Jharkhand High Court
Ambey Mining Private Limited vs Bharat Coking Coal Limited on 7 May, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1576 of 2017
......
Ambey Mining Private Limited, through its authorized signatory,
Sri Om Prakash Pareek. ........ Petitioner
Versus
1. Bharat Coking Coal Limited, having its registered office at Koyla
Bhawan, P.O. Koyla Nagar, P.S. Saraidhella, District Dhanbad (Jharkhand),
through its Chairman-cum-Managing Director, having its office at Koyla Bhawan,
P.O. Koyla Nagar, P.S. Saraidhella, District Dhanbad.
2. General (HEMM), Manager, Bharat Bhawan, P.O. & District Dhanbad,
Contract Coking Coal Management Cell Limited, Koyla Bhawan, Koyla Nagar,
P.S. Saraidhella, District Dhanbad.
3. General Manager, Govindpur Area, Area-III, Bharat Coking coal
Limited, P.O. Sonardih, P.S. Govindpur, District Dhanbad.
4. Project Officer/Agent, Maheshpur Colliery, Govindpur Area, Bharat
Coking Coal Limited, P.O. Sonardih, P.S. Govindpur, District Dhanbad.
5. Deputy Director of Mines Safety (Mining), Region No. III, Central Zone,
Directorate General of Mines Safety, P.O. and P.S. Dhanbad, District Dhanbad.
..... Respondents
......
CORAM: Hon'ble Mr. Justice Rongon Mukhopadhyay,
Hon'ble Mr. Justice Deepak Roshan
......
For the Petitioner: Mr. Sumeet Gadodia, Advocate
Mrs. Shilpi Sandil Gadodia, Advocate
Mr. Ranjit Kushwaha, Advocate
Mr. Ritesh Kumar Gupta, Advocate.
For the Respondents: Mr. Anupam Lal Das, Sr. Advocate,
Mr. Anoop Kumar Mehta, Advocate,
Mr. Amit Sharma, Advocate.
......
CAV ON.04/04/2024 Delivered on .07 /05 /2024
Per Deepak Roshan, J Heard learned counsel for the parties.
2. The present writ application has been filed by petitioner primarily
seeking following reliefs:-
(a) Issue an appropriate writ, order or direction or a writ in
the nature of Mandamus directing the Respondents to make a final
decision for the closure of the contract in terms of the
representation dated 05.07.2021 made by the Petitioner before the
Respondents vis a vis its non-execution due to the restrictions
imposed by the DGMS vide its Order dated 18.11.2015 (Annexure-
9 of the Writ Petition) and also in light of the Respondents decision
of issuance of the tender in complete violation and disregard of the
environment clearance rules, and direct the Respondents to pay the
dues of the Petitioner in accordance with the law.
"Issue an appropriate writ, order or direction or a writ in the
nature of Mandamus restraining/injuncting the Respondents
from taking any coercive steps against the Petitioner and be
further pleased to direct the parties to resolve disputes and
differences through a dispute resolution mechanism/Arbitration
in accordance with the Circular dated07.04.2017, issued by
Coal India Limited, Civil Engineering Division."
(b) For issuance of appropriate writ/order/direction commanding
upon the Respondents showing them cause as to how can they justify
the work tendered vide Tender Notice No. 147 vide Ref. No.
BCCL/GM(CMC)/F-HEMM-OS/2014/2375 dated 11.06.2014 in the
facts and situations and also in the light of withdrawal of permission
by the DGMC and upon receiving their reply pass appropriate orders
for taking suitable actions against the concerned authorities of the
Respondents who have been instrumental in notifying the tender works
without ascertaining the factual and technical viability of the work in
question;
AND/OR
(c) The Petitioner further prays for issuance of a writ, order or
direction commanding upon the respondents to recall its Notices
dated 7/9.5.2016 (Annexure-10) and 28.05.2016 (Annexure-13) which
have been issued by the respondents without any application of mind
and in teeth of the direction given by the DGMS, which is binding and
also in complete ignorance of the facts and situations narrated by the
petitioner ide its various letters and communications including the
letters dated 17.11.2015 (Annexure-8) and 25.5.2016 (Annexure-12);
whereby the petitioner has, on the basis of the facts and circumstances
narrated in the said representations/letters, prayed for foreclosure of
the aforesaid contract;
3. Brief facts of the case is that Respondent-Bharat Coking Coal
Limited (for short „BCCL‟), vide its Tender Notice No. 147 dated
11.06.2014, published a Notice Inviting Tender for its Maheshpur colliery of
Govindpur Area for the following works:-
(i) Removal of Overburden - 226.47 LM; and
(ii) Extraction of coal - 67.28 LMT for five years.
4. Petitioner participated in the aforesaid tender and was issued Letter
of Acceptance for above-referred works on 18.12.2014 and, pursuant to
which, Petitioner submitted three separate Bank Guarantees each amounting
to Rs. 1.00 Crore i.e. total Bank Guarantees of Rs. 3.00 Crores on 19.03.2015
for due performance of the contract.
5. On 15.05.2015, Petitioner was handed over the site and mutual
schedule of work was agreed between Petitioner and Respondent-BCCL vide
letter dated 25.06.2015, wherein work was to start on 1st July, 2015. It is an
undisputed fact that Petitioner started the work and continued to execute the
work till 01.10.2015, but Petitioner was facing acute hindrances from local
people due to problems of land acquisition and re-habilitation and re-
settlement.
6. The case of the Petitioner is that Director General, Mines Safety,
Dhanbad (for short „DGMS‟) on 12.11.2013 granted permission to BCCL for
Maheshpur Colliery permitting use of explosives for blasting work up-to a
distance of beyond 100 meters from the habitants at the site. It is the case of
the Petitioner that there were admittedly houses at the site and blasting work
beyond 100 meters of the houses at the site was not possible, and, villagers
were continuously raising protests regarding blasting activities as, due to
blasting activities, stones, dusts, etc., were falling over the houses/hutments
of the villagers.
7. On 01.10.2015, while Petitioner was undertaking the work of deep
hole blasting during noon hours, an unfortunate incident of fly-rock landing
over the houses of the villagers took place, due to which villagers protested
and stopped the work in question. Immediately, Petitioner vide its letter
dated 07.10.2015 informed the Respondent-BCCL about the aforesaid
incident and requested BCCL to resolve the issue.
8. On 10.10.2015, an inspection was conducted by DGMS regarding
Maheshpur colliery on the basis of complaints of villagers regarding falling
of stones in their houses/hutments due to blasting work. In the Inspection
Report, it was noticed that manpower and machinery of the Petitioner were
deployed at the site and were found idle due to stoppage of work by villagers
and it was further noticed that open cast mining work was being undertaken
which was only at a distance of 75 meters to 80 meters from the surface
structures like, water filter tanks, residential colony of Respondent-BCCL,
Kali Temple, as well as kutcha houses of some of the labourers who were
residing there. Accordingly, pursuant to Inspection Report, recommendation
was made by the Inspecting team to DGMS for withdrawal of permission
granted by the Directorate for carrying out blasting work until all permanent
buildings, houses, dwellings, railway or surface structures are not removed
within 100 meters distance of the site of blasting. Consequent upon the
aforesaid recommendation, DGMS withdrew the permission earlier granted
for doing deep hole blasting by explosives and, hence, no work could have
been carried out in the mines.
9. The fact further reveals that the petitioner obtained information
under Right to Information Act, 2005 from the office of the DGMS, wherein
it has been informed to the Petitioner vide Information dated 30.09.2021
(Annexure R/12) that BCCL, after recall of the permission granted by
DGMS, has not filed any further application for grant of permission. On the
strength of the above, it is the case of the Petitioner that Respondent-BCCL,
without adequately rehabilitating and re-settling the residents of the area,
contrary to the permission granted by DGMS for carrying out blasting work,
invited the tender and, due to the activity of blasting being undertaken within
100 meters of the location of the habitants, continuous protests were made by
the habitants and, ultimately, work was stopped within a short time of three
months only, on 1st October, 2015 and even DGMS subsequently withdrew
the consent earlier granted on 18.11.2015.
10. From the facts of the case, it further transpires that the tender in
question was invited by Respondent-BCCL for "Hiring of HEMM for
removal of overburden, extraction and transportation of coal from XI,
IX/X,VIII-B, VIII-A and V/VI/VII Seams of Patch F-1 of Maheshpur colliery
of Govindpur Area for the extent of overburden to the tune of 226.47 LC,
coal to the tune of 67.28 MLT" and the said work was to be carried out
through open cast mining.
It is the case of the Petitioner that the very issuance of the tender in
question by Respondent-BCCL was per se illegal and arbitrary being
violative of Article 14 of the Constitution of India as the said tender was
invited by Respondent-BCCL without having requisite environmental
clearance from the Ministry of Environment and Forests for extraction of
coal from the mines in question. As a matter of fact, BCCL was only having
environmental clearance for Maheshpur Colliery for carrying out
„underground mining‟ and not „open cast mining.
A copy of the Environment Clearance dated 6th February, 2013
(Annexure R/13) has been annexed by the Petitioner in its Rejoinder
Affidavit, from which it would be evident that BCCL applied for
environmental clearance for a cluster of mines i.e. 7 mines which included
Maheshpur Colliery, and, permission was granted to BCCL only for carrying
out the activity of production from Maheshpur colliery through
„Underground Mining‟ and not through „Open Cast Mining‟. In fact,
permission was also granted for a maximum production capacity of 0.09
Million Tonnes per year (MTY). The tender was invited for extraction of
coal of 67.28 LMT for five years, whereas, environmental clearance, that too
for only Underground Mining, was granted for 0.091 LMT per year. Thus, as
against the permission granted of 0.091 LMT per year, tender was invited for
production/ extraction of coal of 13.456 LMT per year, which was contrary
to the environmental clearance.
11. As per the Tender agreement, duration of the work was for a period
of 60 months to be reckoned from the date of commencement of the contract
i.e. 1st July, 2015 and the tenure of the contract stood expired on 30th June,
2020. Instant writ application was filed in the year 2017 and during pendency
of the writ application, stipulated time period of contract itself came to an
end.
However, the specific case of the petitioner is that despite the fact
that contract, by afflux of time, has even come to an end during pendency of
the writ application, Respondent-authorities were not refunding the Bank
Guarantees to the Petitioner and, on the contrary, were repeatedly asking the
Petitioner for extension of the Bank Guarantees. Reference may be made to a
letter dated 08.12.2023 (Annexure I.A.-2) issued by Respondent-BCCL,
wherein Petitioner was directed to extend its Bank Guarantees which were
expiring on 31.12.2023, failing which it was stated that same would be
forfeited. A copy of said letter is reproduced herein-below:-
"Dear Sir,
This is to inform you that the followings 04 Nos. of Bank Guarantee
submitted by M/s Ambey Mining Pvt. Ltd. is going expire. The details are as
below:-
Sl. B.G. No. Issued on Issued by Amount Expiring on
No (Bank Name)
1. 0006BG00218115 14.06.2022 ICICI Bank 1,00,00,000/- 31.12.2023
2. 0006BG00218215 14.06.2022 ICICI Bank 20,00,000/- 31.12.2023
3. 0006BG00218315 14.06.2022 ICICI Bank 1,00,00,000/- 31.12.2023
4. 0006BG00218415 14.06.2022 ICICI Bank 1,00,00,000/- 31.12.2023
Therefore, you are requested to submit extended Bank Guarantee within
validity else it will be forfeited."
12. Mr. Sumeet Gadodia, learned counsel appearing for the petitioner,
during the course of arguments, confined its prayer „for issuance of
appropriate direction upon Respondent-BCCL to treat the contract of the
Petitioner as closed as the time period of the contract has already expired on
30th June, 2020‟. It has been further prayed that Bank Guarantees which have
been submitted by the Petitioner for an amount of Rs. 3.20 crores are
required to be refunded to the Petitioner and it has been contended that action
of Respondent-authorities in retaining the Bank Guarantees is, per se, illegal
and arbitrary.
13. It has been vehemently argued that the very issuance of the tender by
Respondent-BCCL vide Tender Notice No. 147 dated 11.06.2014 for
removal of Overburden, extraction and transportation of coal from
Maheshpur Colliery through Open Cast Mines was, per se, illegal, arbitrary
and violative of Article 14 of the Constitution of India in view of the
admitted fact that Respondent-BCCL did not have requisite environmental
clearance for extraction of coal from the mines in question. It has been
submitted that Petitioner is entitled to seek damages from Respondent-BCCL
for their aforesaid alleged action for which Petitioner would be taking steps
separately in accordance with law, but, Petitioner is aggrieved by the action
of Respondent-BCCL in not refunding the original Bank Guarantees of the
Petitioner total amounting to Rs. 3.20 crores despite the fact that the contract
in question from the very inception was entered by BCCL in an illegal and
arbitrary manner. It was also submitted fact that contract stood frustrated in
terms of Section 56 of the Indian Contracts Act, 1872, as DGMS, Dhanbad
withdrew permission from mining with effect from 18.11.2015 and
Respondent-BCCL thereafter did not even re-apply for grant of permission
for mining pertaining to mines in question. Reliance has been placed by the
Petitioner upon following Judgments:-
(i) M.P. Power Management company Limited, Jabalpur Vs. Sky Power
Southeast Solar India Private Limited and Others, reported in
(2023) 2 SCC 703 (Relevant Para 82).
(ii) AKA Logistics Private Limited Vs. Central Coalfields Limited -
W.P.(C) No. 105 of 2023. (Relevant Paras 10, 11, 13, 14).
(iii) Indian Explosives Limited and Anr. Vs. Coal India Limited and Ors.,
reported in (2019) 16 SCC 258. (Relevant Para 11).
(iv) Varahi Associates Vs. Central coalfields Ltd. (L.P.A. No. 297 of
2019) (Relevant Paras 12, 13, 14 and 15).
14. On the contrary, Mr. Anupam Lal Das, learned Sr. Counsel assisted
by Mr. Amit Sharma, learned counsel opposed the reliefs prayed for by the
petitioner and contended that present writ application involves several
disputed questions of facts, and, remedy under Article 226 of the constitution
of India is not available to the Petitioner in view of such disputed questions
of facts. By referring to Paragraph 6(c), 6(d) and 6(e) of the Counter
Affidavit, it has been contended that Petitioner commenced the work on 1st
July, 2015 and stopped the work on 1st October, 2015 and DGMS permission
was withdrawn on 18.11.2015 much after stoppage of work by the Petitioner.
Hence, it cannot be contended by the petitioner that it was compelled to stop
the work because of withdrawal of permission by DGMS.
It was further submitted that permission granted by DGMS on
12.11.2013 was for use of explosives beyond a distance of 100 meters from
the houses at the site and subsequent to removal of structure and houses from
the site, work could have progressed but Petitioner abruptly stopped the work
from 1st October, 2015, for which Petitioner itself is at fault.
15. Learned Sr. Counsel also contended that the issue pertaining to
environmental clearance was never raised by Petitioner in the writ petition
and the said point was raised in its Rejoinder Affidavit filed before this Court
and, on the basis of the said Rejoinder Affidavit, Petitioner cannot build up
its case and the point pertaining to environmental clearance is required to be
ignored by this Court.
16. During the course of arguments, Mr. Anupam Lal Das, learned Sr.
counsel handed over a copy of the order dated 10.04.2013 passed by this
Court in W.P.(C) No. 4944 of 2020 (BCCL Vs. State of Jharkhand & Ors.)
and contended that due to lack of environmental clearance, action was
initiated against Respondent-BCCL by Jharkhand State Pollution control
Board under Section 19 of the Environment Protection Act, 1986 before the
competent court of law, which was challenged by Respondent-BCCL before
this Court and status quo order was granted by this Court vide order dated
25th August, 2011. By referring to the order dated 10.04.2013 passed in
W.P.(C) No. 4944 of 2011, it was submitted that even an Interlocutory
application was filed by Jharkhand State Pollution Control Board for
modification of the impugned order dated 25th August, 2011, but this Court
was pleased to dismiss the said Interlocutory application and did not vacate
the interim order granted by it, allowing the Petitioner to continue the mining
activity.
17. On the strength of the above, it has been submitted that although,
admittedly, Respondent-BCCL was not having environmental clearance for
carrying out mining activity through „Open Cast Mining‟ in Maheshpur
Colliery, but in view of interim protection granted by this Hon‟ble Court,
tender was invited and mining activities were being carried out.
18. Learned Sr. counsel tried to justify retention of the original Bank
Guarantees even after expiry of the period of contract by referring to Clause
9.2(B) and Clause 9.4 of the General Terms and Conditions and contended
that Respondent-BCCL is entitled to invoke penalty upon the Petitioner for
not carrying out the work, and, it is in that background, original Bank
Guarantee towards Performance Security is being withheld and Petitioner is
being asked to renew it from time to time.
19. We have heard learned counsel for the parties and have given our
anxious consideration to the submissions made at the bar. At the outset, we
would like to deal with the objection raised on behalf of Respondent that
present writ application involves disputed questions of facts and this Court,
in exercise of powers under Article 226 of the Constitution of India, should
not entertain a writ petition involving several disputed questions of facts.
It is trite law that a writ petition involving serious disputed questions
of facts which require consideration of evidence which is not on record, will
not normally be entertained by a court in exercise of its jurisdiction under
Article 226 of the Constitution of India. However, there is no absolute rule
that in all cases involving disputed questions of facts the parties should be
relegated to a civil suit. Our view is supported by a Judgment of Hon‟ble
Apex Court in the case of Gunwant Kaur v. Municipal committee,
Bhatinda, reported in (1969) 3 SCC 769, where dealing with such a situation
of disputed questions of fact in a writ petition, Hon‟ble Apex Court held as
under:-
"14. The High Court observed that they will not determine disputed
question of fact in a writ petition. But what facts were in dispute
and what were admitted could only be determined after an
affidavit-in-reply was filed by the State. The High Court is not
deprived of its jurisdiction to entertain a petition under Article 226
merely because in considering the petitioner‟s right to relief
questions of fact may fall to be determined. In a petition under
Article 226, the High Court has jurisdiction to try issues both of
fact and law. Exercise of the jurisdiction is, it is true,
discretionary, but the discretion must be exercised on sound
judicial principles. When the petition raises questions of fact of a
complex nature, which ma for their determination require oral
evidence to be taken, and on that account the High Court is of the
view that the dispute may not appropriately be tried in a writ
petition, the High Court ma decline to try a petition. Rejection of a
petition in limine will normally be justified, where the High Court
is of the view that the petition is frivolous or because of the nature
of the claim made dispute sought to be agitated, or that the petition
against the party against whom relief is claimed is not
maintainable or that the dispute raised thereby is such that it
would be inappropriate to try it in the writ jurisdiction, or for
analogous reasons.
15. From the averments made in the petition filed by the appellants it
is clear that in proof of a large number of allegations the
appellants relied upon documentary evidence and the only matter
in respect of which conflict of facts may possibly arise related to
the due publication of the notification under Section 4 by the
Collector.
16. In the present case, in our judgment, the High Court was not
justified in dismissing the petition on the ground that it will not
determine disputed question of fact. The High Court has
jurisdiction to determine questions of fact, even if they are in
dispute and the present, in our judgment, is a case in which in the
interests of both the parties the High Court should have
entertained the petition and called for an affidavit-in-reply from
the respondents, and should have proceeded to try the petition
instead of relegating the appellants to a separate suit."
20. Yet in another Judgment of the Hon‟ble Apex Court in the case of
Century Spg. And Mfg. Co. Ltd. v. Ulhasnagar Municipal Council,
reported in (1970) 1 SCC 582, vide Para-13 of its Judgment, held as under:-
"Merely because a question of fact is raised, the High Court will
not be justified in requiring the party to seek relief by the
somewhat lengthy, dilatory and expensive process by a civil suit
against a public body. The questions of fact raised by the petition
in this case are elementary."
21. Recently also, Hon‟ble Supreme Court, in its Judgment rendered in
the case of „M.P. Power Management Company Limited, Jabalpur (supra),
held as under:-
"82.9 The need to deal with disputed questions of fact, cannot be made a
smokescreen to guillotine a genuine claim raised in a writ petition,
when actually the resolution of a disputed question of fact is
unnecessary to grant relief to a writ applicant.
82.10. The reach of Article 14 enables a writ court to deal with arbitrary
State action even after a contract is entered into by the State. A
wide variety of circumstances can generate causes of action for
invoking Article 14. The Court‟s approach in dealing with the
same, would be guided by, undoubtedly, the overwhelming need to
obviate arbitrary State action, in cases where the writ remedy
provides an effective and fair means of preventing miscarriage of
justice arising from palpably unreasonable action by the State.
Xxx xxx xxx
82.12. In a case the State is a party to the contract and a breach of a
contract is alleged against the State, a civil action in the
appropriate forum is, undoubtedly, maintainable. But this is not
the end of the matter, Having regard to the position of the State
and its duty to act fairly and to eschew arbitrariness in all its
actions, resort to the constitutional remedy on the cause of action,
that the action is arbitrary, is permissible (see in this regard
Shrilekha Vidyarthi v. State of U.P.). However, it must be made
clear that every case involving breach of contract by the State,
cannot be dressed up and disguised as a case of arbitrary State
action. While the concept of an arbitrary action or inaction cannot
be cribbed or confined to any immutable mantra, and must be laid
bare, with reference to the facts of each case, it cannot be a mere
allegation of breach of contract that would suffice. What must be
involved in the case must be action/inaction, which must be
palpably unreasonable or absolute irrational and bereft of any
principle. An action, which is completely mala fide, can hardly be
described as a fair action and may, depending on the facts, amount
to arbitrary action. The question must be posed and answered by
the Court and all we intend to lay down is that there is a discretion
available to the Court to grant relief in appropriate cases.
Xxx xxx xxx
82.14. Another relevant criteria is, if the Court has entertained the
matter, then while it is not tabooed that the Court should not
relegate the party at a later stage, ordinarily, it would be a
germane consideration, which may persuade the Court to complete
what it had started, provided it is otherwise a sound exercise of
jurisdiction to decide the matter on merits in the writ petition
itself."
22. An upshoot of aforesaid discussions would reveal that merely
because some disputed questions of facts arise for consideration, same
cannot be a ground to refuse to entertain a writ petition in all cases as a
matter of rule. As has been observed in the case of M.P. Power Management
Co. Ltd. (supra), disputed questions of fact cannot be made a smokescreen to
guillotine a genuine claim raised in a writ petition and it is in that
background, we are proceeding to examine as to whether present writ
petition involves actually the resolution of any disputed questions of fact to
grant relief to the applicant?
23. The writ petitioner, in its Rejoinder Affidavit, vide Annexure R/13,
has annexed the Environmental clearance issued in favour of Respondent-
BCCL dated 6th February, 2013 for Maheshpur Colliery, from which it is
evident that for Maheshpur Colliery, Respondent-BCCL was only having
environmental clearance for carrying out „Underground Mining‟; whereas
tender was floated by it for carrying out „Open Cast Mining‟, which was
contrary to environmental clearance granted in favour of Respondent-BCCL.
The writ petitioner has further annexed the document obtained under
Right to Information Act (vide Annexure R/14) which is an application filed
by Respondent-BCCL dated 13.09.2017 for modification of its earlier
environmental clearance for Maheshpur Colliery, wherein BCCL applied to
the Ministry of Environment, Forest and Climate Change for grant of
environmental clearance even for „Open Cast Mining‟. The said application,
on record, further fortifies the fact that BCCL was not having environmental
clearance for „Open Cast Mining‟. In fact, vide order dated 08.12.2023, this
Court, while hearing the writ petition, noticed the above averments made by
the writ petitioner in its Rejoinder Affidavit dated 09.02.2022 and directed
Respondent-BCCL to file a specific Affidavit as to whether it was having
environmental clearance for carrying out mining activity for Maheshpur
Colliery for „Open Cast section‟, or it was having permission only for
carrying out mining activity of „Underground section‟. Pursuant to aforesaid
order dated 08.12.2023, Respondents have filed their Reply dated
16.12.2023, wherein, at Para-8, Respondents have specifically admitted as
under:-
"8. That it is submitted that the Respondent herein had Environmental
Clearance for the purpose of Under Ground Mining (UG) and not
for the purpose of Open Cast Mining (OC). However, it may be
relevant to note that an application as regards Environmental
Clearance for Open Cast mining was applied by the Respondent
herein before the competent authority of the said Board and the
same is pending approval. It is submitted that the Respondent
herein proceeded to invite tenders as regards Open Cast Mining
on the basis of pendency of the aforesaid Writ Petition being
W.P.(C) No. 4944 of 2011 much less, the aforementioned interim
Order dated 10.04.2013 passed by this Hon‟ble Court in I.A. No.
505 of 2013 in the said writ petition."
24. Aforesaid admission made by Respondent-BCCL in its reply is
unambiguous, which clearly reveals that BCCL was only having
Environmental Clearance for the purpose of „Underground Mining‟ and not
for the purpose of „Open Cast Mining‟. However, BCCL, in its reply, relied
upon the Interim Order passed by this Court in W.P.(C) No. 4944 of 2011
dated 10.04.2011, wherein a status-quo order was passed in favour of
Respondent-BCCL by this Court against actions being initiated against it by
Jharkhand State Pollution Control Board for carrying out mining activity
without Environmental Clearance.
BCCL further contended that even an application was filed for
modification of the Interim order by Jharkhand State Pollution Control
Board, but this Court, vide order dated 10.04.2013, was pleased to modify
the Interim Order. Although reference of the order dated 10.04.2013 was
given in the reply-affidavit filed by Respondent-BCCL, but said order was
not annexed along with the said reply-affidavit and, during the course of
arguments, a copy of the said order was handed over to this Court by the
counsel for Respondents. We deem it appropriate to quote herein-below the
aforesaid order dated 10.04.2013:-
"14/10.04.2013 Heard learned counsel for the parties.
The instant Interlocutory Application has been preferred by the
Respondents-Jharkhand State Pollution Control Board for
modification in the interim order dated 25th August, 2011 by
permitting the concerned respondents to take legal action under
Section 19 of the Environment (Protection) Act, 1986 before the competent
court of law under different provisions of the Environment
(Protection) Act. The petitioner had approached this Court against the
direction of the Respondents-Board for closure of the mines in question
and order of status quo was granted on 25th August, 2011 after hearing
the parties and on 29th November, 2011 the petitioner was allowed
time to apprise the court regarding concrete plan/project
undertaken for compliance of the various provisions of
environmental laws. The interim order dated 25th August, 2011
was continued. The writ petition was admitted for hearing on 18th
January, 2012.
The Respondents-Board has now filed the present I.A.
seeking modification of the interim order dated 25th August, 2011, inter
alia, stating that the petitioner is violating the circular dated 16.11.2010
and the letter of Government of India, Ministry of Environment
and Forests dated 10th December, 2012 in the matter of environmental
clearance to BCCL coal mines. Learned counsel for the Respondents-
Board vehemently submitted that the State Pollution Control Board
is contemplating legal action for the violation already made
earlier for non-compliance of the environmental laws and failure to
obtain environmental clearance in respect of the mines, which are being
operated by the BCCL.
The petitioner has filed their reply. It has been stated in their reply
that there are 17 clusters of mines being operated by the
petitioner-company out of which one cluster falls in the State of West
Bengal. 17 Terms of Reference have been issued in favour of the petitioner
by the Expert Appraisal Committee of the Ministry of Environment and
Forests, Government of India. Out of 16 clusters falling in the State
of Jharkhand, environmental clearance has already granted in
respect of 9 such cluster being cluster nos. 1,2,3,4,5,7,8, 10 and
16 vide letter dated 6th February, 2013 of the Ministry of Environment
and Forests, Govt. of India. One such cluster is virgin cluster which
is not being operated till the environmental clearance certificate
is granted by the competent authority. Out of remaining 6 cluster in
respect of 3 being cluster nos. 13, 14 and 9, a recommendation has been
made by the Expert Appraisal Committee of MoEF for grant of
environmental clearance but certain clarifications have been sought for
and the petitioner expects that very soon environmental clearance in
respect of the aforesaid 3 clusters should be granted. In respect of other
remaining three clusters being cluster nos. 6, 11 and 15, the same are
pending before the Expert Appraisal Committee of MoEF which was going
to hold its meeting on 25th March, 2013 and 8th April, 2013 in respect of
cluster nos. 11 and 15 respectively. In such circumstances,
learned counsel for the petitioner submits that considerable progress has
been made in the matter of grant of environmental clearance. The Board
of Directors of the petitioner-company has also resolved and
communicated to the Ministry of Forests and Environment, its resolution
that such violation of environmental clearance shall not be repeated in
future. It is, therefore, submitted that at the moment the interim order
granting status quo in favour of the petitioner should not be
modified as it is very likely that in near future the environmental
clearance should be granted in favour of other remaining clusters
of the petitioner-company. (Emphasis supplied)
I have heard learned counsel for the parties at length. From the
facts, which have been narrated hereinabove, it appears that the petitioner
has made considerable progress in the matter of grant of environmental
clearance in respect of 16 such clusters which are in existence in the
State of Jharkhand. In respect of remaining 6 clusters, the
submission of the petitioner is that they are at advanced stage and
appropriate decision is likely to be taken in near future by the competent
authority of the Ministry of Environment & Forests for grant of
environmental clearance. 9 clusters have already granted environmental
clearance.
In such circumstances, at the moment, this court does not consider
it proper to modify the interim order. However, it is made clear that the
petitioner is required to ensure all steps, to obtain environmental
clearance at the earliest and preferably within a period of three months.
If the environmental clearance of the remaining clusters are not obtained
within the next three months by the petitioner, the Respondents-
Board would be at liberty to bring it to the notice of this Court for proper
modification of the interim order.
This Interlocutory application stands disposed of."
25. A bare perusal of the aforesaid order would reveal that in the
aforesaid order itself, there is a reference of Environmental Clearance
granted by Ministry of Environment Clearance and Forests, Govt. of India,
dated 6th February, 2013 for nine clusters of Mines of Respondent-BCCL.
Said order dated 6th February, 2013 granting Environmental Clearance for
nine clusters of Mines also includes the Maheshpur cluster Mine and the said
Environmental Clearance order clearly reveals that Environmental Clearance
was granted only for „Underground Mining‟ and not for „Open Cast Mining‟.
In fact, in the aforesaid order itself, it has been recorded that Board of
Directors of BCCL have resolved and communicated to the Ministry of
Forests and Environment its resolution that violation of Environmental
Clearance shall not be repeated in future. This Court, after taking into
consideration that BCCL has already been granted Environmental Clearance
for nine clusters of its Mines, allowed status quo to be continued.
However, a bare perusal of the order dated 10.04.2023 would itself
reveal that order of status quo was allowed to be continued on the statement
made that Board of Directors have resolved that there shall be no violation of
Environmental Clearance and shall not be repeated in future. At the cost of
repetition, we are constrained to mention herein that Environmental
Clearance dated 6th February, 2013 for Maheshpur cluster of Mines was
granted only for „Underground Mining‟, but despite such undertaking given
by Respondent-BCCL before this Court, it floated Notice Inviting Tender on
11.06.2014 for Maheshpur Colliery for „Open Cast Mining‟ instead of
„Underground Mining‟ in utter violation of Environmental Clearance granted
in its favour.
26. Respondent-BCCL is an instrumentality of the State and cannot be
expected to act like an ordinary entrepreneur and it is really unconceivable as
to how Respondent-BCCL, despite its undertaking given before this Court in
W.P.(C) No. 4944 of 2011, proceeded to publish Notice Inviting Tender
dated 11.06.2014 for carrying out mining operations through „Open Cast
Mining‟ contrary to the Environmental Clearance dated 6th February, 2013.
In our considered opinion, the very invitation of tender by
Respondent-BCCL was, per se, illegal and an arbitrary action on its part,
being violative of Article 14 of the Constitution of India.
27. Counsel for Respondent-BCCL vehemently argued that the point
pertaining to Environmental Clearance was never raised by the writ
petitioner in its writ petition and, for the first time, said point was raised in
the Rejoinder-Affidavit and this Court should not take into consideration the
averments made in the Rejoinder-Affidavit for adjudicating the instant writ
petition.
28. In our opinion, said contention of the Respondent is completely
unfounded as it is well known that in writ proceedings the affidavits,
counter-affidavits and rejoinder-affidavits filed by the parties constitute not
merely their pleadings but also partake of the character of evidence in the
case. Reference may be made to the judgment passed by the Hon‟ble Apex
Court in the case of S.P. Gupta v. Union of India‟, reported in 1981(Supp.)
SCCC 87.
29. Similarly, in the case of „Sri-La-Sri Subramana Desika
Gnanasambanda Pandarasannadhi Vs. State of Madras and Anr., reported
in 1965 SCC OnLine SC 81, Hon‟ble Supreme Court, in Para-17, it has
been held as under:-
"17. That takes us to the consideration of the question as to whether the
two reasons given by the High Court in support of this decision are
valid. The first reason, as we have already indicated, is that the
High Court thought that the plea in question had not been raised
by the appellant in this writ petition. This reason is no doubt,
technically right in the sense that this plea as not mentioned in the
first affidavit filed by the appellant in support of his petition; but in
the affidavit-in-rejoinder filed by the appellant, this plea has been
expressly taken. This is not disputed by Mr. Chetty, and so, when
the matter was argued before the High Court, the respondents had
full notice of the fact that one of the grounds on which the
appellant challenged the validity of the impugned Order as that he
had not been given a chance to show cause why the said
notification should not be issued. We are, therefore, satisfied that
the High Court was in error in assuming that the ground in
question had not been taken at any stage by the appellant before
the matter was argued before the High Court."
30. The petitioner, in the instant case, has further argued that
Respondent-BCCL was granted permission for carrying out „deep hole
blasting‟ by DGMS vide permission letter dated 12.11.2013, wherein it was
clearly stipulated that blasting work would be carried out beyond 100 meters
from the habitants at the site. It is the case of the Petitioner that without
carrying out the exercise of re-habitation and re-settlement of the habitants at
the mining site, BCCL handed over the mining site to the Petitioner and
when the Petitioner was undertaking the work of „deep hole blasting‟ stones
were falling over hutments of the habitants resulting into protests by the
villagers and due to such incident, which occurred on 01.10.2015, the
villagers stopped the work in question.
Petitioner has annexed, along with its Rejoinder-Affidavit, the report
of the Inspecting team of DGMS dated 10.10.2015 (vide Annexure- R/10). A
bare perusal of the said report would reveal that on complaint being made by
the residents of Maheshpur Area about "large size of flying fragments falling
on the Kutcha houses of contractor, labourer due to heavy blasting operated
by Ambey Mining Pvt. Ltd." an Inspecting team was constituted by DGMS
to enquire as to whether the activity of blasting was carried out in terms of
the permission granted by it to Respondent-BCCL i.e. carrying out „blasting
activity beyond 100 meters from the habitants at the site". In the said detailed
report, following conclusion was arrived at by the Inspecting team of DGMS
and, accordingly, recommendation was made for withdrawal of permission
granted in favour of BCCL till all the permanent buildings, houses,
dwellings, railways or surface structure within 100 meters of the site of
blasting are vacated/demolished and rendered uninhabitable.
Said conclusion and recommendations made in the report of the
Inspecting team reads as under:-
"7.0 Conclusion
As per inspection of the mine and up dated mine plan and up dated
mine plan No. 06/07 dated 12.10.2015 submitted by the
management, blasting records and statements of the mine officials
recorded during the enquiry I am to conclude that:-
Although the blasting officer, ACM in charge, Mine Manager and
Agent of the Mine had stated that no blasting had been conducted
within 100 meter of hutments/inhabitants area but as per site
Inspection and the submitted surface plan no. 06/07 signed by
surveyor and mine manager dated 12.10.2015 it was found that the
blasting had been conducted at second Bench of western side of
the opencast working which as about 75m. to 80 m. from the
surface structures like, water filter tank/residential company M/s.
BCCI Kali temple here some labourers were also residing in the
katcha houses adjacent to these structure in contravention of
permission relaxation granted vide Directorate letter No. R-
3/0110208/P-17/2023/1664-66 dated 12.11.2013 under regulation
170 (IB)(a)161(12) and 168(5) of the Coal Mines Regulations
1957 at Maheshpur colliery of M/s. BCCL.
It is very difficult to assess that whether the flying fragments were
fallen in the dwellings adjacent to the open cast workings during
blasting on 07.07.2015 and 01.10.2015 or not on the basis of
available documents.
8.0 Recommendations: In view of above the followings are
recommended:-
i. Permission/relaxation granted vide Directorate letter No. R-
3/0110208/P-17/2023/164-66 dated 12.11.2013 under regulation
170 (1B)(a)161(1) and 168(5) of the Coal Mines Regulations 1957
at Maheshpur colliery of M/s BCL may be withdrawn till all the
permanent buildings, houses, dwellings, railways or surface
structure not belonging to owner 100 m. of sit of blasting shall be
vacated/demolished and rendered uninhabitable."
31. In fact, consequent upon the said report, DGMS vide its letter dated
18.11.2015, withdrew the permission for carrying out the activity of blasting.
Said letter contained at Annexure-9 reads as under:-
"Please refer to the inspection of patch F-1 opencast workings of
Maheshpur colliery of M/s. BCL made by Sri V. Kalundia, DDMS/R-3 and
Shri R. Mishra, DDMS/CZ, Dhanbad, on 10/10/2015 to enquire into the
complaint made by residents of Mahespur Colliery about falling of large
sized rocks (Boulder) on their houses due to blasting in the Mine.
During the course of Inspection & enquiry it was noticed that extraction of
OB and coal was being done from XI, XIX, VVIIIC, VIIIB, VIIIA and
V/VI/VII seam of path F-1 by deep hole drilling/blasting using HEMM.
It was also found that the blasting had been conducted at 2nd bench of
western side of the opencast working which was about 75m to 80m from
the kutcha houses not belonging to the owner, in contravention of the
conditions No.1 of the permission letter No. R-3/010208/P-17/2013/1664-
65 dated 12/11/2013 granted under Regulation 170(1B)(a)(b),161(1) and
168(5) of the Coal Mine Regulation, 1957 at Maheshpur Colliery of
MM/s. BCCL.
In view of above, the said permission is hereby withdrawn with
immediate effect till all the permanent building, houses, dwellings,
railways or surface structure not belonging to owner lying within 100m of
site of blasting are vacated/demolished and rendered uninhabitable."
32. In fact, Respondent-BCCL, in paragraph 6(d) of its Counter
Affidavit, itself admitted that blasting work by use of explosives was
permitted up to a distance beyond 100 meters from the houses at the site and
the work could have progressed subsequently on removal of
structures/houses from the site. Para 6(d) of the Counter Affidavit is quoted
here-in-below:-
"(d) As per the Notice of Tender, the LOA and the Agreement, the work
of excavation was to be carried out over Hired HEM Patch F-1of
Maheshpur Colliery. As per the permission granted by the DGMS
on 12.11.2013, blasting work by use of explosives was permitted
upto a distance beyond 100 meters from the houses at the site.
Subsequently, on removal of structures/house, the work could have
progressed for the entire area of 70.60 acres, which was required
to be excavated. Thus, the petitioner could have continued the
work which was abruptly stopped on 1.10.2015."
33. Aforesaid admission of BCCL in its Counter Affidavit clearly
reveals the fact that BCCL invited tender without even clearing the houses at
the site beyond 100 meters as stipulated in DGMS permission for carrying
out mining work by use of explosives. The work was required to be stopped
by Petitioner on 01.10.2015 i.e. only within three months of the contract due
to non-clearance of the site and subsequent withdrawal of permission by
DGMS. Petitioner has further brought on record an information obtained
under the R.T.I. Act, wherein Petitioner has been informed by DGMS vide
its letter dated 30.09.2021 that permission, which was earlier granted to
BCCL for carrying out mining activity vide permission dated 13.05.2013 has
not been restored by DGMS. Said information obtained under the R.T.I. Act
reads as under:-
"fo"k;%& lwpuk dk vf/kdkj vf/kfu;e] 2005 ds rgr miyC/k cukus ds
lac/a k esaA
egksn;]
mijksDr fo"k; ij vkids i= la[;k mifuns0 ¼{ks= la0 3½@e0tks0@vkj-Vh-
vkbZ@48@ 2021@468] fnukad 27-09-2021 ftlds lkFk Jh lR;sUnz ukjk;.k
mik/;k;] irk&lh&26] 'kEHkw fe=k iFk] lsUVªy ikdZ ,DlVsZa'ku] flVh lsVa j]
nqxkZiqj] ftyk&if'pe o/kZeku] fiu& 713216 ¼ia0 caxky½] ds vkWuykbZu i=kd
DGOMS/R/E21/00184, fnukad 22-09-2021 dks izlkafxd djsAa lwpuk ds vf/kdkj
vf/kfu;e 2005] ds rgr ekaxh xbZ fcUnqokj lwpuk fuEufyf[kr gSA
1. The permission granted vide letter No. 3/010208/P-01/2013/507,
dated- 13.05.2013 has not been revalidated by this office as per
official records.
2. Permission granted vide Directorate letter No. R-3/010208/P-
17/2013/1664-66, dated- 12.11.2013 was withdrawn vide letter No.
3/010208/complaint Enquiry/23/2015/1787, dated- 18.11.2015 and
has not been restored as per official records.
Hk o nh ;
Sd./- Illegible
¼eqds'k dqekj flUgk½"
[kku lqj{kk funs'kd]
{ks= la[;k&III, e/; vapy]
/kucknA
34. Thus, from the facts stated herein-above, it is clearly evident that
Respondent-BCCL published Notice Inviting Tender without even having
Environmental Clearance in its favour and even without carrying out re-
habilitation and re-settlement work to ensure that there are no habitants
within 100 meters of the blasting site in the mining area. In our considered
opinion, action of Respondent-BCCL is clearly violative of Article 14 of the
Constitution of India.
It is now well settled that the reach of Article 14 enables a writ court
to deal with arbitrary State action even after contract is entered into by the
State. The Court‟s approach in dealing with the same would be guided by,
undoubtedly, the overwhelming need to obviate arbitrary State action, in
cases where the writ remedy provides an effective and fair means of
preventing miscarriage of justice arising from palpably unreasonable action
by the State. Respondent-BCCL, being an instrumentality of the State has
duty to act fairly in all its action, but the facts of the present case reveal that
Respondent-BCCL failed to act fairly as a welfare State.
35. Another aspect, which requires consideration by this Court, is that
the contract was originally stipulated for a period of five years commencing
from 1st July, 2015 and was to elapse on 30th June, 2020. As already stated
above, due to inaction on the part of Respondent-BCCL, Petitioner could
carry out the work only for a period of three months i.e. up to 1st October
2015 and despite expiry of the contract; Respondent-BCCL continued to
compel the Petitioner to renew the Performance Bank Guarantee by it.
We are not convinced with the arguments of Mr. Anupam Lal Das,
learned Sr. counsel that Bank Guarantees are withheld in view of Clause
9.2(B) and 9.4 of General Terms and Conditions, which entitles Respondent-
BCCL to impose penalty upon a contractor, as in our opinion, said clauses,
on a plain reading of it, are not applicable.
Instant writ petition was filed by the writ petitioner in the year 2017
when the period of contract was subsisting, for a relief of closure of the
contract and consequential relief to release of Bank Guarantees. During
pendency of the writ petition, the tenure of the contract itself expired, but
even then, Respondent-BCCL did not refund the original Bank Guarantees to
the writ petitioner and, on the contrary, as late as on 18.12.2023, directed the
Petitioner to renew its Bank Guarantees which were expiring on 31.12.2023,
failing which it was stated that Bank Guarantees of the Petitioner would be
encashed.
36. In our opinion, said action of Respondent-BCCL in directing the
Petitioner to renew the Bank Guarantees, despite the contract period having
come to an end, is again a palpably unreasonable action by Respondent-
BCCL.
37. In view of the aforesaid discussions, the Respondent-BCCL is
directed to issue the closure report of the contract and immediately and
forthwith refund the original Bank Guarantees submitted by Petitioner
towards Performance Security amounting to Rs. 3.20 crores.
38. Consequently, the instant writ petition is, hereby, allowed, however
there shall be no order as to costs. Pending, I.As., if any, stand disposed of.
(Rongon Mukhopadhyay, J)
(Deepak Roshan, J)
Jharkhand High Court
Dated/07 / 05./ 2024
Amardeep/AFR
