Allowed

Ms Sparkle World Pvt. Ltd. Represented through Its Director Namely Anil Kumar v. the State of Jharkhand

Jharkhand HC5 Sept 2023WPC/1247/2022

Case brief

AI extract

What is this about?

The High Court allowed the petitioner's writ petition, setting aside the State's order cancelling its mining lease. The Court held that the State cannot penalize the petitioner for delay in obtaining environmental clearance caused by State instrumentalities, found a violation of natural justice due to lack of notice, and noted the executive order lacked power to nullify a quasi-judicial decision.

What did the court decide?

The impugned order cancelling the lease was set aside; the petitioner was directed to operate the mines for the remaining lease period subject to adjustment.

Ms Sparkle World Pvt. Ltd. Represented through… — Environment and Pollution | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 1247 of 2022

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M/s Sparkle World Pvt Ltd having registered office beside Tata Motor Showroom at Bank More Road, Shastri Nagar, P.O. & P.S Bank More, District Dhanbad represented through its Director namely Anil Kumar, Son of Late Sakal Dev Prasad, Resident of West Shasti Nagar, P.O & P.S. Bank More, District Dhanbad

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… Petitioner

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Versus

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The State of Jharkhand

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Mines and Technology Department, Govt. of Jharkhand through its Secretary having office at Nepal House, P.O. & P.S. Doranda, District- Ranchi

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Director , Mines, Directorate of Mines, Mines and Technology Department, Govt of Jharkhand having office at Nepal Office, P.O. & P.S. Dhanbad, District-Dhanbad

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Deputy Commissioner, Dhanbad, P.O. & P.S. Dhanbad, District-Dhanbad

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District Mining Officer, Dhanbad, P.O. & P.S. Dhanbad, District-Dhanbad

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… Respondents

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CORAM : SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J.

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For the Petitioner: Mr. Atanu Banerjee, Advocate Mr. Satish Kumar, Advocate Mr. Zaid Ahmed

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Ms. Piyushita Meha Tudu

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For the Respondents : Mr. Sachin Kumar, AAG II

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07/ 05.09.2023 Upon hearing the learned counsel for the parties, this Court passed the following (Per Ananda Sen, J.):-

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O R D E R

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1. Petitioner in this writ petition has prayed for setting aside the order contained in letter No.1050/M dated 30.03.2022, issued by the District Mining Officer, Dhanbad, whereby the settlement of Sand Ghat in favour of the petitioner has been cancelled. Petitioner has further prayed to quash the order as contained in letter no 487 dated 07.03.2022 issued by the Director of Mines, Govt of Jharkhand, whereby direction for cancellation of allotment of Sand Ghat has been made. Petitioner has also prayed for consequential reliefs.

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-: 2 :-

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2. An auction was conducted by the respondents-State for allotment of different Sand Ghats. One of the Sand Ghats situated at Plot No 2365 (P), 2366 of Mauja Pandua and Plot No. 1(P) of Mauja Baijra over an area of 9.70 Acres Mohildih Panchayat, Barakar River Under Circle Purbi Tundi, District Dhanbad was also auctioned and the petitioner was declared as the successful bidder. Letter of intent provided that the petitioner was required to get the mining plan approved and also get the environmental clearance. Petitioner applied for grant of environmental clearance. As per the petitioner, respondents acknowledged that the process of obtaining environmental clearance is cumbersome and it consumes lot of time, as such the lease period of three years would be reckoned from the date of agreement. Petitioner took steps to obtain environmental clearance and for approval of mining plan. Though the mining plan was approved on 19.01.2016, the State Level Environmental Impact Assessment Authority issued environmental clearance, after three years, i.e., vide order dated 10^th May, 2018. The petitioner applied for execution of the lease/ agreement, but the same was not executed on the ground that environmental clearance was not obtained within 180 days. Admittedly, as the petitioner could obtain the environmental clearance after 180 days, the letter of intent was cancelled. As there was no fault on the part of the petitioner in obtaining environmental clearance and it is because of the respondents that the environmental clearance was granted after 180 days, the petitioner filed a revision application under Rule 62 of the Jharkhand Minor Mineral Concession Rules, 2004 before the Mines Commissioner. The Mines Commissioner, vide an order dated 16.09.2019 in Revision Case No 72/2018 held that the petitioner was not responsible for the delay in submitting the environmental clearance, hence, delay cannot be attributed to the petitioner. The order by which the letter of intent was cancelled, was set aside and the matter was remanded to the Deputy Commissioner, Dhanbad to pass a fresh order after giving opportunity of hearing to the petitioner. Ultimately, on 13^th February, 2020, after the order was passed by the Mines Commissioner, the respondent State executed an agreement, wherein the Sand Ghat was allotted to the petitioner for a period of three years from the date of agreement, i.e., 13^th February, 2020 to 12^th February, 2023. The petitioner obtained environmental clearance from the Pollution Control Board including consent to establish and consent to operate.

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-: 3 :-

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The petitioner started operating the Sand Ghat by excavating sand. Further vide letter No.1050/M dated 30.03.2022, the District Mining Officer, Dhanbad by giving reference of letter dated 07.03.2022 of Director of Mines, cancelled the allotment of the said Sand Ghat, which was allotted in favour of the petitioner, with effect from 30.03.2022 and directed the petitioner to hand over the Ghat in favour of the respondents. The aforesaid order is under challenge in this petition, with additional prayers. 3. Learned counsel appearing for the petitioner submitted that the cancellation of the letter of intent issued to the petitioner, after execution of the agreement, is absolutely bad. He submitted that the time consumed in obtaining environmental clearance is admittedly beyond 180 days but the same admittedly is not attributable to the petitioner, thus, the petitioner could not have been penalized for such delay. He submits that the order of the Mines Commissioner passed in the Revision Application also suggests that the petitioner was not at fault, thus, the Mines Commissioner allowed the Revision Application, in which the earlier cancellation order of letter of intent was challenged. Once the Mines Commissioner had set aside the order and an agreement was entered into by the parties, the respondents could not have passed the impugned order cancelling the lease as the same amounts to overriding the revisional order passed by a quasi judicial authority. When the order of quasi judicial authority passed in the Revision Application was not challenged by any of the parties to the litigation, the said order could not have been nullified in the manner, which has been done in the instant case. He also submits that before passing the impugned order, no opportunity of hearing was given to the petitioner, thus the respondents have violated the principles of natural justice. On this background, he submits that the impugned order be set aside. He further prays that the period which the petitioner could not operate because of this illegal order, should be considered and petitioner’s lease be extended to the extent of that period. In support of his contention he relies upon the judgment of the Hon’ble Supreme Court of India in the case of Beg Raj Singh versus State of U.P. and Others reported in (2003) 1 SCC 726 . 4. The respondents have filed their counter affidavit and the counsel for the State, by referring to the counter affidavit, argued that the letter of intent was issued to the petitioner as the Sand Ghat was leased out to the petitioner for a period of three years vide agreement dated 13.02.2020. As per

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Jharkhand Minor Mineral Concession Rules, 2004, as amended by Notification dated 22.02.2017, in terms of Rule 9(1)(M-), environmental clearance had to be obtained and submitted within 180 days, failing which letter of intent would stand cancelled. As admittedly, petitioner could not submit environmental clearance within 180 days, letter of intent was cancelled. The petitioner had approached the Mines Commissioner by filing a Revision, wherein the delay was condoned, but there was no provision to condone the delay. As there was no provision to condone the delay, illegality has been committed by the Mines Commissioner. This fact was mentioned in letter No.487 dated 07.03.2022 issued by the Director of Mines. Since condoning of delay was illegal and as the agreement was entered after condonation of such delay, it was decided to cancel the letter of intent and the lease of the petitioner. He submits that it is admitted case of the petitioner that environmental clearance certificate was obtained and filed beyond 180 days, and as per Rule 9(1)(M-) of Jharkhand Minor Mineral Concession Rules, delay could not have been condoned. Thus, there is no illegality in the impugned order. 5. After hearing the parties, we find that the petitioner was allotted the Sand Ghat. The respondents-State acknowledged the fact that lot of time is being consumed to obtain environmental clearance certificate, thus, the settlement of Sand Ghat would be for a period of three years and the date would be reckoned from the date of execution of the agreement.. This clearly suggests that the Government also acknowledges that it takes a lot of time to get Environmental Clearance Certificate. In this case, the petitioner had applied for Environmental Clearance Certificate before the State Environmental Impact Assessment Authority on 16.10.2017, but the same was not processed due to stay imposed by the National Green Tribunal. Even after revocation of stay, the matter was kept pending for want of District Surveyor’s Report, for almost a year. Ultimately, on 10.05.2018, the Environmental Clearance was obtained. The petitioner applied before the respondents to accept the Environmental Clearance and grant permission for registration of the Sand Ghat, but the same was rejected on 01.08.2018 on the ground that Rule 9(1)(M-) of the Jharkhand Minor Mineral Concession Rules provides for cancellation of the letter of intent if the Environmental Clearance Certificate is not submitted within 180 days from the date of issuance of letter of intent. As the situation was beyond control of the petitioner, petitioner filed a Revision

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-: 5 :-

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Application before the Mines Commissioner. In the Revision Application, the Revisional Authority, which is a quasi judicial authority, has clearly held that the delay in obtaining environmental clearance cannot be attributed to the petitioner. Further the authority found that no show cause notice was issued to the petitioner while passing the impugned order cancelling the letter of intent, thus, remanded the matter back to the Deputy Commissioner, Dhanbad to pass an appropriate order afresh after giving opportunity of hearing to the petitioner.

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6. Admittedly, after the said order was passed, an agreement was entered into between the petitioner and the respondent and the petitioner started working the Sand Ghat. This agreement is dated 13^th February, 2020 and is for a period of three years till 12^th February, 2023.

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7. Suddenly, by the impugned order as contained in letter No.1050/M dated 30.03.2022, the lease of the petitioner was terminated. The only ground taken by the respondents is non-availability of provision for condoning the delay.

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8. Admittedly, while passing the impugned order, no notice was given to the petitioner and the principles of natural justice was not complied with. It is a well settled proposition of law that any order, which has civil consequences, must be passed only after compliance of natural justice. The Hon’ble Supreme Court in the case of SBI versus Rajesh Agarwal reported in (2023) 6 SCC 1, at paragraph 46 thereof has held as under: -

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46. There is a consistent pattern of judicial thought that civil consequences entail infractions not merely of property or personal rights, but also of civil liberties, material deprivations, and non-pecuniary damages. Every order or proceeding which involves civil consequences or adversely affects a citizen should be in accordance with the principles of natural justice.

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9. In the instant case, admittedly, the same was not followed. On this ground, the impugned notice cancelling the letter of intent of the petitioner is liable to be set aside.

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10. Further, we find that the order passed by the Mines Commissioner in Revision Application holding that the delay was not attributable to the petitioner, was not at all challenged before any higher forum, rather the respondents accepted the same and have acted upon the same and executed the lease deed / agreement in favour of the petitioner and the petitioner also

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started working the lease area. Suddenly, the respondents passed the impugned order dated 30.03.2022, which has not only nullified the agreement, but also nullified the order passed by a quasi judicial authority. An order passed by the quasi judicial authority could not have been nullified by merely issuing a letter. If an order of a quasi judicial authority needs to be set aside, the same should be done by a higher forum having appropriate power vested under law. In the instant case, we find that the order cancelling the lease was passed by the authority, who was not even vested with any power by law to pass such order annulling the quasi judicial order passed by the Mines Commissioner.

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11. Rule 9(1)(M-) of Jharkhand Minor Mineral Concession Rules provides that within 180 days from the issuance of notification, the Environmental Clearance has to be mandatorily produced and if the same is not produced, the letter of intent / application would be deemed to have been rejected.

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12. Rule 62 of the Jharkhand Minor Mineral Concession Rules is the provision for revision, which provides that revisional authority has a power to revise an adverse order passed against any person. The order of deemed rejection is also an adverse order, which was revised by the Revisional Authority. The parties admit that the Revisional Authority has a power to revise the order whereby in terms of Rule 9(1)(M-) of the Jharkhand Minor Mineral Concession Rules, the application of the petitioner was deemed to have been rejected. The Revisional Authority, taking into consideration that the delay was not attributable to the petitioner, had set aside the order of deemed rejection. The fact that the delay was not attributable to the petitioner was also not opposed by the State even in this writ petition also. The delay was at the instance of the instrumentalities of the State. In this case, on one hand the State has caused the delay and on the other hand the State has penalized the petitioner citing the same “delay” as the ground for cancelling the lease / letter of intent.

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13. When there is a delay on the part of the instrumentalities of the State, then the benefit of such delay cannot be taken by the State to the detriment of the petitioner. We may refer to a maxim here “nullus commodum capere protest de injuria sua propria” , which means that no man can take advantage of his own wrong. The Hon’ble Supreme Court in the case of State

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of Bihar & Others versus Kalyanpur Cement Limited reported in (2010) 3 SCC 274 was considering matter relating to grant of sales tax exemption where there was delay on the part of the State Government in issuing the same. At paragraph 85 of the said judgment, the Hon’ble Supreme Court has observed as under: -

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85. Even if we are to accept the submissions of Dr. Dhawan and Mr. Dwivedi that the provisions contained in Clause 24 were mandatory, the time of one month for issuing the notification could only have been extended for a reasonable period. It is inconceivable that it could have taken the Government three years to issue the follow-up notification. We are of the considered opinion that failure of the appellants to issue the necessary notification within a reasonable period of the enforcement of the Industrial Policy, 1995 has rendered the decisions dated 6-1-2001 and 5-3-2001 wholly arbitrary. The appellant cannot be permitted to rely on its own lapses in implementing its Policy to defeat the just and valid claim of the Company. For the same reason we are unable to accept the submissions of the learned Senior Counsel for the appellant that no relief can be granted to the Company as the Policy has lapsed on 318-2000. Accepting such a submission would be to put a premium and accord a justification to the wholly arbitrary action of the appellant, in not issuing the notification in accordance with the provisions contained in Clause 24 of the Industrial Policy, 1995.

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Further, the Hon’ble Supreme Court in the case of State of Gujarat and Others versus Talsibhai Dhanjibhai Patel reported in 2022 SCC OnLine SC 2004, though on different facts, has observed that the State cannot be permitted to take benefit of its own wrong.

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14. Considering the facts of this case in the light of the above principle, when there are laches on the part of the instrumentalities of the State and for that, any delay has been caused, the State cannot come with a plea that since Environmental Clearance was filed beyond the statutory period of 180 days, the agreement executed by the petitioner would stand cancelled as there is no scope of condoning the delay. This would amount to, taking advantage of ones own wrong, which is impermissible and illegal.

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15. Further, we find that a notification was issued by the State of Jharkhand contained in Memo No.1226 dated 28.09.2020, though after the revisional order passed in this case, wherein Rule 9(1)(M-) of the Minor Mineral Concession Rules was amended and a proviso was added. As per the said proviso, in case where due to delay in granting Environmental Clearance beyond 180 days, which is not attributable to a lessee, and the lease

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agreement was not approved, in those cases the Revisional Authority was given power to decide the matter on merits. This amendment clearly suggests that the respondents are also aware that delay is caused in obtaining Environmental Clearance in many of the cases, which is not attributable to the lessees, thus, granted relief to the lessees. This clearly suggests that the period of 180 days was not mandatory, and the Revisional Authority has power to pass proper order in these cases.

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16. The fact remains that it was not the petitioner for whose laches, the delay was caused, rather, it is the respondents who caused the delay, which was correctly considered by the Revisional Authority, who passed the order directing the Deputy Commissioner to consider the case of the petitioner. The Deputy Commissioner, in turn, executed the lease. Thus, the impugned order cancelling the lease of the petitioner, that too in utter violation of natural justice, needs to be set aside.

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17. The period of lease of the petitioner was from 13^th February, 2020 till 12^th February, 2023. The said period was prematurely scuttled by the impugned letter and it came to an end on 30.03.2022.

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18. The Hon’ble Supreme Court, in the case of Beg Raj Singh versus State of U.P. and Others reported in (2003) 1 SCC 726 wherein while dealing with a matter relating to wrongfully disallowing operation of mines, has held that the parties must be allowed to operate the mines for the entire period of lease subject to adjustment of the period for which he was not allowed. The aforesaid principle is applicable in this case also as the respondents have wrongfully cancelled the lease of the petitioner.

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19. Further, this Court in W.P.(C) No.1793 of 2022 (Lalchand Mahto versus State of Jharkhand & Others) , in similar factual matrix, by considering the amendments and the provisions of law had allowed the writ petition by setting aside the order of cancellation of lease.

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20. This writ petition is, thus, allowed. The impugned order contained in letter No.1050/M dated 30.03.2022, issued by the Assistant Mining Officer, Jamtara, whereby the settlement of Sand Ghat in favour of the petitioner has been cancelled, is hereby set aside. It is further directed that the petitioner shall be allowed to operate the mines for a period of three years subject to adjustment of the period during which they had already operated the mines. It is made clear that in the mean time if any third party interest has been created

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and this extension order is not possible to give effect to, then it would be open to the petitioner to claim damages from the respondents in accordance with law.

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21. There shall be no orders as to costs. Urgent certified copies of this order shall be issued as per the Rules.

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22. Pending interlocutory applications, if any, stand disposed of.

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(Sanjaya Kumar Mishra, C.J.)

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(Ananda Sen, J.)

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Kumar/Cp-02

Ms Sparkle World Pvt. Ltd. Represented through Its Director Namely Anil Kumar v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Ms Sparkle World Pvt. Ltd. Represented through Its Director Namely Anil Kumar v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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