Jharkhand High Court
Ms At Devprabha Jv Through Its ... vs The Bharat Coking Coal Limited Through ... on 27 July, 2016
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 1203 of 2016
M/s. AT DEVPRABHA (JV), a Joint Venture Firm
District Dhanbad ..... Petitioner
vs.
1. The Bharat Coking Coal Limited, Dhanbad
2. The Chairman cum Managing Director,
Bharat Coking Coal Limited, Dhanbad
3. Sri Nagendra Kumar, Acting Chairman
cum Managing Director, Bharat Coking Coal
Limited, Dhanbad
4. The Company Secretary, Bharat Coking Coal
Limited, Dhanbad
5. The General Manager, Bharat Coking Coal
Limited, Dhanbad
6. The General Manager, CMC, Bharat Coking
Coal Limited, Dhanbad......... .....Respondents.
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
For the Petitioner : M/s. Ajit Kumar, Sr. Adv.
& Shishir Suman, Adv.
For the RespondentB.C.C.L : Mr. A. K. Das, Adv.
6/27.7.2016 Heard learned counsel for the parties.
2. Petitioner has been awarded a contract for the following description of work (Annexure1) dated 15th May, 2014.
Description of work Location Estimated cost Cost of Earnest Perio
(Rs) Tender Money d of
docum (Rs) contr
ent act
(Rs)
Hiring of HEMM for removal of VIII, VII, 386,52,15,902/ 5,000/ 50,00,000/ 60
OB and extraction and V/VI, mont
transportation of coal from VIII, IV(Top), hs
VII, V/VI, IV(Top), IV(Bot),III, IV(Bot),III,
II(Top), II(Bot) and I seams of II(Top),
PatchF of Jeenagora Colliery, a II(Bot) and I
part of NTST (expansion) Project seams of
of Lodna Area: PatchF of
1) OB : 251.47 LCM Jeenagora
2) Dumped Loose OB : 26.09 LCM Colliery, a
3) Jhama : 2.36 LCM part of NT
4) Stripping Ratio : 1:2.61 ST
(expansion)
Project of
Lodna Area:
3. There was a decision of the Board of Directors of RespondentBCCL on 27th July, 2015 in 317th Meeting (Annexure6) relating to Item No.
317. 3R relating to proposal for approval of the following work:
"1st Deviation for revision of existing awarded boundary, revision of awarded quantities, revision of stripping ratio along with revision of awarded value and extension of 2. period of contract by 36 months 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 PatchF of Jeenagora Colliery, a part of NTST (expansion) Project of Lodna Area" awarded to M/s. AT Devprabha(JV)" (Annexure6).
4. That decision of the Board has been placed in abeyance in 318th Board Meeting of RespondentBCCL held on 21st September, 2015, also reproduced hereunder:
"Agenda No. 317.3R proposal for approval of 1st Deviation for revision of existing awarded boundary, revision of awarded quantities, revision of stripping ratio along with revision of awarded value and extension of period of contract by 36 months 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 PatchF of Jeenagora Colliery, a part of NTST (expansion) Project of Lodna Area" awarded to M/s. ATDevprabha(JV). Decision After last Board it was brought to the notice of the Board that a few complaints were received in respect of the instant proposal. As such the proposal was discussed once again and Board suggested that the proposal needed to be reexamined in the light of the following aspects:
1. Since the execution of the contract is at the initial stage, what was the need to initiate the proposal at this stage.
2. Since the quantity proposed to be extracted is high in comparison to the original proposal, it needs to be re examined keeping in view the applicable contractual and legal provisions."
5. Petitioner has sought a direction upon the respondent to issue consequential work order in his favour in furtherance of the BCCL's Board of Director resolution dated 27th July, 2015 taken in its 317th meeting, which according to him, has been duly circulated amongst the members. Director General of Mines Safety has issued a letter on 13th May, 2016 to BCCL on the subject of inspection of Hired HEMM Patch 'F' in Jeenagora unit of Amalgamated NTST Jeenagora Colliery of M/s. Bharat Coking Coal Limited made by Shri Sanjibon Ray, Director of Mines Safety, Dhanbad Region No. 2 and Shri Nayan Sinha, Dy. Director of Mines Safety, Dhanbad Region No. 2 on 11.05.2016.
6. Learned Senior Counsel for the petitioner has also relied upon a communication as Annexure: S.A5 of the same supplementary affidavit 3. dated 22nd July, 2016 of an Agent of RespondentBCCL Jeenagora Colliery of DGMS, Dhanbad stating that the proposal for extension/deviation towards both Eastern and Western side of quarry has been put up before the higher authority, M/s. BCCL. The restricted seams shall be extracted only on on getting the approval of said proposal. He has further submitted that within one year of the contract (Annexure1), it has excavated coal up to the depth of 70 meter and rest of the contract would remain unworkable unless the deviated work as resolved in 317th Board Meeting is not finally awarded to the petitioner.
7. Counsel for the respondents have however resisted the prayer stating that there are no formal communication of any such decision of 317th Meeting of the Board of Directors taken on 27th July, 2015 to the petitioner to have a locus to seek any direction. In the ordinary course of business, decision of previous board meeting are always subject to ratification by the subsequent board. In that sense, petitioner does not have legal right to seek execution of additional work by virtue of said decision of BCCL Board of Directors. As is apparent from the decision of minutes of 318th Meeting the matter is being reexamined.
8. Counsel for the petitioner however submits that the decision of 318th meeting Board has taken place on 21st September, 2015 and by now slightly less than 1 year has elapsed. On such an important subject, if no final decision is taken by the respondent Board despite due deliberation on subject with the opinion of experts in the earlier 317th Board Meeting, petitioner's entire expenditure and deployment of machinery under original agreement at Annexure1 would be rendered waste resulting in huge loss.
9. Be that as it may, in the absence of any formal communication of the Board to enter into a fresh agreement or allotment of additional work to the petitioner, he does not have any legal right to seek a direction for issuance of consequential work in furtherance of the Board's resolution taken on 27th July, 2015. The principle of law on the subject is well laid 4. down in the case of Haridwar Singh Vs. Bagun Sumbrui and others reported in (1973) 3 SCC 889. In the case of Uttar Pradesh Avas Evam Vikas Parishad and others vs. Om Prakash Sharma reported in JT (2013) 5 SC 548 also the same view has been reiterated. The opinion of the Apex Court at paragraphs 35 and 36 of the Report in the case of Uttar Pradesh Avas Evam Vikas Parishad (Supra), is quoted hereinbelow:
"Para 35:- Further, unaccepted offer of the plaintiff does not create any right or any obligation on the part of the defendant to execute the lease deed. In fact, this principle is well settled by this Court in the case of Bhagwan Das Goverdhan Das Kedia V. Girdhari Lal & Co. [AIR 1966 SC 543] wherein this Court has held that mere making of an offer does not form part of the cause of action for claiming damages for breach of contract. In the case in hand, the aforesaid principle, without recourse, is applicable in the fact situation for the reason that the plaintiff was the highest bidder and his offer was merely accepted but no communication was sent to him as required under Section 3 of the Contract Act. Therefore, no legal right accrued in favour of the plaintiff to invoke remedy available under Section 34 of the Specific Relief Act, seeking declaratory relief as prayed in the original suit filed by the plaintiff.
Para 36:- Further, the communication under Section 4 of the Contract Act speaks of when the communication will complete. It says:
"4. Communication when complete.- The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.
The communication of an acceptance is complete,- as against the proposer, when it is put in a course of transmission to him so as to be out of the power of the acceptor; as against the acceptor, when it comes to the knowledge of the proposer".
The proposal is said to have been completed when the same is accepted by the competent authority, which has not been done in the instant case. Neither the Housing Commissioner nor the Assistant Housing Commissioner accepted the proposal in writing; therefore, there is no communication of acceptance of the offer of the plaintiff. In this regard, this court in Haridwar Singh V. Begum Sumbrui [AIR 1972 SC 1942] has held that the communication of acceptance of the highest bid is necessary for concluding the contract. In view of the aforesaid factual and legal proposition of law and the highest bid offered to take the property on lease for a period of 90 years with renewal for further 20 years for construction of the cinema hall, the same was neither accepted by the competent authority nor was the same communicated. Therefore, there is no concluded contract in favour of the plaintiff in respect of the plot in question and the plaintiff cannot claim any legal right and question of enforcement of the said right as provided under Section 34 of the Specific Relief Act seeking declaratory relief by the plaintiff the same did not arise in the case in hand. The above important factual and legal aspects have not been examined in proper and constructive manner either by the trial court or by the second appellate court. Therefore, the impugned judgment, order and decree are liable to be set aside".
10 Therefore, this Court is not satisfied that interference is warranted in such circumstances in the present writ application. However, if the Board of BCCL has taken a decision to reexamine the matter in its 318th Meeting and the same has not yet reached finality RespondentBCCL would consider the issue involved keeping into account all relevant factors and reports, if any, in the larger public interest. 5.
11. The writ petition however is disposed of without interfering in the matter. Consequently, I. A. No. 3303 of 2016 also stands disposed of.
(Aparesh Kumar Singh,J) jk