caselaws

Supreme Court of India
The State Of Bihar vs Pawan Kumar on 18 January, 2022Author: B.R. Gavai

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

I.A. Nos. 154740­154741 of 2021, 153531­153532 of
2021, 165173 of 2021, 160138 of 2021, 160139 of 2021,
160142 of 2021 and 163177 of 2021

IN

CIVIL APPEAL NOS.3661­3662 OF 2020

THE STATE OF BIHAR AND OTHERS …APPELLANT(S)

VERSUS

PAWAN KUMAR AND OTHERS …RESPONDENT(S)

ORDER

1. All these I.As arise out of the directions issued by this

Court vide order dated 10th November 2021 in Civil Appeal

Nos. 3661­3662 of 2020.

2. The State of Bihar had approached this Court

challenging the order dated 14th October 2020, passed by the

National Green Tribunal, Principal Bench, New Delhi

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(hereinafter referred to as “the Tribunal”) in O.A. No.

40/2020/EZ with O.A. No. 57/2020/EZ, thereby issuing

various directions. This Court after taking into consideration

various aspects, including the necessity to curb illegal

mining activities and the necessity to permit legal mining in

the interregnum till the other directions issued by this Court

are complied with, had issued the following directions dated

10th November 2021:

“14. We therefore find it appropriate to substitute
the directions issued by the Tribunal vide judgment
and order dated 14th October 2020, with the
following directions:­

(i) The exercise of preparation of DSR for
the purpose of mining in the State of Bihar
in all the districts shall be undertaken
afresh. The draft DSRs shall be prepared by
the sub­divisional committees consisting of
the Sub­Divisional Magistrate, Officers from
Irrigation Department, State Pollution
Control Board or Committee, Forest
Department, Geological or mining officer.
The same shall be prepared by undertaking
site visits and also by using modern
technology. The said draft DSRs shall be
prepared within a period of 6 weeks from
the date of this order. After the draft DSRs

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are prepared, the District Magistrate of the
concerned District shall forward the same
for examination and evaluation by the
SEAC. The same shall be examined by the
SEAC within a period of 6 weeks and its
report shall be forwarded to the SEIAA
within the aforesaid period of 6 weeks from
the receipt of it. The SEIAA will thereafter
consider the grant of approval to such DSRs
within a period of 6 weeks from the receipt
thereon;

(ii) Needless to state that while preparing
DSRs and the appraisal thereof by SEAC
and SEIAA, it should be ensured that a
strict adherence to the procedure and
parameters laid down in the policy of
January 2020 should be followed;

(iii) Until further orders, we permit the
State Government to carry on mining
activities through Bihar State Mining
Corporation for which it may employ the
services of the contractors. However, while
doing so, the State Government shall ensure
that all environmental concerns are taken
care of and no damage is caused to the
environment.”

The matter was directed to be listed after 20 weeks.

I.A. Nos. 154740­154741 of 2021

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3. The present I.As have been filed being aggrieved by the

cancellation of Letter of Intent (hereinafter referred to as the

“LoI”) dated 21st January 2020, issued in favour of the

applicant. The applicant also apprehended that in view of the

order dated 10th November 2021 passed by this Court with

respect to Banka District, the State Government may also

issue short Notice Inviting Tender (hereinafter referred to as

the “NIT”) with respect to Kishanganj District. After the

present I.As were filed, NIT has also been issued in respect of

sand ghats in Kishanganj District on 2nd December 2021.

4. Shri Mukul Rohatgi, learned Senior Counsel appearing

on behalf of the applicant submitted that the applicant was a

successful bidder in the auction held for the Kishanganj

District and as such, the action of the respondent in

cancelling the LoI and issuing fresh NIT for Kishanganj

District is not sustainable in law. It is submitted that the

offer of the applicant was for a much higher amount as

compared to the offer received by the respondent­Bihar State

Mining Corporation (hereinafter referred to as the

“Corporation”) for Kishanganj District. He therefore

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submitted that it is in the interest of justice that the

applicant may be permitted to carry out the mining activities

in the Kishanganj District.

I.A. Nos. 153531­153532 of 2021

5. In the present I.As, the applicant claimed that it was a

successful bidder for auction of sand ghats in respect of

Banka District for the period from 2015 to 2019. It is the

case of the applicant that it had been granted extension after

the year 2019 from time to time and the last of such

extensions was granted till 31st March 2022. The applicant

apprehended that in pursuance to the order dated 10 th

November 2021 passed by this Court, NIT would also be

issued in respect of Banka District. During the pendency of

these I.As, NIT in respect of sand ghats in Banka District has

been issued by the Corporation on 2 nd December 2021.

6. We have heard Shri Narender Hooda, learned Senior

Counsel appearing on behalf of the applicant in the said

application.

7. Shri Hooda submitted that since the applicant was the

highest bidder in the auction conducted for the period from

5
2015 to 2019 and since thereafter, the applicant had been

granted extensions, he is entitled to carry out the mining

activities at least till 31st March 2022. He further submitted

that the amount which the respondent­Corporation would

receive for the sand ghats in pursuance to the NIT dated 2 nd

December 2021, is much less than the one the applicant has

offered and therefore, it is in the interest of justice that the

applicant be permitted to continue with the mining activities

at least till 31st March 2022.

I.A. No. 165173 of 2021

8. The grievance of the present applicant is somewhat

similar to the grievance of the applicant in I.A. Nos. 154740­

154741 of 2021. Here again, it is the contention of the

applicant that it was a successful bidder in respect of the

sand ghats in the Jamui District in the bids conducted in the

year 2019. It is therefore submitted that the impugned NIT

dated 15th November 2021 issued by the Corporation

prejudicially affects the interest of the applicant.

9. We have heard Shri Prashant Bhushan, learned counsel

in support of the said application. Shri Bhushan submitted

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that the applicant was a successful bidder in the bids

conducted in the year 2019 and he is entitled to be appointed

as a contractor or in the alternative at least he be granted a

right to match the highest bidder along with the right of first

refusal.

I.A. Nos. 160138, 160139 and 160142 of 2021

10. The grievance of the present applicant is similar to the

grievance of the applicant in I.A. Nos. 153531­153532 of

2021. It is the case of the applicant that it was a successful

bidder for the period from 2015 to 2019 at Nawada District.

Thereafter, the applicant was granted extensions from time to

time and the last of such extensions was granted till 31 st

March 2022.

11. Shri C.A. Sundaram, learned Senior Counsel appearing

on behalf of the applicant submitted that as such, the

applicant would be entitled to carry out the mining activities

till 31st March 2022.

I.A. No. 163177 of 2021.

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12. In the present application, it has been submitted on

behalf of the applicant that the mining activities which are

being carried out by the Corporation are without the grant of

Environmental Clearance. It is submitted that the very

purpose for which the order was passed by the Tribunal and

modified by this Court, was to ensure that the environment

is not damaged on account of rampant mining activities

without the grant of Environmental Clearance by the

Competent Authority. It is therefore submitted that the NITs

dated 15th November 2021 and 2nd December 2021 are silent

about the environmental aspects and therefore, the action of

the respondent­Corporation in issuing NITs amounts to

contempt of this Court.

13. Shri Atmaram Nadkarni, learned Senior Counsel

appearing on behalf of the appellant­State of Bihar submitted

that the NITs in question were issued for a limited period in

view of the order passed by this Court dated 10 th November

2021. He submitted that the rest of the directions as are

issued by this Court with regard to preparation of draft

District Survey Report (hereinafter referred to as “DSR”) and

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consideration of the same by State Expert Appraisal

Committee (hereinafter referred to as “SEAC”) and State

Environment Impact Assessment Authority (hereinafter

referred to as “SEIAA”) are under process. He further

submitted that in view of the permission granted by this

Court vide order dated 10 th November 2021, the Corporation

is employing the services of the contractor for the limited

period. He submitted that after the directions issued by this

Court are complied with, a fresh process for allotment of

sand ghats in accordance with law would be initiated subject

to the orders of this Court. He further submitted that while

permitting the mining activities through the services of the

contractor, the Corporation is ensuring that no damage is

caused to environment by such activities.

14. We had issued the directions vide order dated 10 th

November 2021 in the peculiar facts and circumstances of

the matter. We had noticed that unless the detailed DSRs

are prepared by the Sub­Divisional Committees by

undertaking site visits and using the modern technology and

unless the same are examined by SEAC and SEIAA, it will

9
not be appropriate to carry out the mining activities.

However, we had also noticed that if there is a ban on mining

activities, apart from it leading to illegal sand mining,

criminalization and clashes between the sand mafias, it

would also cause huge loss to the public exchequer. We had

noticed that sand is also required for construction of public

infrastructural projects as well as public and private

construction activities.

15. Taking into consideration these aspects of the matter,

we had issued directions so that the Sub­Divisional

Committees, the SEAC and SEIAA act within the stipulated

time periods. We had granted 6 weeks’ time at each level and

had directed the matter to be kept after 20 weeks. However

noticing, that during the said period, it was necessary to

permit the mining activities so as to prevent illegal mining

and also to prevent loss to the public exchequer, we had

permitted the Corporation to carry out the mining activities,

and further to employ the services of the contractor.

However, while doing so, we had directed the State

Government to ensure that all environmental concerns are

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taken care of and no damage is caused to the environment. It

could thus be seen that this was only a stop gap

arrangement.

16. A perusal of the NITs in question, issued by the

Corporation would reveal that the Corporation has

specifically referred to the order dated 10 th November 2021,

passed by this Court and has also specified that the

operation period of sand ghats will only be up to 31 st March

2022, and subject to further orders passed by this Court in

the present proceedings.

17. Insofar as the applicants in I.A. Nos. 153531­153532 of

2021 and I.A. Nos.160138, 160139 and 160142 of 2021, who

claim to have a vested right in view of the extensions granted

in their favour are concerned, we see no merit in these

applications. Though they were successful in the bidding

process held in the year 2015, which was extended up to

2019 and thereafter, they were only continuing under the

extensions granted.

18. Insofar as the other applicants in I.A. Nos.154740­

154741 of 2021 and I.A. No.165173 of 2021 are concerned,

11
though they were successful bidders in the tender process

conducted in the year 2019, in view of the order passed by

the Tribunal dated 14th October 2020, which was modified by

this Court vide order dated 10 th November 2021, they also

cannot claim a vested right to do the mining activities.

19. Taking into consideration the peculiar facts and

circumstances in which we had passed the order, we find

that entertaining any of such applications would result in

further complications. In any case after our directions

issued on 10th November 2021 are complied with, we will

take a final look of the matter in the last week of March,

2022. The NITs issued by the Corporation for mining, cover

the period only up to 31 st March 2022. We are therefore not

inclined to entertain the aforesaid four I.As.

20. Insofar as the I.A. No. 163177 of 2021, filed by the

applicant alleging contempt of this Court’s order dated 10 th

November 2021 is concerned, we have already directed the

State of Bihar to ensure that while carrying out the mining

activities, it shall ensure that all environmental concerns are

taken care of and no damage is caused to the environment.

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We remind the State Government of the said directions and

direct it to ensure that the said directions are complied with

scrupulously.

21. In that view of the matter, I.A. Nos. 154740­154741 of

2021, 153531­153532 of 2021, 160138 of 2021, 160139 of

2021, 160142 of 2021 and 165173 of 2021 are rejected.

22. I.A. No. 163177 of 2021 is disposed of in terms of

paragraph (20) of this order.

……….……………………..J.
[L. NAGESWARA RAO]

..…….……………………..J.
[B.R. GAVAI]

NEW DELHI;
JANUARY 18, 2022.

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