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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
C.V. Bhadang, J.
Mineira Nacional Limitada - Appellant
Vs.
Hardesh Ores Private Limited - Respondent
Writ Petition No. 1180 of 2016
Decided On : 06-06-2017
It may be significant to note that the original order passed by the District Judge is dated 28.2.2013, which was never challenged by the petitioners. Even in the present petition, the prayer clause does not show that the said order is subject-matter of challenge. By the subsequent application, the first respondent was only seeking execution of the earlier order dated 28.2.2013. The District Judge in that application has passed an order dated 13.1.2013, which is more or less on similar lines as the order dated 28.2.2013. Subsequently, on 28.11.2016, the District Judge refused to review the earlier order. These later two orders are challenged in this petition. All that the impugned orders require the petitioners to do, is to submit the plans to the second respondent. The District Judge is right in holding that it is for the statutory authority to examine the plans and to consider the question of their approval in accordance with law. The Court in an application seeking interim measures cannot threadbare consider the rival contentions are regards the plans being compliant with the statutory provisions or not. In the case of Arvind Constructions (supra), the Supreme Court has held that in an application seeking interim measures, well recognised principles for grant of injunction, under Order XXXIX of Civil Procedure Code would apply. In other words, a party seeking interim measures will have to demonstrate the existence of prima facie case, balance of convenience and irreparable loss in its favour. There is one more reason why the considerations will be limited to examine the aforesaid three ingredients. This is because the Arbitrator has since passed a final award, which is sought to be challenged in an appeal before the Court.
Arbitration & Conciliation Act, 1996 - Sections 9 and 36-Grant of interim measures.-Court can grant interim measures of any time after making of arbitral award but before it is enforced in terms of Section 36 of Act.
The Arbitrators have passed a final award on 19.10.2015 and the findings recorded therein are briefly noted earlier. In this regard, it would be significant to note that under Section 9 of the Act, the Court can grant interim measures either before or during the Arbitral proceedings or at any time after making of the Arbitral award, but before it is enforced in accordance with Section 36 of the Act. The award is yet to be executed. It is worth noticing that the initial order was passed by the District Judge under Section 9 of the Act in 2013, much before the conclusion of the Arbitral proceedings. Even in the final order, the Arbitrators have inter alia held that the agreement is subsisting and stands renewed till 30.6.2016 and the petitioners have been directed to specifically perform the said agreement and thus, the interim order cannot be said to be contrary to the final order. At the cost of repetition, it needs to be mentioned that all that the impugned order directs is the submission of the plan before the competent authority. Thus, the passing of the final award, cannot derogate from the impugned order as passed.
Constitution of India, 1950-Article 227-Exercise of power under.-Impugned order suffering from patent error or perversity must be interfered with by High Court in exercise of its discretionary power under Article 227.
It is now well-settled that the discretionary power under Article 227 of the Constitution of India, is to be sparingly exercised when there is a patent error or perversity in the impugned order resulting into manifest injustice. Court does not find that within the available parameters there is any scope for interference.
In the result, the petition is dismissed. Rule is discharged with no order as to costs. Needless to mention that the observations herein are essentially of a prima facie nature and the District Judge shall not be influenced by the same while deciding the appeal challenging the award, if eventually, the delay is condoned and the appeal is registered.
It is further made clear that the second respondent shall independently consider the question of approval of the plan in accordance with the applicable statutory provisions and shall not be influenced by the observations made herein.
C.V. Bhadang, J.
Rule made returnable forthwith. The learned Counsel for the respondents, waive service. Heard finally by consent of parties.
2. The challenge in this petition is to the orders dated 13.01.2016 and 29.11.2016 passed by the learned Principal District Judge Panaji (PDJ, for short) in Civil Miscellaneous Application No. 119/2013 in Arbitration Application No. 36/2012. By the impugned orders, the learned PDJ has allowed application under Section 9 of the Arbitration and Conciliation Act, 1996 (Act, for short), filed by the first respondent-Hardesh Ores Private Ltd., directing the petitioners to prepare and present the mining plan with requisite certificates and progressive mine closure plan to the second respondent - Regional Controller of Mines.
3. Brief facts necessary for the disposal of the petition may be stated thus:
By an agreement dated 10.04.1986, the petitioner no. 1 appointed the first respondent (applicant in Arbitration Application No. 36/2012) as a sole and exclusive Raising contractor in respect of an iron ore mine known as Cuddegalivoril Soddo at Santona Village (the suit mine), held under title Concession No. 62 of 1951. Under an agreement of the even date, the petitioners entered into an agreement with Sociedade Fomento Industrial Private Limited (Fomento, for short). There have been successive agreements between the parties right from the year 1972 under which the first respondent has been exclusively extracting iron ore from the suit mine and supplying it to Fomento. Indisputably, the agreement dated 10.4.1986 is the last of agreement reached between the parties.
4. Indisputably, from 22.05.1987 when the Goa Daman and Diu Mining Concessions (Abolition and Declaration as Mining Leases) Act, 1987 came into force, the suit mine which was granted as a concession was converted into a mining lease under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act, for short). As a result of this, various statutory provisions including Mineral Concession Rules, 1960 (Rules of 1960, for short) and the Mineral Conservation and Development Rules, 1988 (Rules of 1988, for short), became applicable to the suit mine. Under the said provisions, preparation of a mining plan and a progressive mining closure plan and getting it approved became mandatory.
5. According to the first respondent, under the agreement of 1986, it was for the first respondent to comply with all the statutory rules and regulations for carrying out the mining operations. Accordingly, some where in the year 1988, the first respondent got the necessary plan prepared from a Registered Qualified Persons (RQPs, for short), which was signed by the petitioners without any demur. The plan was submitted to the second respondent and was eventually approved.
6. It appears that disputes and differences arose between the parties and by a letter dated 25.05.1992, the petitioners sought to terminate the agreement of the year 1986 on certain grounds. In pursuance of an arbitration clause in the agreement, a suit being Special Civil Suit No. 219/92 came to be filed by the first respondent, under section 20 of the Arbitration Act, 1940 (Old Act, for short). The said suit was decreed in view of consent terms on 02.09.1995. Under the said consent decree, the parties agreed to refer the dispute to a sole Arbitrator, with liberty to the parties to approach the High Court under Section 41 of the old Act and for interim arrangement for working the suit mine after complying with all statutory provisions pending resolution of dispute before the arbitrator. The parties also agreed not to jeopardise the lease or the continued extraction of the ore by the first respondent.
7. It is not necessary to set the entire chronology for the present purpose suffice it to mention that till the year 2004, the various mining plans prepared by the first respondent were signed for and on behalf of the petitioners and were approved by the second respon
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