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2010 Supreme(Gau) 480
IN THE HIGH COURT OF GAUHATI
Anima Hazarika, J.
Calcom Cement India Ltd. and Anr. - Appellants
Vs.
State of Assam and Ors. - Respondent
WP (C) No. 3397 of 2009
Decided On: 21.07.2010
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Ms. M. Hazarika, Ms. A. Ajitsaria, Ms. A. Goswami and Ms. J. Hazarika
For Respondents/Defendant: Mr. A.K. Phookan, Ms. H.M. Phukan, Mr. M. Bhuyan, Mr. M. Choudhury, Mr. A.M. Mazumdar, Mr. S.K. Upadhyaya, Mr. M. Nath, Mr. D.P. Borah, Mr. B.D. Dasand Mr. D. Nath
Headnote:
Companies Act, 1956 - Service - Pleaded case of the Petitioners is that the Petitioner No. l is a public limited company incorporated under the Companies Act, and in terms of the MoU entered into between Industrial Development Corporation Ltd. and another company, namely, Cement Ltd. for the purpose of setting up a cement manufacturing project - Held, As regards the issue No. 3, it is the pleaded stand of the responder Nos. 6 and 7 that it had never in any manner committed supply of any minerals from its mines on any unilateral demand or term set by the writ Petitioners and that no agreement on mutually agreed terms and reasonable prices with delivery time schedule on requirement basis has been entered into by the AMDC and the writ Petitioners - Even by not delving into the question of relative quality of the reserves of AIDC and AMDC mines and as to whether a prima facie appreciation of Clause 6.5 of the Agreement between the Government and the writ Petitioner No. l would entitle the writ Petitioners to claim any further grant of additional mining lease on its failure even to set up their promised cement plant for the initial envisaged production capacity, the writ court is not a forum for adjudication of such canvassed rights which are neither contractual in the absence of an agreement to that effect nor statutory in nature - Accordingly, the issue No. 3 is also decided against the writ Petitioners - Appeal dismissed.
Smt. Anima Hazarika, J.
1. This petition under article 226 of the Constitution of India has been filed by the Petitioners praying for setting aside and quashing the Memorandum of Understanding ('MoU') entered into between Assam Mineral Development Corporation ('AMDC') (respondent No. 6) and M/s. Jayprakash Associates Ltd. (respondent No. 8) in so far as it relates to utilization of limestone and coal deposits available in the mines of the AMDC at New Umrangshu and North Cachar Hills district and further for restraining the Respondents from giving effect to the MoU entered into by the said Respondent No. 6 with Respondent No. 8 without first making available limestone and coal to the Petitioners from the mines of AMDC at New Umrangshu and North Cachar Hills district on requirement basis and also for direction to the Respondents to make available limestone and coal to the Petitioners from the mines of AMDC at New Umrangshu and North Cachar Hills District respectively on requirement basis pursuant to the cabinet decision and commitments said to be made by the State Government.
2. Heard Mrs. M. Hazarika, learned senior counsel assisted by Ms. A. Ajitsaria, Learned Counsel appearing for the Petitioners. Also heard Mr. A.K. Phookan, learned Advocate General, Assam assisted by Ms. H.M. Phukan, learned State counsel appearing for the State-respondents, i.e., Respondent Nos. l, 2, 3, 4 and 5, Mr. M. Bhuyan, Learned Counsel appearing for Respondent Nos. 6 and 7, Mr. A.M. Mazumdar and Mr. S.K. Upadhyaya, learned senior counsel assisted by M. Nath, Learned Counsel appearing for Respondent No. 8 and Mr. B.D. Das, Learned Counsel appearing for Respondent No. 9.
3. The pleaded case of the Petitioners is that the Petitioner No. l is a public limited company incorporated under the Companies Act, 1956 and in terms of the MoU dated 8.9.2004 entered into between Assam Industrial Development Corporation Ltd. ('ArDC') and another company, namely, Vinay Cement Ltd. for the purpose of setting up a cement manufacturing project. At para 6.1 of Clause 6 of the MoU it was stipulated that AIDC would be the Co-Promoter in the proposed project to the extent of 10% of equity participation in the new company. Petitioner No. 2 is said to be the Chief of Corporate Communication as well as a shareholder and authorised signatory of the Petitioner No. 1-company.
It is the case of the Petitioners that pursuant to discussions held between the authorities of Government of Assam as well as the various instrumentalities under it and the Vinay Cement Ltd. a MoU was entered into between AIDC and Vinay Cement Ltd. on 8.9.2004 for setting up a 4-5 million metric tons per annum capacity cement manufacturing plant on the terms and conditions enumerated therein.
4. The Petitioners have also annexed a copy of the Cabinet Memorandum as Annexure 3 to the writ petition which is said to be adopted by the Cabinet in connection with the joint venture envisaged under the aforesaid MoU dated 8.9.2004. Clauses 11 and 12 of the said Cabinet Memorandum which was pointed out and pressed on behalf of the Petitioners in course of argument being relevant are quoted hereunder:
11. CCIL also wanted to avail limestone and other mineral additives including higher-grade limestone with a total limestone deposit of 400 MT for CCIL project. The matter was taken up with the Mines and Minerals Department. Their views are reproduced below vide their letter No. PEM.88/05/33i dated 16.11.2005 -
The mining lease area of AIDC will be sufficient to cater to the need of CCIL project at present.
12. Further, CCIL requested that the existing coalmines of AMDC in Umrangshu should be allowed to be operated by Job Sirdars as is being done now with a condition that CCIL will buy 80% of this coal at reasonable rates fixed mutually between Mines and Minerals Department and CCIL. Further, CCIL requested permission to operate captive coalmines from new coal deposits. The matter was also taken up with Mines and Mineral
