Telangana High Court

M/S Vpr Mining Infrastructure ... vs The Singareni Collieries Company ... on 13 October, 2022

Bench: Ujjal Bhuyan, C.V. Bhaskar Reddy

      THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                        AND
       THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY


                   WRIT APPEAL No.651 of 2022

JUDGMENT:      (Per the Hon'ble the Chief Justice Ujjal Bhuyan)



      Heard        Mr.    A.Sudershan              Reddy,          learned    Senior

Counsel appearing for the appellant and Mr. E.Madan

Mohan Rao, learned Senior Counsel appearing for the

respondents.

2. This writ appeal is directed against the order dated

13.09.2022 passed by the learned Single Judge dismissing

W.P.No.22039 of 2021 filed by the appellant as the writ

petitioner.

3. Following amendment of the prayer portion, appellant

had sought for the following relief in the writ petition:

"...to issue a writ, order or a direction, more particularly a writ in the nature of mandamus or any other writ declaring that contract awarded to the petitioner by the respondent vide order dated 13.05.2019 based on the permission dated 28.02.2017

issued by the DGMS Authorities, without conducting proper scientific studies as to the impact of conducting blasting operations by using bulk explosives near to the OHT Lines within 500 mtrs of danger zone as being illegal, arbitrary, unconstitutional and in clear violation of Coal Mines Regulations Rules, 2017 leading to major deviation to the scope of work under NIT dated 15.10.2018 and order dated 13.05.2019 and consequently directing the respondents to close the contract and settle the final bill of the petitioner."

4. It may be mentioned that appellant was awarded the

contract by respondent No.1 for "drilling, excavation,

loading, transportation, dumping, spreading & levelling

etc., of 1505.210 LBCM of overburden (i.e. 1475.253 LBCM

of in-situ OB including top soil & 29.957 LBCM of horizon

coal) with hired HEMM in combination with conventional

equipment and formation of flood protection bund with

31.286 LBCM of BC soil & in-situ top soil and 20.842 LCM

of rehandling of top soil with conventional equipment and

additional works namely shovel hours, dozer hours and

drilling meterage at MNG OCP project, MNG area during a

period of 72 months" following a tender process initiated by

notice inviting tender dated 15.10.2018. After executing

the contract for about three years, appellant was informed

by respondent No.1 that for mine safety reasons the

contractor would have to resort to controlled deep hole

blasting operations instead of using bulk explosives which

was the procedure followed from the beginning of the

contract.

5. According to the appellant, the above change in the

nature of blasting operation has completely changed the

contract and made the same unworkable. Appellant's

request for dispute resolution under clause 1.14 did not

elicit any response. It was thereafter that the related writ

petition came to be filed.

6. It was contended on behalf of the appellant before the

learned Single Judge that because of deviation in the

contract conditions by respondent No.1, it became

impossible for the appellant to perform the contractual

obligation. Therefore, respondents be directed to foreclose

the contract and to settle the outstanding dues of the

appellant.

7. Learned Single Judge after perusal of the rival

pleadings and contentions held as follows:

"11. It has been held in a catena of decisions and also in the decisions cited supra that the Court while exercising writ jurisdiction under Article 226 of the Constitution of India can entertain writ petitions even in contractual matters. However, there are self-imposed restrictions on the High Court in entertaining the writ petitions. While granting relief in such matters, the High Court has to exercise discretion where there is demonstrable arbitrariness and there are factors like violation of principles of natural justice, lack of transparency etc. Even though the High Court has jurisdiction to enter into the disputed questions of facts, the same should not involve detailed scrutiny of documents. Ordinarily, it is not for the writ Court to examine the terms and conditions of the contract and to draw findings/conclusions regarding default committed by the parties. Normally, such process is within the realm of civil law jurisdiction. There are allegations and counter allegations made by the petitioner and the respondent authorities regarding non-performance of the contract.

12. The alleged non-performance of the contract, the manner in which performance of the petitioner was affected due to non-obtaining of controlled blasting permission from the Directorate General of Mines Safety, the availability of alternate sites even in the absence of controlled blasting permission (which was obtained later on 05.08.2021), the terms of the contract being unconscionable, the impossibility in performance of the contract and foreclosure of the contract, in the considered opinion of the Court are not within the realm of writ jurisdiction. There are complex questions of fact involved in the instant case, which require detailed analysis

and interpretation of the terms of the contract for granting or not granting relief to the petitioner. The subject contract is not a statutory contract. The enforceability of the contract and the workability of the contract require not only documentary evidence but also oral evidence apart from inspection of site and recording technical/expert evidence. As per clause 1.14 of the order dated 13.05.2019 if the dispute is not resolved at three levels i.e. at the area level/mine level/management level, the parties have to approach civil Court, for redressal of their grievance. In addition to that, it is submitted by the learned senior counsel for the respondent that new contractor was appointed and the left over work of the petitioner was recommenced. The petitioner, admittedly, has stopped the work at the project site. In the above circumstances, there are no special or compelling circumstances for the petitioner to approach this Court for foreclosing the contract, which, ordinarily, has to be redressed before a civil Court.

13. In view of the above observations, this Court does not find any merit in the writ petition and it is accordingly dismissed. However, taking note of the fact that there was an interim order operating from 29.04.2022., in the considered opinion of this Court, the said interim order shall continue for a period of thirty (30) days from the date of receipt of a cop of this order. The petitioner is given liberty to approach the civil Court by filing a suit. The petitioner may also seek interim relief pending disposal of the main suit. In such event, the concerned civil Court shall decide the suit and the interlocutory application on merits without being influenced by any of the observations made in this writ petition."

8. We do not find anything amiss in the order of the

learned Single Judge to warrant interference.

9. It is a settled proposition that disputes relating to

interpretation of the terms and conditions of a contract

may not be permitted to be agitated in a petition under

Article 226 of the Constitution of India. In Kerala State

Electricity Board v. Kurien E. Kalathil1 Supreme Court

held that this is a matter for adjudication by a civil Court

or in arbitration if such arbitration is provided in the

contract.

10. This position has been reiterated by the Supreme

Court in Bharat Coking Coal Limited v. AMR Dev