Jharkhand High Court
M/S At Dev Prabha (Jv) vs The Bharat Coking Coal Limited on 21 June, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 931 of 2018
M/s AT DEV PRABHA (JV), Saraidhella, Dhanbad through its Authorized
Signatory ... ... Petitioner
Versus
1. The Bharat Coking Coal Limited, Dhanbad, through its Chairman-
cum-Managing Director, Dhanbad
2. The Chairman-cum-Managing Director, Bharat Coking Coal Limited,
Dhanbad
3. The General Manager, Bharat Coking Coal Limited, Lodna Area,
Jharia, Dhanbad
4. The General Manager, CMC, Bharat Coking Coal Limited, Dhanbad
5. The General Manager (Safety), Bharat Coking Coal Limited,
Dhanbad
6. The General Manager, (F) OSD, Bharat Coking Coal Limited,
Dhanbad
7. The General Manager (Legal), Bharat Coking Coal Limited, Dhanbad
8. The Director (T) OP, Dhanbad
9. The Director (F), Dhanbad
10. The Chief Vigilance Officer, Bharat Coking Coal Limited, Dhanbad
... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Ajit Kumar Sinha, Sr. Advocate Mr. Kumar Sundaram, Advocate For the Respondents : Mr. A.K. Mehta, Advocate Mr. Amit Kumar Sinha, Advocate
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Order No. 05 Dated: 21.06.2018 The present writ petition has been filed for quashing the Board's decision of the Bharat Coking Coal Limited (hereinafter referred to as "BCCL") taken in the 336th Board meeting held on 09.12.2017, whereby it has been decided by the Board not to confirm the decision taken in 317th Board meeting with respect to 1st deviation proposal of Lodna Area Management for the work of "hiring of HEMM for removal of OB and extraction and transportation of coal from VIII, VII, V/VI, IV(Top), IV(Bot), III, II (Top), II (Bot) and I seams of patch F of Jeenagora Colliery, a part of NT-ST(expansion) project of Lodna Area" issued vide Tender Notice No. 142 (Reference No. BCCL/GM(CMC)/F-HEMM-OS/2014/2231) dated 15.05.2014.
2. The factual background of the case as stated in the writ petition is that the respondent-BCCL floated a tender vide Tender Notice no. 142 for the work of "hiring of HEMM for removal of OB and 2 extraction and transportation of coal from VIII, VII, V/VI, IV(Top), IV(Bot), III, II (Top), II (Bot) and I seams of patch F of Jeenagora colliery, a part of NT-ST(expansion) project of Lodna Area". The petitioner being a joint venture firm participated in the NIT and was declared lowest successful bidder. Thereafter, a Letter of Acceptance (LoA) was issued in favour of the petitioner vide letter dated 25.09.2014 in pursuance of which it furnished the Performance Bank Guarantee worth Rs. 9.04 Cr. on 20.11.2014. According to the petitioner, when it started the work, several difficulties were faced due to small area and shape available for extraction. The authorities of the respondent-BCCL visited the site and noticed that the existing site required expansion and accordingly, the petitioner was asked to submit a letter of consent for annexation of certain more area with the existing one with an undertaking to execute the work upon the contracted price itself on the same terms and conditions with further undertaking to complete the entire work including the extended work within a time frame. Accordingly, the petitioner vide letter dated 18.07.2015, gave its consent for the 1st deviation of the awarded work of "hiring of HEMM (heavy Earth Moving Machinery) for removal OB (over burden) and extraction and transportation of coal from VIII, VII, V/VI, IV(Top), IV(Bot), III, II(Top), II(Bot) and I seams of patch-F of Jeenagora colliery, a part of NT-ST (expansion) Project of Lodna Area"
for revision of quantity of OB, dumped loose OB, Jhama and Coal on account of annexation of patches "D D1 D2 D3 D4 D5 D6 D7 D8 D9 D10 D11 D12 D13" and A a b c d A2 e f g h I j k l m n o p K L M N O P Q A" with that of the existing patch "F". The petitioner also gave its undertaking to complete the work as per existing terms and conditions of contract with no right to make any additional claim for execution of additional quantity. The petitioner further undertook to complete the extended work, if further 48 months would be allowed to it. Thereafter, the respondent authorities asked the petitioner to give another letter of consent with the similar undertaking, however, reducing the time frame to complete the work from extended 48 months to 36 months only. Thereafter, the petitioner submitted another letter dated 23.07.2015 with an undertaking that the job shall be completed within the time 3 frame of 36 months only. The proposal of the petitioner was placed in the 317th Board meeting vide item no. 317-3R and the same was approved. In the meantime, a complaint was received against the petitioner with respect to the decision taken in 317th Board meeting thus, by the decision of 318th Board meeting, the said complaint was forwarded for enquiry to the Vigilance Department. Thereafter, the respondents did not issue any formal work order. However, the Chief Vigilance Officer submitted report on 16.04.2016 stating that the complaint is without any substantial merit. The DGMS who is a central authority for mines safety, vide letter dated 13.05.2016 stated that the work at concerned colliery/patch should not continue unless deviation/extension is permitted. A joint intensive examination report was also prepared by the Senior Manager (Mining)/Vig. and the Deputy Manager (Civ.)/Vig dated 19.04.2016 wherein the entire issue of deviation under question was examined and it was observed that the original work was worth Rs.452 crores, whereas the new work after deviation is worth Rs.1125 crores. Thus, the difference is worth Rs.673 crores i.e., more than that of the original work. Since the deviation proposal was initiated within a week of issuance of work order, it can be treated as equivalent to issuance of work on negotiation basis, which was earlier pointed out by CM (F). However, this point was also covered in the agenda note for 317th Board meeting and the proposal was already approved in the said Board meeting. The said report was forwarded by the CVO, BCCL. The CMD of the BCCL thereafter forwarded the DGMS enquiry report to the G.M. (Safety), GM, Lodna Area BCCL and Project Officer, Jeenagora, Lodna Area for examination of the report. It was observed by these officers that in order to comply the violations pointed out by the DGMS, the extension/deviation should be done so that the extraction of coal from the restricted seams (IV top, IV Bottom, III Southern side, II and I seams), the awarded seams could be done right upto I seams (the bottom most seems), ensuring the safety of the mine and persons employed therein. The petitioner also brought the letter of the DGMS dated 13.05.2016 to the notice of the concerned authority, whereby it was of the view that the work at the colliery/patch should not continue unless deviation/extension is 4 permitted. When the final decision was not taken on the 1st deviation proposal, the petitioner moved a writ petition before this Court by filing W.P.(C) No. 1203 of 2016. The respondent-BCCL filed counter-affidavit stating inter alia that the decision taken by the BCCL Board in its 317th meeting was subject to rectification and was an internal matter of the company which did not bestow any right to the petitioner. The said writ petition was disposed of vide order dated 27.07.2016 directing the respondent-BCCL to take a final decision, if not already taken, keeping into account all relevant factors and reports and also keeping in mind the larger public interest. The petitioner, after the disposal of the writ petition, made representation before the concerned authority along with the order of this Court vide its representation dated 04.08.2016 beseeching them to take final decision in the matter. Thereafter, the matter was placed in 325th Board meeting held on 11.06.2016 as item no. 325.3D and the BCCL Board desired that an independent legal opinion be obtained to have a holistic view on the subject. The matter was then put up in 327th Board meeting held on 19.09.2016, wherein the Board after looking into all the aspects desired to take the legal opinion of the Additional Solicitor General of India. The ASGI opined that the approved deviation seems to be as per the provisions. The matter was, thereafter, placed before the 329th Board Meeting held on 30.12.2016 with the write up of the Project Officer as well as the opinion of the ASGI and a decision was taken to get the matter examined by a multidisciplinary committee. Thereafter, a multidisciplinary committee was constituted which recommended to consider the confirmation of the decision of the BCCL Board taken in 317th meeting held on 27.05.2015 vide resolution item no. 317.3R. The said recommendation was considered by the Director (Tech) P&P who was also one the Board members and while agreeing with the recommendation looking into the urgency and nature of the work in question, directed the matter to be placed before the BCCL Board for approval vide his letter dated 31.05.2017. The matter was then put up in 333rd Board meeting through agenda note prepared by the Director (T) BCCL vide item no. 333.6K along with the entire sequence of the events as well as the opinion of ASGI and the experts. The 5 recommendation of the multi-disciplinary committee was also detailed in the said agenda note to be put up in the 333rd Board meeting.
However, the matter was deferred in the said Board meeting held on 17.07.2017 and no decision could be taken. The matter was again placed before the Board of Directors of the respondent company through agenda note in its 336th meeting vide item no. 336.4D and the Chief Vigilance Officer was also invited to attend the said meeting. However, the Chief Vigilance Officer, vide his letter dated 06.12.2017 replied that the matter proposed to be taken by the Board lies purely in the executive domain and participation by any vigilance functionary would have the potential to prejudice the future course of such executive action. After the decision taken by the Board of BCCL in its 336th Board meeting to drop the proposal ignoring of all the reports of the experts and their own officers, the petitioner represented the respondents on 31.01.2018 showing its inability to continue with the work in question owning to continuous loss as well as impossibility in executing the work without deviation. Thereafter, the Project Officer, Amal. NT ST-JG Colliery again requested the petitioner for its consent to the proposed deviation vide his letter dated 10.02.2018.
3. The learned Senior Counsel for the petitioner submits that the decision dated 09.12.2017 taken by the Board in its 336th meeting is arbitrary, illegal, contrary to the records and recommendation as well as without application of mind. The non-confirmation of the decision of 317th Board meeting on the issue of 1st deviation is primarily due to the reason that some adverse remarks of the Advisor (Proc.) CIL was received on the said deviation proposal and in a most mechanical manner, the Board without looking into the report of the Vigilance department/its authorities, letter of DGMS, opinion of the ASGI, the recommendation of multidisciplinary committee constituted by the Board of Directors themselves as well as the Director (Tech.), decided not to confirm the decision of 317th Board on the issue of 1st deviation and the same was communicated to the petitioner vide letter as contained in Ref. No. BCCL/LA/Hired-HEMM/GM(secy./2018/393 dated 31.01.2018. It is further submitted that in similar circumstances, the BCCL has allowed even 4th deviation of the original awarded work 6 to other contractors of Kusunda Area which was also more than 100% in value of the awarded work.
4. Per contra, the learned counsel for the respondents submits that subsequent to the order dated 27.07.2016 passed in W.P.(C) No. 1203 of 2016, the petitioner submitted its representation for consideration of the proposal. Thereafter, CMD, BCCL forwarded the petitioner's representation to the General Manager (Safety) and the General Manager, Lodna area for examination of the issue. The General Manager (Safety) and the General Manager, Lodna Area examined the entire issue and submitted their views in order to comply the violation pointed out by the DGMS to the effect that extension/deviation should be done in order to ensure the safety of the mines and the persons employed therein. However, the then CVO, BCCL opined through his opinion dated 28.09.2017 for putting the proposal to rest in the light of the queries raised by Advisor (Proc. & Vig.) CIL. Accordingly, in the light of the opinion of the CVO, BCCL, the Board in its 336th meeting dated 09.12.2017 decided not to confirm the decision taken in 317th Board meeting on the issue of 1st deviation of work in question, which was duly communicated to the petitioner. It is further submitted that the Advisor (Proc. & Vig.), CIL made certain adverse remarks for processing the said deviation proposal. It is upon the Board of Directors of the BCCL to take final decision after due deliberations over the matter and therefore the decision taken by the respondents is neither arbitrary nor bad in law and as such requires no interference by this Court. It is also submitted that when the proposal of the concerned deviation was put up before the Advisor (Proc. & Vig.), he made certain remarks with regard to the said proposal for deviation on the basis of the documents placed before him. The concluding portion of the noting of the Advisor (Proc. & Vig.), CIL reveals that copy of the NIT was not placed before him and, therefore, it was observed that it (proposal for deviation) can, however, be confirmed only after the receipt of the NIT and checked. It is further submitted that the Multi-Disciplinary Committee after considering all the relevant aspects including the opinion of Advisor (Proc. & Vig.), CIL (along with the reply of Lodna Area management), 7 CVO, BCCL, DGMS and legal opinion of ASGI and in the larger interest of BCCL, recommended for confirmation of the decision taken by the Board of BCCL in 317th meeting held on 27.05.2015 vide resolution item no. 317.3R. It is further submitted that vide letter dated 28.09.2017, the CVO, BCCL expressed his views upon the remarks/comments of the Advisor and opined that the report of the Multi-Disciplinary Committee may be examined in the light of the comments/remarks of the Advisor. The CVO, BCCL was also invited in the 336th Board meeting of BCCL vide letter dated 01.12.2017 to place his views on the proposal of deviation in question. However, the present CVO, BCCL vide his letter dated 06.12.2017 declined the request to attend the Board's meeting in view of the fact that Para 2.9.1 of the Vigilance Manual, 2017 of the CVC prohibits the participation of a vigilance functionary in the decision making process as it lies purely in the executive domain.
5. Heard the learned counsel for the parties and perused the contents of the writ petition. The petitioner was awarded the work for hiring of HEMM for removal of OB and extraction and transportation of coal from Jeenagora Colliery, Lodna Area of BCCL. The petitioner experienced difficulty in executing the work due to the shape of the working area and thus, the matter was reported to the authorities of the respondent-BCCL and subsequently in 317th Board meeting, the 1st deviation proposal was approved. However, the Adviser (Proc. & Vig.), CIL raised objection to the proposed deviation stating as under:
"the initial tender was contemplated keeping in mind the qualifying capacity of the contractor and thereafter quantities have been proposed to be increased surreptitiously without mentioning in the tender file whether the contractor would still qualify for the prescribed PQ criteria if the revised value of work is considered. If this is the case, there is no question, the amendment should not be processed and the same be given a deep burial. It can, however, be confirmed only after receiving and checking the NIT. The administration may arrange to verify the above aspect and refer the case to the undersigned only if it still considers necessary."
6. After the remark of the Adviser (Proc. & Vig.) CIL, the decision taken in 317th Board meeting was kept in abeyance and 8 further, the opinions/views were sought from various authorities and finally, the 1st deviation proposal was turned down in the 336th Board meeting.
7. The petitioner has made two fold prayers before this Court; first is for a direction upon the respondents to confirm the decision in the 317th Board meeting with regard to 1st deviation proposal of the said work and the second is for quashing of the decision taken in 336th Board meeting, whereby it has been resolved not to confirm the decision taken in 317th Board meeting with regard to 1st deviation proposal of the awarded work to the petitioner.
8. So far the first issue is concerned, the thrust of argument of the learned Senior Counsel for the petitioner is that after detailed deliberation on the subject and getting the matter examined from all the possible corners, right from the Directors of the respondent- Company to the Vigilance Department and DGMS, who all have recommended in favour of the deviation, the Board arbitrarily did not allow the proposed deviation. In support of the above contention, the learned Senior Counsel for the petitioner has also relied upon the internal notings in the file of proposed deviation.
9. The Hon'ble Supreme Court in catena of decisions has held that the noting of an officer in a file is no more than an opinion of an officer for internal use and unless the final decision is taken, the same cannot be taken into cognizance in exercise of power of judicial review.
10. In the case of "Union of India Vs. Ashok Kumar Agarwal" reported in (2013) 16 SCC 147, the Hon'ble Supreme Court has held as under:
33. The instant case is required to be considered in light of the aforesaid settled legal propositions, statutory provisions, circulars, etc. The Tribunal inter alia had placed reliance on notings of the file. The issue as to whether the notings on the file can be relied upon is no more res integra.
34. In Shanti Sports Club v. Union of India30, this Court considered the provisions of Articles 77(2), 77(3) and 166(2) of the Constitution and held that:
(SCC p. 726, para 42) "42. ... unless an order is expressed in the name of the President or the Governor and is authenticated in 9 the manner prescribed by the Rules, the same cannot be treated as an order on behalf of the Government."
35. The Court further held: (Shanti Sports Club case30, SCC pp. 726-27, para 43) "43. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review."
11. In the case of "Sethi Auto Service Station & Anr. Vs. Delhi Development Authority & Ors." reported in AIR 2009 SC 904, the Hon'ble Supreme Court held as under:
14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department; gets his approval and the final order is communicated to the person concerned.
12. In the case of "Jasbir Singh Chhabra & Anr. Vs. State of Punjab & Ors." reported in (2010) 4 SCC 192 held as under:-
"35. ........However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by malafides or is influenced by extraneous considerations........"10
38. Thus, in view of the above, it is evident that the notings in the files could not be relied upon by the Tribunal and Court ------"
13. In the present case, though the petitioner has put reliance upon the favourable opinions/recommendation of the various authorities of respondents towards the 1st deviation proposal, yet in view of the judgment of the Hon'ble Supreme Court rendered in the case of "Ashok Kumar Agarwal" (supra), "Sethi Auto Service Station" (supra) and "Jasbir Singh Chhabra" (supra), the said remarks cannot be taken into consideration in exercise of power of judicial review in view of the fact that the final decision in the matter was required to be taken by the designated authority i.e., the Board of Directors. Thus, merely on the favourable recommendation of various authorities of the CCL, no right is created in favour of the petitioner.
14. The learned Senior Counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court rendered in the case of "Kerala State Electricity Board Vs. Hindustan Construction Co. Ltd. & Ors." reported in (2006) 12 SCC 500 and has submitted that a decision already taken in a meeting does not require any confirmation at the next meeting. When minutes of a meeting are placed in the next meeting, the only thing that can be done is to see whether the decision taken in the earlier meeting has been properly recorded.
15. The aforesaid judgment cited by the learned Senior Counsel for the petitioner is not applicable in the facts and circumstance of the present case. On perusal of the record, it appears that after the decision taken in the 317th Board meeting, few complaints were received against the proposal for deviation and thereafter in the 318th Board meeting, it was resolved that the proposal for deviation needed re-consideration and thus the opinion was sought from the Advisor (Proc. & Vig.), CIL who was functioning in advisory capacity. When the Advisor (Proc. & Vig.), CIL made certain remarks, the CMD, BCCL decided that before sending it further to CIL, the remarks made by the Advisor should be examined by the BCCL.11
16. So far the second issue with regard to putting challenge to the decision taken in 336th Board meeting is concerned, the same primarily involves the procedure adopted by the respondent-BCCL in arriving at the said decision. On perusal of record, it appears that the Board finally decided not to confirm the decision taken in 317th Board meeting in light of the remarks put by the Advisor (Proc. & Vig.) CIL and also in view of the opinion of CVO, BCCL.
17. The relevant portion of item no. 336.4D of the minutes of 336th Board meeting of BCCL held on 09.12.2017 is quoted hereinbelow:-
During deliberation it was brought to the notice of the Board that:-
(i) Advisor (Proc. & Vig.), CIL had made certain adverse remarks for processing the deviation proposal;
(ii) Finance Department had made the observation at the time of concurrence of the proposal before placing in 317th Board "Approval of subject deviation proposal is amounting to awarding a work for Rs.673,26,23,667.00 only being the difference between award value and 1st deviation estimate value on negotiated basis requires administration decision of BCCL Board". Further, in the agenda note submitted now D(F) had further affirmed that the deviation proposal would amount to award of work without tender and through negotiation which require the Board's deliberation and decision.
Further, it was also suggested that before placing the proposal before the Board the status of complain received against the proposal be obtained. It was further suggested that views/opinion of the Advisor (Proc. & Vig.), CIL be obtained on the recommendations of the committee, especially the explanations and clarifications accepted by the committee in reference to the adverse remarks of the Advisor (Proc. & Vig.) CIL.
(iii) CVO, BCCL also through his letter addressed to CMD, BCCL vide reference no. BCCL/VIG/IE.01/2016/2017/943 dated 28th September, 2017 opined for putting the proposal to rest in the light of the observation of Advisor (Proc. & Vig.) CIL.
In view of the above and after examining the whole gamut of the issue threadbare, the Board decided not to confirm the decision of 317th Board on the aforesaid item and drop the proposal.
Thus, the Board of BCCL appears to have taken the impugned decision based on the observation of the Advisor (Proc. & 12 Vig.) CIL and the opinion of the CVO, BCCL.
18. Annexure-C to the Supplementary Counter Affidavit is the opinion of CVO, BCCL dated 28.09.2017, which reads as under:
It is perused from the file that a committee was constituted by D(T)/P&P/BCCL vide letter No. BCCL/GM/TS to D(T)P&P/F-62/17/2004 dated 10.02.2017 for examining the issue reflected to the above deviation proposals as per Item No. 329.3D of Minutes of the 329th Meeting of BCCL Board of Directors held on 30.12.2016. The said committee submitted its report on 16.05.2017. It is felt that the said report may be examined in the light of the remarks of the Advisor (Proc. & Vig.), CIL.
The report of the committee has been examined by the Vigilance Department of BCCL; it shows deviation from the notings of the Advisor (Proc. & Vig.), CIL. Comprehensive vigilance investigation report in CVC Format is being prepared in the subject case along with the fixation of responsibilities. It is opined that in the interest of the company the proposed deviation may be considered to be put to rest and the additional work which is double the work value of the original awarded work may be considered to be put to open tender, so that the deficiencies pointed out by Advisor (Proc. & Vig.), CIL and others can be addressed and eliminated.
19. The main objection appears to have been put by the Advisor (Proc. & Vig.), CIL to the proposed deviation is that the initial tender was awarded to the petitioner considering its existing capacity, however, increase in the work due to 1st deviation was proposed without mentioning in the tender file as to whether the contractor would still qualify the prescribed PQ criteria. On perusal of the report of the Multi-Disciplinary Committee dated 16.05.2017 (Annexure-D to the supplementary counter-affidavit dated 11.06.2018), it appears that for exercising the original work with deviation within 36 months of extension period, the petitioner had total experience of Rs.70,44,31,841.9 which fell short of the required experience of Rs. 78,16,84,730/-.
20. The CVO, BCCL found that the committee formed to look into the matter has deviated from the noting of Advisor (Proc. & Vig.) CIL and the proposed deviation may be considered to be put to open tender in the interest of the company.
1321. It is required to be mentioned here that after the remarks of the Advisor (Proc. & Vig.), CIL, the respondent-BCCL has carried out much exercise such as taking/considering the opinions/views of CVO, BCCL, ASGI as well as the letter of DGMS. It also constituted multidisciplinary committee, who made recommendation in favour of the 1st deviation. Moreover, after the remarks of Advisor (Proc. & Vig.), CIL, the matter was also placed before the CVO, BCCL, who through his note dated 29.04.2016 stated that all the issues of 1st deviation proposal were placed before the BCCL Board through the agenda note for the 317th Board meeting upon which the Board had taken the decision approving the 1st deviation proposal.
22. Curiously enough, without any change in circumstance, the CVO, BCCL wrote letter dated 28.09.2017 to the CMD, BCCL and while referring to the observation of Advisor (Proc. & Vig.), CIL proposed that the deviation is not in the interest of the Company. Earlier, when the petitioner moved before this Court praying inter alia for confirmation of the 317th Board meeting in W.P.(C) No. 1203 of 2016, this Court vide order dated 29.02.2016, directed the respondent-BCCL that if it takes any decision to re-examine the matter and the same has not yet reached finality, the same would be taken keeping in view of all relevant factors and reports. The respondents have, however, failed to explain before this Court as to why such a long drawn exercise was made after the remark of the Advisor (Proc. & Vig.), CIL, if they had to again give primacy to the remarks of Advisor (Proc. & Vig.), CIL.
23. Moreover, after the decision of the Board taken in 336th meeting, the petitioner vide letter dated 31.01.2018 issued a notice to the respondent-BCCL for closure of the awarded work. Interestingly, a letter dated 10.02.2018 (Annexure-21 to the writ petition) has been issued under the signature of the Project Officer, Amal. NT ST-G Colliery requesting the petitioner to give its further consent on the 1st deviation proposal of the said awarded work. For better appreciation, the content of the letter dated 10.02.2018 is reproduced as under:
14Office of the Project Officer Amal. NT ST-Jeenagora Colliery PO. KhasJeenagora, Dist.Dhanbad (Jharkhand) Pin. 828115 CIN: U 10101JH1972GO1000918 Ref. No.: BCCL/JGOCP/AT-Devprabha/2018/169 Dated: 10/02/18 To, M/s AT-Devprabha (JV) 2nd Floor, Dev Villa Behind Radha Swami Arcade P.O.-Saraidhela Dhanbad-826004 Sub. - Request for your consent for 1st Deviation proposal of the work "Hiring of HEMM for removal of OB and extraction and transportation of coal from VIII, VII, V/VI,IV(Top), IV(Bot),III,II(Top),II(Bot) and I Seams of Patch-F of Jeenagora Colliery, a part of NT-ST (expansion) Project of Lodna Area" at Amal. NT-ST Jeenagora OCP, Lodna Area.
Ref.- BCCL/GM/Secy/Lodna/Hiring-HEMM-OS/2015/300 Dated. 30.05.15 D/Sir, Based on your representation vide letter-nil dated 31.01.2018, a committee has been constituted at the Area vide letter no. BCCL/GM/Lodna/HEMM/Notice/2018/406 Dated-08.02.2018 to assess the issue, accordingly the committee assessed the matter. The committee analyzed the present situation of the Mine and assessed the Pit Geometry of the quarry. It is found that the depth of the quarry is reached about 140 Mtr. and to further move downwards, we need to extend the Quarry shape in the East-West side. In the Southern side of the Patch in the Dip side area where Majhi Bustee is situated, can be added to the Patch considering to acquire the land and shifting the inhabitants from the area then only the Pit geometry and shape of the Patch will be viable for working in deeper seams.
In view of above, you are requested to give your consent in respect of following facts:-
1. You will agree to the proposed the 1st deviation of the awarded work of "Hiring of HEMM for removal of OB and extraction and transportation of coal from VIII, VII, V/VI,IV(Top), IV(Bot),III,II(Top),II(Bot) and I Seams of Patch-F of Jeenagora Colliery, a part of NT-ST (expansion) Project of Lodna Area" at Amal. NT-ST Jeenagora OCP, Lodna Area for revision of quantity of OB, dumped loose OB, Jhama & Coal on account of Annexation of patches with that of existing patch-F.
2. You are ready to work as per existing terms & conditions of contract.
3. You will have no additional claim for execution of additional quantity in additional time than what is provided in tender document.
4. You will extend the BG submitted against security deposit as required in tender document.
5. During execution period of the contract if the Raity land is not acquired, Government land is not transferred, encroachers are not shifted and in any case the contract is to be closed/foreclosed due to land problem, you will not claim any compensation/damage from BCCL.
6. You will execute the additional quantity in the proposed annexed area within the extended time as per NIT terms and conditions of the contract.
Project Officer Amal. NT ST-JG Colliery cc.to:
1.G.M., Lodna Area
2.AGM, Lodna Area
3.Area Manager (Survey), Lodna Area
4.File 15
24. The learned Senior Counsel for the petitioner has submitted at Bar that during the pendency of the present writ petition, the petitioner has given its consent to the proposed deviation by its letter dated 21.04.2018, a copy of the said letter is produced before this Court, which is taken on record.
25. It is thus noticed that even after the decision taken in the 336th Board meeting, the respondent-BCCL has not treated the said decision as final in all respects. If the matter had attained finality after the decision taken in the Board's 336th meeting, where was the occasion to issue the letter dated 10.02.2018 again seeking consent of the petitioner for the 1st deviation proposal.
26. However, the sequence of events discussed hereinabove clearly indicates that the respondent-BCCL has consumed considerable time in the decision making process involving the present issue and even the decision taken in Board's 336th meeting has not been treated as final.
27. .Under the aforesaid circumstance, it would be appropriate to direct the respondent-BCCL to take a final decision in all respects on the present issue expeditiously since much time has already been consumed in the matter. It is, however, clarified that the Board of the BCCL shall take final decision keeping in mind all the relevant aspects without being influenced by the decision taken in all previous Board meetings.
28. The present writ petition is accordingly disposed of with aforesaid observation and direction.
(Rajesh Shankar, J.) Manish/A.F.R.