dAC' IN THE HIGH COURT OP CHHATTISGARH AT BILASPUR Writ Petition N0. ^ <7g /200^. PETITIONER Niranjan La] Agrawal, S/o. Chandgi Ram Agrawal Aged 61 years, R/o. Main Road, Korba, District Korba (C.G.) RESPONDENTS A^'1 ^w/ <7^y ^ ^-•'^;->r ^y ^^ ^^s^ .r-^^.^^ ^•^^•^ /' VERSUS :1. South Eastern Coal Fie]d Limited, (A subsidiary of Coal India Limited) Seepat Road, Bila^pur Through General Manager (C-M.C.) S.E.C.L. Bilaspur (C.G.) 2. The Deputy General Manager S.E.C.L., Gavera Area, District Korba (C.G.) 3. The Deputy General Manager S.E.C.L. Deepika Project District Korba (C.G.) 4. The Chairi'nan-cum-Managing Director, S.E.C.L., Seepat Road, Bilaspur (C.G.) 5. The Chief Mining Engineer (C.M.C.)S.E.C.L., BHaspur (C.G.) 1-1 c^ // 2 // WRIT PETITION U/A 226/227 OF THE CONST3TUTION OF INDIA HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION N0.4178 OF 2003 PETITIONER Niranjan Lal Agrawal Versus RESPONDENTS South Eastern Coal Field Limited & Others (Writ Petition underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Manindra Mohan Shrivastava, J. Present:- Shri Ratan Pusty, Advocate for the petitioner. Shri Vivek Verma, Advocate for the respondents. ORDER (ORAL) (Passed on this 15th day ofApril, 2011) 1. Heard learned counsel for the parties. 2. This petition has been filed by the petitioner, aggrieved by the letter dated 26-2-2002 (Annexure P/15) as also letter dated 23-4-2003 (Annexure P/19) in the matter of decision of petitioner's claim for payment of loading charges in respect of loading of coal. 3. Case ofthe petitioner, in brief, is that pursuant to NIT No.959 dated 25-1-2000, the petitioner had submitted his offer for loading of coal into railway wagons at Gevra Road Railway Siding, which was accepted and the work order was issued in his favour on 10/13-6-2000 (Annexure P/1) awarding work of loading of 40.0 Lts. of coal into railway wagons at the rate of Rs.3.25 per tonne. As per conditions contained in the work order, the work was required to be completed within 12 months, which was to be reckoned from 10t day of issue of work order or from the actual date of commencement ofwork, whichever is earlier, i.e. from 1-5-2000. 4. The petitioner completed the loading work under the work order even before the expiry of the period stipulated in the work order. The letter was, thenjssued on 1-2-2001 to the petitioner advising him to continue the work and load 10% additional quantity for the 6. work on the same rate, terms and condition ofwork orderAnnexure P/1, after.completion of original awarded quantity. In response, the petitioner sent a letter dated 5-2-2001 stating that the petitioner is prepared to load10% of coal on the same rate, terms and conditions of work order Annexure P/1. However, thereafter, another letter was issued on 6-2-2001 (Annexure P/5) by which the corrected advise was issued to the petitioner to continue the work and load 10% additional quantity at the same rate, terms and conditions of the work order Annexure P/1 or the new tendered rate whichever is lower after completion of original awarded quantity. This was not acceptable to the petitioner and, therefore, the petitioner wrote a letter on 16-2-2001 (Annexure P/6) to the General Manager (CMC), SECL, Bilaspur, stating that though, earlier, petitioner was advised to continue on the same rate, terms and conditions, now the same is being changed, which condition is not acceptable to the petitioner. The petitioner continued the work of loading of additional quantity. A communication was made on 14-3-2001 (Annexure P/8) by the Deputy General Manager, SECL, Gevra Area to the Deputy General Manager, SECL, Dipka Project conveying that the competent authority has approved/sanctioned for release of 80% payment to the petitioner against the work done in excess of awarded quantity at the same rate, terms and conditions of Annexure P/1, pending approval of the same from headquarter at Bilaspur. Later on, though, the petitioner made several communications for payment of balance amount at the same rate, terms and conditions asstated in Annexure P/1, vide impugned communication dated 26-2-2002 (Annexure P/15), the petitioner was informed that the ^^^^^;.,-Y-\ w^ '^... •^M*S 1 A respondent SECL has approved payment to the petitioner at the rate of Rs.2.97 per tonne, in respect of loading of the additional quantity. The petitioner made representation against the same, but that was not accepted and vide letter dated 23-4-2003 (Annexure P/19), the petitioner was informed that there is no scope for reconsideration of the decision taken by the management of SECL. 7. Assailing the aforesaid action of the respondents, Shri Pusty, learned counsel appearing for the petitioner, argued that the petitioner acted on the representation made by the respondents, which was conveyed to him vide letter dated 1-2-2001 and that constituted an offer, which was duly accepted by the petitioner and conveyed vide his letter dated 5-2-2001. Therefore, the respondents were not justified in revoking the same vide subsequent letter dated 6-2-2001 (Annexure P/5). Learned counsel further submits that the respondents were bound by the earlier offer, which was made by them vide their letter dated 1-2-2001 (Annexure P/3) and, therefore, notwithstanding subsequent letter dated 6-2-2001, the petitioner was entitled to payment of loading charges on the basis of letter dated 1-2-2001. 8. It is also submitted thaf the petitioner had continued the loading in view of the letter dated 1-2-2001 and at the same time communicated vide his letter dated 16-2-2001 (Annexure P/6) that the modified terms and conditions, as communicated vide letter dated 6-2-2001 are not acceptable to him. Learned counsel also submits that the respondents had, in fact, released 80% of the payment on the basis ofterms and conditions ofAnnexure P/1, but ! before remaining 20% of the payment could be released, the arbitrary decision was taken to make payment of loading charges in .„-&-„....-..jTtiiiir--^ respect of the additional quantity of loading, at the rate of Rs.2.97 pertonne. 9. Learned counsel for the petitioner submits that this action on the part of the respondents is not only illegal, but also clearly arbitrary & unfair and, therefore, violates Article 14 of the Constitution of India. The submission of the learned counsel for the petitioner is that the respondents were bound by concluded contract, to make payment at the rate, terms and conditions as contained in Annexure P/1. In addition, it is submitted that otherwise also, the petitioner had acted to his determent by continuing to make supply of coal acting upon the representation, which was made to him vide letter dated 1-2-2001 and, therefore, the respondents acted unfairly in resiling from their promise. 10. On the other hand, Shri Verma, learned counsel appearing for the respondents, submitsthat the petitioner was, though, issued a letter dated 1-2-2001 by which he was advised to continue the work for loading of additional quantity of coal into the railway wagons, realizing that the same was not proper and that in subsequent tender proceedings, the petitioner had quoted much lower rate of coal loading for the same area, which was Rs.2.97 per tonne, the petitioner was informed that in respect of additional quantity of loading, the petitioner would be paid loading charges on the same rate, terms and conditions of Annexure P/1 or the new tendered rate, whichever is lower after completion of original awarded quantity. 11. Referring to the tender proceedings, subsequently drawn, pursuant to NIT No. 1761 dated 3-1-2001 and the rate quoted by the petitioner in respect ofthe same work on 30-1-2001, it is submitted that the petitioner very well knew that he had quoted lower rate for iSA-^a——— ; ,,..,-,Ti ^^us. the same work under a different tender proceeding in respect of another work of loading. The petitioner was duly communicated vide letter dated 6-2-2001 that he will be paid the rates as per the modified advise. The petitioner did not accept the same. Therefore, if the petitioner had proceeded to continue with the work of loading even after the letter dated 6-2-2001, the petitioner is not entitled to any relief, as the petitioner himself was responsible and he continued with the work of loading of additional quantity at his own peril. 12. Learned counsel further submits that the respondents were fully justified in issuing the modified advise to the petitioner in the light of the fact that on 30-1-2001 , the petitioner had quoted a lower rate of Rs.2.97 per tonne in respect of the work of coal loading into railway wagons in the same area and, therefore, the letter, which was issued a day thereafter i.e. 1-2-2001 was only on account of mistake, which was corrected immediately by issuing another letter dated 6-2-2001. Learned counsel further argued that the petitioner seeks to enforce the terms of so called concluded contract, which is based on disputed questions of fact, which cannot be gone into. The other submission is that what the petitioner seeks to enforce a contractual obligation under a non-statutory contract and, therefore, the writ petition itself is not maintainable and the petitioner's remedy is to file suit raising monetary claim, damages, etc. 13. In so far as, preliminary objection with regard to maintainability of writ petition is concerned, it is now well settled legal position that even in contractual matter where the State is one of the parties to the dispute, the writ jurisdiction can be invoked in appropriate cases, where it is found that the action of the State in contractual 851k affairs is unfair, arbitrary and violative of Article 14 of the Constitution of India. 14. In ABL International Ltd. and Another v. Export Credit Guarantee Corporation of India Ltd. and Others , the Supreme Court held as under: "10. It is clear from the above obser^ations of this Court in the said case, though a writ was not issued on the facts of that case, this Court has held that on a given set of facts if a State acts in an arbitrary manner even in a matter of contract, an aggheved party can approach the court by way of writ under Article 226 of the Constitution and the court dependingon facts of the said case is empowered to grant the relief......... 19. Therefore, it is clear from the above enunciation oflaw that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit In the above case of Smt.Gunwant Kaur this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and or involves so/r?e disputed questions offact." 15. In view of foregoing, l am not inclined to throw the petition only on the ground that it involves disputed question of facts or that dispute arise out of contractual matter particularly when there is nothing in the terms and conditions of the contract requiring the parties to take recourse to any arbitration proceeding in the event of any dispute. (2004) 3 SCC 553 16. The respondent SECL is a subsidiary company of the Coal India Limited and is carrying out the work of mining, which is monopolized activity. It is, therefore, State, under Article 12 of the Constitution of India. 17. The question, however, which arises for consideration is whether the action ofthe respondents is arbitrary and violative ofArticle 14 of the Constitution so as to invoke the extraordinary jurisdiction of this Court underArticle 226 ofthe Constitution of India. 18. The undisputed facts, floating on surface, are that the petitioner was originally awarded a contract of loading of coal by issuance of work order Annexure P/1. The petitioner had performed his part of contract of loading under the original work order and in the meantime another letter came to be issued on 1-2-2001. The said letter was an advise given to the petitioner to continue the work and load 10% additional quantity on the same rate, terms and conditions of Annexure P/1. The petitioner gave his response vide his letter dated 5-2-2001. Thereafter, another letter was issued on 6-2-2001 by which the advise was corrected with change in the advise, to which the petitioner did not agree vide his communication dated 16-2-2001. 19. Letter dated 1-2-2001 issued by the respondent can only said to be an invitation for an offer and nothing more. What the petitioner communicated vide letter 5-2-2001 constituted an offer, but the same was not accepted and instead a corrected advise dated 6-2- 2001 was issued to the petitioner stating new terms and conditions in the matter of payment in respect of loading of additional quantity. The petitioner did not accept, which is clear from his own letter dated 16-2-2001. Therefore, it is difficult for this Court to accept the contention of the learned counsel for the petitioner that there was a concluded contract creating any right in favour of the petitioner. 20. The entire submission proceeds on a submission, though erroneous in law, that the letter dated 5-2-2001 was an offer and the petitioner's communication dated 5-2-2001 was acceptance giving rise to a concluded contract. 21. Even ifthe letter dated 1-2-2001 is considered to be a representation made by the respondents to the petitioner, that would bind the respondents to make payment of loading charges at the rate, terms and condition of Annexure P/1 in respect of any loading done by the petitioner till the petitioner received the communication dated 6-2-2001. There is no impediment in law, withdrawing the promise made by the respondents vide letter 1-2-2001. The petitioner had clearly stated in his letter dated 16-2-2001 that he did not accept the conditions under the letter dated 6-2-2001. However, even thereafter, the petitioner, as is stated, continued the work of loading. The same has been done by the petitioner at his own peril, risk and loss, but it cannot be said that the said loading was done under a representation or a promise made by the respondent that the petitioner would be paid loading charges at the same rate, terms and condition of Annexure P/1. Therefore, at the most, if the petitioner is carried out of any loading of additional quantity before the communication dated 6-2-2001 was received, he would certainly be entitled to payment at the rate, terms and condition as stated in Annexure P/1, but not in respect of loading done thereafter. The ctaim is neither based on any right arising out of concluded contract nor based on any equitable consideration by application of principles of promissory/equitable estoppel. |rji^"^\ ^^ IB^,:^^ '!^^^^:'X:Y'": ,y // 22. As far as loading done by the petitioner after receipt of letter dated 1-2-2001 till receipt of letter dated 6-2-2001 is concerned, the petitioner would be entitled to loading charges at the same rate, terms and conditions of Annexure P/1. However, the claim of the petitioner for payment of loading charges at the rates of Annexure P/1 in respect of loading of additional quantity subsequent to receipt of letter dated 6-2-2001 is concerned, the same is to be rejected. The petitioner would be entitled to payment of loading charges only as per the letter dated 6-2-2001. 23. As an upshot of discussions as above, the petition is partly allowed in the manner indicated hereinabove. 24. No order as to costs. Gowri Sd/- Manindra Mohan Shrivastava Judge