Allowed

M/s. Aditya Multicom Private Limited v. The State of Bihar and Ors.

Patna HC9 Aug 2019CWJC/4671/2019

Case brief

AI extract

What is this about?

The Patna High Court entertained writ petitions by sand ghats settlees complaining of rampant illegal sand mining. The court held that while settlees have rights to lodge FIRs, the State must facilitate this process. It directed District Magistrates to establish check posts, authorize petitioners to check vehicles, issue identity cards, and ensure immediate police action on lodged FIRs.

What did the court decide?

Direction to District Magistrates to set up check posts, authorize petitioners to check vehicles and lodge FIRs, and ensure immediate police action within one month.

M/s. Aditya Multicom Private Limited Vs The… — Public Procurement and Tenders | Patna HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4671 of 2019

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======================================================

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M/s. Aditya Multicom Private Limited incorporated under the provisions of the Companies Act, 1956 having its registered office at 12, Waterloo Street, 2nd Floor, Koklata- 700069, through its Authorized Signatory, Kamlesh Gaurav @ Kamlesh Gouaraw, aged about 28 years (Male), Son of Shri Surendra Singh, resident of D/139, Keshari Nagar, P.O. Rajeev Nagar, P.S. - Rajeev Nagar, District Patna.

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... ... Petitioner/s

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Versus

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The State of Bihar through the Commissioner- Cum- Principal Secretary, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna-800001.

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The Mines Commissioner- Cum- Principal Secretary Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Baily Road, Patna800001.

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The Director, Mines and Geology, Bihar, Vikas Bhawan, Bailey Road, Patna.

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The District Magistrate -Cum- Collector Rohtas, Sasaram.

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The Assistant Director, Department of Mines and Geology, Rohtas, Sasaram.

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The Director General of Police Bihar, Patna.

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The Superintendent of Police Rohtas, Sasaram.

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... ... Respondent/s

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======================================================

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with

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Civil Writ Jurisdiction Case No. 6890 of 2019

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======================================================

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M/s. Broad Son Commodities Pvt. Ltd. Dr. Himanshu Complex, Block Road, Koilwar Chowk, P.S. Koilwar, District-Ara Bhojpur, through its Director, Punj Kumar Singh (Male aged about 52 years), Son of Ram Ballabh Prasad Singh, near Suraksha Clinic, Hetli Bandh, Jharia, Amtal, Dhanbad, Baliapur, P.S. Jharia, District Dhanbad, Jharkhand-818111

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... ... Petitioner/s

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Versus

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The State of Bihar through Principal Secretary cum Commissioner, Department of Mines and Geology, Govt. of Bihar, Patna

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The Principal Secretary, Department of Mines and Geology, Govt. of Bihar, Patna

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The Director Department of Mines and Geology, Govt. of Bihar, Patna

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The District Magistrate, Patna

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The District Magistrate, Bhojpur

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The Assistant Director, District Mining Office, Patna

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The Assistant Director, District Mining Officer, Bhojpur

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The Director General of Police, Govt. of Bihar, Patna

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 2/19

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The Senior Superintendent of Police, Patna

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The Superintendent of Police Bhojpur.

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... ... Respondent/s

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====================================================== Appearance : (In Civil Writ Jurisdiction Case No. 4671 of 2019) For the Petitioner/s : Mr. Suraj Samdarshi, Advocate For the Mines Deptt. : Mr. Naresh Dikshit, Spl. P.P. Mines For the State : Mr.Gyan Prakash Ojha, GA-7 Mr. Abhishek Singh, A.C. to G.A.-7 (In Civil Writ Jurisdiction Case No. 6890 of 2019) For the Petitioner/s : Mr.Mithilesh Kumar Rai For the Mines Deptt : Mr. Naresh Dikshit, Spl. PP, Mines For the Respondent/s : Mr.Gyan Prakash Ojh ( GA-7) Mr. Abhishek Singh, A.C. to G.A.-7 ======================================================

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CORAM: HONOURABLE MR. JUSTICE SANJAY PRIYA C.A.V. JUDGMENT

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Date : 09-08-2019

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1. In these writ applications, the petitioners seek

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following reliefs:

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i) For issuance of a writ, or direction in the nature of mandamus commanding the Respondents to authorize the representatives of the petitioners to lodge First Information Report in the Police Station against persons involved in illegal mining of sand from the sand ghats settled to the petitioners.

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ii) For issuance of a writ, order or direction in the nature of mandamus commanding the Respondents to promptly register First Information Report against persons involved in illegal mining of sand from the sand ghats settled to the petitioners and to take action against them.

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ii) For issuance of writ, order or direction in the natue of mandamus

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 3/19

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commanding the Respondents to

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authorize/permit the representatives of the petitioners to establish check posts and to check vehicles in order to ascertain whether the minor mineral i.e. sand loaded thereupon is being transported on the basis of a valid challans or not.

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2. The petitioner of CWJC No. 4671 of 2019 is valid settlee of sand ghats on the river bed Sone in the District of Rohtas as well as Aurangabad for the year 2015-2019. Similarly, the petitioner of CWJC No. 6890 of 2019 is a valid settlee of sand ghats on the river in the district of Patna as well as Bhojpur for the year 2015-2019.

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3. Heard Mr. Suraj Samdarshi, learned counsel for the petitioners, Mr. Naresh Dikshit, learned Special P.P. Mines and Mr. Gyan Praksh Ojha, G.A.-7 counsel appearing on behalf of the State.

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4. Counsel for the petitioners submits that in pursuance of the Judgment and order dated 27.2.2012 passed by the Hon’ble Supreme Court in the case of Deepak Kumar Vrs. The State of Haryana, reported in (2012) 4 SCC 629 , the State of Bihar notified in the official Gazette its New Sand Policy, 2013 vide Memo No. 2214 dated 27.8.2013, by which several guidelines

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 4/19

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were laid down for sand mining in the State of Bihar. Photocopy of the aforesaid guidelines has been enclosed as Annexure-1 in both writ applications.

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5. In pursuance of the aforesaid New Sand Policy, 2013, the Department of Mines & Geology, Government of Bihar, issued notification dated 22.7.2014 laying down the criteria and procedure for settlement of Sand Ghats by auction for five years i.e. with effect from 1.1.2015 to 31.12.2019.

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6. The petitioners of both writ applications, in pursuance of the aforesaid advertisement, applied for the Sand Ghats and after following the due process of bid, they were declared as highest bidders and they were awarded tender. The work order was issued to the petitioners after completing various formalities. Pursuant to the agreement entered into between the parties, petitioners started mining sand and the same was sold on the strength of challan (transit pass) in terms of Rule 4 of the Bihar Minerals (Prevention of Illegal Mining, Transportation & Storage) Rules, 2003. The petitioners started selling sand to the transporters on the basis of the challans. The name of consignee was also being suggested by the transporters. The petitioners kept itself away from the business of sale to the consignee, rather the sale to the consignee was through the transporters. Thus, it was the

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 5/19

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transporter in each and every case who was aware of the consignee, the quantum required by the consignee and the price was being paid by the transporters at the Sand Ghat itself.

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7. The petitioners pointed out that illegal sand mining is rampant in the District of Patna, Bhojpur, Rohtas and Aurangabad. The transporters while transporting sand on the basis of valid challan issued by the petitioners, at times, overloaded sand, which was illegally extracted by the third parties. Once such vehicle is intercepted, the normal presumption which the respondent authorities draw, is against the petitioners. In this regard various letters were written by the office bearer of petitioners’ company in order to check the illegal mining of sand. But in spite of representations filed by the petitioners reporting about illegal mining, no action was taken by the local Police Officials. Thereafter, petitioners had intimated the respondents in writing specifying the places where such illegal mining was being carried out and such illegal sand was stored. The District Administration on the one hand accepts the fact of illegal mining by the third parties, and on the other, they are trying to penalize the petitioners for the illegal act of the third parties on the basis of assumption and presumption.

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 6/19

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8. The submission made by the petitioners with regard to the continued illegal mining in the District of Patna and Bhojpur is manifest from their own inspection carried out by the respondent authorities, but still they are not ready to accept the explanation being tendered by the petitioners that illegal Minors in collusion with the transporters are responsible either for overloading or for contravention of the provisions as contained in the Bihar Minor Mineral Concession Rules, 1972, or in the terms of the New Sand Policy.

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9. The petitioners had repeatedly requested the Respondent authorities to allow the authorized representative of the petitioners to check the vehicles carrying minor mineral, i.e. the sand, so that the illegal Minors could be identified and necessary information could be passed on to the Department to check the illegal mining, but despite repeated requests, the authorized representative of the petitioners have not been permitted to check the vehicles carrying illegal mines (sand). The petitioners submit that widespread illegal mining of sand in the District of Rohtas, Aurangabad as well as in the District of Patna and Bhojpur is not only causing huge loss to the petitioners but is also tremendous loss of royalty to the exchequer.

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 7/19

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10. The respondents instead of assisting the petitioners in combating illegal mining have turned into a mute spectator to illegal mining for reasons best known to them. The petitioners have been made easy scapegoat, as they have been saddled with huge and unreasonable demands for illegal mining.

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11. The petitioners have repeatedly tried to inform the Police about the illegal mining activity, but the police have failed and neglected to lodge any First Information Report on the basis of information given by petitioners.

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12. The petitioner of CWJC No. 4671 of 2019 has filed further supplementary affidavit stating therein that despite repeated representations being made by the petitioner, neither the District Administration permitted the petitioner, who is a valid settlee for the entire District of Rohtas, to verify the challans, from the vehicles carrying minor mineral, nor the District Administration took any effective step to check such illegal mining. It has also been stated in the supplementary affidavit that during Monsoon season, i.e. for the months of July, August and September excavation of sand even for a settlee is prohibited. However, the illegal Minors are removing 400-500 trucks of sand from the river bed every day. The petitioner has brought this fact to the notice of the Principal Secretary, Mines & Geology

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 8/19

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Department as also the Commissioner, Patna Division and has requested for establishment of a check post on G.T. Road, so that vehicles carrying sand from the districts of Rohtas and Kaimur cross the border through G.T. Road. There is no check post in this area to verify the genuineness of transportation of such minor mineral. In this respect, the last representation dated 23.7.2019 was made to the Principal Secretary, Mines & Geology Department and the Commissioner, Patna Division, copy of which, has been enclosed as Annexure-20 and 20/A of second supplementary affidavit filed on behalf of the petitioners.

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13. During Monsson season, even the settlee is entitled only to remove sand which has earlier been stocked by such settlee and removal of sand from the river bed is strictly prohibited. Still the illegal Minors in collusion with the District Administration, are removing sand. The District authorities despite repeated orders passed by this Hon’ble Court, have neither filed affidavit nor have taken effective step to check such illegal mining. The removal of sand from the river bed will seriously prejudice the interest of the petitioner who is entitled to again remove sand from October, 2019, i.e. after Monsson period of July, August and September, wherein removal of sand is prohibited. The petitioners

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 9/19

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having already paid the consideration amount in advance, is seriously prejudiced by the action of the respondent authorities.

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14. Counter affidavit has been filed on behalf of Respondent Nos. 4 and 5 i.e. the District Magistrate-cumCollector, Rohtas, Sasaram and the Assistant Director, Department of Mines & Geology, Rohtas, Sasaram in CWJC No. 4671 of 2019 and Respondent Nos. 4, 5, 6 and 7 in CWJC No. 6890 of 2019 separately.

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15. It has been submitted in the counter affidavits filed by the Respondents of both the writ applications that petitioners are Settlees. They made prayer to be authorized to lodge FIRs against the persons involved in illegal mining. They are not required to be authorized to lodge FIRs. They have powers and rights to take recourse of criminal proceeding and to lodge FIRs against illegal Minor and doing mining activity. There is no need for authorization for such act. The District Magistrate of the respective Districts are empowered to pass order and direction for conducting affairs of sand ghats and mining activity in the larger interest of the public. Since the entire stretch of river bed of the respective Districts have been settled with the petitioners for stipulated periods, the duty is caste upon the Settlees, to protect the sand ghats by taking assistance of the local police and lodging

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 10/19

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FIRs against illegal Minors as per provisions of Criminal Procedure Code. The petitioners have right to take recourse of different clause in the FIR against illegal activity and for such, petitioners do not require direction of the Hon’ble Court in the present case. The District Mining Officer has categorically directed the petitioners that since the entire stretch of river bed of Districts have been settled with petitioners, it is duty and liability of the petitioners to take steps for illegal mining from the stretch concerned.

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16. The Respondents are vigilant on the point of taking steps of illegal mining and activity of the sand ghats. It is mentioned in paragraph-14 of the counter affidavit filed by the Respondent Nos. 4 to 6 in CWJC No. 6890 of 2019 that certain teams have been constituted by the Collector, Patna, comprising of senior officials to conduct necessary raids on sand ghats, highways and check the challans of the vehicle carrying minerals. These teams are entrusted to check overloading, illegal loading, illegal storage of sand and to lodge FIRs. The photocopy of such orders have been enclosed as Annexure-A series to the counter affidavit. It is also mentioned in paragraph-15 of the counter affidavit that to review the situation and proper supervision, a yearly report has been prepared by the District Mining Officer, Patna, in a tabular

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 11/19

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form indicating the number of raids, FIRs, arrests, seizures of vehicles/boats and realization of penalty from the culprits which clearly shows that the Respondents are very much vigilant on the point of illegal mining/transportation. The photocopy of report dated 1.4.2019 has been enclosed as Annexure-B to the counter affidavit.

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17. The District Mining Officer, Patna, has written letters to all the concerned Police Station to take action on the application dated 9.5.2018 of the petitioner. The police stations have been requested to take necessary steps in accordance with law. Copy of the aforesaid letters have been enclosed as AnnexureC series to the counter affidavit.

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18. Similarly, in the counter affidavit filed on behalf of the Respondent Nos. 5 and 7 in CWJC No.6890 of 2019, they have stated that to review the situation and proper supervision, a yearly report on month to month basis from April, 2018 to March, 2019 has been prepared by the District Mining Officer, Bhojpur, in a tabular form indicating the number of raids, FIRs, arrests, seizures of vehicles/boats and realization of penalty from the culprits. This report clearly shows that the respondents are very much vigilant on the point of illegal mining/transportation. Photocopy of the aforesaid report has been

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enclosed as Annexure-A of the counter affidavit filed on behalf of the Respondent Nos. 5 to 7.

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19. It is mentioned in paragraph 15 of the counter affidavit filed on behalf of Respondent No. 5 to 7 in CWJC No.6890 of 2019 that in the District of Bhojpur, illegal transportation through Boats are also being done by illegal persons. The patrolling through Boats on the rivers are done by the Respondents regularly. The joint report of patrolling near river in the month of August 2018 has been prepared, xerox copy of which, has been enclosed as Annexure-B to the counter affidavit.

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20. In this manner, after looking into the contentions of the petitioners in both writ petitions and the counter affidavits filed by the Respondents, it is apparent that illegal mining of sand ghats are going on. The Respondents have mentioned in the counter affidavits that necessary directions have been issued by the Mines Department as well as by the Superintendent of Police of the respective Districts to identify the illegal persons and lodge FIR against them. The Superintendent of Police of the respective Districts have asked the petitioners to obtain security if required and have check over illegal activity of persons who are involved in such practice.

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 13/19

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21. The Respondents have submitted in the counter affidavits that petitioners have right to lodge First Information Report against persons doing illegal mining activity and for such act, the petitioners do not require any direction of this Hon’ble Court.

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22. The Respondent Nos. 4 and 6 in paragraph-14 of the counter affidavit filed in CWJC No. 6890 of 2019 have stated that certain teams have been constituted by the Collector, Patna, comprising senior officials to conduct necessary raids on sand ghats and highways and check the challans of the vehicles carrying minerals. These teams are entrusted to check overloading, illegal loading, illegal storage of sand and to lodge FIRs. A yearly report has been prepared by the District Mining Officer, Patna, in tabular form indicating the number of raids, FIRs, arrests, seizures of vehicles/boats and realization of penalty from the culprits.

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23. The respondents are very much vigilant on the point of illegal mining/transportation. The District Mining Officer, Patna, has written letters to all the concerned Police Station to take action on the application of the petitioner dated 9.5.2018 making complaint of illegal mining. The police stations have been requested to take necessary steps in accordance with law.

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 14/19

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24. Rule-40(1) of Bihar Minor Mineral

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Concessions Rules prescribes that;

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“40(1). Penalty for unauthorised extraction and removal of minor minerals. - whoever is found to be extracting or removing minor minerals or on whose behalf such extraction or removal is being made he be an agent, a manager, an employee or a contractor or a sub-lessee, otherwise than in accordance with these Rules, shall be presumed to be party to the illegal removal of the minor mineral and every such person shall be punishable with simple imprisonment which may extend to six months or with fine, which may extend to rupees five thousand or with both.”

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25. Rule-41 of Bihar Minor Mineral Concessions

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Rules, 1972 laid down the offence cognizable upon written complaints which is quoted below:

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“41. Offence cognizance

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upon written complaints. - No Court inferior to that of a Magistrate of the First Class shall try any offence punishable under these rules and no Court shall take cognizance of any

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 15/19

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offence under these rules, except upon a complaint made in writing by the 1[Competent Officer or Deputy Director of Mines or 2[Additional Director of Mines or Director of Mines] or any other Officer empowered by the Government]”.

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26. In this manner, after going through the provisions of Rules 40 and 41, it is apparent that if any act has been committed in violation of the Bihar Minor Mineral Concession Rules, 1972, in that case, the duty is cast upon the competent authority to lodge a complaint before the Magistrate. The petitioners are settlees of sand ghats in the District of Rohtas for the entire Sand Ghats (petitioner of CWJC No. 4671 of 2019) and for the entire Sand Ghats in the District of Patna and Bhojpur (petitioner of CWJC No.6890 of 2019).

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27. The petitioners have mentioned in the writ applications that they have made regular complaint before the competent authority including the Superintendent of Police of the respective Districts about illegal mining done, but no proper action has been taken. The petitioner of CWJC No. 4671 of 2019 has stated in paragraphs 4 and 5 of supplementary counter affidavit that despite repeated representations being made by the

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 16/19

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petitioners, neither the District Administration permitted the petitioners who are valid settlees for the entire District of Rohtas, Patna and Bhojpur to verify the challans, from the vehicles carrying minor mineral, nor the District Administration itself took any effective step to check such illegal mining. The excavation of sand ghats of the settlees is prohibited during Monsson season i.e. in the months of July, August and September. The illegal Minors are removing 400-500 trucks of sand from the river bed every day. The petitioners have brought this fact to the notice of the Principal Secretary, Mines & Geology Department as also the Commissioner, Patna Division. Petitioners have requested for establishment of a check post on G.T. Road, so that vehicles carrying minor mineral without valid e-challan could be intercepted. All the vehicles carrying sand from the District of Rohtas and Kaimur cross the border through G.T. Road taking advantage of the fact that there is no check post in this area to verify the genuineness of transportation of such minor mineral. During Monsoon season, the settless are entitled only to remove sand which has earlier been stocked by such settlees and removal of sand from the river bed is strictly prohibited. Still the illegal Minors in collusion with the District Administration, are removing sand. The District authorities despite repeated orders passed by

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this Hon’ble Court, have neither filed affidavit nor have taken effective step to check such illegal mining.

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28. The removal of sand from the river bed will seriously prejudice the interest of the petitioners who are entitled to again mining sand from October, 2019, i.e. after Monsson period of July, August and September.

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29. Therefore, from the statement made by the Respondents in the counter affidavit, it appears that illegal mining is going on even during Monsson season while the excavation of sand from the river bed is prohibited.

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30. The District Magistrate is empowered to pass order and directions for conducting the affairs of sand ghats and mining activity considering the public interest. The respondents have not taken proper action in public interest to check the illegal mining of sand, which is rampant, as submitted by the petitioners in the writ applications and also admitted by respondents in the counter affidavits.

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31. Therefore, this Court directs the District Magistrate of respective Districts in which the petitioners are settlees of Sand Ghats in following manner:

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a) To establish necessary check posts at appropriate places on all the sand ghats including at Mohania (Bihar-UP

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 18/19

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Border) and Babura (Near Koilwar Bridge, Bhojpur, Bihar) and check the vehicles to ascertain whether the minor mineral i.e. sand loaded on the vehicles are transported on the basis of valid challans and also to check overloading of sand on the vehicles.

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b) To authorise the representative of petitioners to lodge First Information Report with the Police against the persons involved in illegal mining of sand from the sand ghats settled to the petitioners.

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c) The District Magistrate shall also allow the representatives of the petitioners to check the vehicles on the check post in order to ascertain whether the sand loaded in the vehicles are being transported, on the basis of valid Challans or not.

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d) The District Magistrate shall issue identity cards to the representatives of the petitioners’ company to facilitate the checking of illegal mining.

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e) The District Magistrate shall ensure that FIRs with regard to illegal mining are accepted immediately by the respective Police Stations and appropriate action be taken without delay.

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f) The Superintendent of Police of respective Districts shall issue necessary direction in this regard to all Police Stations

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Patna High Court CWJC No.4671 of 2019 dt.09-08-2019 19/19

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to take immediate action on F.I.R. lodged by petitioners or by authorised agent against illegal Minors.

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g) The Superintendent of Police of respective Districts shall himself monitor that necessary action are taken on all the FIRs registered against illegal Minors in the Police Station and Police take suitable action in terms of Provisions of Rules 40 and 41 of Bihar Minor Mineral Concession Rules, 1972.

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32. The District Magistrate and Superintendent of Police of all respective Districts will take appropriate step to comply the directions of this Court as mentioned above within a period of one month from the date of receipt/production of copy of this order.

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33. Both the writ applications are accordingly allowed with aforesaid directions.

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(Sanjay Priya, J)

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S.Ali/-

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AFR/NAFR	AFR
CAV DATE	30/07/2019
Uploading Date	15/08/2019
Transmission Date

M/s. Aditya Multicom Private Limited v. The State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

M/s. Aditya Multicom Private Limited v. The State of Bihar and Ors.

Case brief

What is this about?

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