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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Rajesh Shankar, J.
M/s Satyam P & P (JV) - Petitioner
Versus
Bharat Coking Coal Limited and ors. - Respondents
W.P.(C) No. 1288 of 2022
Decided On : 19-10-2022
Contractual Dispute - Extension of Time - Clause 6.6 of General Terms & Conditions of the Contract - Joshi Technologies International Inc. v. Union of India & Others (2015) 7 SCC 728 - No absolute bar to maintainability of writ petition in contractual matters or disputed questions of fact - Power of judicial review not normally exercised in contractual obligations - Parties may be relegated to adjudication of their rights by resorting to remedies provided for adjudication of purely contractual disputes
Fact of the Case:
The petitioner sought to quash the communication extending the period for completion of work without its consent and for release of outstanding bills, EMD, and BG. The respondents claimed hindrances faced by the petitioner were due to its own negligence and breach of contract.
Finding of the Court:
The court found serious disputed questions of facts and no public law element involved. It held that the power of judicial review is not normally exercised in contractual obligations and parties may be relegated to adjudication of their rights by resorting to remedies provided for adjudication of purely contractual disputes.
Issues: Disputed hindrances faced by the petitioner, responsibility for preventing theft of coal, delay in obtaining environmental clearances, and breach of contract.
Ratio Decidendi: The court dismissed the writ petition, stating that the petitioner can seek appropriate contractual remedy as permissible in law.
Final Decision: The writ petition was dismissed with liberty for the petitioner to seek appropriate contractual remedy as permissible in law.
ORDER :
The present writ petition has been filed for quashing the communication as contained in letters dated 04.02.2022 (Anneuxre-10 to the writ petition) and 16/17.02.2022 (Anneuxre-12 to the writ petition) both issued by the Project Officer, Damagoria Colliery, Bharat Coking Coal Limited (BCCL) whereby the respondents have extended the period for completion of the work relating to Work Order No. BCCL/XII/GM/HEMM/Borira Patch-A/WO/2020/145 dated 04.08.2020 without the consent or approval of the petitioner as provided in the agreement. Further prayer has been made for issuance of direction upon the respondents to forthwith release the outstanding bills of the petitioner including release of the EMD and the BG as well as the other payments mentioned in the letter of the petitioner dated 07.02.2022 (Annexure-11 to the writ petition).
2. Learned senior counsel for the petitioner submits that the respondent-BCCL floated e-Tender Notice No. H-HEMM-36 under Reference No. BCCL/CMC/HEMM/e-Tender/2020/129 dated 11.04.2020 for hiring of HEMM for removal of OB and extraction and transportation of coal from L-10, Laikdih (Bottom), Salanpur-C & Salanpur-D seam of Borira patch-A of Damagoria Colliery, CV area BCC having description of work as :-
(2) Coal: 7.93 Lakh Metric Ton (LMT) and
(3) Stripping Ratio 1:6.48.
The petitioner participated in the said tender and after being declared successful, it was issued LoA on 30.06.2020. Thereafter, the petitioner furnished Bank Guarantee for an amount of Rs.2,61,16,644/-. Though the work order was issued to it on 04.08.2020, the respondent-BCCL provided Environmental Clearance (EC), Consent To Establish (CTE) and Consent To Operate (CTO) for the project only in April 2021 and due to such delay in availability of EC/CTE/CTO, the petitioner was not able to achieve the target of OB as per the schedule provided to it. It is further submitted that the Director of Mines Safety, Sitarampur Region No.-2, Eastern Zone, Directorate General of Mines & Safety (DGMS), vide letter dated 24.08.2021, declared the mines of Damagoria Colliery to be unsafe observing inter alia that no man and/or machinery would be deployed in the said area. As per NIT, the mining area was 3,25,000 square meters (approx.), however due to agitation of private land owners, restriction imposed on certain area by the DGMS and heavy side fall, the remaining actual area for mining work was 2,86,350/- Sq. meters. It is also submitted that out of the total awarded contract period of 548 days, the total working days available to the petitioner for OB removal was 224 days and for coal extraction was 121 days. The total target of OB removal was 51.35 Lakhs Cubic Meters (LCM) to be completed in 548 days and the total actual OB removed in available working days of 224 days was 20.45 LCM which was around 40% of the total target. Similarly the target for coal production for the entire contract period was 7.93 Lakh Metric Tonne (LMT) against which the total actual achieved quantity in the said available period was 1.64 LMT from the upper most active seam (Laikdih bottom). About 1.60 LMT of coal was washed out and about .60 LMT of coal was blocked in private land, DGMS restriction area and heavy side fall in south-western edge of quarry. A request for change of work schedule/stripping ratio for release of withheld quantity of OB was made to the management but it was not accepted even under such changing condition of mining. It is further submitted that during the period between the preparation of the estimate and awarding of the work, excessive amount of water got accumulated in the mines and the said fact was continuously informed to the respondent authorities, however they did nothing to resolve the issues raised by the petitioner. When the respondent authorities failed to provide adequate land to the petitioner, they asked it to work on side patch. The petitioner gave its consent to work on such extension are
The power of judicial review is not normally exercised in contractual obligations, and parties may be relegated to adjudication of their rights by resorting to remedies provided for adjudication of p....
The Court determined that contractual disputes involving factual questions requiring evidence must be resolved outside the writ jurisdiction under Article 226 of the Constitution.
Tender issuance without requisite environmental clearance violates Article 14, rendering state action arbitrary and warranting judicial intervention.
The court established that state actions must comply with legal and environmental regulations, and arbitrary actions that violate constitutional rights can be challenged through writ petitions, even ....
The contractor is responsible for preventing theft and complying with contract terms; failure to do so justifies termination of the contract.
The obligation of the state to act fairly and reasonably in contractual disputes, and the importance of respecting the specific terms of a contract.
The existence of an arbitration clause in the agreement does not ipso facto render a writ petition not maintainable. The High Court may still exercise its writ jurisdiction in exceptional circumstanc....
As the contract between the petitioner and the respondent Corporation, an instrumentality of the State, is under the realm of a private law and there is no element of public law, the only course for ....
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