Calcutta High Court (Appellete Side)
Asansol Durgapur Sub-Divisional ... vs Eastern Coalfields Limited & Ors on 8 May, 2015
Author: I.P. Mukerji
Bench: I.P. Mukerji
12 8.5.15
W.P. 8871(W) of 2015
Asansol Durgapur Sub-Divisional Transporters' Association & Anr.
Vs.
Eastern Coalfields Limited & Ors.
Mr. Jayanta Kumar Mitra, Sr. Advocate
Mr. Kishore Dutta
Mr. S. Banerjee
Mr. L. Mondal
Mr. D. Basu
Mr. K. Gaqnguly .... For the Petitioners.
Mr. Tilak Bose
Mr. Anubhab Sinha
Ms. Sanchita Barman Roy .... For the Respondent.
Mr. Ahin Chowdhury ... For the Respondent.
Ambey Mining Private Limited is added as a party respondent. Its advocate Mr. Nilesh Chowdhury will effect the necessary amendment in the cause title of the writ petition by 12th may, 2015.
The tender floated by Eastern Coal Fields Limited for transporting sand is called in question in this Court. It is questioned by the sand transporters.
Two or three, apparently simple points have been raised on behalf of the writ petitioners.
It is said that earlier the eligibility criteria for getting the sand transportation contract was E.C.L experience in sand transportation work. This is a S.D. manual but specialized process. According to the revised tender conditions bidding for transportation work of sand can also be made by coal transporters . It is argued that coal is transported by a specialized mechanical process. A person engaged in coal transportation work does not have the expertise to do sand transportation work. Furthermore, this policy condition has been changed so as to favour mechanized coal transporters to the detriment of manual sand transporters.
Mr. Tilak Bose lerned Senior advocate for the Eastern Coal Fields Limited cited Ram Singh Vijay Pal Singh and others VS State of U.P. and Ors. in 2007(6) SCC 44. The Supreme Court opined as follows:
". In Netai Bag V. State of W.B. this Court held as under in para 20 of the Reports: SCC p. 275) "20. The Government is entitled to make pragmatic adjustments and policy decision which may be necessary or called for under the prevalent peculiar circumstances. The court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or wiser or more scientific or logical. In State of M.P. V. Nandlal Jaiswal it was held that the policy decision can be interfered with by the court only if such decision is shown to be patently arbitrary, discriminatory or mala fide. In the matter of different modes, under the rule of general application made under the M.P. Excise Act, the Court found that the four different modes, namely, tender, auction, fixed licence fee or such other manner were alternative to one another and any one of them could be resorted to."
13. In the well-known case of BALCO employees Union (Regd) V. Union of India a three Judge Bench summarised the law on the point as under (SCC p. 335 c-f) " in a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court. It is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclind to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical.
Wisdom and advisability or economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relvative merits of different economic policies and consider whether a wiser or better one can be evolved. In matters relating to economic issues, the Government has, while taking a decision, right to 'trial and error' as long as both trial and error are bona fide and within limits or authority. For testing the correctness or a policy, the appropriate forum is Parliament and not the courts".
He said that this Court should not interfere in the above policy matters of Eastern Coal Fields Limited Changing the terms and conditions of tender, as was done in this case, was the domain of the executive. He said that this change of conditions followed the earlier changes made by the parent or the holding company Coal India Limited.
Mr. Ahin Chowdhury, learned Senior advocate for Ambey Mining Private Limited, which is now added as a party cited a decision reported in 2009(3) SCC 458( B.S.N. Joshi and Sons Ltd. Vs. Ajoy Mehta and Anr.), particularly paragraph 17 of that judgement which states:
"17. We are distressed to see that MAHAGENCO had been encouraging formation of a cartel and, thus, allowing the rate of transportation of coal to go high up. Unless a power generating company takes all measures to cut down such malpractices, the generation cost of electricity is bound to go higher and ultimately the same would be passed on to the consumers of electricity. We hope a public sector undertaking would take adequate and appropriate measures to meet the said contingency in future."
No doubt a substantial question has been raised. The writ application is hereby admitted. My prima facie view with regard to passing an interim order is as follows:-
There is no dispute with the general proposition that the Court does not interfere with policy matters of the Government. An exception to this principle is when the policy is patently tainted with fraud or illegality, mala fide unreasonableness, arbitrariness, discrimination etc. Whether the subject policy suffers from this vice has to be tested upon affidavits.
Secondly, there is some substance in the submissions of Mr. Tilak Bose, learned Senior Advocate for the respondent Eastern Coal fields Ltd. that Coal India had given effect to this new policy a few years ago. Eastern Coal Fields Limited had only followed it.
Nevertheless, it is also an admitted position that upto 13th April this year Eastern Coal Fields Limited maintained the position that only contractors having experience in sand transport work with the Company would be eligible to be considered for the tender as would appear from the documents annexed to the two supplementary affidavits used in this writ application.
At the moment Mr. Kishore Dutta learned senior advocate for the petitioners prays for an interim order that for a limited period the arrangement which was continuing till 13th April, 2015 be allowed to continue.
I am of the opinion that this is a policy matter. This Court is, as of now, not possessed of the relevant information, data documents and the history to assess the case. No doubt this Court would be able to come to a final finding after exchange of affidavits. Whether for this limited period of time the arrangements prior to 13th April, 2015 should continue or not should be referred to the Chairmen of Coal India Limited and Eastern Coal fields Ltd. who will constitute an appropriate Board and decide this issue within four weeks of communication of this order, considering all the inputs that are available with it. This is so because the essential facts and circumstances are known to the organization. Its assistance to the Court at this stage is required.
For the period the Board is to come to a decision, no work order is to be issued in favour of any party in respect of the subject tender.
Issuance of the work order for the time being will depend of the decision of the sand Board and to ultimately abide by the decision in this writ.
Let affidavits be exchanged according to the following directions:
Affidavit-in-opposition by 15th June, 2015. List this writ application on 30th June, 2015. Affidavit-in-reply may be filed in the mean time.
Let a plain photocopy of this Order, duly countersigned by the Assistant Registrar (Court), be given to the learned Counsel for the Parties, on the usual undertakings.
( I.P. Mukerji, J.)