IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16714 of 2009 1. ABHAY KUMAR S/O SHRI BASUDEO PRASAD R/O DAULAT CHAK, P.S. GIRIYAK, DISTT.- NALANDA Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM-SECRETARY, DEPTT. OF MINES AND GEOLOGY, BIHAR, PATNA 2. THE COMMISSIONER CUM SECRETARY, DEPTT. OF MINES AND GEOLOGY, BIHAR, PATNA 3. THE COLLECTOR, NALANDA 4. THE ASSISTANT DIRECTOR, DEPTT. OF MINES AND GEOLOGY, BIHAR, PATNA 5. THE ASSISTANT MINING OFFICER, NALANDA, BIHARSHARIF ----------- For the Petitioner: Mr. Satyabir Bharti, Advocate For the State : Mr. V.M.K. Sinha (Spl. P.P. Mines) ------ 2. 10.12.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner is aggrieved by the order dated 24.9.2008 of the Principal Secretary, Department of Mines and Geology, directing grant of refund of the of the excess settlement amount in between 1.1.2007 to 21.2.2007 with regard to Unit I and II of the settlement but declining refund for the period after 21.2.2007 till 21.6.2007 and 20.7.2007 respectively for the two units. It is not in dispute that the petitioner was a settlee for lifting of sand with regard to the two units at Nalanda for the period 1.1.2006 to 31.12.2006. This settlement was made on basis of a calendar year of 365 days and the average deposit to be made by the petitioner based on the reserved bid amount was fixed at Rs. 53,343/- which the petitioner deposited and continued with the mining. After his earlier bid settlement ran out and the respondents did not receive any appreciable and favourable response to their new advertisement inviting fresh bids from 1.1.2007 they decided to grant ad hoc settlement to him by order 2 dated 30.12.2006. It states that the settlement for 2007 was likely to take some time. Therefore on basis of the reserved bid fixed for settlement in 2007 the settlement was being made on pro-rate basis with the petitioner and he was also required to deposit any arrears of 2006 also. Counsel for the petitioner submits that according to the reserved bid amount for the year 2007 on a prorate basis the settlement for 365 days work out to Rs. 53,353/- which the petitioner deposited and was accepted by the respondents for the duration 1.1.2007 to 21.2.2007. Once the ad hoc settlement was made on specific terms and conditions it shall regulate the entire period of the ad hoc settlement and no unilateral change can be made to the same by any instruction issued during the intervening period that the duration of the settlement shall be of 300 days due to no operation being possible on account of the rainy season. Counsel for the State points out that the petitioner on 21.2.2007 has deposited the excess amount assessed at 300 days also and therefore it does not lie with him to challenge the same after compliance. If ad hoc settlement with the petitioner was on a specified reserved bid amount advertised in 2007, which on prorate basis was for 365 days works out to 53,343/- per day it shall regulate the entire period of the ad hoc settlement. Once the settlement had started to operate the respondents cannot unilaterally alter the conditions fixed by them in the letter dated 30.12.2006. The deposit made by the petitioner on 21.2.2007 explicitly objects to the excess demand made and states that it 3 was being deposited under protest. Obviously, the petitioner was faced with no win situation. If he did not deposit excess amount his settlement would have been cancelled forth with. If he deposited it under protest he had the liberty to continue with the extraction of the sand and yet retain the right to challenge the illegality of the respondents. This Court is therefore satisfied that there could be no unilateral alteration of the conditions of the ad hoc settlement dated 30.12.2006 by the respondents to the prejudice of the petitioner. The impugned order dated 24.9.2008 is not sustainable and is set aside. The Court holds that the petitioner is liable to make deposit on daily prorata basis of Rs. 53,353/- on 365 calendar days in accordance with the reserved bid amount fixed for the year 2007. Any excess amount deposited by him is directed to be returned forth with. It may be noticed that the reserved Zama for the year 2007 and that prorate payment on that basis was calculated at Rs. 53343/- based on 365 days of calendar year stands beyond the pale of any controversy in view of the respondents themselves having acted upon that basis for the period prior to 21.2.2007. Any excess payment made by the petitioner is directed to be refunded forth with preferably within a maximum period of two months from the date of receipt and/or presentation of a copy of this order. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)