Circle

Officer, Ariari (CO Letter) which is evident from his letters

dated 10.08.2018, 22.09.2018, 17.07.2019, 26.12.2019,

27.12.2019, 29.01.2020, 31.01.2020 and 07.03.2020.

26. The main objective of the preparation of DSR

is to identify areas of aggradations or deposition where mining

can be allowed; and identification of areas of erosion and

proximity to infrastructural structures and installations where

mining should be prohibited and calculation of annual rate of

replenishment and allowing time for replenishment after mining

in that area. As per Clause 06 of the Tender Documents, the

responsibility to obtain Environmental Clearance lies upon the

settlee/auctioneer. The earnest money and security deposit has

been deposited by the petitioner. DSR is necessary for issuance

of Environmental Clearance. The petitioner has alleged that the

DSR of Sheikhpura Stone Mineral prepared by the Institute of

Environment & Eco-Development, Patna which had been

submitted to the Under Secretary, Mines & Geology

Department, Government of Bihar does not contain the details

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about the Location of the Mining Lease (i.e. Latitude &

Longitude) and as such the DSR for the petitioner’s Stone Block

No. 27, situated at Mauza Hajratpur, Mandro, Chandi is

incomplete (Annexure- P25). The petitioner alleges that due to

failure on part of the authorities concerned i.e. Department of

Mines, in providing the geo-coordinates of the proposed mining

site, the environmental clearance could not be obtained by

petitioner from SEIAA in the required time, as SEIAA could not

have issued environmental clearance without specifying the

geo-coordinates.

IMPORTANCE OF GEO-CORDINATES IN DSR

FOR ISSUANCE OF ENVIRONMENTAL CLEARANCE .

27. Geo-coordinates play a crucial role in obtaining

environmental clearance for mining projects due to several

reasons. Geo-coordinates provide precise location data, aiding

in the identification of potential mining sites. This helps in

assessing the environmental impact of the proposed mining

activity accurately. Geo-coordinates help in conducting

comprehensive Environmental Impact Assessments (EIAs) by

providing accurate spatial information about the mining area

and its surrounding environment. This includes identifying

sensitive ecosystems, water bodies, habitats of endangered

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species, and other environmental features that could be affected

by mining activities. Geo-coordinates help establish baseline

data about the environmental conditions of the proposed mining

site before any operations begin. This data is essential for

monitoring and assessing changes in environmental parameters

over time. It also facilitates detailed mapping and planning of

mining operations, allowing for the precise delineation of

mining boundaries, extraction zones, waste disposal areas, and

buffer zones. This aids in minimizing environmental

disturbances and optimizing resource utilization. Accurate geo-

coordinates demonstrate compliance with regulatory

requirements and help authorities monitor and enforce

environmental regulations effectively. Geo-coordinates enable

stakeholders, including local communities and environmental

organizations, to visualize the exact location and extent of

proposed mining activities. This promotes transparency and

facilitates meaningful public consultation during the

environmental clearance process. Geo-coordinates are essential

for designing effective mitigation measures and monitoring

plans to minimize the environmental impact of mining

activities. By precisely identifying sensitive areas and potential

environmental risks, proactive measures can be implemented to

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mitigate adverse effects on the environment.

28. Overall, geo-coordinates play a vital role in

the environmental clearance process for mining projects by

providing accurate spatial information that is essential for

assessing environmental impacts, planning operations, ensuring

regulatory compliance, and promoting sustainable mining

practices. In absence of the same, it becomes difficult to

determine the suitability of a specific area for the purpose of

mining.

29. The Hon’ble Supreme Court in the State of

Bihar Vs. Pawan Kumar & Ors.

(Civil Appeal No. 3661-3662

of 2020) decided on 10th November, 2021 taking note of

observation and in the judgment of at paragraph 10 in Special

Leave Petition (C) No.19628-19629 of 2009, in the matter of

Deepak Kumar etc. Vs. State of Haryana and Others reported

in (2012) 4 SCC 629 has held that prior to any auction process it

is mandatory to have a valid DSR.

30. The observation made by the Hon’ble

Supreme Court of India in State of Bihar and Ors vs. Pawan

Kumar and Ors etc (Civil Appeal No. 3661-3662 of 2020)

decided on 10th November, 2021 considered the essentiality

and prerequisite of DSR and held as follows:

“8. It cannot be in dispute that though the

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developmental activities are not stalled, the

environmental issues are also required to be addressed. A

balanced approach of sustainable development ensuring

environmental safeguards, needs to be resorted to. At the

same time, it also cannot be ignored that when legal

mining is banned, it gives rise to mushroom growth of

illegal mining, resulting into clashes between sand

mafias, criminalisation and at times, loss of human lives.

It also cannot be disputed that sand is required for

construction of public infrastructural projects as well as

public and private construction activities. A total ban on

legal mining, apart from giving rise to illegal mining,

also causes huge loss to the public exchequer.

9. Taking into consideration these

aspects of the matter, we propose to issue certain interim

directions.

10. The Tribunal, in Satendra Pandey

[Satendra Pandey v. Ministry of Environment, Forest &

Climate Change, 2018 SCC OnLine NGT 2388] , has

found that the Notification dated 15-1-2016, which

provided environmental clearance to be given by the

District Environment Impact Assessment Authority

(hereinafter referred to as “the

DEIAA

”) was not in

consonance with the judgment of this Court in Deepak

Kumar v. State of Haryana [Deepak Kumar v. State of

Haryana, (2012) 4 SCC 629] . The Tribunal therefore in

Satendra Pandey [Satendra Pandey v. Ministry of

Environment, Forest & Climate Change, 2018 SCC

OnLine NGT 2388] , had directed Ministry of

Environment, Forest and Climate Change (hereinafter

referred to as “MoEF and CC”) to take steps to revise

the procedure laid down in the Notification dated 15-1-

2016. It is to be noted that MoEF and CC, in accordance

with the directions of the Tribunal, had issued

Enforcement and Monitoring Guidelines for Sand Mining

(hereinafter to referred to as “the 2020 Guidelines”) in

the month of January 2020. (Emphasis Supplied)

11. Chapter 4 of the 2020 Guidelines

deals with identification of possible sand mining sources

and preparation of DSR. It will be relevant to refer to

Clauses 4.1.1(a), (o) and (p) of the 2020 Guidelines:

“4.1. Identification of possible sand

mining sources and preparation of District Survey Report

(DSR)

4.1.1. Preparation of District Survey

Report.

(a) District Survey Report for sand

mining shall be prepared before the auction/e-

auction/grant of the mining lease/Letter of Intent (“LoI”)

by Mining Department or department dealing the mining

activity in respective states.

(o) Potential site for mining having its

impact on the forest, protected area, habitation, bridges,

etc. shall be avoided. For this, a Sub-Divisional

Committee may be formed which after the site visit shall

decide its suitability for mining. The list of mining lease

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after the recommendation of the Committee needs to be

defined in the following format given in as Annexure II.

The Sub-Divisional Committee after the site visit shall

make a recommendation on the site for its suitability of

mining and also records the reason for selecting the

mining lease in the Patta land. The details regarding

cluster and contiguous cluster needs to be provided as in

Annexure III. The details of the transportation need to be

provided as in Annexure IV.

(p) Public consultation—The

comments of the various stakeholders may be sought on

the list of mining lease to be auctioned. The State

Government shall give an advertisement in the local and

national newspaper for seeking comments of the general

public on the list of mining lease included in the DSR.

The DSR should be placed in the public domain for at

least one month from the date of publication of the

advertisement for obtaining comments of the general

public. The comments so received shall be placed before

the Sub-Divisional Committee for active consideration.

The final list of sand mining areas [leases to be granted

on riverbed & patta land/khatedari land, de-siltation

location (ponds/lakes/dams), M-Sand Plants (alternate

source of sand)] after the public hearing needs to be

defined in the final DSR in the format as per Annexure V.

The details regarding cluster and contiguous cluster

needs to be provided in Annexure VI. The details of the

transportation need to be provided in Annexure VII.”

12. It could thus be seen that in

accordance with the 2020 Guidelines, the DSR is

required to be prepared before the auction/e-

auction/grant of mining lease by Mining Department or

Department dealing with mining activity in the respective

States. It is further provided that the potential site for

mining having its impact on the forest, protected area,

habitation and bridges should be avoided. For this, a

Sub-Divisional Committee is required to be formed

which, after the site visit, is required to decide regarding

the suitability of the sites for mining. The Sub-Divisional

Committee is further required to record its reasons for

selecting the mining lease in the patta land. Various

details are required to be given in the annexures

appended to the said policy.

13. It is further to be noted that

Appendix X of the Notification dated 15-1-2016, issued

by MoEF and CC also provides for composition of the

Sub-Divisional Committee:

“A Sub-Divisional Committee

comprising of Sub-Divisional Magistrate, Officers from

Irrigation Department, State Pollution Control Board or

Committee, Forest Department, Geology or Mining

Officer shall visit each site for which environmental

clearance has been applied for and make

recommendation on suitability of site for mining or

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prohibition thereof.”

14. It is to be noted that with the

advent of modern technology, various technological

gadgets like drones and satellite imaging, etc. can be

used for identification of the potential sites and

preparation of the DSR and also to check misuse and

unauthorised mining.

15. We further find that when the 2020

Guidelines as well as the notification issued by MoEF

and CC of 2016 itself provide for constitution of Sub-

Divisional Committees comprising of the officers of the

State Government from various Departments for

identification of the potential sites for mining, there

would be no necessity of the DSRs being prepared

through private consultants as directed by the Tribunal in

the impugned order [Pawan Kumar v. State of Bihar,

2020 SCC OnLine NGT 2848] . The Sub-Divisional

Committee consists of various officers from Revenue

Department, Irrigation Department, State Pollution

Control Board, Forest Department and Geology and

Mining Department of the State Government. They are

better equipped to visit the sites and prepare the draft

DSR for the district concerned. Apart from that,

preparation of DSR through private consultants would

also unnecessarily burden the public exchequer. We are

therefore of the view that the direction in that regard

issued by the Tribunal requires to be modified. We are

further of the considered view that until the DSRs are

finalised and granted approval by SEAC and

SEIAA

, it is

appropriate that certain necessary arrangements are

permitted so that the State can continue with legal mining

activities. This apart from preventing illegal mining

activities, would also ensure that the public exchequer is

not deprived of its share in legalised mining.

16.

We therefore find it appropriate to

substitute the directions issued by the Tribunal vide

judgment and order dated 14-10-2020 [Pawan Kumar v.

State of Bihar, 2020 SCC OnLine NGT 2848] , with the

following directions:

16.1.

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 Sub-Divisional Magistrate, Officers

from Irrigation Department, State Pollution Control

Board or Committee, Forest Department, Geological or

Mining Officer. The same shall be prepared by

undertaking site visits and also by using modern

technology. The said draft DSRs shall be prepared within

a period of 6 weeks from the date of this order. After the

draft DSRs are prepared, the District Magistrate of the

district concerned shall forward the same for

examination and evaluation by SEAC. The same shall be

examined by SEAC within a period of 6 weeks and its

report shall be forwarded to

SEIAA

within the aforesaid

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period of 6 weeks from the receipt of it.

SEIAA

will

thereafter consider the grant of approval to such DSRs

within a period of 6 weeks from the receipt thereon.

16.2. Needless to state that while

preparing 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. (Emphasis Supplied)

16.3. 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 contractors. 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.”

31. In accordance with the guidelines, the DSR is

required to be prepared before the auction/e-auction/grant of

mining lease by Mining Department or Department dealing with

mining activity. It provides the potential site for mining having

its impact on the forest, protected area, habitation and bridges

should be avoided. For this, a Sub-Divisional Committee is

required to be formed which, after the site visit, is required to

decide regarding the suitability of the sites for mining. A Sub-

Divisional Committee comprising of Sub-Divisional Magistrate,

Officers from Irrigation department, State Pollution Control

Board or Committee, Forest department, Geology or mining

officer shall visit each site for which environmental clearance

has to be applied for and make recommendation on suitability of

site for mining or prohibition thereof.

32. The petitioner had applied for issuance of

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Environmental Clearance Certificate after having submitted

required clearances but till date the matter has been kept

pending by the department due to want of geo-coordinate details

in DSR. The details of Geo-coordinate has been brought on

record by way of Annexure-25 to the writ petition.

33. One cannot lose sight of the fact that despite

there being delay and latches on part of the petitioner, the

respondents too erred in not issuing the geo coordinates of the

concerned Stone Block in the DSR, which also added to the

duration of delay in obtaining environmental clearance.

34. Now to decide whether order dated

23.01.2023 passed by the District Magistrate, Sheikhpura and

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order dated 14.07.2023 passed by the Mines Commissioner, are

sustainable. I must reiterate that it is well settled principle of law

that earnest money is part of purchase price when the

transaction goes forward, it is forfeited when the transaction

falls through, “by reason of all a failure of the vendee”.

35. The Bihar Minerals (Concession, Prevention

of Illegal Mining, Transportation & Storage) Rules, 2019

provides for forfeiture of security deposit in the event of failure

on the part of successful bidder. The relevant part of the

aforesaid Rule is produced hereinafter:

“22. …. (c) Amount equivalent to 10[ten

percent] of auction amount as security which

shall be adjusted with the last installment of

auction amount if the mining leaseholder is not

otherwise defaulter in payment. In case of

unsuccessful bidder the security deposit shall be

refunded by the Collector.

(6) Failure on the part of the successful bidder.-

In case the successful bidder fails to deposit the

required security deposit along with other

payable taxes within the prescribed time limit as

referred to in the prevailing notification of the

State Government in this regard, his security

deposit shall be forfeited and a fresh settlement

process through public auction shall be

initiated.”

36. Rule 28 of the Bihar Mines Minerals

(Concession Illegal Mining and Storage) Rules, 2019 provides

that lease deed can be executed within 180 days from the date of

approval of settlement auction

37. In the present case, whether due to not

furnishing of the Environmental Clearance “in principle

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sanction order” can be cancelled and Security Deposit can be

forfeited, which has already been issued in favour of the

petitioner after the petitioner has fulfilled procedure prescribed

and has furnished the documents required, whether judicial

review of the action taken by the respondents is permissible.

38. It is well settled that a writ is not remedy for

enforcing contractual obligation. Equally, the existence of

alternative remedy does not affect the jurisdiction of Court to

issue writ, but ordinarily it would be a good ground for refusing

to exercise jurisdiction under Article 226 of the Constitution of

India. In the case at hand, the extra-ordinary jurisdiction is being

invoked by this Court on the ground that order passed by the

Mines Commissioner, Bihar and District magistrate, Sheikhpura

are arbitrary as they have not dealt with the issue of non-

providence of the geo-coordinates in the DSR, and are silent on

the issue of query by the SEIAA, although the same has been

referred in the order of the learned Commissioner, which is part

of the writ application at Annexure- P24, wherein the Mines

Commissioner, Bihar has recorded that SEIAA has raised

objections with regard to pre-feasibility report, environmental

impact assessment and geo-coordinates.

39. The Apex Court in the case of South Eastern

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Coalfields Ltd. v. S. Kumar's Associates AKM (JV), (2021) 9

SCC 166, has observed as follows:-

“22. We would like to state the issue whether a

concluded contract had been arrived at inter se

the parties is in turn dependent on the terms and

conditions of the NIT, the LoI and the conduct of

the parties. The judicial views before us leave

little doubt over the proposition that an LoI

merely indicates a party's intention to enter into a

contract with the other party in future. [Dresser

Rand S.A. v. Bindal Agro Chem Ltd., (2006) 1

SCC 751; Rajasthan Coop. Dairy Federation

Ltd. v. Maha Laxmi Mingrate Mktg. Service (P)

Ltd., (1996) 10 SCC 405] No binding

relationship between the parties at this stage

emerges and the totality of the circumstances

have to be considered in each case. It is no doubt

possible to construe a letter of intent as a binding

contract if such an intention is evident from its

terms. But then the intention to do so must be

clear and unambiguous as it takes a deviation

from how normally a letter of intent has to be

understood. This Court did consider in Dresser

Rand S.A. case [Dresser Rand S.A. v. Bindal Agro

Chem Ltd., (2006) 1 SCC 751] that there are

cases where a detailed contract is drawn up later

on account of anxiety to start work on an urgent

basis. In that case it was clearly stated that the

contract will come into force upon receipt of

letter by the supplier, and yet on an holistic

analysis—it was held that the LoI could not be

interpreted as a work order.

23. Similarly if we construe the documents as

discussed in the judgment of this Court in

Jawahar Lal Burman case [Jawahar Lal Burman

v. Union of India, (1962) 3 SCR 769 : AIR 1962

SC 378] it is unequivocally mentioned that

“contract is concluded by this acceptance and

formal acceptance of tender will follow

immediately on receipt of treasury receipt”. Thus,

once again, it has been stipulated as to at what

time a contract would stand concluded even

though it was later subject to deposit of the

security amount. It was in these circumstances

that the requirement of security deposit was

treated not as a condition precedent but as a

condition subsequent. We have to also appreciate

the nature of contract which was for immediate

requirement of the full quantity of coconut oil to

be supplied within 21 days. It was also explicitly

mentioned in the LoI itself that any failure to

deposit the stipulated amount would be treated as

a breach of contact. This is not the case here,

where the consequence was simply forfeiture of

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the bid security amount, and cancellation of the

“award” and not the “contract”.

24. If we compare the aforesaid scenario in the

present case, the period for execution of the

contract was one year. The respondent worked at

the site for a little over the month, facing certain

difficulties—it is immaterial whether the same

was of the own making of the respondent or

attributable to the appellants. No amount was

paid for the work done. The respondent failed to

comply with their obligations under the LoI. It is

not merely a case of the non-furnishing of

performance security deposit but even the

integrity pact was never signed, nor work order

issued on account of failure to execute the

contract. We are, thus, of the view that none of

the judgments cited by the learned counsel for the

appellants would come to their aid in the

contractual situation of the present case. The

judgments referred by the learned counsel for the

appellants, Jawahar Lal Burman case [Jawahar

Lal Burman v. Union of India, (1962) 3 SCR

769 : AIR 1962 SC 378] and Dresser Rand S.A.

case [Dresser Rand S.A. v. Bindal Agro Chem

Ltd., (2006) 1 SCC 751] , if one may say so are

not directly supporting either of the parties but

suffice to say that to determine the issue what has

to be seen are the relevant clauses of the NIT and

the LoI.

25. On having discussed the non-compliance by

the respondent of the terms of the LoI we turn to

the NIT. Clause 29.2 clearly stipulates that the

notification of award will constitute the formation

of the contract “subject only” to furnishing of the

performance security/security deposit. Thus, it

was clearly put as a precondition and that too to

be done within 28 days following notification of

the award. The failure of the successful bidder to

comply with the requirement “shall constitute

sufficient ground for cancellation of the award

work and forfeiture of the bid security” as per

Clause 30.2. If we analyse Clause 34 dealing

with the integrity pact the failure to submit the

same would make the tender bid “as not

substantially responsive and may be rejected”.

40. In Shrijee Sales Corporation v. Union of

India reported in (1997) 3 SCC 398, it was observed that once

public interest is accepted as the superior equity which can

override individual equity the principle would be applicable

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even in cases where a period has been indicated for operation of

the promise. If there is a supervening public equity, the

Government would be allowed to change its stand and has the

power to withdraw from representation made by it which

induced persons to take certain steps which may have gone

adverse to the interest of such persons on account of such

withdrawal. Moreover, the Government is competent to rescind

from the promise even if there is no manifest public interest

involved, provided no one is put in any adverse situation which

cannot be rectified. Similar view was expressed in Pawan

Alloys and Casting (P) Ltd. v. U.P.SEB [(1997) 7 SCC 251] and

in STO v. Shree Durga Oil Mills [(1998) 1 SCC 572] and it was

further held that the Government could change its industrial

policy if the situation so warranted and merely because the

resolution was announced for a particular period, it did not

mean that the Government could not amend and change the

policy under any circumstances. If the party claiming

application of the doctrine acted on the basis of a notification it

should have known that such notification was liable to be

amended or rescinded at any point of time, if the Government

felt that it was necessary to do so in public interest.

41. It is now well settled that a letter of intent

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merely indicates a party's intention to enter into a contract with

the other party in future. A letter of intent is not intended to bind

either party ultimately to enter into any contract. The Apex

Court, while considering the nature of a letter of intent,

observed thus in Rajasthan Co-operative Dairy Federation

Ltd. v. Maha Laxmi Mingrate Marketing Service (P) Ltd :

[(1996) 10 SCC 405]:

" The letter of intent merely

expressed an intention to enter into a contract.

There is no binding legal relationship between the

appellant and respondent 1 at this stage and the

appellant was entitled to look at the totality of

circumstances in deciding whether to enter into a

binding contract with Respondent 1 or not".

42. Lease is a contract. But in a lease, a lessor,

allows the other party, the lessee, use of the property for a

period of time in exchange for consideration usually a monthly

sum of money, and the original owner ultimately retains title to

the property.

43. In above view, it has to be also considered, as

to whether, the petitioner can duly be held responsible for any

delay in obtaining the Environmental Clearance and has violated

the terms of the LOI.

44. The legal right that can be enforced must

ordinarily be the right, who complains of infraction of such right

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and approaches the Court for relief as regards the same. A "legal

right", means an entitlement arising out of legal rules. Thus, it

may be defined as an advantage, or a benefit conferred upon a

person by the rule of law. The expression, "person aggrieved"

does not include a person who suffers from a psychological or

an imaginary injury;a person aggrieved must therefore,

necessarily be one, whose right or interest has been adversely

affected or jeopardized. In Laxminarayan R. Bhattad v. State

of Maharashtra, (2003) 5 SCC 413 the Apex Court held that

"the manner in which a statutory authority had understood the

application of a statute would not confer any legal right upon a

party unless the same finds favour with the Court of law dealing

with the matter.”

45. It is also well settled principle of law that apart

from the statutory duty it is incumbent upon every authority to

give reasonable opportunity of hearing to affected parties before

passing any order having civil consequences. The Apex Court in

the case of Chairman State Bank of India and Anr. v. M.J.

James reported in (2022) 2 SCC 201 in paragraph nos. 28 and

29 has held as under :-

“28. Traditional English law recognised and valued the

rule against bias that no man shall be a judge in his own

cause i.e. nemo debet esse judex in propria causa; and

the obligation to hear the other or both sides as no

person should be condemned unheard i.e. audi alteram

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partem. To these, new facets sometimes described as

subsidiary rules have developed, including a duty to give

reasons in support of the decision. Nevertheless, time and

again the courts have emphasised that the rules of

natural justice are flexible and their application depends

on facts of each case as well as the statutory provision, if

applicable, nature of right affected and the

consequences. In A.K. Kraipak v. Union of India [A.K.

Kraipak v. Union of India, (1969) 2 SCC 262] the

Constitution Bench, dwelling on the role of the principles

of natural justice under our Constitution, observed that

as every organ of the State is controlled and regulated by

the rule of law, there is a requirement to act justly and

fairly and not arbitrarily or capriciously. The procedures

which are considered inherent in the exercise of a quasi-

judicial or administrative power are those which

facilitate if not ensure a just and fair decision. What

particular rule of natural justice should apply to a given

case must depend to a great extent on the facts and

circumstances of that case, the framework of law under

which the enquiry is held and the constitution of the body

of persons or tribunal appointed for that purpose. When

a complaint is made that a principle of natural justice

has been contravened, the court must decide whether the

observance of that rule was necessary for a just decision

in the facts of the case.”

29. Legal position on the importance to

show prejudice to get relief is also required to be

stated. In State Bank of Patiala v. S.K. Sharma [State

Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364] a

Division Bench of this Court distinguished between

“adequate opportunity” and “no opportunity at all”

and held that the prejudice exception operates more

specifically in the latter case. This judgment also

speaks of procedural and substantive provisions of law

embodying the principles of natural justice which,

when infracted, must lead to prejudice being caused to

the litigant in order to afford him relief. The principle

was expressed in the following words : (SCC p. 389,

para 32)

“32. Now, coming back to the

illustration given by us in the preceding paragraph,

would setting aside the punishment and the entire

enquiry on the ground of aforesaid violation of sub-

clause (iii) be in the interests of justice or would it be

its negation? In our respectful opinion, it would be

the latter. Justice means justice between both the

parties. The interests of justice equally demand that

the guilty should be punished and that technicalities

and irregularities which do not occasion failure of

justice are not allowed to defeat the ends of justice.

Principles of natural justice are but the means to

achieve the ends of justice. They cannot be perverted

to achieve the very opposite end. That would be a

counterproductive exercise.

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46. In the above background, the question arises,

as to whether, the amount of security deposited could have been

forfeited when agreement was not entered and the subsequently

also the contract was not executed. As the security deposit is

made for ensuring satisfactory completion of contract and

default in that process shall entail forfeiture thereof, in other

words performance guarantee. Before addressing upon the

aforesaid question, it is considered apposite to refer to the

judgment of Hon. Supreme Court in the matter of Saurabh

Prakash Vs. DLF Universal Ltd. (2007) 1 SCC 228; wherein,

distinction has been drawn and explained between words earnest

money and security deposit in the context of contractual matter

and consequence flows therefrom. For ready reference para 42

& 43 of the aforesaid judgment is quoted hereinbelow:-

"42. The distinction between a security and an earnest

money has also been pointed out by this Court in Maula

Bux v. Union of India [(1969) 2 SCC 554] in the

following terms:

"4. Under the terms of the agreements the amounts

deposited by the plaintiff as security for due performance

of the contracts were to stand forfeited in case the

plaintiff neglected to perform his part of the contract. The

High Court observed that the deposits so made may be

regarded as earnest money. But that view cannot be

accepted. According to Earl Jowitt in Dictionary of

English Law at p. 689; "Giving an earnest or earnest-

money is a mode of signifying assent to a contract of sale

or the like, by giving to the vendor a nominal sum (e.g. a

shilling) as a token that the parties are in earnest or have

made up their minds". As observed by the Judicial

Committee in Kunwar Chiranjit Singh v. Har Swarup,

AIR 1926 PC 1,:

"Earnest money is part of the purchase price when the

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transaction goes forward; it is forfeited when the

transaction falls through, by reason of the fault or failure

of the vendee."

In the present case the deposit was made not of a sum of

money by the purchaser to be applied towards part

payment of the price when the contract was completed

and till then as evidencing an intention on the part of the

purchaser to buy property or goods. Here the plaintiff

had deposited the amounts claimed as security for

guaranteeing due performance of the contracts. Such

deposits cannot be regarded as earnest money."

43. Referring to Section 74 of the Indian Contract Act, it

was observed:

"There is authority, no doubt coloured by the view which

was taken in English cases, that Section 74 of the

Contract Act has no application to cases of deposit for

due performance of a contract which is stipulated to be

forfeited for breach, Natesa Aiyar v. Appayu Padayachi;

Singer Manufacturing Company v. Raja Prosad; Manian

Pattar v. Madras Railway Company. But this view is no

longer good law in view of the judgment of this Court in

Fateh Chand case. This Court observed at p. 526:

"'Section 74 of the Indian Contract Act deals with the

measure of damages in two classes of cases: (i) where the

contract names a sum to be paid in case of breach, and

(ii) where the contract contains any other stipulation by

way of penalty,' 'The measure of damages in the case of

breach of a stipulation by way of penalty is by Section

74

,

reasonable compensation not exceeding the penalty

stipulated for.' "

The Court also observed:

"It was urged that the section deals in terms with the

right to receive from the party who has broken the

contract reasonable compensation and not the right to

forfeit what has already been received by the party

aggrieved. There is however no warrant for the

assumption made by some of the High Courts in India,

that Section 74, applies only to cases where the aggrieved

party is seeking to receive some amount on breach of

contract and not to cases whereupon breach of contract

an amount received under the contract is sought to be

forfeited. In our judgment the expression "the contract

contains any other stipulation by way of penalty"

comprehensively applies to every covenant involving a

penalty whether it is for payment on breach of contract of

money or delivery of property in future, or for forfeiture

of right to money or other property already delivered.

Duty not to enforce the penalty clause but only to award

reasonable compensation is statutorily imposed upon

courts by Section 74. In all cases, therefore, where there

is a stipulation in the nature of penalty for forfeiture of an

amount deposited pursuant to the terms of contract which

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expressly provides for forfeiture, the court has

jurisdiction to award such sum only as it considers

reasonable, but not exceeding the amount specified in the

contract as liable to forfeiture, and that, "There is no

ground for holding that the expression 'contract contains

any other stipulation by way of penalty' is limited to

cases of stipulation in the nature of an agreement to pay

money or deliver property on breach and does not

comprehend covenants under which amounts paid or

property delivered under the contract, which by the terms

of the contract expressly or by clear implication are

liable to be forfeited."

47. In the present case, the contract for mining

lease did not come into existence. The earnest money was

deposited and the security amount was also deposited for

guaranteeing due performance of contract. Section 74 of the

Indian Contract Act deals with the measure of damages in two

classes of cases:

(i) where the contract names a sum to be paid in

case of breach, and (ii) where the contract contains any other

stipulation by way of penalty than reasonable compensation not

exceeding the penalty stipulated for is statutorily imposed.

48. Firstly, considering the fact that the

petitioner having furnished all the documents merely on the

ground of delay caused, which cannot be said to have happened

solely on the part of the petitioner in obtaining certificates from

different departments and Ministry, interference is called

considering the fact that mining lease did not come into

existence due to non submission of Environmental Clearance in

absence of DSR giving details of Geo-coordinate in respect of

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the Block No. 27 allocated in favour of the petitioner albeit with

much delay.

49. So far as, the delay in execution of lease

deed is concerned, the same could not be executed due to non

furnishing of Environmental Clearance, which admittedly could

not be issued because the DSR of year 2016 did not contain the

details of Geo-Coordinates in respect of the mining Block No.

27 and it can not be considered to be fault of the petitioner

alone. Admission in this regard by the Special P.P. Mines also

support the reason of delay due to defective DSR in respect of

the petitioner wanting details of Longitude and Latitude. I am of

the considered opinion that the lease deed could not be executed

due to the lapses on the part of the both the parties. I find that

the order dated 23.01.2023 passed by the District Magistrate and

the order dated 14.07.2023 passed by the Mines Commissioner

are required to be interfered by this Court.

50. Secondly, it is known that the entire globe

faced COVID-19 pandemic because of Force Majeure from

2020 till the date the Standard Operation Procedure (SOP) being

relaxed in view of the judgment dated 10.11.2021 passed by the

Apex Court.

51. In above view of the facts and

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circumstances, settled principle of law and discussions made

hereinabove, I am of the opinion that the contract for mining

lease did not come into existence and the security deposit in the

tune of Rs. 2,90,00,000/- could not be forfeited when the

transaction fell through for no fault on part of the petitioner, as

such, the order dated 23.01.2023, passed by the District

Magistrate, Sheikhpura as contained in Memo No. 73 and order

dated 14.07.2023 and consequential order of the Mines

Commissioner, Department of Mines & Geology, Government

of Bihar, Patna, upholding the order of District Magistrate,

Sheikhpura dated 23.01.2023, whereby In Principal

approval/settlement has been annulled and security deposit of

Rs.2,90,00,000/- has been forfeited, cannot be sustained are

hereby set aside and quashed.

52. I direct the competent authority-cum-District

Magistrate to finalize the DSR and, thereafter, extend the time

and issue work order followed by final settlement of the contract

of lease within a period of six weeks from the date of passing of

this order.

53. It must be taken note of the fact that already

more than six years have lapsed and no third party right has

been created, therefore, the Competent Authority-cum-the

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District Magistrate and the Additional Chief Secretary,

considering that proposal has been submitted by the Proponent

of Project (PP) before the SEIAA and considering the said

proposal in detail as would appear from Letter dated 9

th

July,

2020 for considering of ‘Term of Reference’ (TOR),

hereinabove petitioner having satisfied, the Competent

Authority is required to take decision for issuing modified

D.S.R. giving the Geo-coordinate expeditiously without further

delay. The authorities concern must abide by the direction

contained in paragraphs no. 16, 16.1, 16.2 and 16.3 in Pawan

Kumar (Supra) to submit the modified DSR Report

expeditiously to the SEIAA, for taking appropriate action as

required, so that Environmental Clearance Certificate can be

issued for starting the mining activity after having complied

with all the requisite formalities within a period of six weeks.

54. The SEIAA too should not delay in taking

decision to issue Environmental Clearance Certificate forthwith.

55. In any case, the above exercise is required to

be carried out by the petitioner and respective respondents well

within a period of eight weeks from the date of communication

of this order.

56. Accordingly, the present writ petition is

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disposed of.

57. There shall be no order as to costs.

Niraj/-

(Purnendu Singh, J)

AFR/NAFR A.F.R.

CAV DATE 20.03.2024

Uploading Date 02/05/2024

Transmission Date N/A