Advocates:
['SUNIL NATH VIKASH BALIA', 'ANURAG SHARMA AAG', '', 'ANURAG SHARMA AAG']

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1. S.B. Civil Writ Petition No.8797/2016

2. S.B. Civil Writ Petition No.8859/2016

3. S.B. Civil Writ Petition No.8862/2016

4. S.B. Civil Writ Petition No.8993/2016

5. S.B. Civil Writ Petition No.9033/2016

Date: July 18, 2016.

HON'BLE MR. JUSTICE ALOK SHARMA

Mr. R.P. Singh, Senior Advocate with

Mr. S.K. Saini, for the petitioner.

Mr. N.K. Maloo, Senior Advocate with

Mr. Ajeet Maloo, ] for petitioners.

Mr. Vikas Balia with ]

Mr. Akash Srivastava ]

Mr. Shivangshu Naval]

Mr. Achintya Kaushik]

Mr. Dinesh Yadav ]

Mr. Anurag Sharma, AAG for the State.

BY THE COURT:

Counsel for the petitioners submit that in identical matters at

Principal seat of this court at Jodhpur i.e. SBCWP No.7434/2016 and

matters connected therewith, show cause notices demanding payment of

monthly contractual amount with reference to excess royalty collection

contracts under pain of cancellation have been stayed for reason of

supervening illegality in the mining operation wherefrom excess royalty

had to be collected. It was submitted that the cases at hand are not one of

contract between principals. The petitioners as the contractors for the

State for collecting excess royalty from mining operations are mere agents.

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When for reason of the judgment/s of the National Green Tribunal, New

Delhi it is illegal to conduct mining operations without the requisite

environmental clearance, no mining can be done in several mines covered

by excess royalty collection contracts and excess royalty collected

therefrom even by the State Government itself and to require the

petitioners to pay amounts referable to such excess royalty is not only

unfair, unjust and arbitrary but also absurd. Rule 37A(xvi) of MMCR,

1986 cannot be held to cover such force majeure conditions. It only can

relate to reasonable closure of number mines and not to conditions of

general impossibility of carrying out mineral activity not even remotely

visualised.

Mr. Anurag Sharma, learned Additional Advocate General

appearing for the mining department would submit that Rule 37A (xvi) of

the MMCR, 1986 provides that closure of mining, temporary or

permanent, for any reason whatsoever in areas covered by the royalty

collection contract would not extinguish or abate the obligation to pay the

contract amounts. It is submitted that the royalty collection contracts

record covenants of parties entered into with eyes open. It is not now for

the petitioners to turn their back on the contract and seek the court's

protection for reason of perceived, not actual losses. He further submitted

that environmental clearance are to this date continuing to be given out.

Temporary closure of some mines is not sufficient to occasion invoking

Section 56 of the Contract Act. He further submitted that in any event

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resort to Section 56 of the Contract Act, 1872 cannot be a matter for this

court under Article 226 of the Constitution of India. The petitioners should

be remitted to avail their remedy of seeking recession of the royalty

collection contracts, if so advised, by way of civil suits, where evidence of

parties relevant for operation of Section 56 of the Contract Act, 1872

would be recorded, seriously disputed facts of the case relevant to a case of

frustration of contract would be adjudicated, and decision on the suit

rendered.

The arguments of counsel for the respective parties, as agitated on

the stay application are the same as are likely to be agitated in the course

of admission/ hearing of writ petition. It is an admitted fact that an interim

order, albeit ex-parte, in SBCWP No.7434/2016 as also connected matters,

has been granted in identical matters by the Principal Seat at Jodhpur

while issuing notices to the State Government. Admittedly an application

for vacation of the interim order/s under Article 226 (3) of the

Constitution of India has been filed by the respondent State before the

Principal Seat at Jodhpur. In the ci