IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5060 of 2010 Krishna Murari Prasad S/O Late Biswnath Prasad Resident Of 29 Mohan Nagar Koili Pokhar Gebal Bigha, P.S - Rampur, District - Gaya. Versus 1. The State Of Bihar Through The Chief Secretary Bihar, Patna 2. The District Magistrate, Gaya 3. The Assistant Director Mines And Minerals ,Gaya 4. The District Mines Officer, Gaya --------------------- 08/ 22.12.2011 Mr. Vindhyachal Singh for the petitioner and Mr. V.M.K. Sinha, learned Special P.P., Mines for the respondent nos. 2 to 4 and Mr. Tipu Uddin Khan, Assisting counsel to G.A. 4 for the State are present. The writ petition has been filed seeking, inter alia, a direction to the respondents to complete the process for settlement of the quarrying lease in respect of the stone block present beneath the raiyati land of the petitioner bearing plot no. 162 (old)/560 (new), thana no. 484, mauza Paharpur, P.S. Amas, Sherghati in the District of Gaya. With the consent of the parties the matter has been taken up for disposal at the stage of admission. The brief facts of the matter essential for disposal of the case is that the petitioner is an unemployed engineering graduate engaged in the business of stone quarrying since 1973. It is the case of the petitioner that he has been winning lease for the stone block pertaining to plot no. 162 (old)/ 560(new), measuring 3.41 acres in mauza Paharpur, Sherghati in the District of Gaya since 1978 with the consent of the then raiyat. The petitioner purchased the said 2 stone block in the name of his mother, namely, Lalita Devi and after her death got the land mutated in the name of his wife Smt. Renu Gupta. It is the case of the petitioner that considering the surface right of the petitioner over the land in question the stone quarrying/settlement in the said stone block was being made in favour of the petitioner from 1978 until 2008. Learned counsel in support of his contention has referred to a mining lease deed dated 1.9.1990 placed at Annexure-3 of the writ petition, whereby the mining rights had been settled in favour of the petitioner in relation to the said plot described at part-1 of the lease deed for a period of 10 years with effect from 1.9.1990. Upon expiry of the said period, a fresh indenture was executed in between the State and the wife of the petitioner Smt. Renu Gupta awarding mining right for stone quarrying in relation to the same stone block for a period of five years beginning the year 2003. The said indenture is placed at Annexure-5/A to the writ proceedings. On or about the expiry of the aforesaid settlement period, an advertisement was issued by the District Magistrate, Gaya on 01.12.2008 placed at Annexure-6, inviting applications for settlement of stone block. The different stone blocks have been set out in the advertisement itself and the plot owned by the petitioner bearing plot no. 162(old) / 560(new) finds place at item no. 45. The reserve jama for the plot was fixed at Rs. 10,50,000/- and the security amount being 10 per cent thereof. Condition no. 16 of the advertisement provided for obtaining consent of the raiyat in case of settlement of a raiyati land. The petitioner applied in response to the advertisement after obtaining no objection 3 from the concerned authorities including the Pollution Board etc. To the utter surprise of the petitioner whereas the respondents proceeded to make settlement in relation to the other stone blocks mentioned in the advertisement, the application filed by the petitioner in response to the plot at serial no. 45 being his raiyati land, was put on a hold. It is a matter of record that the petitioner had been obtaining mining lease in respect of the stone block underneath his raiyati land without being subjected to a public auction. However, on this occasion certain objections were raised insofar as the settlement in respect of the plot of the petitioner was concerned as is manifest from the file notings placed at Annexure-7 of the writ petition and which was obtained by the petitioner by invoking the Right to Information Act, 2005. A proposal was made for settlement of the plot in favour of the petitioner by requiring him to pay a settlement amount of 25 per cent excess of the reserve jama. The District Magistrate, Gaya considering the said proposal by his noting dated 1.8.2009 as can be found at page 50 of the writ petition desired for information as to whether there existed any departmental instruction in connection with settlement on raiyati land and whether any clarification was issued in relation thereto. As the matter rested at that stage and did not proceed, hence the present writ petition. It is the case of the petitioner that the respondents having advertised the plot and having considered the application filed by the petitioner and having acted thereupon, could not leave it half way without taking the same to its logical conclusion. It is contended that the advertisement itself envisaged obtaining a consent of the raiyat in 4 relation to settlement of his raiyati land. It is stated that the respondents having appreciated the claim of the petitioner on his raiyati land, had been awarding the mining rights in his favour since 1978 and that there was no occasion to deviate from the same in absence of any change in circumstances. A counter affidavit has been filed on behalf of the respondents enclosing a notification dated 4.2.2010 published in the District Gazette Extraordinary on 26.2.2010 containing the Bihar Minor Mineral Concession Amendment Rules, 2010. By the said Amendment, Rule 53 has been incorporated in the Bihar Minor Mineral Concession Rules, 1972, prohibiting grant of any mining lease for stones including renewal of mining lease, except where the State Government is satisfied that the quarrying or mining of stone would not adversely effect the ecology and environment and that there is a requirement of stone for public use. The respondents in the backdrop of the aforesaid amendment have raised objections as to the claim set forth by the petitioner submitting that the petitioner merely on grounds of being the raiyat of the land in question cannot claim any preferential rights. The respondents in view of the amendment introduced putting a ban on grant of any fresh lease for mining of stones, have contested the claim of the petitioner and have submitted that the opinion of the District Magistrate dated 1.8.2009 is not arbitrary. Learned counsel for the petitioner, with reference to Rule 1(3) of the Amendment Rules, submits that the legislative intent of the Rule is to have a prospective effect and that it does not cover past 5 transactions. Learned counsel submits that the respondents themselves appreciating the position that the Rules were prospective in nature, had proceeded to make settlement of the mining lease in relation to 55 applicants whose names appear in the settlement list appended at Annexure-9 of the rejoinder and placed at serial no. 1 to 54 and 85 thereof. He submits that a perusal of the said settlement shows that the respondents have made settlement as late as 30.9.2009. It is thus contended that the respondents cannot be allowed to approbate and reprobate or create a sub-class within the class of applicants and apply the amended rules restrictively to the case of the petitioner only. Learned counsel submits that the stand of the respondents in applying the amended rules exclusively in the case of the petitioner is patently discriminatory and thus violative of Article 14 of the Constitution of India. It is submitted that the very presence of the condition no. 16 in that notice inviting tender placed at Annexure-6 manifests that the raiyati land had to be treated distinctly. Learned counsel in the aforesaid circumstances, submits that the action of the respondent authorities in not completing the settlement and keeping the application of the petitioner on a hold has acted not only arbitrarily but has acted adverse to the revenue interest of the State. Mr. V.M.K. Sinha, contesting and opposing the contention advanced on behalf of the petitioner, submits that Rule 9A of the Rules in no uncertain terms prescribes for settlement of mining lease by auction or tender system. He thus submits that the petitioner cannot claim any preferential right in the matter of settlement of stone 6 quarrying lease and has to contest the claim through the normal channel of auction. It is submitted that any error committed by the department on earlier occasion by making settlement in favour of the petitioner without public auction, can always be corrected. It is submitted that in view of the amendment to the rules by incorporation of Rule 53, there is no question of any settlement of stone quarrying in favour of the petitioner. Learned counsel submits that Rule 9A of the Rules has an over riding effect and mandates settlement of mineral lease by public auction/tender in the manner prescribed under Rule 52. While referring to Rule 52(6), learned counsel submits that the petitioner does not fall within any of the preferential category. It is contended that as the petitioner had not given his consent for public auction of the mining rights of his land, the auction could not take place and in absence of public auction the petitioner cannot make any claim for settlement. I have heard learned counsel for the parties and have perused the materials on record. The facts are not in dispute. It is not contested that the petitioner had been winning mineral rights over his plot for the past two decades if not more. Even in the present context the correspondence within the department as present in the file notings placed at Annexure-7 to the writ petition does manifests that even the department was thinking in these terms when it recommended for settlement of the plot in question in favour of the petitioner upon payment of 25 per cent excess of the reserve jama, in response to the query made by the District Magistrate, Gaya. The different file notings shows that there are no guidelines on the issue of 7 settlement of raiyati lands except that in such matters the consent of the raiyat would be required. A supplementary counter affidavit has been filed today during the course of the proceedings enclosing a letter dated 17.10.2006 of the Mines Commissioner-cum-Secretary addressed to the District Magistrate restraining settlement of mining lease in the Buddhist Circuit consisting of the districts of Gaya, Nawada, Nalanda and Jehanabad. Insofar as the claim of the petitioner is being contested in the backdrop of the Amendment to the Rules by incorporation of Rule 53, the contention of the respondents is misconceived for more than one reasons. The foremost reason on which said objection is unsustainable is that the Rule is prospective in effect and operation. It does not take within its sweep, the settlement process already undertaken although it puts a ban on renewal. It is not the case of the respondents that in view of the said amended Rule they had put an end to the settlement process initiated pursuant to the advertisement placed at Annexure-6. On the contrary they have proceeded with the settlement and issued order of settlement placed on record by way of Annexure-9. Thus any attempt by the respondents to apply the said amended Rule, to deny the claim of the petitioner as raised in the present proceedings, would be arbitrary and as well as discriminatory. Even otherwise the amended Rule does not put a complete ban on mining of stones rather reserves a discretion in favour of the Government to be exercised in public interest and cases where the mining does not effect the ecology and environment. Thus in either of 8 the situations the respondents cannot take refuge to the amendment for denying the claim of the petitioner. Although a reference to Rule 9A has been made to submit that all settlement of stone block is to be made by public auction/tender but at no stage have the respondents mentioned as to whether any application had been received in response to the plot of the petitioner. In absence of any application other than the application of the petitioner there appears no cause for holding any public auction and the respondents can well proceed to settle the mining lease for the plot in question in favour of the petitioner in terms of the past practice and in the light of recommendations placed at Annexure-7 suggesting settlement at a price 25 % higher than the reserve jama. A process of settlement initiated cannot be aborted half way and has to be completed. The application of the petitioner for settlement of mining right over the plot mentioned at serial no. 45 of the advertisement has to be either accepted or rejected. The respondents cannot frustrate the process by sitting over the same. Considering the circumstances aforesaid, the writ petition is disposed of with a direction to the respondent no. 2, the District Magistrate, Gaya to complete the selection process in respect of the stone block situated under plot no. 162(old) / 560(new) at mauja Paharpur, Sherghati, District Gaya as advertised and listed at item no. 45 of the advertisement placed at Annexure-6 to the writ petition either by way of public auction or by way of settlement with the petitioner in terms of the recommendation, in case there are no other applicants in respect of the said plot but in either case the District 9 Magistrate, Gaya would be under an obligation to decide the settlement one way or the other within a period of three months from the date of receipt/production of a copy of this order. As the very application of the petitioner seeking settlement in response to the public advertisement is an implied consent for settlement of the stone block beneath his plot no. 162(old) / 560(new) listed at serial no. 45 of the advertisement placed at Annexure-6, in case of more than one applications received for the said stone block apart from the petitioner, the respondents would be at liberty to hold auction from amongst the applicants who have filed their application in response to the said plot pursuant to the advertisement as contained in Annexure-6 and further provide opportunity to the petitioner to obtain the mining lease by offering the auction settlement amount. Upon failure of the petitioner to obtain the mining lease, the respondent-department would be at liberty to settle the same with the highest bidder but not before making appropriate provisions for compensating the petitioner for the damage to his surface rights. S.Sb/- (Jyoti Saran, J.)