Patna High Court
The State Of Bihar vs N/S Mahadev Enclave Pvt. Ltd on 18 September, 2020
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVIEW No.148 of 2019
In
Civil Writ Jurisdiction Case No.16616 of 2017
======================================================
1. The State Of Bihar through the Principal Secretary cum Commissioner,
Department of Mines and Geology, Govt. of Bihar, Patna
2. The Director Department of Mines and Geology, Govt. of Bihar, Patna
3. The District Magistrate cum Collector Nawadah
4. The Assistant Director District Mining Office, Nawadah
... ... Petitioner/s
Versus
N/s Mahadev Enclave Pvt. Ltd. a registered company having its registered
office at B-37, Ayodhya Marg, Hanuman Nagar, Jaipur Rajasthan through its
authorized representative Dilip Singh S/o Late Ram Singh resident of Village
and P.o.- Deenwa Ladkhani Distt.- Sikar (Rajasthan)
... ... Opposite Party/s
======================================================
with
CIVIL REVIEW No. 149 of 2019
In
Civil Writ Jurisdiction Case No.15832 of 2017
======================================================
1. The State Of Bihar through the Principal Secretary cum Commissioner,
Department of Mines and Geology, Govt. of Bihar, Patna
2. The Director Department of Mines and Geology, Govt. of Bihar, Patna
3. The District Magistrate cum Collector Nawadah
4. The Assistant Director District Mining Office, Nawadah
... ... Petitioner/s
Versus
M/s Sainik Foods Pvt. Ltd a registered company having its registered office at
H.I.G.D. 5 Deendayal Nagar, Phase-1, Kanth Road Muradabad, Uttar Pradesh
through its authorized representative Sanjeev Kumar Mishra S/o Narayan
Mishra, R/o Village and P.o.- Vajidpur Meyari, Ward No. 11, Vajidpur Meyari,
Dsitt.- Samastipur, Bihar
... ... Opposite Party/s
======================================================
Appearance :
(In CIVIL REVIEW No. 148 of 2019)
For the Petitioner/s : Mr. Naresh Dixit, Spl. P.P. Mines
Mr. Sumit Shekhar Pandey
For the State : Mr. Gyan Prakash Jha, GA-2
For the respondent : Mr. Gautam Kejrial
Mr. Atal Bihari Pandey
(In CIVIL REVIEW No. 149 of 2019)
Patna High Court C. REV. No.148 of 2019 dt.18-09-2020
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For the Petitioner/s : Mr. Naresh Dixit, Spl. P.P. Mines
Mr. Sumit Shekhar Pandey
For the State : Mr. Gyan Prakash Jha, GA-2
For the respondent : Mr. Gautam Kejrial
Mr. Atal Bihari Pandey
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
CAV JUDGMENT
Date : 18-09-2020
1. The aforesaid review petitions have been filed seeking
review of the common order dated 30.11.2018 passed in CWJC
No. 15832 of 2017 (giving rise to Civil Review No. 149 of
2019) and CWJC No. 16616 of 2017 (giving rise to Civil
Review No. 148 of 2019). Since both the writ petitions were
disposed of by a common order dated 30.11.2018, this Court
deems it fit and proper to dispose of the aforesaid two review
petitions by the present common order.
2. At the outset, it must be stated that the aforesaid two writ
petitions were disposed of by a common order dated 30.11.2018
with the consent of the parties, which is reproduced herein
below:-
"The present cases are being disposed of with
consent of the parties in view of the fact that
the petitioner of both the cases do not intend to
prosecute their claims any further and merely
want refund of security deposit and first
instalment which they have deposited with the
respondents.
The learned Special P.P. for the Mines Shri
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Naresh Dikshit submits that the only two issues
which the respondents seek to raise is that the
aforesaid prayer of the petitioners can be
acceded to in case the petitioners do not
participate in the subsequent bids of the sites in
question which are subject matter of the present
writ petitions.
The learned counsel for the petitioners
submits that they are ready to abide by the
conditions spelt out by the learned Special P.P.
Mines as aforesaid.
In view of the aforesaid, the present writ
petitions are disposed of with consent of the
parties with a direction to the respondents to
refund the security deposit and the first
instalment deposited by the petitioners since
the learned counsel for the petitioners, in both
the cases, has undertaken on behalf of the
petitioners that they would neither press for
grant of interest nor they would participate in
the next bid for the sites in question which are
the subject matter of the present writ petitions.
It is needless to state that the aforesaid refund
should be made within a period of 12 weeks
from today.
The writ petitions stand disposed of on the
aforesaid terms."
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3. The provision for review is contained in Order 47 Rule 1
of the Code of Civil Procedure, 1908, which is reproduced
herein below:-
"1. Application for review of judgment -
(1) Any person considering himself aggrieved,-
(a) by a decree or order from which an
appeal is allowed, but from which no
appeal has been preferred,
(b) by a decree or order from which no
appeal is allowed, or
(c) by a decision on a reference from a
Court of Small Causes,
and who, from the discovery of new and
important matter or evidence which, after
the exercise of due diligence was not
within his knowledge or could not be
produced by him at the time when the
decree was passed or order made, or on
account of some mistake or error apparent
on the face of the record of for any other
sufficient reason, desires to obtain a
review of the decree passed or order made
against him, may apply for a review of
judgment to the Court which passed the
decree or made the order.
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(2) A party who is not appealing from a
decree or order may apply for a review of
judgment notwithstanding the pendency of
an appeal by some other party except
where the ground of such appeal is
common to the applicant and the
appellant, or when, being respondent, he
can present to the Appellate Court the case
on which he applies for the review.
Explanation--The fact that the decision on
a question of law on which the judgment
of the Court is based has been reversed or
modified by the subsequent decision of a
superior Court in any other case, shall not
be a ground for the review of such
judgment."
4. A bare perusal of the aforesaid provision of review
contained in the Code of Civil Procedure, 1908, would show
that there are three grounds for review of a judgment i.e.:-
(i) discovery of new and important matter or
evidence which, after the exercise of due diligence,
was not within his knowledge or could not be
produced by him at the time when the order was
made,
(ii) on account of some mistake or error apparent
on the face of the record,
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(iii) for any other sufficient reason.
5. In the present case, the grounds raised by the review
petitioners for review of the Order dated 30.11.2018 passed in
CWJC No. 15832 of 2017 and CWJC No. 16616 of 2017 is that
firstly, the counter affidavit filed in the writ proceedings by the
review petitioners has not been taken into consideration at the
time of passing of the order under review and secondly, the
department had not given any consent in the matter. This Court
is of the view that none of the grounds canvassed by the learned
counsel for the review petitioners either orally or as mentioned
in the review petitions, fall within the ambit and scope of Order
47 Rule 1 of the Code of Civil Procedure, 1908, so as to warrant
review of the aforesaid order dated 30.11.2018, hence,
apparently, the review petitions are misconceived and not
maintainable.
6. This Court would like to dwell upon the proposition of
law to the effect:-
"whether the review petitioners-State
authorities are bound by the orders passed by
the Court on the basis of consent /
compromise", and also regarding the
professional conduct of a counsel."
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7. I may now reproduce the extracts from the authorities on
the aforesaid subject matter herein below:-
(i) Jang Bahadur Singh & Anr. v. Shankar Rai &
Anr., (1890 SCC OnLine All 42):
"This was a reference by my brother
Mahmood to the Full Bench for
expression of its opinion on a question
raised as to the authority of advocates
by an application for review of a decree
passed by my brother Mahmood. The
applicant on the hearing of the appeal
in this Court was represented by Mr.
Spankie, one of the advocates of this
Court. His opponents [273] were
represented by Mr. Conlan, another
advocate of this Court. Those
gentlemen are also members of the
English Bar. In the interest of their
respective clients they agreed as to the
form of the decree which should be
passed by my brother Mahmood in the
appeal. My brother Mahmood made a
decree according to the terms agreed
upon by those two advocates. My
brother Mahmood acted under s. 577 of
the Code of Civil Procedure. This
applicant for review says, what we
assume to be a fact, that he never
agreed to those terms. He also says that
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he had not authorized his advocates to
agree to any such terms. The question
is, could my brother Mahmood
interfere under the circumstances,
review his judgment and alter his
decree, dated the 23rd April 1890? It is
not shown by the applicant that any
unjust advantage was obtained by his
adversary, or that Mr. Spankie acted
under any mistake in such a was as to
produce any injustice, nor is there any
affidavit before us suggesting anything
of the kind. From what I know of Mr.
Spankie it is not at all likely that be lost
sight of the interest of his client. I have
no doubt that if we were satisfied that
any unjust advantage had been
obtained by the other side, or that Mr.
Spankie had acted under a mistake in
such a way as to produce injustice to
this applicant, we could interfere. In
order that I may not be misunderstood I
had better say that what I understand as
unjust advantage is not the consenting
to terms which the client may object to,
and which he may consider unjust; but
some substantial injustice which should
induce us to act. In most cases of
compromise points have to be given up
and concessions have to be made on
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each side. I may say, after many years'
experience at the bar, that I think a
respectable and responsible advocate of
experience is a much better judge of
what course he should take for the best
interest of his client than the client ever
is.
As an illustration as to the length to
which the Courts in England have gone
in upholding the acts of an advocate I
may refer to the case
of Strauss v. Francis [L.R.1 Q.B. 379.],
which decided that:--
"It is within the general authority of
counsel retained to conduct a cause
to consent to the withdrawal of a
juror, and the compromise being
within the [274] counsel's apparent
authority is binding on the client,
notwithstanding he may have
dissented, unless this dissent was
brought to the knowledge of the
opposite party at the time."
I may refer also to the following passage
in the judgment of Mr. Justice Blackburn
in that case (at page 381):--
"Mr. Kinealy has ventured to
suggest that the retainer of counsel
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in a cause simply implies the
exercise of his power of argument
and eloquence. But counsel have far
higher attributes, namely, the
exercise of judgment and discretion
on emergencies arising in the
conduct of a cause, and a client is
guided in his selection of counsel by
his reputation for honour, skill and
discretion. Few counsels, I hope
would accept a brief on the
unworthy terms that he is simply to
be the mouthpiece of his client.
Counsel therefore being ordinarily
retained to conduct a cause without
any limitation, the apparent
authority with which he is clothed
when he appears to conduct the
cause is to do everything which in
the exercise of his discretion he may
think best for the interest of his
client in the conductor the cause;
and if, within the limits of this
apparent authority, he enters into an
agreement with the opposite counsel
as to the cause, on every principle
this agreement should be field
binding."
I do not think, I could express my views
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on a matter of this kind more fully or
clearly than by adopting the judgment
of Lord Esher in the case
of Matthews v. Munster [L.R. 20
Q.B.D. 141.], which I think correctly
lays down what the authority of the
counsel is. I may quote the following
passage from that judgment; the
judgments of Lords Justices Bowen and
Pry are equally instructive:--
"This state of things raises the
question of the relationship between
counsel and his client, which is
sometimes expressed as if it were
that of agent and principal. For
myself I do not adopt and never have
adopted that phraseology, which
seems to me to be misleading. No
counsel can be advocate for any
person against the will of such
person, and, as he cannot put himself
in that position, so he cannot
continue in it after his authority is
withdrawn. But when the client has
requested counsel to act, as his
advocate be has done something
more, for he thereby represents to the
other side that counsel is to act for
him in the usual course, and he must
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be bound [275] by that
representation so long as it
continues, so that a secret
withdrawal of authority unknown to
the other side would not affect the
apparent authority of counsel. The
request does not mean that counsel is
to act in any other character than that
of advocate, or to do any other act
than such as an advocate usually
does. The duty of counsel is to
advise his client out of Court and to
act for him in Court, and, until his
authority is withdrawn, he has, with
regard to all matters that properly
relate to the conduct of the case,
unlimited power to do that which is
best for his client."
Now the meaning of this passage is this
that a client employing an advocate
cannot restrict the powers of that
advocate to hind here in the suit unless
he gives notice to his opponent that he
has withdrawn or limited the authority
of the advocate to act for him. Then
again:--
"I have said that the relation of an
advocate to his client can be put an
end to it at any moment, but that the
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withdrawing of the authority roust be
made known to the other side, and
this shows that the client cannot give
directions to his counsel to limit his
authority over the conduct of the
cause, and oblige him to carry them
out; all he can do is to withdraw his
authority altogether, and in such a
way that it may be known he has
done so."
In the case of In re West Devon Great
Consols Mine [38 Ch. D. 51.] in which
the counsel had agreed not to appeal on
terms, and his clients questioned his
right to bind them, Lords Justices
Cotton, Lindley and Bowen held that
the clients were bound by the acts of
their counsel. At page 54 of the report,
Cotton, L.J., is reported to have said:--
"The questions were raised in
argument whether an undertaking
not to appeal could be given at all
by counsel without express
authority, and if it could, whether it
could he given after a decision on
the merits. Now every compromise
involves an undertaking not to
appeal, it therefore cannot be
beyond the authority of counsel to
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undertake that his client shall not
appeal. As to the other point the
counsel in fact says:-- 'The Judge
has given a decision adverse to my
client, and in consideration of his
receiving his costs I undertake that
he shall not appeal against it.' That
is a compromise. The undertaking
therefore is prima facie binding."
There are other cases [276] also which
show how careful the Courts are not to
interfere with compromises or
settlements effected by counsel on
behalf of clients in suits. The case
of Prem Sookh v. Pirthee
Ram [N.W.P.H.C.R. 1867, p. 222.] that
of Hakeemoonnissa v. Buldeo [N.W.P.
H.C.R. 1868, p. 309.], and the case
of Sirdar
Begum v. Izzutoolnissa [N.W.P.H.C.R.,
1876, p. 149.] are cases which relate to
the authority of vakils and do not affect
the case before us. When the authority
of vakils to bind their clients is called
in question that authority must depend
entirely on the terms of the particular
vakalatnama. For my part I should read
a vakalatnama widely and liberally,
unless it appears that the client
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intended to limit the authority of his
vakil. In my opinion my brother
Mahmood should reject this application
for review."
(ii) Rai Nundo Lal Bose v. Nistarini Dassi, (1900
SCC OnLine Cal 11):
"There cannot, I think, be any
reasonable doubt at the present day
that counsel possesses a general
authority,-- an apparent authority,--
which must be taken to continue until
notice be given to the other side by the
client that it has been determined, to
settle and compromise the suit in
which he is actually retained as
counsel, and in the exercise of his
discretion to do that which he
considers best for the interest of his
client in the conduct of the particular
case in which he is so retained."
(iii) In Nilmoni Choudhuri v. Kedar Nath Daga;
(AIR 1922 Pat 232):-
"Two propositions are well-settled;
first, that express authority is not
needed for a counsel to enter into a
compromise within the scope of the
suit; and secondly, that where there is
limitation of authority and that
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limitation is communicated to the other
side, consent by counsel outside the
limits of his authority would be of no
effect."
(iv) In B. N. Sen and Bros. v. Chuni Lal Dutt and
Co., (AIR 1924 Cal 651):-
"In my judgment the present case is not
one in which the authority of the
learned counsel was limited: and, in my
judgment, the ordinary rule (which is to
be found at page 398 of the same
volume of Lord Halsbury's Laws of
England) will apply to this case. That is
as follows:--
"The authority of counsel at the trial
of an action extends, when it is not
expressly limited, to the action and
all matters incidental to it; the
consent of the client is not needed
for a matter which is within the
ordinary authority of counsel, and,
therefore if a compromise is entered
into by counsel in the absence of the
client, the client is bound."
I have always understood that a
learned counsel has, in the usual
course, full authority in the exercise of
his judgment and discretion, to settle
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or compromise a case on behalf of the
client for whom he appears."
(v) In Askaran Choutmal v. E. I. Ry. & Co.,
(AIR 1925 Cal 696):-
"It is in my opinion settled law that an
advocate of the High Court in the
course of conducting the cause is
clothed with authority to compromise
a suit in which he has been retained as
counsel In Nundo Lal
Bose v. Nistarini Dassi, Maclean, C.J.,
observed that-
"there cannot, I think, be any
reasonable doubt at the present
day that counsel possesses a
general authority, an apparent
authority, which must be taken to
continue until notice be given to
the other side by the client that it
has determined to settle and
compromise the suit in which he is
actually retained as counsel, and in
the exercise of his discretion to do
that which he considers best for
the interest of his client in the
conduct of the particular case in
which he is so retained." [See
also B.M. Sen & Bros. v. Chunilal
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Dull & Co.]
In my opinion, such a compromise
would be valid and binding upon the
parties even although it had been
effected contrary to the express
instructions of the client, unless the
prohibition had previously been
communicated to the other side.
I am unable to subscribe to the
doctrine that the status of an advocate
of the Calcutta High Court differs
from that of a barrister in England.
Now it is not unfrequently that the
relation of a client to his counsel is
that of a principal to an agent. In truth
the relationship is of a very different
nature."
(vi) S.P.M. Muthiah Chetti & Ors. v. Muthu
K.R.A. R. Karuppan Chettiar & Ors.,
(AIR 1927 Mad 852):-
".........A counsel has authority to
confess judgment, withdraw or
compromise, or refer to arbitration
the suit in which he is instructed if his
doing so is for his client's advantage
or benefit even though he has no
express authority from his client."
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(vii) In M. Ar. Rm. V. R. Viswanathan Chettiar v.
Appa Naicken & Anr., (AIR 1943 Mad
672):-
"Although it might be difficult to say
that the clause unequivocally
authorised the advocate to
compromise, yet in construing such a
clause, it was not unreasonable to
bear in mind that Advocates
ordinarily have such an authority and
to assume that the clause was
intended to embody that authority,
which in the absence of a
vakalatnama would be implied that
the advocate concerned had the
necessary authority to compromise."
(viii) Bhola Nath & Ors. v. Panna Lal, (AIR 1947
All 382):-
"It is too late in the day to contend
that a specific authority to
compromise is necessary."
(ix) Jiwibai v. Ramkumar Shriniwas Murarka
Agarwala; (AIR 1947 Nag 17), (FB):-
"The authority to compromise is
implicit in the appointment unless it
is expressly countermanded, and that,
whether there is express authority
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conferred by the power or not."
(x) Supaji v. Nagorao Sakharam & Ors; (AIR
1954 Nag 250):-
"8. The Full Bench examined the
question whether an advocate can
compromise claims without the
authority or consent of his client and
answered it in the affirmative. The
Full Bench extended the rule laid
down by Lord Atkin in --
'Sourenaranath Mitra v. Tarubala
Dasi', AIR 1930 PC 158 (F), with
respect to an advocate entitled to
appear without a power from his
client to the case of all advocates.
According to the Full Bench, the
authority to compromise is implicit
in the appointment of an advocate
unless it is expressly countermanded
and that whether there is authority
expressly conferred by the power or
not."
11. ......... a counsel's action in not
prosecuting an appeal once filed
because of a settlement must
likewise be held to be included in
his authority."
(xi) Laxmidas Ranchhoddas & Ors. v. Savitabai
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Hargovandas Shah,(R), (AIR 1956 Bom 54):-
"(6) Now, both in India and in
England it is well recognised that it
is impossible for a member of the
Bar to do justice to his client and to
carry on his profession according
to the highest standards unless he
has the implied authority to do
everything in the interests of his
client. This authority not only
consists in putting forward such
argument as he thinks proper
before the Court, making such
admissions as he thinks proper, but
also to settle the client's litigation if
he feels that a settlement will be in
the interests of his client and it
would be foolish to let the litigation
proceed to a judgment. This
implied authority has also been
described as the actual authority of
counsel or an advocate practising
in India. This authority may be
limited or restricted or even taken
away. After all, an advocate is the
agent of his client and it is open to
the client to tell his advocate that
he has no right to settle a suit
without his consent or that he
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should only settle it on certain
terms which he may indicate. If
such a limitation is put upon his
authority, then the implied or the
actual authority of the advocate
disappears or is destroyed. Then he
has only an ostensible authority as
far as the other side is concerned
because it may be that although a
limitation is put upon his actual
authority the other side does not
know of that limitation and the
other side may still proceed on the
assumption that the advocate
appearing for the other side has the
actual authority which every
advocate has."
(xii) In Govindammal v. Marimuthu Maistry And
Others (AIR 1959 Mad 7):-
(3) The following authorities and
extracts from standard publications
on professional conduct, have been
brought to my notice:
(1) I.L.R. 21 Madras 274 (1897
Dec.) Jagapati v. Ekambara (Su
bramania Iyer and Benson, JJ.)
(2) (1912) 23 M.L.J. 381: Kollipara
Venkamma, In Re (Sadasiva Iyer, J.)
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"A vakil in India is both the
Solicitor who acts and the
Counsel who pleads. Where the
vakalat given to the vakil in a
case empowered him to
compromise the suit no second or
special vakalat is necessary to
empower him to compromise it."
8. Having regard to the law laid down by the High Courts of
this country, it can be clearly deduced that the various High
Courts are of the unanimous view that even in cases where
there is no express authorization to enter into a compromise
under the inherent authority impliedly given to the counsel, he
has power to enter into a compromise on behalf of his client for
the benefit of the client, especially in absence of any express
instruction by the client to his counsel, limiting his authority to
enter into a compromise or give reason.
9. It would also be useful to refer to a judgment rendered by
the Hon'ble Apex Court, reported in 2001 (6) SCC 688 (Salkia
Businessmen's Association & Ors. vs. Howrah Municipal
Corporation & Ors.), paragraph no. 8 whereof is reproduced
herein below:-
"We have carefully considered the
submissions of the learned senior counsel on
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either side. The learned Single Judge as well
as the Division Bench of the High Court have
not only over simplified the matter but seem to
have gone on an errand, carried away by some
need to balance hypothetical public interest,
when the real and only question to be
considered was as to whether the respondent-
Authorities are bound by the orders passed by
the court on the basis of the compromise
memorandum, and whether the proposed move
on their part did not constitute flagrant
violation of the orders of court very much
binding on both parties. The High Court failed
to do justice to its own orders. If courts are not
to honour and implement their own orders, and
encourage party litigants be they public
authorities, to invent methods of their own to
short circuit and give a go-bye to the
obligations and liabilities incurred by them
under orders of the court- the rule of law will
certainly become a casualty in the process- a
costly consequence to be zealously averted by
all and at any rate by the highest Courts in the
States in the country. It does not, in our view,
require any extraordinary exercise to hold that
the memorandum and terms of the
compromise in this case became part of the
orders of the High Court itself when the earlier
writ petition was finally disposed of on
13.2.1991in the terms noticed supra, Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 25/53 notwithstanding that there was no verbatim reproduction of the same in the order. The orders passed in this regard admit of no doubt or give any scope for controversy. While so, it is beyond one's comprehension as to how it could have been viewed as a matter of mere contract between the parties and under that pretext absolve itself of the responsibility to enforce it, except by doing violence to the terms thereof in letter and spirit. As long as the earlier order dated 13.2.1991 stood, it was not permissible to go behind the same to ascertain the substance of it or nature of compliance when the manner, mode and place of compliance had already been stipulated with meticulous care and detail in the order itself. The said decision was also not made to depend upon any contingencies beyond the control of parties in the earlier proceedings."
10. Last but not the least, this Court finds it useful to reproduce paragraphs no. 32 and 37 of a judgment rendered by the learned Division Bench of this Court, reported in 2001 (1) PLJR 191 (Rotary Club, Begusarai vs. State of Bihar & Ors.), herein below:-
32. At the time of hearing of the writ petition/review petition, while trying to dutifully pay attention to the submission being made on behalf of the petitioner, I was Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 26/53 all the time reminded of the observations made by the constitution Bench of the Supreme Court in L.I.C. v. Escorts Limited (1986) 1 SCC 264 :
"..............Indeed, and there was no way out, we also had the advantage of listening to learned and long drawn out, intelligent and often ingenious arguments, advanced and dutifully heard by us. In the name of justice, we paid due homage to the causes of the high and mighty by devoting precious time to them, reduced, as we were, at times to the position of helpless spectators. Such is the nature of our judicial process that we do this with the knowledge that more worthy cause of lesser men who have been long waiting in the queue have been blocked thereby and the queue has consequently lengthened,"
37. But before parting with the records of the case I would briefly like to address to the important issue of the conduct of lawyers and litigants which has been sharply brought into focus by these two petitions. I feel quite troubled by the way the Civil Review Petition was drafted and was pressed heedless of the warning sounded by the Court. When I first read the Civil Review Petition I was so shocked by the statement made in paragraph Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 27/53 5 that I pointedly asked Mr. Basudeo Prasad, Sr. Advocate whether the petition was shown to him before it was filed. He said that he had vetted the petition. I then asked Mr. Manik Ved Sen, Advocate assisting Mr. Pd. whether he had drafted the petition. He answered in the negative and stated that it was drafted by some lawyer at Begusarai and he had simply filed it under his name. To my mind as Mr. Ved Sen was appearing in the proceedings for the first time which had already had a round in this Court earlier common prudence required him to have the facts stated in review petition verified from the earlier lawyer Mr. Rajiv Ranjan Prasad. Had he done so he would have not only saved the Court from this unpleasent proceedings which turn out to be a complete waste of time but would have also saved himself from acute embarrassment. Recourse to review by change of lawyers is normally depricated by Courts. The practice becomes all the more reprehensible when review is sought on grounds pertaining to the previous conduct of the case or other grounds of fact normally within the knowledge of the previous lawyer(s). To my mind a lawyer must be very reluctant to take up a brief of review unless he had appeared in the case, the order passed in which is the subject of review. In case for some reasons a change of lawyer Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 28/53 is unavoidable, the newly engaged lawyer would owe it to himself and to the profession to have the statement of facts duly verified by the lawyer earlier conducting the case. In case a review is filed by a new lawyer a certificate ought to be appended to the review petition, preferably by the previous counsel, stating that the facts stated in the petition were correct or alternatively by the newly engaged lawyer testifying that he had got the facts stated in the review petition verified by the previous lawyer.
11. A bare perusal of the review petitions, filed by the Department of Mines and Geology, Government of Bihar, Patna, would show that there is no pleading to the effect that the learned Special P.P., Mines was expressly barred from giving his consent to orders being passed by the Hon'ble Patna High Court, keeping in mind the interest of the Department. It is a well settled law that the power to give consent or enter into a compromise in a particular given case is inherent in the position of an advocate in India and such power is deemed to exist because its existence is necessary to effectuate the relations between advocate and client, to make possible the duties imposed upon the advocate by his acceptance of the cause of his client. The advocate is to conduct the cause of his client to the Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 29/53 best of his skills & understanding. He must, in the interest of his client, be in the position, hour by hour, almost minute by minute, to advance this argument, to withdraw that; he must make the final decision whether evidence is to be given or not on any question of fact; skill in advocacy is largely the result of discrimination.
12. It is equally a well settled law that a compromise settlement made in good faith by a counsel, when sanctioned by the Court in its order, is binding upon the client, as is also deducible from the various Judgments referred to herein above in paragraph No. 7 of this Judgment. Therefore, this Court is of the view that even in cases where there is no express authorization to enter into a compromise under the inherent authority impliedly given to the counsel, he has power to enter into a compromise on behalf of his client for the benefit of the client, especially in absence of any express instruction by the client to his counsel, limiting his authority to enter into a compromise or give reason. Consequently, it is held that the review petitioners-State authorities are bound by the orders passed by the Court on the basis of consent / compromise.
13. In the present review petitions, the review petitioners have nowhere pleaded that impliedly, which actual authority of Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 30/53 the counsel of the review petitioners i.e. the learned Special P.P., Mines was ever limited or restricted or even taken away, hence, it is apparent that there was no restriction on the authority of the said Advocate i.e. the learned Special P.P., Mines in the present case, so as not to bind the review petitioners with the consent order dated 30.11.2018 passed in the aforesaid writ petitions. Thus, it is apparent that the review petitions are not maintainable in the given facts and circumstances of the present case.
14. Though, it has been held hereinabove that the present review petitions are not maintainable, hence, are required to be dismissed, nonetheless, touching upon the merits of the case, it would be relevant to state the brief facts herein below and for the said purpose, I propose to refer to the facts of the writ petition bearing CWJC No. 15832 of 2017, inasmuch as the facts & circumstances of the other writ petition bearing CWJC No. 16616 of 2017 are almost same and similar. FACTS OF CWJC NO. 15832 Of 2017 (M/s Sainik Foods Pvt. Ltd. vs. The State Of Bihar & Ors.)
15. The review petitioners had vide letter dated 12.11.2014 decided to invite tenders for settlement of stone mines located at different districts in the State of Bihar for a period of five years Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 31/53 from the date of execution of the agreement / deed, which also included the stone mines in the District of Nawada as well. Accordingly, notice inviting tender for settlement of stone mines at Nawada district was advertised, inviting offers from intending applicants. The writ petitioner had also purchased the tender document and had submitted the technical and financial bids after completing all the formalities. Since the writ petitioner had made the highest bid, he was declared successful bidder in the auction whereupon a letter of acceptance dated 10.2.2015 was issued to the writ petitioner herein by the review petitioners. One of the conditions for award of settlement of stone mines and permission for mining operation / issuance of work order was execution of agreement in Form 'D' by both the parties in terms of Rule 21 of the Bihar Minor Mineral Concession Rules, 1972 as well as Clause 7 (iii) of the NIT. The writ petitioner had paid 20 % of the settlement amount, being the first instalment to the tune of Rs. 3.40 crores, apart from the earnest money deposited of Rs. 1.75 crores. As per the provisions of the Bihar Minor Mineral Concession Rules, 1972 and the notice inviting tender, the writ petitioner was required to obtain environment clearance certificate, as also was required to submit a mining plan of the mining area in settlement for approval by the Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 32/53 Department. After submission of the mining plan by the writ petitioner, the approval to the mining plan was granted by the Department of Mines and Geology, Government of Bihar, Patna vide letter dated 21.5.2015. In the meantime, the writ petitioner had also applied for environmental clearance certificate before the State Level Agency on 17.6.2015 and since the environmental clearance certificate was awaited from the end of the State level Agency, neither the agreement in Form 'D' could be executed nor the mining site was handed over to the writ petitioner nor any work order was issued to the writ petitioner. Finally, the environmental clearance certificate was issued on 27.6.2017 in favour of the writ petitioner for the mining site in question after a period of more than two years.
16. It is the further case of the writ petitioner that as per the approved mining plan dated 21.5.2015, the maximum height of the mining area, settled in favour of the writ petitioner, was 115 meter, which had been found to be correct by the writ petitioner after inspection of the site, before the tender exercise had begun, however, when the writ petitioner had undertaken inspection, after grant of environmental clearance certificate, it was found that illegal mining had been carried out in the mining site of Block No. 8 situated at plot No. 4256 in Mauza- Bhadokhara, Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 33/53 village- Nawada and there had been a drastic change in the mining site, settled in favour of the writ petitioner, hence, the writ petitioner had filed a detailed representation before the District Magistrate-cum-Collector, Nawada for making an enquiry into the matter on 8.7.2017 and a copy of the same was also forwarded to the review petitioners no. 1 and 2 whereupon an inquiry team was constituted and an enquiry report dated 25.7.2017 was submitted by the enquiry team, wherein the following condition was reported about Block No. 8:-
"Hkw&[k.M la0&8 dh fLFkfr Hkw&[k.M la0&8 dh lhek dk fu/kkZj.k djrs gq, bldh fofM;ksxkzQh djkbZ xbZA ;g Hkw&[k.M ds izkjEHka rFkk lekIr gksus dh lhek ij dksbZ fookn ugh FkkA lHkh mifLFkr izfrfuf/k;ksa }kjk lhekadu ij vius lgefr nh xbZA bl iwjs {ks= ds fujh{k.k esa ls ;g Li"V gksrk gS fd lcls T;knk voZ/k [kuu blh Hkw&[k.M esa gqvkk gSA bl Hkw&[k.M ds iwjc vkSj if'pe Hkw&[k.M la0&07 vkSj 09 ds Hkh vkaf'kd {ks= esa [kuu dk;Z fd;k x;k gSA ijUrq Hkw[k.M la0&08 esa 'kh"kZ {ks= esa voS/k mR[kuu gks tkus ds dkj.k ;g Li"V ugh gks ik;k fd iwoZ esa igkM- dh fLFkfr D;k FkhA bl {ks= esa cgqr cMs-&cM-s xM~Bs voS/k [kuu ds dkj.k gks x, gSa] ftuesa ikuh Hkjk FkkA bl dkj.k mldh xgjkbZ ugh ukih tk ldhA ,d cM-k Hkw&Hkkx voS/k [kuu ds dkj.k xk;c gks x;k gSA bl Hkw[k.M ls lVs if'pe esa CykWd la0&9 esa Hkw[k.M ds mrj igkM- ls lVs dz'kj LFkkfir gSaA ijUrq nf{k.kh ls mrj dh lhek fu/kkZfjr @ ekih ugha gksus ls ;g Li"V gks ik;sxkA Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 34/53 iB~Bk ls lVs dPph lM-d ls mrj esa iRFkj (fpIl) dk O;kid HkaMkj ik;k x;k tks e'khu ls rksM-k x;k gSA"
17. Thus, it is apparent that the inquiry team had admitted that the mining area settled in favour of the writ petitioner has lost the mining material on account of illegal mining done at the site prior to the execution of the agreement. In such view of the matter, the writ petitioner had again filed a representation before the review petitioners stating therein that entering into an agreement with the review petitioners, would result in colossal loss to the writ petitioner and would result in unjust enrichment of the review petitioners since the writ petitioner was yet to touch the mining site in question inasmuch as the agreement had not been executed and according to Clause 11 of the Tender notice, the period of mining lease was to commence from the date of execution of agreement and its validity would be for a period of five years from such date, hence, the entire issue required re-examination. Since the review petitioners did not take any interest in the matter to resolve the aforesaid issue, the writ petitioner had filed the connected writ petition, inter alia praying therein to direct the review petitioners to consider, deal and take appropriate action regarding the aforesaid grievances of the writ petitioner and further hold and declare that the writ Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 35/53 petitioner cannot be forced to pay the settlement amount for the stock of material already removed by way of illegal mining from the mining site, which though had been settled in favour of the writ petitioner but was yet to be handed over to the writ petitioner, hence the settlement amount was required to be reduced to the extent, the stock of material is actually available at the site, on the date of handing over / delivery of possession of the mining area. However, in the meantime, under compulsion and coercion of the review petitioners, the writ petitioner was forced to execute a lease deed, which was registered on 9.1.2018 i.e. during the pendency of the connected writ petition, which was also challenged by way of filing I.A. No. 7268 of 2018 in the said writ petition.
18. The learned Special P.P., Mines appearing for the review petitioners has submitted that even on merits, the writ petitioners of both the cases have got no case inasmuch as after issuance of the letter of acceptance, it is the responsibility and obligation on the part of the writ petitioners, apart from the district authorities to prevent and stop any illegal mining and to take action against the wrong doer at the settled site. It is further submitted that neither the writ petitioners prevented the illegal mining at the Block No. 8/ Block No. 5 nor did they inform the Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 36/53 district authorities or the review petitioners about the illegal mining being conducted at the said Block No. 8/ Block No. 5. It is further submitted that once, the writ petitioners were awarded settlement of the stone mines, situated at Block No. 8/ Block No. 5, situated at village- Bhadokhara, in the district of Nawada, for a period of five years, it was the obligation of the writ petitioners to deposit the settlement amount and mining plan along with the agreement documents under Form 'D', in terms of Rule 21 of the Bihar Minor Mineral Concession Rules, 1972 and Clause 7 (iii) of the NIT and since an agreement had already been signed by the writ petitioners with the review petitioners, the writ petitioners were required to pay the balance amount of the settlement amount. It is also submitted that after the Department had accorded approval to the mining plan submitted by the writ petitioner on 21.5.2015, the writ petitioner was required to ensure safety of the mines in question. Lastly, it is stated that under the provisions of the Bihar Minor Mineral Concession Rules, 1972, especially under Rules 23 and 24, only two escape routes are available for a lessee viz. are:- (i) transfer of lease (ii) surrender of lease by the lessee, hence, it is submitted that there is no provision for either reduction of the settlement amount or modification of the stipulation / covenant Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 37/53 forming part of the lease dated 5.10.2017, registered on 9.1.2018 and the one dated 15.11.2017, registered on 10.2.2018, or for refund of the earnest money / security deposit / first instalment of the settlement amount, deposited by the writ petitioners. In such view of the matter, the learned Special P.P., Mines submits that the order passed by this Court dated 30.11.2018, in the connected writ petitions is required to be reviewed and the writ petitions are required to be dismissed, being devoid of any merit.
19. Per contra, the leaned counsel for the respondents herein i.e. the writ petitioners (by referring to the facts of CWJC NO. 15832 Of 2017) has submitted that though the review petitioners had taken a decision to settle the stone mines in question vide letter dated 12.11.2014 and had issued a letter of acceptance dated 10.2.2015, containing a specific clause to the effect that an agreement would have to be handed over under Form 'D' along with mining plan, which the writ petitioner had submitted immediately and was approved by the Department of Mines and Geology, Government of Bihar on 21.5.2015, but the environmental clearance certificate was also required to be submitted as per the terms and conditions of the said letter of acceptance dated 10.2.2015, which though was applied for by the writ petitioner herein promptly, but was issued by the State Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 38/53 Environment Impact Assessment Authority, Bihar only on 27.6.2017, whereupon the writ petitioners had examined the mining sites settled in favour of the writ petitioners and it was found that on account of illegal mining having taken place, there was shortage of stock of materials inasmuch as the height of the stone mines had been reduced from 115 meter to 50 meter. The factum of the mining sites settled in favour of the writ petitioner having been subjected to illegal mining resulting in huge depletion in the mining materials was also inquired into by a Committee formed by the review petitioners, and the said fact has stood substantiated in the report of the Committee dated 25.7.2017. The report regarding Block No. 8 has already been reproduced hereinabove and as far as the other writ petition is concerned i.e CWJC No. 16616 of 2017, the findings of the inquiry committee in connection with Block No. 5 is being reproduced herein below:-
Hkw [k.M la0&05 dh fLFkfr%& bl Hkw&[k.M la0&05 ds mrjh Nksj ij vkaf'kd voS/k [kuu fd;k gqvk ik;k x;kA mrjh Nksj ls igkM- dk mijh Hkkx ;Fkkor izkd`frd voLFkk esa fn[krk gSA tcfd blh Hkw&[k.M ds nf{k.k rjQ ls igkM- ds mijh Hkkx esa jkLrk cukdj cMs- iSekkus ij voS/k [kuu fd;k gqvk ik;k x;kA lfefr dk earO;%& Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 39/53 1-mDr rhu Hkw[k.Mksa ds fujh{k.k ls lfefr ,der gS fd bl {ks= eas o`gr iSekus ij voS/k [kuu gqvk gSA 2-voyksdu ek= ls voS/k [kuu dh ek=k dh x.kuk eqf'dy gSA lfefr dk izLrko gS fd voS/k mR[kfur [kfut dh x.kuk l{ke laLFkku @ fo'ks"kKksa ls djkbZ tk, rFkk mlesa LFkkuh; iz'kklu dk Hkh lg;ksx fy;k tk,A 3-voS/k [kfudeZ ij vadq'k yxkus gsrq leqfpr dne mBkuk vko';d gSA lhekdau dk dk;Z vfoyca iwjk djk;k tk,A 4-lekgrkZ egksn; ls vuqjks/k fd;k tk, fd lHkh izklafxd fcanqvks] ;Fkk% (d) D;k cankscLrk/kkfj;ksa } kjk Lease Deed rFkk foHkkxh; funs'kksa dk iw.kZ vuqikyu fd;k tk jgk gSa ? ([k) iRFkj @ cksYMj @ fofHkUu y/kq [kfutksa ds LVkWd dh fooj.kh nh tk jgh gS ? (x) D;k [kuu ds iwoZ lHkh okafNr izfdz;k,W ;Fkk ekbZfuax Iyku dk vuqeksnu i;kZoj.kh; Lohd y/kq [kfutksa ds LvkWd dh Iyku dk vuqeksnu] i;kZoj.kh; Lohd`fr dh izkfIr vkfn iwjh dh xbZ gS ? (/k) D;k foLQksVdksa dk iz;ksx fu;eksa ds vkyksd esa gks jgk gS ? (M-) D;k VkLd QkslZ dh cSBdsa fu;fer :i ls gks jgh gS ? (p) E.C. izkIr Cykdksa esa fdruk [kuu gqvk gS vkSj fdruk pkyku fuxZr fd;k x;k ? D;k bl fooj.kh dh feyku fd;k x;k ? (N) D;k dz'kjksa dk lapkyu fu;eksa ds vkyksd esa gks jgk gS ? D;k mRiknu @ izs"k.k ds vkWadM-ks dh tkWp dh tkrh gS Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 40/53 ? vkfn ds lac/k esa tkWp izfrosnu miyC/k djk,a rkfd foHkkx }kjk leqfpr fu.kZ; fy;k tk ldsA
20. It is the contention of the learned counsel appearing for the respondents-writ petitioners that in view of the fact that there was acute shortage of stock of materials as a result of illegal mining, the respondents could not have been forced to enter into an agreement without reducing the settlement amount, by granting adjustment in the form of deductions for the illegal mining carried out at the mining sites in question and depletion in the mining materials. It is submitted that the Principal Secretary-cum-Commissioner, Department of Mines and Geology, Government of Bihar, Patna coerced the writ petitioners to execute the agreement, failing which the writ petitioners were threatened that the settlement would be cancelled immediately and the earnest money / security amount, deposited by the writ petitioners shall be forfeited apart from forfeiture of the first instalment of 20% of the settlement amount, deposited by the writ petitioners. In such view of the matter, the agreement dated 5.10.2017 was executed in between the writ petitioner and the review petitioners, which was registered on 09.01.2018.
21. The learned counsel for the writ petitioner has pointed out Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 41/53 that admittedly, prior to the execution of the agreement dated 5.10.2017 and its registration on 09.01.2018, the enquiry committee formed by the review petitioners had already submitted its report on 25.07.2017, wherein it has been concluded that on account of illegal mining, there has been huge depletion in the mining materials. Thus, it is the submission of the learned counsel for the writ petitioners that since the possession of the mines in question had not been handed over to the writ petitioners, the said agreement executed by the writ petitioners with the review petitioners, on account of pressure and coercion by the review petitioners was void and the review petitioners were liable to refund the security deposit and the first instalment deposited by the writ petitioners. In this connection, the learned counsel for the writ petitioners has relied upon a judgment rendered by the Hon'ble Apex Court, reported in (2004) 3 SCC 381 (Jai Durga Finvest (P) Ltd. vs. State of Haryana & Others).
22. I have heard the learned counsel for the parties and perused the materials on record.
23. At the outset, it would be relevant to reproduce herein below, the relevant portion of the agreement in question:-
"NOW THIS INDENTURE WITHNESSED that in consideration of the rents and royalties, and Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 42/53 agreement by an in these presents and the said schedule reserved and contained and on the part of the lessee to be paid, observed and performed the Governor both hereby grant and demise unto the lessee all those this mines beds / beins seams of stone hereinafter and in the said schedule referred to as the said minerals situated lying and being in or under the land mentioned and described in Part I of the said schedule, together with the land, liberties, powers and privileges to be exercised on or enjoyed in connection there with which are mentioned in part II of the of the said schedule subject to the restrictions and conditions as to the exercise and enjoyment of liberties, powers, and privileges which are mentioned in part III of the said schedule Except all reserving out of this demise unto the state government the liberties, power and privilege mentioned in part IV of the said schedule to hold the premises hereby granted and demised unto the lessee from the day.........2017 for the term of five years hence next ensuing yielding and paying unto the state government the several rent and royalties mentioned in part V of the said schedule at the respective time there in specified subject to the provisions contained in part VI of the said schedule and the lessee / lessee hereby covenants / covenant with the state government hereby covenants with the lessee / lasses as Part VII of the said schedule is expressed and it is Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 43/53 hereby mutually agreed between the parties hereto as in part IX of the said schedule is expressed.
PART IX General Provisions
5. Failure to fulfill the terms of lease due to "Force mejeure"- Failure on the part of the lessee to fulfill any of the terms and conditions of this lease shall not give the collector any claim against the lessee or be deemed a breach of this lease, in so far as such failure is considered by the said collector to arise from force majeure, and if through force majeure the fulfillment by the lessee of any of terms and condition of this lease by delayed the period such delay shall be added to the period fixed by this lease. In this clause the expression force majeure" means act of god, war, insurrection, riot, civil commotion, a strike, earthquake, tide, storm, tidal wave flood lightening, explosion, fire, earthquake and other happenings which the lessee could not reasonable prevent or control."
24. This Court finds from the pleadings made in the connected writ petition that admittedly as per the inquiry report of the review petitioners dated 25.7.2017, illegal mining had been carried out at the mining sites in question i.e. Block Nos. 8 Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 44/53 and Block No. 5, much prior to the execution of the agreement by the writ petitioners herein and this aspect of the matter has not been controverted or rebutted by the review petitioners i.e. the departmental authorities. It is also an admitted fact that the possession of the mines have not actually been given to the writ petitioners. Nonetheless, even for the sake of argument, if it is accepted that on account of execution of agreement dated 5.10.2017, registered on 9.1.2018, actual possession of the mines in question was handed over to the writ petitioner, then also, one would find that the mines in question are not in the same condition, as had been promised to be handed over by the review petitioners as per the aforesaid provisions of the agreement and in terms of the tender dated 12.11.2014, notice inviting tender and the letter of acceptance dated 10.2.2015. Thus the review petitioners have themselves committed breach of the agreement dated 5.10.2017, in view of the inquiry report dated 25.7.2017. Moreover, the review petitioners have forcefully executed agreements with the writ petitioners, with regard to such mines which are not in the same condition as was existing on the date of tender i.e. 12.11.2014 or on the date of notice inviting tender or for that matter on 10.2.2015 i.e. the date of issuance of letter of acceptance inasmuch as admittedly, Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 45/53 now the mines in question are in dilapidated condition on account of illegal mining having been carried out resulting in huge depletion of the mining materials. Therefore, this Court is of the view that since the review petitioners themselves have committed breach of the aforesaid agreement, by not performing their part of the contract, which was required to be performed first, the same has resulted in cessation the contract and the writ petitioners, who have been precluded from performing their part of the contract on account of the review petitioners having failed to perform their part of the contract, shall be entitled to compensation for the loss suffered due to non-performance of the contract by the review petitioners since the said act of the review petitioners of not performing their part of the contract has resulted in frustration of the contract. In this regard, it would be relevant to refer to Section 54 and Section 56 of the Contract Act, 1872.
25. This Court further finds that on account of the Force majeure clause referred to hereinabove, which specifically provides that on account of happenings which the lessee could not reasonably prevent or control, the lessee is precluded or prevented from fulfilling the terms of the lease, the lessor / the Collector shall have no claim against the lessee and the same Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 46/53 shall not be considered as a breach of the conditions of the lease. This Court is of the view that in light of the aforesaid force majeure clause, since the writ petitioners have been precluded from fulfilling the terms of the lease on account of illegal mining having been conducted in the mines in question, which stands admitted by the review petitioners, and has resulted in denudation of the stock of materials in the mines as also in diminution of the settlement amount, the review petitioners are precluded from making any claim against the writ petitioners, hence, are liable to refund the earnest money and the 1st instalment of the settlement amount.
26. At this juncture, it would be relevant to refer to a judgment rendered by the Hon'ble Apex Court in the case of Jai Durga Finvest (P) Ltd. Vs. State of Haryana & Others, reported in (2004) 3 SCC 381, paragraph nos. 6 to 12 whereof are reproduced herein below:-
"6. The appellant thereafter filed a Writ Petition before the Punjab and Haryana High Court which was marked as CWP No. 12114 of 2000, praying inter alia therein the following reliefs:-
(a) issue a writ of certiorari quashing the impugned notice dated 4-8-2000 to the extent it demands contract money and interest thereon @ 24% p.a. after expiry of Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 47/53 one month's notice dated 19.1.2000 terminating the contract or in the alternative, demand of contract money and interest thereon from 9-3-2000 to 7-4-2000, be declared null and void and quashed;
(b) issue an appropriate writ, order or direction declaring clause 19 of the agreement (P/l) as null and void to the extent it stipulates non- payment of interest on the heavy amount of security deposited by the petitioner and that direction be issued to respondents to pay interest @ 24% p.a. on the amount of security till final adjustment qua the outstanding contract money;
(c) issue further an appropriate writ, order or direction to the respondents not to charge interest on the amount of contract money being demanded from the petitioner vide order dated 10-7-2000, P/3 and notice dated 4-8-2000.
7. The High Court allowed the writ petition in part i.e. as regards the demand of the amount for the period 10-3-2000 to 7-4-2000 of the contract money. As regards the other contentions of the appellant, the High Court proceeded on the basis that as it was not coerced into bidding by any of the representatives of the State nor was the Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 48/53 contract signed under undue influence or pressure, the appellant cannot be discharged of its liability as it entered into the contract voluntarily and as in terms thereof it was obliged to deposit the amount in question.
8. It appears to us that the High Court committed an error in not going into the principal issue involved in the matter.
9. We may notice that the second respondent in its order dated 10-7-2000 held :
"It is an admitted fact that the appellant did not operate the Bega Murthal Sand Zone, even if by their own choice, but facts remain that they did not derive any benefit from the contract. On the other hand, they had bound themselves by condition No. 18-A of the contract agreement not to seek any relief in payment of contract money on the plea of non-extraction of sand".
10. The question, thus, which was required to be posed and answered was as to whether Clause 18-A of the agreement would remain enforceable despite the fact that the appellant allegedly could not extract any sand by reasons of omission and commission on the part of the concerned respondents. The appellant herein has raised a plea that the contract became impossible to be performed as the landowners of the area in Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 49/53 question did not receive compensation and despite request, the 3rd respondent did not enforce clause 27 of the agreement.
11. It is not in dispute that the grant of mining lease in favour of the appellant herein for the extraction of mineral sand by the respondents is governed by the provisions of Punjab Minor Mineral Concession Rules, 1964. In terms of Rule 33 the bidder is required to execute a deed in Form 'L'. Clause 27 of the agreement in Form 'L' obligates the respondents to comply with the request made in terms thereof. The Appellate Authority had not considered this aspect of the matter. The High Court also did not apply its mind in this behalf. The first question that arises is whether the respondents complied with their statutory obligations when the request was made by the appellant. If not, the second question would be the effect on non- compliance with the statutory obligation of the respondents which formed part of the contract insofar as they did not comply with the appellant's request as aforementioned which had a direct bearing to the right of the appellant to raise sand. The High Court, as noticed hereinbefore, has merely proceeded on the basis that the appellant had entered into the contract with his eyes wide open; but, the same would not, in our opinion, mean that they were bound to pay the contract amount, Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 50/53 get its security amount forfeited, as also pay interest at the rate of 24 per cent, although it could not, by reason of acts of omission and commission on the part of the respondents, carry out the mining operation as per the terms of the agreement.
12. Whether in such a situation the doctrine of frustration will be invoked or not should have been considered by the High Court. (See M.D. Army Welfare Housing Organisation v. Sumangal Service (P) Ltd, (2003) 8 Scale 424(2)."
27. Now adverting to the submission of the learned Special P.P., Mines, appearing for the review petitioners, to the effect that since there are only two options under Rules 23 and 24 of the Bihar Minor Mineral Concession Rules, 1972, i.e (i) transfer of lease and (ii) surrender of lease by the lessee, the prayer of the writ petitioners regarding modifying the lease deed dated 5.10.2017, as registered on 9.1.2018 and the one dated 15.11.2017, as registered on 10.2.2018 and revising the settlement amount, is not tenable in the eyes of law inasmuch as the only other option available to the review petitioners is to invoke the forfeiture clause. This Court finds that the aforesaid argument advanced by the learned Special P.P., Mines is wholly misplaced inasmuch as both the lessor and lessee are circumscribed by the stipulations / covenants of the lease deed dated 5.10.2017, as Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 51/53 registered on 9.1.2018 as also the one dated 15.11.2017, as registered on 10.02.2018 and in case of any breach by either of the parties, the consequence has to follow and in the present case, since the review petitioners have first committed a breach, they are liable to compensate the writ petitioners for the loss caused to them, apart from refunding the earnest money deposit and the amount of first instalment of the settlement amount deposited by the writ petitioners. It is needless to state that since no argument has been advanced on behalf of the review petitioners regarding maintainability of the writ petitions, this aspect of the matter is not being dealt with.
28. Having regard to the facts and circumstances of the case and for the reasons mentioned hereinabove, this Court finds that on account of admitted failure on the part of the review petitioners to perform their part of the obligation under the agreement dated 5.10.2017, registered on 09.01.2018 and the one dated 15.11.2017, registered on 10.02.2018, the writ petitioners have been unable to perform their part of the contract, thus, the same has resulted in breach of the agreement by the review petitioners resulting in cessation of the contract, hence the review petitioners have become liable to compensate the writ petitioners for the loss suffered by them. This Court further finds that on account of the admitted fact that due to illegal mining, the mines in question have been denuded and the Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 52/53 mining materials, as originally shown to the writ petitioners while participating in the tender process at the mining sites, are no longer available, meaning thereby that there has been a huge diminishment in the mining materials, it has become impossible for the writ petitioners, after the contract has been made, to fulfil its obligations under the agreement resulting in the agreement being rendered void. Consequently, the doctrine of frustration of contract would come into play, since under the given facts and circumstances, as discussed hereinabove, the agreement has become impossible to be performed, on account of the circumstances beyond the control of the writ petitioners. This aspect of the matter is fully covered by Section 56 of the Indian Contract Act, 1872. Therefore, even on merits, the instant review petitions are fit to be dismissed, being devoid of any merit, both on facts as also in law, however this Court finds that since the review petitions have already been held to be not maintainable, as aforesaid, in the given facts and circumstances of the present case and moreover, none of the grounds canvassed by the learned counsel for the review petitioners either orally or as mentioned in the review petitions, fall within the ambit and scope of Order 47 Rule 1 of the Code of Civil Procedure, 1908, so as to warrant review of the aforesaid order Patna High Court C. REV. No.148 of 2019 dt.18-09-2020 53/53 dated 30.11.2018, this Court holds that the instant review petitions are misconceived and not maintainable, hence are dismissed on this ground alone, however without any order as to cost.
(Mohit Kumar Shah, J) Ajay/-
AFR/NAFR AFR CAV DATE 25.07.2019 Uploading Date 18.09.2020 Transmission Date NA