Bombay High Court
Chiplun Sand Mining And Trading ... vs The State Of Maharashtra Through The ... on 7 May, 2024
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2024:BHC-AS:21259-DB
TAUSEEF Tauseef 908-WP.4263.2024-J.doc
LAIQUEE
FAROOQUI IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by CIVIL APPELLATE JURISDICTION
TAUSEEF LAIQUEE
FAROOQUI
Date: 2024.05.08
10:27:36 +0530 WRIT PETITION NO.4263 OF 2024
1. Chiplun Sand Mining & Trading Corporation,
2. Om Sai Enterprises,
3. R.R. enterprises,
4. Bashir Hamdule,
5. Gurunath Yashwant Patkar. ...Petitioners
Versus
1. The State of Maharashtra,
through its Secretary,
Ministry of Forest and Revenue,
Mantralaya, Mumbai-400032.
2. The Collector, Raigad,
having office at Alibaug,
District Raigad.
3. The Collector, Ratnagiri,
Having his office at Ratnagiri.
4. The Collector, Sindhudurg,
Having his office at Sindhudurg.
5. The Mining Officer, Ratnagiri,
Having his office at Ratnagiri.
6. The Mining Officer, Raigad,
having his office at Raigad at Alibaug.
7. The Mining Officer, Sindhudurg,
Having his office at Sindhudurg. ...Respondents
__________
Mr. Mihir Desai, Senior Advocate i/b. Mr. Onkar Warang for the
Petitioners.
Mr. P. Kakade, G.P. a/w Mr. N. C. Walimbe, Addl. G. P. and Ms. G. R.
Raghuwanshi, AGP for Respondent-State.
__________
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Tauseef 908-WP.4263.2024-J.doc
CORAM : A. S. CHANDURKAR,
JITENDRA JAIN, J.J.
Date on which the Arguments were Heard : 2nd MAY 2024.
Date on which the Judgment is Pronounced : 7th May 2024.
JUDGMENT :
- (Per Jitendra Jain, J.)
1. Rule. Rule made returnable forthwith. By consent of the
parties, the petition is heard finally.
2. This Writ Petition under Article 226 of the Constitution of
India is filed by five Petitioners who were successful bidders of the
tender floated by the Respondent-State for excavation of sand from the
river/creek beds and to transport the extracted sand to the depot
created for storage of the said sand and for management of the said
depot. Although, various prayers have been sought in the petition, the
effective prayer pressed for our consideration is writ of mandamus
directing Respondents not to make Government Resolution dated 16 th
February 2024 applicable to the contracts executed between the
Petitioners and the Respondent-State pursuant to tender dated 24 th May
2023.
Brief facts are as under:-
3. On 19th April 2023, the Respondent-State issued a Government
Resolution detailing comprehensive policy regarding extraction, storage
and sale of sand through online process. The objective of the said policy
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was not to extract the sand commercially but to make it available for
development work and also to avoid flood like situation which may arise
due to accumulation of sand in river bed. Therefore, the Government on
experimental basis, issued the said policy, for a period of one year with
an objective to make the sand available to the citizens in the State at a
cheaper rate and to curb unauthorised extraction. The said policy also
provided for the terms and conditions regarding depot construction and
management. The rate for sale of sand as per the said policy was
determined at Rs.600/- per brass for one year for the entire State on
experimental basis and the amount of royalty would be waived. The
expenses of sand transportation will have to be borne by the citizens.
The said policy also had a mechanism for redressal of grievances in sand
extraction by a Committee at district level.
4. Pursuant to the above policy, on 24th May 2023, Respondent-
State published the tender inviting the contractors to bid for sand
extraction. The Petitioners along with other bidders applied for the said
tender and ultimately the Petitioners were allotted the tender for five
different sites. The successful bidders were issued a LOI and, thereafter,
the Respondent-State and the Petitioners executed an agreement on 29 th
August 2023. In the present petition, one such agreement is enclosed
between the Respondent-State and Petitioner No.1.
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5. On 16th February 2024, Respondent-State issued another
Government Resolution dated 16th February 2024 for extraction of the
sand. The said Government Resolution dated 16 th February 2024
modified and superseded earlier Government Resolution dated 19 th April
2023 and a revised sand policy came to be issued by the said
Government Resolution dated 16th February 2024. Chapter 10 of the said
Government Resolution provides that the sand depots which are
operative as per the provisions of earlier Government Resolution dated
19th April 2023 will continue to operate in the same manner. However,
the terms and conditions for the said sand depot will be applicable as
per this revised sand policy. Further the sale cost of sand/gravel
mentioned in Chapter No.6 (III) in the revised policy, will be applicable
from the date of the new Government Resolution dated 16 th February
2024. It is on this backdrop that the Petitioners are before us.
Submissions of the Petitioners:-
6. The primary contention of the Petitioners is that Respondent-
State cannot unilaterally change the terms and conditions of the
agreement dated 29th August 2023, which was executed pursuant to the
tender floated on 24th May 2023. The Petitioners submit that this would
be contrary to the principle of promissory estoppel and also contrary to
the contract executed between the Petitioners and the Respondent-State.
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The Petitioners submitted that they have arranged their business affairs
on the basis of the agreement executed on 29 th August 2023 and now
the Respondent-State cannot unilaterally make Government Resolution
dated 16th February 2024 applicable to such contract. The action of the
Respondent-State, therefore, is unfair and contrary to the decision of the
Coordinate Bench of this Court in the case of Musale Constructions,
Builders and Contractors, Nagpur Vs. Vidarbha Irrigation Development
Corporation, Nagpur & Anr.1. The Petitioners further submitted that on
account of onset of the monsoon season, the sand extracted and lying on
the beds will be washed away and huge loss would be incurred. The
Petitioners in its rejoinder have enclosed month-wise daily lifting chart
for the period December 2023 to April 2024 and submitted that post
introduction of the impugned Government Resolution, the daily lifting
has reduced substantially. The Petitioners have, therefore, prayed for a
declaration that Respondent-State cannot unilaterally make the
Government Resolution dated 16th February 2024 applicable to the
contract executed under the earlier Government Resolution dated 19 th
April 2023.
Submission of Respondent-State:-
7. Per contra, the learned counsel for Respondent-State submitted
that the petition is misconceived. The Respondent-State brought to our
1 2021 (1) Mah.L.J. 355
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notice the reply filed by the State, wherein it is stated that the
Petitioners would receive the same amount as they were receiving under
the old policy. The Respondent-State also justified the issuance of the
impugned Government Resolution dated 16 th February 2024, which was
issued on the basis of no profit no loss policy and the Respondent-State
further submitted that sale of sand is not included in the tender and,
therefore, the Petitioners have nothing to do with the sale of sand. The
Respondent-State has also filed a chart giving comparative table of the
policy dated 19th April 2023 and revised policy dated 16 th February
2024. The Respondent-State, therefore, prayed for dismissal of the
present petition.
8. We have heard the learned Senior Counsel for the Petitioners
and the learned counsel for Respondent-State and with their assistance
have perused the documents, reply and rejoinder filed in the present
proceedings which were brought to our notice.
Analysis and Conclusion:-
9. There is no dispute that the agreement executed by the
Petitioners and Respondent-State on 29th August 2023 was for a
maximum duration of one year or until the sand reserved of the said
sand gat is exhausted. Clause 2 of the said agreement further provides
that the period of authorisation shall expire on 9 th June 2024 and from
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10th June to 30th September on account of monsoon, sand mining cannot
be done during the said period. There is no clause in the agreement
which empowers the Respondent-State to change the terms and
conditions unilaterally. It is also a settled position in law that contract
executed between two parties cannot be changed or modified unless
both the parties to the contract agrees to the said changes or
modification. In the absence of any clause in the agreement dated 29 th
August 2023, the Respondent-State cannot alter or modify the said
agreement unilaterally.
10. Clause (4) of Chapter 10 of the Government Resolution dated
16th February 2024 provides that the sand depots which are operative as
per the provisions of Government Resolution dated 19 th April 2023 will
continue to operate in the same manner. However, in the same clause it
is also provided that the terms and conditions for such sand depots
would be as per the revised sand policy of 16 th February 2024. The said
clause further provides that the sale and cost of sand/gravel mentioned
in Chapter No.6 in the revised policy of 16 th February 2024 will be
applicable from the date of Government Resolution dated 16 th February
2024. In our view, the said clause is self contradictory. On the one hand
the Government Resolution of 16th February 2024 provides that the sand
depots operating as per earlier Government Resolution of 19 th April
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2023 would continue to operate in the same manner, but later on states
that the terms and conditions of the revised sand policy as per
Government Resolution dated 16th February 2024 would be applicable to
such sand depots. This would also amount to modifying the agreement
dated 29th August 2023 executed between the Petitioners and
Respondent-State. We have already opined that agreement dated 29 th
August 2023 cannot be modified unilaterally. There is no approval by
the Petitioners to the applicability of the terms and conditions of the
revised sand policy to the agreement dated 29 th August 2023. Hence
clause (4) of Chapter 10 of Government Resolution dated 16 th February
2024 to the extent it makes the terms and conditions of the said
Government Resolution applicable to the agreement dated 29 th August
2023 cannot be applied to the Petitioners.
11. The Respondents in their reply have also admitted that the
Petitioners would receive the same amount as they were receiving under
the old policy of 19th April 2023 pursuant to which the agreement of 29 th
August 2023 was executed. If that be so, then we fail to understand as
to why in the Government Resolution dated 16 th February 2024 the
terms and conditions of the revised sand policy is made applicable to the
existing sand depots. In our view, the contracts awarded to the
Petitioners pursuant to Government Resolution of 19 th April 2023 would
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govern the agreement executed on 29 th August 2023. The Government
Resolution dated 16th February 2024 would be applicable only to the
tenders to be issued thereafter and not to the Petitioners contracts which
were executed by the Petitioners and the Respondent-State prior to the
Government Resolution of 16th February 2024 coming into force.
12. As per agreement of 29th August 2023, Clause 20 provides that
the tenderer shall excavate the sand from the quarry sand Ghat and shall
transport the sand by boat/barge to the sand depot on the shore and
transport the sand from the boat/barge to the shore by 6 wheel tipper
with the help of a crane and from there directly bring the sand to the
sand depot. Sand will not be allowed to be stored/discharged along the
bay shore. Clause 22 of the terms and conditions regarding
"Establishment and Management of Depot" of the said agreement
provides that the tenderer shall excavate sand from the river bay basin
and store the sand suitable for construction in the sand depot.
Therefore, the obligation of storing the sand in sand depot is that of the
Petitioners and not the Respondent-State. The other provisions relating
to protection of sand also indicates that the responsibility is that of the
contractor-Petitioners. Therefore, in our view, the Petitioners are not
justified in contending that at the time of onset of the monsoon they will
suffer loss on account of washing away of the sand. It is for the
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Petitioners to make necessary arrangement as per the agreement to store
the sand to avoid it being washed away and it is not the responsibility of
the Respondent-State.
13. Under the agreement executed on 29th August 2023, there is
no obligation on the Respondent-State that they would lift minimum
quantity of sand everyday or every month. Therefore, the contention of
the Petitioners in the rejoinder that post February 2024 there is a
substantial reduction in lifting of the sand is not justified. The sale of
sand is online and no malafides can be attributed to the Respondent-
State on this count.
14. The Petitioners are justified in placing reliance on the decision
in the case of Musale Constructions, Builders and Contractors, Nagpur
(supra), wherein the Coordinate Bench of this Court in paragraph 16 has
observed as under :-
"16. In the case in hand, the issue as to price adjustment of the
difference in increase in the royalty charges is covered by the terms
of the contract tender agreements/contract, particularly Clause 33
of the said terms and conditions of the tender agreement, which
have been acted upon and implemented since the date of tender
agreements. In this view of the matter, according to us, the
petitioner has rightly invoked the doctrine of promissory estoppel.
The second respondent is estopped from unilaterally altering the
terms and conditions of the tender agreement by applying the
impugned circular to the case of the petitioner. In the light of the
above referred decisions, according to us, the respondents are not
justified in applying the impugned circular to the case of the
petitioner."
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15. In view of above, we pass the following order:-
ORDER
(i) The following part of the Clause 4 of Chapter 10 of
Government Resolution dated 16th February 2024 is held
to be not applicable to the contracts of the Petitioners
executed pursuant to the tender notice dated 24 th May
2023 tender and on the basis of Government Resolution
dated 19th April 2023 till the end of the period of the
agreement dated 29th August 2023:
"तथापि , सदर वाळू डे ो करीता या सु धारीत वाळू धोरणातील अटी व शती
लागू राहतील."
(ii) The Petitioners would be governed by the terms of their
contracts executed on 29th August 2023.
(iii) The Petitioner/tenderer will receive the same amount as
they were receiving under the old policy dated 19 th April
2023.
(iv) The Writ Petition is partly allowed in above terms. No
costs.
[JITENDRA JAIN, J.] [A. S. CHANDURKAR, J.]
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