W.P.1897.07 Writ Petition No. 1897 of 2007 27-04-2011 Shri M. P. Shukla, learned counsel for the petitioner. Shri Pramod Shrivastava, learned counsel for the respondent No. 1. Shri S. P. Rai, learned Govt. Advocate for the respondents No. 3 & 4. With consent, matter is heard finally. Challenge put forth in this writ petition under Article 226/227 of the Constitution of India is to an order dated 21-12-2006 passed in Panchayat Revision No. 69/A-89/05-06 by Additional Collector, Seoni; whereby, the resolution dated 26-07-2006 passed by Gram Panchayat Kohka of granting fishing lease of Kohka Reservoir in favour of respondent No. 1 for a period of seven years has been upheld. Grant of fishing lease rights of Reservoirs within Gram Panchayats are governed by policy of State Government captioned: Panchayat Raj Vyavastha Ke Aantargat Machhli Palan Ke Liye Panchayaton Dwara Gramin Talab Tatha 200 hectare Ausat Jalakshetra Tak Ke Sichai Jalashaya Patte Par Dene Ke Sambandh Mein Niti Avam Nirdesh (Annexure-P/2). Clause 2 of the policy sets out of beneficiaries who in priority would be entitled for grant of lease. It stipulates : W.P.1897.07 “2- vkacafVrh@fgrxzkgh %& 2-1 'kklu dh Li"V uhfr gS fd eRL; ikyu ds fy;s bu rkykcksa@tyk'k;ksa dks xjhch js[kk ds uhps thou ;kiu djus okys LFkkuh; eNqvksa dks izkFkfedrk ij vkoafVr fd;k tk;s vFkkZr~ fdlh Hkh n'kk esa bu ty{ks=ksa dh uhykeh ugha dh tk;sxh] Li"V gS fd 'kklu ds lkekftd ,oa vkfFkZd mn~ns'; dh iwfrZ ds fy;s iapk;rsa Hkh mruh gh ftEesnkj gSA vkcaVu ds fy;s izkFkfedrk dk Øe fuEukuqlkj gksxk %& 1- eNqvk@vuqlwfpr tutkfr@vuqlwfpr tkfr dh lgdkjh lfefr;kaA 2- eNqvk@vuqlwfpr tutkfr@vuqlwfpr tkfr ds lewgA 3- eNqvk@vuqlwfpr tutkfr@vuqlwfpr tkfr ds O;fDrA 2-2 vuqlwfpr tutkfr ckgqY; ftyk@{ks= esa bl tkfr dks lfefr@lewg@O;fDr dks izkFkfedrk nh tk;sxh bu izkFkfedrkvksa dk ikyu djrs gq;s vkfFkZd ok;sfcfyVh dks Hkh /;ku esa j[kk tk;s] ftlds rgr LFkkuh; ,d fgrxzkgh dks 0-5 ls 1-0 gSDVs;j rd xzkeh.k rkykc vkcafVr fd;k tk;sA ;fn rkykc 5-0 gSDVs;j ls vf/kd ty{ks= dk gS rks mls mlh {ks= dk iathÑr LFkkuh; eNqvk lgdkjh lfefr dks fn;k tk, lkekU;r% lewg vFkok lfefr esa lnL;ksa dk la[;k] izfr 1000 fdyksxzke eRL; mRiknu ,d lnL; ds eku ls fu/kkZfjr gksxhA 2-3 ;fn ml {ks= ds eNqvk lfefr@lewg ls dksbZ vkosnu izkIr ugha gksrk gS rks iapk;r ftys ds Hkhrj lehi ds {ks= dh eNqvk lfefr@lewg dks rkykc@tyk'k; dk iV~Vk ns ldsaxhA Vhi %& mlh {ks= ds iathÑr LFkkuh; eNqvk lgdkjh lfefr ls rkRi;Z rkykc@tyk'k; ds 8 fd-eh- ifjf/k esa iathÑr eNqvk lgdkjh lfefr ls gSA” Indisputably, the petitioner as well as the respondent No. 1 are societies comprising of members of SC/ST category and are within 8 kms. Periphery of the Kohka Reservoir as such both the societies enjoy equal priority rights. W.P.1897.07 Though learned counsel for the petitioner laboured hard but failed to establish that respondent No. 1 is not within 8 kms. Periphery of the Kohka Reservoir. Since the petitioner has failed to establish any illegality or violation of any terms of policy in vogue. The petitioner has also not been able to establish that vide resolution dated 10-07-2006 reservoir was allotted to petitioner. The resolution in question cannot be interfered. In result petition fails and is hereby dismissed. No costs. (SANJAY YADAV) JUDGE sc W.P.1897.07 HIGH COURT OF MADHYA PRADEESH JABALPUR (Writ Petition No. 10194/2008) KSK Energy Ventures Limited, Vs. M.P. State Mining Corporation Ltd. & ors. --------------------------------------------------------------------------------------- --- PRESENT : HON’BLE SHRI JUSTICE SANJAY YADAV --------------------------------------------------------------------------------------- --- Counsel for Petitioner Shri Ravi Shankar Prasad, Sr. Advocate with Shri Naman Nagrath, Shri Sanjay Sen and Shri Deepak Biswas, Advocates. Counsel for respondent No. 1 Shri M.L. Jaiswal, Sr. Advocate with Shri H.K. Upadhyay, Advocate. Counsel for respondent No. 2 Shri Samdarshi Tiwari, Govt. Adv. Counsel for intervenor Shri Shashank W.P.1897.07 Shekhar, Advocate. O R D E R (28.11.2008) PER SANJAY YADAV, J Non operationalisation of Memorandum of Undertaking leading to its cancellation and a decision to invite fresh expression of interest drives the petitioner to this Court seeking quashment of cancellation of Memorandum Of Understanding (MOU) dated 15.6.2006 by order dated 12.8.2008 (Annexure P/20) and notice dated 14.8.2008 which is an invitation of Expression of Interest (EOI) for selection of Joint Venture Partner Cum MOD for Exploration, Development, Mining and Supply of Coal from Morga-1 Coal Block of MPSMCL and setting up of Power Plant. And a consequence thereof, the petitioner seeks implementation of tripartite agreement dated 15.6.2006, which, as per the petitioner, has been kept in a state of desuetude. 2. The relevant facts briefly are that in the year 2006, the Madhya Pradesh State Mining Corporation Ltd. (referred to as MPSMCL) vide its letter dated 4.2.2006 W.P.1897.07 (Annexure P-4) approached the Government of India, Ministry of Coal for allocation of 4 Coal Blocks, viz., Gare Palema-III Mand-Raigarh; Morga-I, Hasdeo Arand; Morga II, Hasdeo-Arand and Parsa, Hasdeo-Arand. This request by the MPSMCL was in advancement of the revised Policy 2001 of Government of India, Ministry of Coal, whereby State undertakings were permitted to undertake mining and supply of coal even outside their State. In pursuant thereof, the Government of India, Ministry of Coal, vide its letter dated 2.8.2006 (Annexure P-9) conveyed ‘in principle’ approval to the working of Morga-I Coal Block by M/s. MPSMCL under the Government Company dispensation in pursuance of Section 3 (3) (1) (i) of the Coal Mines (Nationalisation) Act, 1973 subject to various conditions, viz., (i) Coal Mining shall be carried out by M/s. MPSMCL, or a separate company to be created with participation of M/s. MPSMCL or provided that the separate created company is a government company. (ii) The allocatee will do coal mining in accordance with the provisions of the Coal Mines (Nationalisation) Act, 1973, the Mines and Minerals (Development & Regulation) Act, 1957, the Contract Labour (Regulation & Abolition) Act, W.P.1897.07 1970, and all the Minerals, environmental and labour laws along with other regulations governing coal industry. (iii) The allocatee would do mining of coal from the allocated block in accordance with a mining plan approved by the Central Government. (iv) The mining lease will be executed between the State Government and the allocatee as per the provisions of MMDR Act 1957and rules framed thereunder. (v) The exploration of the coal block shall be done either through CMPDIL or under the direct supervision of CMPDIL. Prospecting license shall be applied for within three months of date of allotment and the detailed exploration shall be completed at the earliest. After the detailed exploration is completed the allocatee of the block shall proceed for ensuring earliest commencement of production. The milestone chart appended shall be adhered to. Any slippage would render this allocation liable for cancellation, and withdrawal of block from the allocatee. (vi) Whether the block could be operated as one mine or otherwise would be determined by the Central Government after the detailed exploration is completed, having regard to factors such as the interest of conservation, safety, deployment of optimal technology for optimal extraction of coal, mine capacity, the earliest commencement of production, etc. (vii) The existing coal linkages granted from CIL/SCCL would not be disturbed in any way with coal mined from Morga-I block. (viii) Any violation of the conditions imposed above in mining and disposing of coal from the Morga-I coal block will render the mining lease liable for cancellation. 3. Prior to ‘in principle’ approval of Government of W.P.1897.07 India, Ministry of Coal, a tripartite Memorandum of understanding (referred to as MOU) was arrived at between MPSMCL, IDFC and KSK, the petitioner, for development of Coal block outside of Madhya Pradesh on 15.6.2006 (Annexure P/1). This MOU was in anticipation of allotment of Coal blocks outside the State of Madhya Pradesh. The terms of MOU relevant for present controversy appears in clauses 1, 2, 3, 5, 6, 8, 9 and 11 which read thus: 1. KSK shall enter into memorandum of Understanding (MOU) with MPSMCL for coal mining and for supply of coal and the idfc Consortium shall set up or acquire Thermal Power Projects (Power Projects) in one or more phases. 2. The Coal block development shall have two portions-one relating to detailed exploration and mining of coal block by KSK and the other relating to the coal supply to the thermal project(s) set up or acquired by the IDFC Consortium. KSK has the right to undertake coal mining either directly or through one or more SPVs or through contract mining or a combination of these options. The cost of coal mining shall be notified by KSK. 3. IDFC Consortium has the right to execute Power Projects through one or more SPVs and could undertake such projects either through Greenfield and/or acquisition of existing projects. KSK has the exclusive W.P.1897.07 right to notify Power Projects where coal needs to be supplied. 5. After the detailed exploration of the block and preparation of Geological Report MPSMCL and KSK may from a Joint Venture Company (JVC) under the standard terms and conditions of MPSMCL prevailing at the time of signing of this MOU. 6. The MPSMCL shall obtain and continue to have the mining leases. The MPSMCL shall outsource the mining operation to KSK through the MOU. 8. KSK shall pay a facilitation fee to the MPSMCL for every tonne of ROM coal sold calculated on the basis of the cost of mining notified by KSK. The price of supply by MPSMCL shall be the cost of the mining notified by KSK and a facilitation fee as outlined herein below: a. The facilitation fee for sale of coal to consumers other than Power Projects shall be : for ‘A’ to ‘C’ grade of Coal – 35%, for grade ‘D’ to ‘E’ 25 % and for grade ‘F’ and ‘G’ and below grade 20 % respectively, of the basic sale price of various grades of Coal per tonne fixed by the respective Coalfield in the area where block is located, from time to time or the price of Coal notified by KSK whichever is higher. b. For coal sold to the Thermal Power Projects set up or acquired by IDFC Consortium, the facilitation fee payable to MPSMCL shall be fixed on mutual agreement. However, it shall not be less than Rs.25/- per tonne of ROM Coal. 9. Coal produced from the mining Blocks shall be supplied on priority basis to the Power W.P.1897.07 Projects to be set up or acquired by the IDFC Consortium and the surplus, if any, after meeting the Coal requirements of the Power Projects can be sold to other consumers. 11. This MOU is for and in respect of only the coal blocks outside of Madhya Pradesh, expected to be allotted to MPSMCL. However, the request of the IDFC Consortium for allotment of additional blocks outside Madhya Pradesh, if allocated to MPSMCL and subject to approval of the State Government, may be considered on priority basis for long-term sustainability and viability of the Power Projects. 4. The aforesaid terms of understanding qua the stipulations contained in the approval dated 2.8.2006 by Govt. of India and the decision in meeting dated 20.9.2006 held at State level led to seeking of clarification by Government of Madhya Pradesh, Mineral Resources Department vide letter dated 28/29.11.2006 as to whether the terms of understanding arrived at on 15.6.2006 was in consonance with those in letter dated 2.8.2006. Government of India, Ministry of Coal, responding to the aforesaid wrote back on 31.7.2007, Annexure P/15, indicating therein that the State of Madhya Pradesh to ensure the following before operationalising the MOU: W.P.1897.07 (i) Since the block is allocated to the Madhya Pradesh State Mining Corporation Limited (MPSMCL) under Government Company dispensation route, which provides for commercial mining, if joint venture route is adopted for such mining, such an entity shall be a government company in nature and Character. (ii) MPSMCL can opt for outsourcing/contract mining of they so desire, subject to conformity with the relevant laws in this behalf. (iii) In case of outsourcing option, mining lease shall be in the name of MPSMCL only. (iv) Mining contractor shall have no say in fixing the sale price of coal and choice of consumers. (v) All commercial decisions shall be taken by MPSMCL/separate joint venture government company, as the case may be. (vi) Mining contractor shall be paid only the cost of ming and incidentals thereof. (vii) Mining contractor is not entitled to receive any proceeds of of the sale price of coal decided by MPSMCL. (viii) In accordance with the above, the conditions of allotment and relevant rules/regulations shall be followed. 5. In sequel thereof a meeting was held on 11.10.2007 under the Chairmanship of the Chief Secretary comprising of Principal Secretaries, Department of Commence & Industries, Finance, Power, Mineral Resources whereof following decision was taken: “1- e0iz0 esa fLFkr dsfIVo dksy Cykd ds vkoaVu ds laca/k esa izkIr vkosnu Ik=ksa esa ewY;kadu W.P.1897.07 izfrosnu lfefr ds le{k j[kk x;kA lfefr }kjk fopkjksijkUr ;g fu.kZ; fy;k x;k fd izns’k esa fuos’k djus okyh rFkk ,UM+;wt IykV LFkkfir djus okyh daiuh dks izkFkfedrk fn;s tkus dh n`f"V ls izkIr vkosnu Ik=ksa dk iqu% ewY;kadu dk izfrosnu lfefr ds le{k izLrqr fd;k tk,A ewY;kadu dk ekin.M fuEuukuqlkj fu/kkZj.k fd;k tk, %& vad ¼1½ e/;izns’k esa ,UM+;wt IykaV dh izLrkfor LFkkiuk 30 ¼2½ e/;izns’k esa izLrkfor fuos’k 30 ¼3½ vkosnd dh foRrh; fLFkfr 20 ¼4½ [kuu ,oa ,UM+;wt esa vuqHko 10 ¼5½ izLrkfor izkstsDV dh rS;kjh dh fLFkfr@fo|eku 10 izkstsDV dh fLFkfr foHkkx mijksDrkuqlkj izkIr vkosnuksa dk fo’kys"k.k dj vkxkeh CkSBd esa izLrqr djsaA 2- eksjxk& 1 dksy Cykd ds fy;s e0iz0 jkT; [kfut fuxe] esllZ ds0,l0ds0 rFkk vkbZ-Mh-,Q-lh- dalksfV;e ds e/; fu"ikfnr f=Ik{kh; ,e0vks0;w0 ds fØ;kUo;u ds laca/k W.P.1897.07 esa lfefr }kjk fopkj fd;k x;kA Hkkjr ljdkj dks;yk ea=kky; }kjk bl dksy Cykd ds vkoaVu vkns’k esa mYysf[kr ‘’krksZ ds vfrfjDr foHkkx }kjk mDr ,e0vks0;w0 ds fØ;kUo;u ds laca/k esa Hkkjr ljdkj] dks;yk ea=ky; ls pkgs x;s ekxZn’kZu ds ifjizs{; esa fnukad 31&7&07 dks Hkkjr ljdkj }kjk fn;s x;s vfHker esa mYysf[kr ’krksZ ds izdk’k esa lfefr dk ;g vfHker gS fd eksjxk & 1 dksy Cykd ds laca/k esa iz’uk/khu ,e0vksa0;w0 ds varxZr dksbZ dkjZokbZ djuk e0iz0 jkT; [kfut fuxe ds fy, laHko ugha gS A” 6. Thereafter Cabinet took a decision on or about 5.8.2008 which was communicated to the MPSMCL vide letter dated 21.8.2008; Annexure R/5 whereby the MPSMCL was directed to act in accordance with clause 3, 4 and 5 of departmental précis dated 5.8.2008 placed before the Cabinet. Further requiring the MPSMCL to get the terms and conditions of agreement verified from Department of Energy, Govt. of M.P. in respect of Coal Block Morga 2, clause 4 of the precise is relevant which besides other things required W.P.1897.07 “vr% foHkkx dk izLrko gS fd eksjxk&1 dksy CykWd dks FkeZy ikoj IykUV dh LFkkiuk ds fy;s vkjf{kr djuk gksxkA bl dksy CykWd esa 250 fefy;u Vu ds fjtoZl miyC/k gSaA eksjxk&1 dks fuEu ’krksZ ds v/khu FkeZy ikoj IykUV dh Lfkkiuk ds fy;s vkjf{kr fd;s tkus dk izLrko gS%& ¼1½ ;g FkeZy ikoj IykUV e/;izns’k ,oa NRrhlx<+ esa LFkkfir fd;k tk ldrk gSA ¼2½ bl ikoj IykUV lss fon~;qr Ø; djus dh uhfr ,oa Ø; dh tkus okyh fon~;qr dh njksa ds laca/ k esa lfpo] ÅtkZ dk tks er izkIr gqvk gS og ifjf’k"V&d ij gSA” 6@ ÅtkZ foHkkx ds mDr er ij foHkkx dk er fuEukuqlkj gS %& ¼6-1½ eksjxk&1 dksy CykWd esa 250 fefy;u Vu HkkSfedh; fjtoZ gSaA buesa ls yxHkx 80 izfr’kr [kuu ;ksX; dksy izkIr fd;k tk ldsxkA lkekU;r% 1000 esxkokV ds ikoj IykUV ds fy;s 5 fefy;u Vu dksy dh izfro"kZ vko’;drk gksrh gSA 25 o"kksZ ds fy;s 1000 esxkokV dss ikoj W.P.1897.07 IykUV ds 125 fefy;u Vu dksy dh vko’;drk gksxhA bl izdkj bu Hk.Mkjksa ij vk/kkfjr yxHkx 1500 esxkokV dk ikoj IykUV LFkkfir fd;k tk ldrk gSA u fd 2000 esxkokV dkA ¼6-2½ ÅtkZ foHkkx }kjk lq>k;s x;s QkeZwys ftlds vk/kkj ij fufonkdkjksa dk p;u fd;k tkuk gS dks fl/nkUr% Lohdkj fd;k tk ldrk gS fdUrq blesa fofHkUu ?kVdksa dks fuEukuqlkj oSVst fn;k tkuk izLrkfor gS%& ¼6-2-1½ fon~;qr iznk; dh ek=k gsrq 0-33 ¼6-2-2½ fon~;qr iznk; dh nj gsrq 0-33 ¼6-2-3½ QsflfyVs’ku Qhl gsrq 0-34 ¼3½ la{ksfidk dh dafMdk 4-2 lgifBr dafMdk 3-10 Loa; Li"V gSA ,slh fon~;qr {ks= dEiuh tks fu/kkZfjr VuZ vksoj rFkk usV oFkZ ds ekin.M iw.kZ djrh gS dks mR[kuu ds {ks= esa vuqHkoh dEiuh ds lkFk dUlksZf’k;e cukus dh ik=rk jgsxhA ¼4½ jkT; ’kklu }kjk futh dEiuh ds lkFk jkT; esa rki fon~;qr W.P.1897.07 ifj;kstuk,a LFkkfir djus gsrq le>kSrk Kkiu gLrk{kfjr fd;s gSa muesa ls ,slh lHkh dEifu;kW fufonk esa Hkkx ysus dh ik= gksaxh A tks la{ksfidk esa lq>k;s vuqlkj rduhdh ,oa foRrh; vgZrk,a j[krh gksaA” 7. After the aforesaid decision of the Cabinet following deficiencies were noted marked by the MPSMCL in the MOU dated 15.6.2006 in respect of clause 1,2,3,5,6,8, 9 viz. (i) Since the allotment of coal block is under Section 3 (3) (a) (i) of the Coal Mines (Nationalization) Act, 1973 which envisages the work to be done by the Government Company, therefore, no further MOU can be entered between the petitioner and the respondent No. 1. (ii) Clause 2 of the MOU gives an understanding that KSK, the petitioner, will do the coal mining either itself or through one or more SPVs and this clause further gives an understanding that cost of coal will be fixed by KSK. This was in confrontation of clause (i) of the letter and also clause (iv) and (vi) of the letter dated 31.7.2007. (iii) Clause 3 of the MOU is contrary to the order dated 2.8.2006 as well letter dated 3.7.2007 as it gives an understanding that KSK has power to notify Power Projects where coal needs to be supplied whereas Clause (iv) specifically bars such a course. (iv) Clause 5 of the MOU is contrary to clause (v) of the letter dated 31.7.2007. (v) Clause 6 of the MOU is in direct confrontation of W.P.1897.07 clause (i) of the order of allotment and makes any action pursuant to the MOU unworkable. (vi) Clause 8 of the MOU gives an understanding that KSK will do the coal mining either by itself or through one or more SPVs and this clause further gives an understanding that cost of coal will be fixed by KSK. This is in direct confrontation of clause (i) of the letter and also clauses (iv) and (vi) of the letter dated 31.7.2007. (vii) Clause 9 of the MOU is contrary to the order dated 2.8.2006 as well as letter dated 31.7.2007 as it gives an understanding that KSK has power to notify Power Projects where coal needs to be supplied, whereas clause ((iv) specifically bars such a course. 8. These discrepancies led to issuance of impugned order dated 12.8.2008 Annexure P/20 whereby the petitioner was informed that: (i) The MOU dated 15.6.2006 to the extent to which it is contrary to the provisions of the Act, the Govt. Policy and the conditions of the grant is void and unenforceable. (ii) The conditional order of MORGA-I Coal block 02.08.2005 of GOI read along with the contents of the letter dated 31.7.2007 supersedes the MOU dated 15.6.2006. The MOU cannot be enforced in departure from the terms and conditions dictated by the allotment dated 2.8.2006 and letter dated 31.7.2007. 9. Consequent whereof the MOU stood cancelled and an invitation for expression of interest (EOI) for selection of joint ventures partner cum MDO for exploration, W.P.1897.07 development, mining and supply of coal from Morga I Coal Block of MPSMC and setting up of power plant was issued on 15.8.2008, Annexure P-19. These two, i.e., order dated 12.8.2008 and the invitation for EOI are under challenge in this writ petition and a further plea that the MOU be operationalised. 10. Assailing the action of the respondents the three fold submissions put forth by the learned Senior Counsel on behalf of the petitioner are that:- (i) The cancellation of MOU is void ab initio being without affording any opportunity of hearing, because the action of the respondent not only led to an adverse civil consequences, but has also adversely affected its corporate right which the petitioner had harnessed after entering into the MOU. (ii) The respondents not only entered with MOU with open eyes but also got the same approved at various stages on the basis of which the petitioner had acted upon and irreversibly changed its position and therefore the respondents cannot be allowed to reile from the MOU entered into. (iii) The action of the respondents suffers from the vice of arbitrariness because the MOU has been entered into after much deliberations and even if the terms thereof are at some variance to the stipulations contained in the ‘in principle’ allocation by the Govt. of India, the respondents were not justified in unilaterally abdicating the MOU. This action, it is urged, violates Article 14 of the Constitution of India. W.P.1897.07 11. On the anvil of these submissions the learned Senior Counsel while craving for indulgence urges that the MOU which consists of two parts viz., one relating to exploration and mining of Morga I Coal block and the other relating to coal supply to thermal power projects and the two being severable and the outsourcing of mining activity to the petitioner is not linked to supply of coal and neither any provision of law nor the conditions set in the Govt. of India’s letter/classification dated 31.7.2007 create any impediment in the supply of coal, therefore, it is contended that, the MOU creates a binding obligation upon respondent No. 1 MPSMC to execute the coal supply agreement. 12. The respondent No. 1 on its turn while raising preliminary objection relating to maintainability of the writ petition has opposed all such relief as sought for by the respondents. It is urged by the learned Senior Counsel appearing for respondent No. 1 that it is beyond the scope of prerogative jurisdiction under Article 226 of the Constitution either to enforce the MOU or to compel W.P.1897.07 the respondent to restrain from selecting a partner for a joint venture. A specific performance of contract, it is urged, is impermissible under the writ jurisdiction. While adverting to merits, it is contended that, the said MOU was entered into on implied acceptance of two assumptions, viz., (a) that the MPSMC will be allocated coal block outside State of M.P. and (b) the terms and conditions of the allocation by the Govt. of India, Ministry of Coal will permit the parties to forward its intent, expressed through their private MOU. And since the terms and conditions contained in the “in principle” approval to the working of Morga I block under the provisions of Section 3 (3) (a) (i) of the Act of 1973, mandating therein that, the mining has to be done either by the MPSMC or a Company in which MPSMC is a participant and the same is ‘government company’ eligible to do coal mining as per the provisions of the Act of 1973. This conditional grant of the coal block have emerged as a legal hurdle for the implementations or the operationalisation of the MOU. The learned Senior W.P.1897.07 Counsel while relying upon various conditions of the MOU and comparing the same with ‘in principle’ approval granted on 2.8.2006 and clarification dated 31.7.2007 pointed out about eight areas whereof were found creating stumble in operationalization of MOU. It is further contended that MOU is an arrangement which is non-statutory and runs in the realm of private law and there are disputed questions of facts involved in the case which can be deciphered only after recording evidence on both the sides, which is not possible in a writ petition under Article 226 of the Constitution of India. It is further stated that, there being no concluded contract and since the operationalization of MOU was dependent on the terms and conditions laid down by the Govt. of India and the terms and conditions of the MOU being in contravention thereof, the non operationalization of MOU, ipso facto, does not attract