Disposed

Sushee Infra and Mining Ltd. through Its Vice President Anil Kumar Dutta v. Bharat Coking Coal Ltd. through Its Chairman Cum Managing Director

Jharkhand HC16 Nov 2022LPA/556/2022

Case brief

AI extract

What is this about?

Single Judge Bench examined the maintainability of an intra-court appeal. It overruled the office objection regarding maintainability, noting the Single Judge had already adjudicated the interim relief issue. The appeal was disposed of without adjudicating the merits of the underlying labour dispute, directing the writ court to decide the matter within three weeks.

What did the court decide?

Remitted the matter to the Single Judge for disposal of the writ petition within three weeks; respondents to file counter affidavit within a week.

Sushee Infra and Mining Ltd. through Its Vice… — Writ and Judicial Review | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A. No. 556 of 2022

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Sushee Infra & Mining Ltd. (a Company registered under the Companies Act, 1956) having its registered Office at 246/A, MLA Colony, Road No. 12, Banjara Hills, P.O. and P.S. Banjara Hills, District Hyderabad (State of Telangana), PIN 500034; through its Vice President Anil Kumar Dutta, aged about 63 years, son of Late Ananta Kumar Dutta, resident of Flat No. 3A, Kamla Apartment, Behind Tagore Hill, P.O. Morabadi, P.S. Bariatu, District Ranchi, PIN 834008. ...... Petitioner / Appellant

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Versus

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1. Bharat Coking Coal Ltd. (a subsidiary of Coal India Ltd.), through its Chairman-cum-Managing Director, having its office at Koyla Bhawan, Koyla Nagar, P.O. and P.S. Dhanbad, District Dhanbad-826005.

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2. Director Technical (Operation), Bharat Coking Coal Ltd., having its office at Koyla Bhawan, Koyla Nagar, P.O. and P.S. Dhanbad, District Dhanbad-826005.

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3. General Manager (Contract Management Cell), Bharat Coking Coal Ltd., having its office at Koyla Bhawan, Koyla Nagar, P.O. and P.S. Dhanbad, District Dhanbad826005.

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4. General Manager, Lodna Area, Bharat Coking Coal Ltd., having its office at Lodna, P.O. and P.S. Bhaga, District Dhanbad-828301.

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5. Engineer-In-charge/Project Officer, Mega Patch D, Joyrampur Colliery, Lodna Area, Bharat Coking Coal Ltd., having its office at Lodna, P.O. and P.S. Bhaga, District Dhanbad-828301.

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... Respondents/Respondents

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CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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------For the Appellant : Mr. S.D. Sanjay, Sr. Advocate Mr. Sumeet Gadodia, Advocate Mr. Ranjeet Kushwaha, Adv. Mr. Lokesh Kumar, Advocate For the Respondents : Mr. Anupam Lal Das, Sr. Adv. Mr. Amit Sharma, Advocate Mr. Manish Kumar, Advocate

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Oral Judgment Order No. 3: Dated 16^th November, 2022:

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The instant intra-court appeal, under Clause 10 of the Letters Patent, has been preferred against the interim order dated 18.10.2022 passed in W.P. (C) No. 4458 of 2022, whereby and whereunder the Interlocutory Application being I.A. No. 8366 of 2022 filed on behalf of petitioner, seeking stay of operation of impugned notice dated 02.07.2022 and for direction upon the respondents not to take any coercive step against the petitioner during pendency of the writ petitioner, has been dismissed.

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2. The writ petition was filed in the backdrop of the fact that the respondents-BCCL published a Notice Inviting Tender (in short ‘NIT’) vide e-Tender No. 05 dated 09.03.2015 primarily for carrying out the work of ‘Hiring of HEMM for removal of OB, extraction and transportation of coal with fire fighting from XVA, XV, XIVA, XIV, XIIIA, XIII, XI/XII, XA and IX/X seam of Mega

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Patch ‘D’ of Joyrampur Colliery, Lodna Area’. The writ petitioner-appellant participated in the tender process and was declared L-1 bidder and accordingly Letter of Acceptance dated 13^th June, 2015 was issued in favour of writ petitioner-appellant for a contract value of Rs. 4194.60 crores (Approx). Consequent upon issuance of Letter of Acceptance, agreement dated 10^th May, 2016 was entered into between the writ petitioner-appellant and respondent-BCCL for facilitating the work of removal of Overburden and excavation, transportation and dispatch of coal by the appellant.

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It is the case of the petitioner that only part of site was handed over to petitioner as the respondent-BCCL was not in possession of the entire mining area in question. The petitioner, after handing over of said small portion of agreed mining area, commenced the mining operation w.e.f. 01.11.2016. As per agreement, the petitioner was to excavate about 1.10 lakh cubic meter of composite volume of work but the respondent-BCCL could not provide sufficient area of encumbrance free land for excavation during the period of contract, as such work could not be completed within the scheduled period.

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It is further case of the petitioner that till date the respondent-BCCL even did not take any initiative to process the acquisition of major chunk of land. Apart from that the respondent-BCCL had not even obtained requisite environmental clearance from the Ministry of Forests and ‘Consent to Establish’ and ‘Consent to Operate’ from the Jharkhand State Pollution Board and Mine Opening Permission from Coal Controller Officer (CCO) and without ascertaining land being free from all encumbrances and necessary environmental clearances floated tender, issued Letter of Acceptance and even issued Work Order to the petitioner and got the mining work initiated from the petitioner.

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It has been stated that while the petitioner was carrying out the mining operation, the Director, CCO, Kolkata vide letter dated 6^th December, 2017 addressed to the respondent-BCCL stated that though application seeking Mining Opening was submitted by the respondent-BCCL but permission was not granted as Ministry of Environment and Forests had not granted environmental clearances to the concerned Colliery i.e., Joyrampur Colliery, as such direction was issued by the Director, CCO, Kolkata to the respondents-BCCL to submit report as to under what circumstances mining

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operation is being carried out by it. Copy of said letter was also given to the petitioner. The petitioner, upon receipt of said letter, stopped the work of mining in question w.e.f. 12.12.2017 and vide letter dated 19.12.2017 sought for instruction from the respondentsBCCL regarding further steps to be taken by the petitioner.

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It is further case of the petitioner that on the one hand, the respondent-BCCL had not obtained requisite statutory clearance for operating the Mine in question and on the other hand issued notice dated 17.01.2018 asking the petitioner to show cause as to why its contract/agreement be not terminated for not achieving the requisite target and for stopping the execution of work of mining w.e.f. 12.12.2017.

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The petitioner, upon receipt of said notice, submitted its reply on 29.01.2018 stating therein the shortcoming at the end of respondent-BCCL and reasons due to which the work of mining could not be undertaken by the petitioner. The petitioner even filed a writ petition being W.P.(C) No. 423 of 2018 for quashing letter/notice dated 17.01.2018. The learned Single Judge, taking into consideration the fact that the petitioner has already filed its reply in response to the

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notice dated 17.01.2018 disposed of the writ petition vide order dated 31.01.2018 directing the respondent no.-BCCL to consider the reply submitted by the petitioner and pass appropriate order in accordance with law and further till any final decision is taken by the respondents no coercive action shall be taken against the petitioner with respect to the contract in question.

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After order having been passed by the writ Court in W.P.(C) No.423 of 2018, letter dated 26.02.2018 was issued by the Jharkhand State Pollution Control Board to the respondent-General Manager, Lodna Area directing to carrying out mining activity only after obtaining environmental clearances including ‘Consent to Establish’ and ‘Consent to Operate’.

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It is further case of the petitioner that though in the Tender Document the mining reserve of coal was notified as 274.03 LMT but actual mining reserve of coal was only 129.80 LMT and rest of the coal was damaged due to fire, as per report of CMPDIL. The petitioner, immediately after coming to know about report of CMPDIL submitted a representation before the Chairman-cum-Managing Director, BCCL on 16.02.2018 requesting for re-scheduling of work but it did not evoke any response.

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Under such circumstance, a proposal was initiated seeking administrative approval of the Board of Directors of respondent-BCCL either to foreclose the contract or to continue operation of the contract under ‘Jharia Master Plan Fire Project’. On deliberation, the Board of Directors of respondent-BCCL in its meeting approved that the contract in question could be continued provided the contract would be covered under ‘Jharia Master Plan Fire Project’. However, no step was taken for foreclosure of the contract but an order was passed on 02.07.2021 pursuant to order passed by the Co-ordinate learned Single Judge stating therein that the petitioner would be provided encumbrance free operation site now all statutory clearances have been obtained but till date respondent-BCCL has not obtained heavy Blasting Permission and further process of eviction and rehabilitation of Project affected persons was not undertaken by the respondents-BCCL. But, the petitioner was served with letter dated 21.06.2022 directing therein to immediately start the mining work as due to stoppage of work, the respondent-BCCL is suffering a lot.

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It is stated that before the petitioner could have given any reply to letter dated 21.06.2022, the

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respondents-BCCL served notice dated 02.07.2022 upon the petitioner stating therein that under ‘Risk and Cost’ clause of the Tender document, the petitioner was again directed to commence the work in question, failing which as per terms and conditions of the tender document the work would be executed by deploying another agency and cost involved in execution of work would recovered from the petitioner.

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3. Being aggrieved with the impugned notice dated 02.07.2022 the petitioner invoked the jurisdiction of the Court under Article 226 of the Constitution of India for the following relief:

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“(i).For issuance of an appropriate writ/order/direction, including Writ of Mandamus, directing Respondent-Bharat Coking Coal Ltd. to issue revised contract including revised Work Schedule of deviated quantity along with handing over of encumbrance free land and documents pertaining to statutory clearances obtained in order to facilitate the petitioner to carry out execution of the contract of the work of ‘Hiring of HEMM for removal of OB, extraction and transportation of coal with fire fighting from XVA, XV, XIVA, XIV, XIIIA, XIII, XI/XII, XA & IX/X seam of Mega Patch ‘D’ of Joryampur Colliery, Lodna Area’.

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(ii).In alternative to prayer (i) above, petitioner prays for issuance of an appropriate writ/order/direction, including Writ of Mandamus, directing Respondent-BCCL to foreclose the contract pertaining to the work of Hiring of HEMM for removal of OB, extraction and transportation of coal with fire fighting from XVA, XV, XIVA, XIV, XIIIA, XIII, XI/XII, XA & IX/X seam of Mega Patch ‘D’ of Joryampur Colliery, Lodna Area’, awarded in favour of the petitioner, in view of

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admitted changed scenario owing to reduction in tendered quantity of coal from 274.03 lakh Metric Ton to 129.80 Lakh Matric Ton.

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(III).For issuance of further appropriate writ/order/direction for quashing/setting aside the Notice, being Ref. No. 659 dated 02.07.2022 (Annexure-32) issued by Respondent No.5, wherein petitioner has been arbitrarily directed to immediately commence the work pertaining to excavation and transportation of coal of Joyrampur Colliery, Patch ‘D’, failing which it has been stated that work in question would be executed by deploying other agency under Risk and Cost of the Petitioner by invoking Clause 10.1 of General Terms and Conditions of the Tender Document (Annexure-1);”

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4. One Interlocutory Application being I.A. No. 8366 of 2022 was also filed along with writ petition seeking stay of operation of impugned notice dated 02.07.2022 and for direction upon the respondents not to take any coercive step against the petitioner during pendency of the writ petition.

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5. The learned Single Judge, having heard learned counsel for the parties, dismissed the Interlocutory Application on the ground that no prima facie case is made out to pass interim order and posted the matter (writ petition) for hearing on 14.12.2022, which is the subject matter of present intra-court appeal.

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6. The office has pointed out the issue of maintainability, as would appear from office note dated 09.11.2022.

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7. Learned senior counsel for the parties, in course of hearing on the issue of maintainability of appeal, are fair enough to submit that since the order has been passed by the learned Single Judge in I.A. No. 8366 of 2022, by which the prayer for interim relief has been rejected, and as such submission has been made that the issue of interim relief since has been decided, the present intracourt appeal is maintainable for its consideration under clause 10 of the Letters Patent and as such, the instant appeal is maintainable.

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8. This Court, having heard learned counsel for the parties and taking into consideration the relief sought for in the Interlocutory Application, which pertains to stay of operation of notice dated 02.07.2022 (impugned in the writ petition), is of the view that the issue of interim relief since has been adjudicated by the learned Single Judge by rejecting the Interlocutory Application (I.A. No. 8366 of 2022) and as such the office objection dated 09.11.2022 about the maintainability of the appeal in the facts and circumstances of the case, against order dated 18.10.2022, is required to be overruled.

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9. Accordingly, office objection dated 09.11.2022 about maintainability of the appeal is overruled.

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10 . Learned senior counsel appearing for the petitioner-appellant has vehemently argued that by rejecting the Interlocutory Application refusing to stay the operation of notice dated 02.07.2022 is absolutely illegal and improper since there is no laches on the part of the writ petitioner in execution of the work rather for non-cooperation on the part of the respondent-BCCL the work could not have been completed within the scheduled time, as agreed between the parties, but even then notice dated 02.07.2022 has been issued and as such the learned Single Judge ought to have taken into consideration the fact of non-cooperation on the part of respondent-BCCL by creating hurdle in performance of the work to be concluded within scheduled time as agreed and as such there is wrong committed on the part of the respondent.

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Learned counsel for the petitioner has further submitted that the respondent-BCCL cannot be allowed to take advantage of his own wrong.

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11. Learned counsel for the respondents-BCCL has seriously objected to the aforesaid submission as also the ground as has been advanced on behalf of learned counsel for the petitioner.

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It has also been submitted that since the writ petitioner is raising the factual aspect, which is yet to be adjudicated by learned Single Judge as such it will be just and proper to direct the writ petitioner to pursue the writ petition.

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Learned counsel for the respondents has further submitted that learned writ Court may be requested to dispose of the writ petition at an early date so that the dispute on merit be adjudicated for all time to come.

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12 . Learned counsel for the petitioner, upon such submission, has raised no objection rather has submitted that such direction may be issued.

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Learned counsel for the petitioner has further submitted that as yet no counter affidavit has been filed. 13 . Upon this, learned counsel for the respondent has submitted that counter affidavit shall be filed within a week.

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14 . This Court, having heard learned counsel for the parties and taking into consideration the concession arrived at between the parties and since the factual aspect is to be adjudicated by the learned Single Judge by way of Court of first instance, as such the matter is required to be adjudicated by the learned Single Judge itself.

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15 . In view thereof, the instant intra-court appeal is disposed of with a request to learned Judge to dispose of the writ petition preferably within a period of three weeks from today.

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16 . Respondents shall file counter affidavit within a week from today.

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17 . Learned counsel for the parties are at liberty to mention the case before the learned Single Judge for its early hearing.

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18 . With the aforesaid observations and directions, the instant intra-court appeal stands disposed of.

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19 . Pending Interlocutory Application (s), if any stands disposed of.

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(Dr. Ravi Ranjan, C.J.)

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(Sujit Narayan Prasad, J.)

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Alankar/ - A.F.R.

Sushee Infra and Mining Ltd. through Its Vice President Anil Kumar Dutta v. Bharat Coking Coal Ltd. through Its Chairman Cum Managing Director

Case brief

What is this about?

What did the court decide?

Sushee Infra and Mining Ltd. through Its Vice President Anil Kumar Dutta v. Bharat Coking Coal Ltd. through Its Chairman Cum Managing Director

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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