Jain Bricks Private Limited Vs State of Chhattisgarh

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1

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2025:CGHC:7514

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP No. 331 of 2003

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1 - Jain Bricks Private Limited A Company Registered Under The Companies Act 1956, Through Its Director, Suresh Jain, Aged About 45 Years, S/o Shri L. R. Jain, Resident Of Choubey Colony, District : Raipur, Chhattisgarh

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... Petitioner

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versus

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1 - State Of Chhattisgarh Through The Secretary, Department Of Mineral Reso Urces, D.K.S. Bhavan, Mantralaya, District : Raipur, Chhattisgarh

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2 - Chhattisgarh Mineral Development Corporation Limited, Raipur Through Its Managing Director, Pravin Bhawan, New Shanti Nagar,, District : Raipur, Chhattisgarh

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... Respondents

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For Petitioner : Mr. Pravin Kumar Tulsyan, Advocate For State : Mr. Kalpesh Ruparel, Panel Lawyer For Respondent No. 2 : Mr. Yogesh Pandey, Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas

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Order on Board

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12.02.2025

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The petitioner which is a Bricks manufacturing company registered under the Companies Act has filed this petition challenging the order dated 16.01.2002 passed by respondent No. 2 whereby the respondent No. 2 vide memo dated 16.04.2003 has canceled the contract of lifting of sand and also directed for forfeiting of security money to the tune of Rs. 82,00,000/-.

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BHUMIKA ANGARE

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Digitally signed by BHUMIKA ANGARE Date: 2025.03.25 17:16:20 +0530

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2

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The brief facts reflected from the record are that the respondent executed an agreement with the petitioner on 06.04.2002 for selling of sand from the mines of Raipur, Dhamtari and Mahasamund, accordingly, the petitioner was successful bidder and he was directed to deposit Rs. 42,00,000/- at initial stage and subsequently he has deposited the amount of Rs. 40,00,000/-. Thereafter an agreement was executed on 06.04.2002. The operative part of the agreement reads as under:

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^*2- vkQj fd;s x;s ek=k dk ewY; ,oa vof/k Bsds dk ewy rRo gksxkA mR[kuu dj foØ; fd;s tkus okyh ek=k dh Bsdk vof/k dk;Z ÁkjaHk fnukad 6-4-2002 ls 5-4-2004 ¼nks o”kZ½ dh gksxhA nks o”kZ dh vof/k esa ek=k 8]20]000 ?k-eh- ¼vkB yk[k chl gtkj ?ku ehVj½ fnukad 5-4-2004 rd mBkuh gksxhA ¼ÁFke o”kZ esa 3]28]000@& ?k-eh-½ rFkk f}rh; o”kZ esa 4]92]000 ?k-eh- vf/kdre foØ; ewY; :-75@& ¼ipgÙkj :i;s½ ftlesa Bsdsnkj }kjk fuxe dks ns; va’k :- 60@& ek= Áfr ?kuehVj lfEefyr gS] ftles Bsdsnkj }kjk fuxe dks ns; va’k :-60@& ek= Áfr ?kuehVj lfEefyr gS] ftlesa lsy VsDl ,oa jk;YVh dh jk’kh lfEEfyr gS] ds vuqlkj nks o”kZ esa :-4]92]00]000@& ¼pkj djksM+ C;kucs yk[k :i;s ek=½ vnk djuk gksxkA

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18- fuxe ds Áca/k lapkyd Bsds dh vof/k ds nkSjku fdUgha vU; ‘krksZa dks lekos’k djus ds fy;s Lora= gksaxsA fookn dh fLFkfr esa ‘krksZa dh O;k[;k fuxe ds Áca/k lapkyd@dk;Zikyd lapkyd }kjk dh tkosxh vkSj Áca/k lapkyd dk fu.kZ; vafre gksxk bl vuqca/k ds varxZr fuxe ,oa Bsdsnkj ds chp fookn gksus dh n’kk esa fuxe ds Áca/k lapkyd vFkok muds }kjk ukekafdr O;fDr ds le{k vkjfcVªs’ku ,.M dUlhfy,’ku ,DV 1996 ds varxZr lacaf/kr i{kksa }kjk fookn iap fu.kZ; gsrq Álrqr fd;k tkosxk ,oa iap }kjk fof/k lEer fu.kZ; nksuksa i{kksa dks ekU; gksxkA fdlh Hkh fookn dh fLFkfr esa fdlh Hkh i{k }kjk iap ds le{k jsQjsal djus ds iwoZ fookn U;k;ky; esa nk;j ugha fd;k tk ldsxk tks fd mijksä of.kZr vkjfcVªs’ku ,.M dUlhfy,’ku ,DV 1996 ds varxZr ugha vkrkA blesa ;fn U;k;ky;hu okn ÁLrqr gqvk rks okn ds fy;s dsoy O;ogkj U;k;ky;] jk;iqj gh Jo.kkf/kdkjh gksxk rFkk vU;=

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3

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fdlh LFkku esa U;k;ky;hu okn ÁLrqr ugha fd;k tk ldsxkA 19- lHkh oS/kkfud fookn jk;iqj U;k;ky; ds v/khu gksaxsA^*

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In pursuance of the agreement, the petitioner has submitted the

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scheme for execution of the Work Contract according to which a probable quantity of sand has to be lifted by the petitioner i.e. from April. 2002 to March, 2003 which comes to Rs. 3,28,000/- cubic meter. He has to deposit Rs. 1,96,80,000/- but the petitioner is unable to perform his contract, therefore, various notices were issued to him and thereafter, he has given an undertaking on 12.08.2002 to fulfill the contractual obligation by him which he is unable to fulfill therefore, respondent No. 2 vide order dated 16.04.2003 has canceled the contract. Being aggrieved with this order, the petitioner has preferred this writ petition before this Court. This Court vide order dated 30.01.2003 has issued notice to the respondent hereinafter an interim order dated 29.03.2003 was passed wherein this Court passed the following order:

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“Having heard learned counsel and considered the matter, the Court is of the opinion that if directions are to be given on an interim application, the conditions are to be clarified at this stage. The amount forfeited is to the extent of Rs.82 Lacs and in case the petitioner succeeds there seems no good ground as to why the petitioner should not be entitled to interest at prevailing bank rate, as during all this period he will be deprived of the use of the money and as submitted by learned counsel, the petitioner is required to pay interest on the said amount which has been obtained on Bank loan. Under the circumstances, not protecting the interest will not be equitable. Accordingly, it is directed that in case the petitioner succeeds, the respondent No.2-Corporation shall refund the amount together with interest of the prevailing bank rate.

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As regards the prayer for staying recovery Rs.39,17,400/-, it was submitted on behalf of the petitioner that the action is illegal as the petitioner has paid to the Corporation much more than what was required to be paid. In reply, it is submitted by the counsel for respondent No.2 that the amount

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in question which is sought to be recovered is the amount which is due from the petitioner in accordance with working plan.

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Having considered the matter, the Court at present thinks it inappropriate to pass any order on this issue. It feels that it would be appropriate if the petitioner submits a statement of account to the Corporation and the Corporation considers the matter and pass orders after hearing of the representative of the petitioner. The petitioner shall be at liberty to move a fresh application if deemed proрег.”

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In compliance of the order the petitioner has submitted an application which has been considered by the respondent and accordingly they have passed the order and have assessed the amount which is recoverable from them to the tune of Rs. 42,36,606/- which includes all restraining application and interest upon that amount and accordingly, remaining amount of Rs.13,67,394/- was returned to the petitioner on 01.05.2005.

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Learned counsel for the petitioner questioning the manner and procedure of assessing the amount by the respondent would submit that they have not considered the issue in proper prospect as according to him since the contract has been executed on 16.01.2003 therefore, the entire issue should be confined to the property upto 16.01.2003 only. They have also not considered the fact that it was rainy season from 15, June to 10, September and due to heavy rain it is not possible for him to lift sand from the rivers. He would further submit that due to inclination in the construction cost the sand was not utilized, as such this aspect of the matter has not been taken into consideration by them and they have mechanically assessed the dues which is illegal and would pray for quashing of the re-assessment order also.

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On the other hand, learned counsel for respondent No. 2 vehemently opposes the submission made by learned counsel for the petitioner and would submit that there was no clause in the agreement, therefore, he cannot take a plea and would pray for dismissal of the writ petition.

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I have heard learned counsel for the parties and perused the record.

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Considering the submission made by the parties and also considering the re-assessment chart which has been submitted by the respondent No. 2, it is quite vivid that there were disputed facts which can be considered even there is clause of interpretation of the agreement also and in the agreement there is arbitration clause, therefore, the writ petition at this juncture is not maintainable. Accordingly in view of the factual position of law and there is arbitration clause in agreement therefore, normally the Court could not interfere in the writ petition unless and until there is flagrant violation of principle of natural justice or no disputed facts are involved. As such, the writ petition for deciding the lis between the parties where disputed facts are involved, the writ court should not normally entertain the writ petition as held by Hon'ble the Supreme Court in case of Radha Krishan Industries Vs. State of Himachal Pradesh & others reported in (2021) 6 SCC 771 as under:-

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“27. Principles of law which emerge are that:

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(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

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(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of theHigh Court is where an effective alternate remedy is available to the aggrieved person;

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(iii) Exceptions to the rule of alternate remedy arise where

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(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

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(b) there has been a violation of the principles of natural justice;

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(c) the order or proceedings are wholly without jurisdiction; or

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(d) the vires of a legislation is challenged;

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(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

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(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

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(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”

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Considering this aspect of the matter that disputed facts and complicated factual matrix are involved which can be ascertained by recording of evidence only and also considering the fact that there is arbitration clause in the agreement executed between the petitioner and respondent No. 2 which deals with the issue raised in the instant writ petition, the writ petition is not maintainable. Thus, the writ petition is disposed of granting liberty to the petitioner to raise dispute before respondent No. 2 within 60 days from the date of receipt of copy of this order and in turn respondent No. 2 will refer the dispute to the

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Arbitrator or the Arbitration Tribunal as the case may be for deciding the same in accordance with law. The authorities will decide the same within 9 months of raising dispute by the petitioner before the respondent No. 2 and will not adopt any delay tactics.

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If the dispute is raised by the petitioner within 60 days before respondent No.2 then the Arbitrator or the Arbitration Tribunal will not take plea of limitation as the matter is pending before this Court since 19.01.2003.

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With the aforesaid observation and direction, the writ petition is disposed of.

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Sd/-

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(Narendra Kumar Vyas)

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Judge

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Bhumika

Jain Bricks Private Limited v. State of Chhattisgarh

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Jain Bricks Private Limited v. State of Chhattisgarh

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