Dismissed

M/s Kems Service Pvt. Ltd. v. The State Of Bihar and Ors.

Patna HC15 Dec 2014CWJC/15961/2014

Case brief

AI extract

What is this about?

The Patna High Court dismissed a writ petition challenging an order cancelling a mining lease and forfeiting security deposit. The Court held that despite omitting the specific 30-day period in the final notice, the petitioner received sufficient opportunity through prior notices to rectify defects, and thus Rule 21(5) was not violated.

What did the court decide?

The writ petition is dismissed; the impugned orders are upheld; interlocutory applications are disposed.

M/s Kems Service Pvt. Ltd. Vs The State Of… — Contract and Commercial Disputes | Patna HC (2014)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15961 of 2014

¶2

====================================================== M/s Kems Service Pvt. Ltd. having its office at 76, B1/13, Maurya Lok Complex, Dak Bunglow Road, Patna- 800001, Police Station-Kotwali, District- Patna through its Managing Director .... .... Petitioner/s Versus 1. The State of Bihar Principal Secretary, Department of Mines and Geology, Government of Bihar, Patna 2. The Mines Commissioner, Bihar, Patna 3. The Joint Secretary, Department of Mines and Geology, Government of Bihar, Patna 4. The Collector, Lakhisarai 5. The Mineral Development Officer, Lakhisarai .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Keshav Shrivastava, Sr. Advocate Mr. Prem Kumar Verma, Advocate For the Respondent/s : Mr. Devendra Kr Sinha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 8 15-12-2014 Heard Mr. Keshav Shrivastava, learned senior counsel appearing on behalf of the petitioner and Mr. Rajendra Prasad for the Department of Mines. The writ petition was filed initially questioning the order of the Collector, Lakhisarai dated 20.08.2014 communicated vide Memo No. 244M dated 21.8.2014 as contained in Annexure-4 whereby the mining lease of the petitioner was cancelled and the security deposit of Rs. one crore and thirty seven thousand had been forfeited inter alia on grounds of alleged violation of the provisions of the Bihar Minor Mineral Concession Rules, 1972

¶3

Patna High Court CWJC No.15961 of 2014 (8) dt.15-12-2014

¶4

¶5

(hereinafter referred to as ‘the Rule) and Bihar Minerals (Prevention of illegal mining, transportation and storage) Rule, 2003 read with departmental notification no. 3032/M dated 05.12.2013.

¶6

While the writ petition was pending consideration that the statutory revision preferred by the petitioner bearing Revision Application No. 25 of 2014 has been dismissed by the revisional authority i.e. the Mines Commissioner, Government of Bihar vide order passed on 7.11.2014 circulated bearing memo no. 4002 dated 10.11.2014 and which is sought to be questioned by the petitioner through I.A. No. 8659 of 2014 impugned at Annexure17 thereof thus affirming the order of the Collector.

¶7

The facts are not in dispute and the petitioner was a lease holder with the respondent department for operation of the Baalu Ghat on the Kiul river in the district of Lakhisarai. Perusal of the show cause notice dated 17.6.2014 at Annexure-2 and the order passed by the Collector impugned at Annexure-4 manifests that the petitioner was required to rectify certain defects occurring in the operation of the sand ghat pursuant to the lease entered in between the petitioner and the department. Since the petitioner allegedly did not remove the defect that the third notice which is the foundation for the impugned order, was issued on 17.6.2014

¶8

Patna High Court CWJC No.15961 of 2014 (8) dt.15-12-2014

¶9

¶10

and in response whereto the petitioner filed his reply on 26.6.2014. The explanation given by the petitioner has been rejected by the Collector by the impugned order passed on 20.8.2014 and affirmed by the Commissioner vide order passed on 7.11.2014 circulated vide Memo No. 4002/M dated 10.11.2014 and hence this writ petition.

¶11

Mr. Shrivastava, learned senior counsel appearing on behalf of the petitioner has questioned the impugned orders on the following grounds:

¶12

(a) The notices in question dated 3.4.2014 and 3.5.2014 placed at Annexure-C and D to the supplementary counter affidavit as well as the notice which is the foundation for the impugned order dated 17.6.2014 placed at Annexure-2 to the writ petition do not satisfy the requirements of Rule 21(5) of the Rules; and

¶13

(b) That the show cause notice dated 17.6.2014 is a notice of a post decisional hearing.

¶14

It has been argued by Mr. Shrivastava that whereas the provisions of Rule 21(5) specifically requires the department to give a notice of 30 days to a lease holder to remove the alleged defects in his operation, this essential pre-requisite has to be strictly followed before any order is passed adversely affecting the

¶15

Patna High Court CWJC No.15961 of 2014 (8) dt.15-12-2014

¶16

¶17

interest of the lease holder. Relying upon the well known proposition of law that where a law prescribes a mode and manner to perform an act, it has to be done in the said manner alone and all other modes are strictly forbidden, learned counsel has relied upon a judgment of the Supreme Court reported in (2014) 3 SCC 183. In support of his contention that a notice of show cause should only contain charges and should not reflect a biasness of mind, learned counsel has relied upon a judgment of the Supreme Court reported in (2010) 13 SCC 427 .

¶18

Mr. Shrivastava while turning to the impugned notice dated 17.6.2014 has submitted that although it is purportedly issued in exercise of power vested under Rule 21(5) of the Rules but the pre-condition for exercise of jurisdiction regarding cancellation of the mining lease by providing an opportunity to the lease holder to remove the defect is conspicuously absent. He next refers to the allegation present at Item 7 of the show cause dated 17.6.2014 to submit that the guilt of the petitioner has been upheld even before the petitioner could vindicate his stand. He thus submits that the orders impugned are unsustainable in view of such statutory violation which has adversely affected the legal right vested in the petitioner.

¶19

The argument of Mr. Shrivastava has been contested by

¶20

Patna High Court CWJC No.15961 of 2014 (8) dt.15-12-2014

¶21

¶22

Mr. Prasad appearing for the Mining Department who has relied upon the notices placed on record through supplementary counter affidavit. Referring to the notice dated 3.4.2014 (Annexure-C) he submits that the petitioner was given due opportunity to rectify the defect and on his failure to do so within 30 days, that a second notice was issued on 3.5.2014 and since the petitioner yet did not bother to remove the defect pointed out in the notice that a formal notice initiating the proceedings for cancellation of the lease and forfeiture of the security amount was issued on 17.6.2014 which is placed at Annexure-2. He submits that since the response of the petitioner did not absolve him from the charges hence the impugned orders.

¶23

I have heard learned counsel for the parties and perused the materials on record. The entire argument of Mr. Shrivastava rests on the issue of whether Rule 21(5) of the rules has been complied before the impugned order was passed. What this Court notices is that the two notices referred to in the impugned notice dated 17.6.2014 are placed at Annexure-C and D to the supplementary counter affidavit and whereas the notice dated 3.4.2014 (Annexure-C) refers to six violations, the subsequent notice dated 3.5.2014 enhances the number of violations to 7 and the last of the notices which is the foundation for the impugned

¶24

Patna High Court CWJC No.15961 of 2014 (8) dt.15-12-2014

¶25

¶26

order dated 17.6.2014, charges the petitioner with 10 violations. It is not in dispute that the petitioner did not choose to respond to the earlier notices rather this fact is admitted. This Court also notices that whereas vide notice dated 3.4.2014 the petitioner was given opportunity to rectify the defects, the subsequent notice also dated 3.5.2014 while referring to the earlier notice required the petitioner to show cause against cancellation of lease and forfeiture of the security deposit. The petitioner yet did not bother to take any steps and which led to the third notice dated 17.6.2014. It is a matter of record that the last of the notice dated 17.6.2014 spells out 10 charges against the petitioner and strictly does not satisfy the requirement of Rule 21(5) of the rules in as much as it does mention about the statutory 30 days period for removal of the defects mentioned in the notice. The issue which arises is whether this fact alone is sufficient to allow the writ petition. In my opinion this would be stretching the statutory requirements a bit too far, for a mere non mention of 30 days in the notice would not be enough to strike it down if the accompanying documents do satisfy the requirements.

¶27

As I have indicated above, the first of the notices mentions no less than six allegations against the petitioner and was issued on 3.4.2014 requiring him to correct himself, which

¶28

Patna High Court CWJC No.15961 of 2014 (8) dt.15-12-2014

¶29

¶30

opportunity, the petitioner did not avail. It is on expiry of 30 days thereafter that the second notice was issued on 3.5.2014 containing seven allegations / defects, which again was not removed by the petitioner rather he did not even bother to respond thereto. It is more than one month thereafter on 17.6.2014 that the impugned notice of show cause in respect of cancellation of lease and forfeiture of security deposit has been issued which illustrates 10 allegations. In the first blush this Court was drawn into the argument of Mr. Shrivastava for the reason that the numbers of accusations had increased by the time the third notice was issued but on careful consideration of the third notice what this Court finds is that the accusations at paragraphs 8, 9 and 10 are well taken care of in the second notice dated 3.5.2014 placed at Annexure-D to the supplementary counter affidavit which charges the petitioner of such violation which are rather serious.

¶31

An attempt was made by Mr. Shrivastava to justify such accusations on the anvil that it was on account of the anti social elements present at the spot that such default occurred and despite request being made by the petitioner for providing home guards, he was not provided as such and which had led to such default but such argument in my opinion would not cure the defect.

¶32

As I have already mentioned, the second notice dated

¶33

Patna High Court CWJC No.15961 of 2014 (8) dt.15-12-2014

¶34

¶35

3.5.2014 in its paragraph- 1 to 7 takes care of all the accusations which have simply been mentioned individually in the show cause notice dated 17.6.2014 impugned at Annexure-2. Thus the petitioner was made aware of the lapses on 3.5.2014 and it is more than one month thereafter on 17.6.2014 that the impugned notice which is the foundation for the impugned order, has been issued. The petitioner in such circumstances cannot complain of non compliance of rule 21(5) of the rules. My opinion hereinabove would answer the issue raised by Mr. Shrivastava as regarding the violation of Rule 21(5) of the Rules.

¶36

Insofar as the second issue regarding pre-determined accusation present at Item 7 of the show cause notice dated 17.6.2014 is concerned, the accusation merely reflects the prima facie opinion of the department and which was required to be repudiated by the petitioner.

¶37

In view of my conclusion drawn hereinabove, I am not persuaded to interfere with the impugned orders. The writ petition is accordingly dismissed. The interlocutory applications are disposed of.

¶38

(Jyoti Saran, J)

¶39

S.Sb/-

¶40

M/s Kems Service Pvt. Ltd. v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

M/s Kems Service Pvt. Ltd. v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ram Krishna Paswan Vs The State Of Bihar and Ors.

Binod Singh Samrat Vs The State Of Bihar and Ors.

Lakhi Devi Vs The State Of Bihar and Ors.

Ishwar Kumar Pandey Vs State Of Bihar and Anr.

Ratnesh Kumar Vs The State Of Bihar and Ors.

Shardanand Singh and Anr. Vs The State Of Bihar and Ors.