JHARKHAND STATE MINERAL DEVELOPMENT CORPORTION LIMITED THROUGH ITS CHAIRMAN CUM MANAGING DIRECTOR V. THE UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF COAL

WPC/3715/2020

AI Insights

The case revolves around the termination of an allotment agreement between the Jharkhand State Mineral Development Corporation Limited (petitioner) and the Ministry of Coal (respondent) concerning the Patal East Coal Mine. The termination was based on the petitioner's failure to comply with the efficiency parameters of the allotment agreement and non-submission of an approved mining plan. The petitioner argued that the project was economically unviable and sought to surrender the coal mine, which was not accepted by the respondents. The court examined the legal provisions under the Coal Mines (Special Provisions) Act, 2015, and the principles of natural justice, ultimately deciding in favor of the respondents.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 686349 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 24-11-2021
• Assessment Year: misc
• Other Referred Cases: Manohar Lal Sharma Vs. the Principle Secretary & Others, Delhi Development Authority Vs. Kenneth Builders & Developers Private Limited & Others, Gujarat Maritime Board Vs. Larsen & Toubro Infrastructure Development Projects Ltd., Andhra Pradesh Pollution Control Board Vs. CCL Products (India) Ltd.
• Laws Referred To: Coal Mines (Special Provisions) Act, 2015, Coal Mines (Special Provisions) Ordinance, 2014, Coal Mines (Special Provisions) Second Ordinance, 2014, Companies Act, 1956, Coal Bearing Areas (Acquisition and Development) Act, 1957
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: RAJIV SINHA; PRATYUSH KUMAR; SHREESHA SINHA; P A S PATI
• Assessee Lawyers: RAJIV RANJAN; PIYUSH CHITRESH
• Keywords: Bank guarantee; Economic viability; Force Majeure; Termination of agreement; Coal Block Allotment; Mining Plan
• Section: 27; 14(2); 6(1); 24.3.2; 24.3.1(o)

Judgement Text

"IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 3715 of 2020 Jharkhand State Mineral Development Corporation Limited, a Government of Jharkhand undertaking through its Chairman-cum-Managing Director having its office at Khanij Nigam Bhawan, Doranda, Ranchi ..... … Petitioner Versus 1. The Union of India, through the Secretary, Ministry of Coal, New Delhi 2. The Additional Secretary to the Government of India, Ministry of Coal- cum-‘Nominated Authority’, New Delhi 3. The Under Secretary to the Government of India, Ministry of Coal, Office of ‘Nominated Authority’, New Delhi 4. Branch Manager, Union Bank of India, JSMDC Branch, Doranda, Ranchi …. …. Respondents CORAM : HON’BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Mr. Rajiv Ranjan, Sr.Advocate Mr. Piyush Chitresh, Advocate For the Respondent Nos. 1 to 3: Mr. Rajiv Sinha, A.S.G.I. Mr. Pratyush Kumar, C.G.C. Ms. Shreesha Sinha, A.C. to A.S.G.I. For the Respondent No. 4 : Mr. P.A.S. Pati, Advocate CAV On 24.09.2021 Pronounced on 24.11.2021 Rajesh Shankar, J. : The judgment is being pronounced today through virtual mode. 2. The present writ petition has been preferred for quashing letter bearing F.No.103/8/2016/NA dated 11.11.2020 (Annexure-17 to the writ petition) issued by the Additional Secretary to the Government of India-cum- Nominated Authority, Ministry of Coal, New Delhi (respondent no.2) whereby, in purported exercise of power conferred under Clause 24.3.2 of the allotment agreement, it has been decided to terminate the allotment agreement dated 24.08.2016 signed between the respondent no. 2 and the petitioner as well as the allotment order no. 103/08/2016/NA dated 29.09.2016 along with all the amendments/corrigendums issued in respect of Patal East Coal Mine. It has further been directed to treat the aforesaid letter as notice under Clause 24.3.2 of the said agreement and upon completion of 15 business days of the said notice i.e. from 02.12.2020, the aforesaid termination order would be effective. Moreover, the Branch Manager, Union Bank of India, JSMDC Branch, Ranchi (the respondent no. 4) has been requested to treat the said notice as demand and to encash the Bank Guarantee No. 52890IGL0000116 dated 23.09.2016 issued in favour of the President of India acting through central government represented by the respondent no. 2 and transfer the amount of Rs.52,86,40,000/- (entire guaranteed amount under the said bank guarantee) to the account of Pay & Accounts Officer, Ministry of Coal maintained in United Bank of India at Connaught circus Branch, New Delhi bearing account no. 0276050414586. - 2 - 3. The factual background of the case, as stated in the writ petition, is that after bifurcation of the State of Bihar and creation of State of Jharkhand, the petitioner company was incorporated under the Companies Act, 1956 in the year 2002 and the assets and liabilities of its predecessor company i.e. Bihar State Mineral Development Corporation, fell within the territory of State of Jharkhand and came under the jurisdiction of the petitioner which is involved in carrying out mining activities and exploration of mineral in the State of Jharkhand. The Hon’ble Supreme Court, vide its judgment dated 25.08.2014, read with order dated 24.09.2014 passed in the case of Manohar Lal Sharma Vs. the Principle Secretary & Others reported in (2014) 9 SCC 516 cancelled the allocation of 204 Coal Blocks. Subsequently, the Coal Mines (Special Provisions) Ordinance, 2014 and Coal Mines (Special Provisions) Second Ordinance, 2014 were issued by the Central Government as well as Rules were also framed whereby provisions have been made for auction and allotment of all coal blocks which suffered cancellation by virtue of the aforesaid judgment and order of the Hon’ble Supreme Court. As per Section 6(1) of the Coal Mines (Special Provisions) Act, 2015 (in short, “the Act, 2015”), the Central Government appointed respondent no. 2 as the Nominated Authority to allocate coal mines/coal blocks under Schedule 1 of the Act, 2015. The Ministry of Coal, Government of India, vide order no. 13016/9/2014-CA-III dated 16.03.2016, issued a list of 16 Coal Blocks whereby 8 Coal Blocks including Patal East Coal Block (in short ‘PECB’) situated in the State of Jharkhand were identified for allocation to Public Sector Undertakings of the Host State and another 8 Coal Blocks were identified for allocation to other than Host State. The Managing Director of the petitioner, vide letter no. 679 dated 21.04.2016, requested the Department of Industry, Mines and Geology, Government of India to take necessary steps for allotment of PECB in its favour. The petitioner, thereafter, downloaded the necessary documents as indicated in the allotment document i.e. geological report, mine plan, mine closure plan etc. from the website of MSTC and submitted its bid on the MSTC website on 21.07.2016. The aforesaid documents were prepared by the prior allottee being M/s. Bhushan Power and Steel Ltd. whose allocation was cancelled by the Hon’ble Supreme Court in the case of Manohar Lal Sharma (supra.). The petitioner was the single applicant for the concerned coal block, however its bid was accepted on nomination basis and the result of allotment was declared by the respondent no. 2 on 17.08.2016 which was communicated to the petitioner through e-mail with a direction to depute an - 3 - authorized representative to execute the allotment agreement. The petitioner authorized one of its officers namely Devendra Kumar as its authorized representative. Before entering into the agreement with the respondent no.2, the petitioner got the documents analyzed through an agency i.e. “Price Waterhouse Coopers” and proceeded to execute the agreement. Thereafter, an agreement between the petitioner and the respondent no. 2 was executed on 24.08.2016 and subsequently relevant documents as well as performance security by way of Bank Guarantee to the tune of Rs. 52,86,40,000/-, fixed amount of Rs. 20.43 crores and first instalment of 50% of the Upfront payment of Rs. 7,45,09,410/- were submitted to the respondent no. 2 as per clause 3.1 of the allotment agreement for issuance of allotment order. However, when the petitioner proceeded to implement the project for carrying mining operation, it surfaced that the Mining Plan and Mining Closure Plan, which were provided to the petitioner by MSTC, were not approved being contrary to clauses 1.1.20 and 1.1.21 of the allotment document according to which the same should have been approved in accordance with the applicable laws in relation to the coal mine. The petitioner, vide letter no. 1460 dated 02.09.2016, requested Central Mine Planning & Design Institute Limited, Ranchi (CMPDIL), for preparation of Mining Plan, Detailed Project Report and Environment Impact Assessment of PECB. The CMPDIL, vide letter no. 144 dated 20.03.2017, informed the Managing Director of the petitioner that Minex Model as received from the petitioner’s end was not usable and the mining plan having been made available did not have the requisite plans. As such, it was pointed out by the CMPDIL that the Minex Model and Mining Plan could not be used for preparation of mining plan and pre-feasibility report. It was further informed that about 3-4 months more time would be required to prepare fresh mines geological model of the said block as well as the draft mining plan and only thereafter draft of pre-feasibility report would be prepared. The aforesaid stand of the CMPDIL was taken in pursuance of meeting between the petitioner and CMPDIL held on 04.01.2017 as well as the discussion of respondent no. 1 and the Chairman, Coal India Limited with the Chief Secretary, Government of Jharkhand held on 08.03.2017. The CMPDIL, vide letter dated 25.08.2017, informed the Ministry of Coal, Government of India, that a wide difference was observed between bounding geographical co-ordinates given in the allotment order of PECB dated 29.09.2016 and the geological co-ordinates derived from geological report prepared by CMPDIL and thus it requested the said ministry for - 4 - modification of bounding geographical co-ordinates of the PECB. Accordingly, the petitioner, vide letter no. 1196 dated 01.09.2017 requested the respondent no. 2 for necessary modification/rectification of bounding geographical coordinates of PECB so that mining plan could be finalized and submitted to Ministry of coal for approval. Thereafter, the respondent no. 2 modified the geographical coordinates given in the allotment letter by way of corrigendum dated 04.09.2017. Earlier, the petitioner through its Managing Director, vide letter no. 374 dated 27.03.2017, had requested the respondent no. 2 to extend the timeline for submission of mining plan till 31.07.2017. Finally, mining plan was prepared by CMPDIL for PECB and was approved by the respondent no.1 on 17.04.2018. Thereafter, the CMPDIL prepared the pre-feasibility report which was provided to the petitioner vide its letter dated 01.10.2018. The said report was received in the office of the petitioner on 03/05.10.2018. During analysis of the said pre-feasibility report by the petitioner, it was found that the project was not economically viable for the petitioner as the cost of mining would be more than the actual revenue procured by it through sale of coal. The pre-feasibility report suggested that the life of the project was 25 years with peak grade capacity of 2.5 million tons per annum. The geographical reserve of the PECB was 129.77 million tons and extractable reserve was 35.68 million tons with volume of overburden to be handled to the tune of 280.35 cubic meter per metric ton resulting in abnormally high average stripping ratio i.e. 7.86 cubic meter per metric ton. The detail capital investment for undertaking project was assessed to be Rs.1677.73 crores by open cast production. The estimated cost of production was assessed to be Rs. 2274.73 crores per million ton and estimated sale price was assessed to be Rs. 978.70 crores per million ton for G12 grade of coal resulting in loss of Rs.1296.03 crores per million ton on undertaking the said project. As per Public Investment Board, an economic Internal Rate of Return (IRR) equal to or exceeding 12% is required by Government of India for consideration of project approval and to meet the said requirement, the sale price of the coal needs to be Rs. 3309.38 crores per million ton which is impossible keeping in view the present market condition and sale price of similar grade of coal in market. In the meantime, the respondent no. 2 issued a show cause notice to the petitioner vide letter dated 17.07.2017 for non-compliance of efficiency parameter of allotment agreement which was responded by the petitioner vide letter dated 05.08.2017. The petitioner in the light of pre- feasibility report, discussed the matter in the meeting of the Board of - 5 - Directors and it was decided to surrender the PECB which was subsequently approved by the Chief Minister of the State of Jharkhand on 13.12.2018. Accordingly, the petitioner, vide its letter no. 1864 dated 19.12.2018, requested the respondent no. 2 to accept the proposal to surrender the said project and further requested to refund the entire amount deposited with Ministry of Coal, Government of India including the performance security or in alternative to allot another potential Coal Block adjusting the deposited amount against the same. The said decision with regard to surrender of PECB was again brought to the knowledge of the respondent no. 2 by the petitioner vide letter no. 713 dated 11.05.2019 as well as to the knowledge of the respondent no. 1 vide letter no. 1241 dated 08.08.2019 stating that the project was not financially viable and was akin to the event of Force Majeure. The petitioner, vide letter no. 1308 dated 05.08.2019 addressed to the respondent no. 2 as well as the State of Jharkhand through the Chief Secretary, vide letter no. 1872 dated 26.11.2019 addressed to respondent no. 1, requested to accept the surrender proposal of PECB and either to refund the amount deposited before it or to adjust the same against other economically viable Coal Block which may be allotted to the petitioner, but all went in vain. The respondent no. 2 thereafter held meeting with the petitioner on 26.02.2020 and advised it to make serious efforts to form a joint venture with the Central Coalfields Limited (CCL) to utilize the technology/expertise available with it in order to make the said Coal Mine viable. The petitioner, vide its letter no. 598 dated 11.05.2020 and the State Government vide memo no. 1012 dated 23.07.2020 requested the CCL for participation in a meeting to find out means and ways to undertake the mining operation in PECB by utilizing the expertise of CCL so as to make the project financially viable but the representative of CCL did not turn up. Thereafter, the respondent no. 2 issued the impugned letter dated 11.11.2020 whereby it invoked clause 24.3.1 (o) and clause 24.3.2 of the allotment agreement and terminated the said agreement. The respondent no. 2 further directed the Bank (respondent no. 4) to encash the bank guarantee of Rs. 52,86,40,000/- furnished by the petitioner and to deposit the same in the account of Ministry of Coal, Government of India. Hence, the present writ petition. 4. Mr. Rajiv Ranjan, learned senior counsel for the petitioner, submits that the manner in which the respondents acted against the petitioner clearly indicates fraud/misrepresentation on their part by concealing the material facts as well as misleading the petitioner to participate in the - 6 - auction process on the basis of an unapproved Mining Plan and Mining Closure Plan of the previous allottee. The respondent no.2, on the one hand, did not choose to inform the petitioner about the decision, and on the other hand, it informed the Bank (the respondent no. 4) regarding termination of the allotment agreement with a direction to treat the said letter as demand notice under said bank guarantee and to encash the same as well as to transfer the entire guaranteed amount in the bank account of the respondent no.2. The petitioner was being forced by the respondent no. 2 to continue with the project of PECB in spite of admitted position regarding its financial non-viability and no sooner the petitioner disclosed its decision on the basis of pre-feasibility report submitted by CMPDIL, the respondent no. 2 issued the impugned letter dated 11.11.2020. It is further submitted that the pre-feasibility report provided by the CMPDIL shows that the Coal Blocks will have a negative cash flow for 24 years out of the project life of 25 years resulting in adverse financial impact on the petitioner which has to be interpreted as impracticable and useless as per the principle of “object and purpose” since the respondent no. 2 enticed the petitioner to enter into an agreement by presenting unapproved mining dossier as well as by suppressing the crucial facts while entering into the lease agreement. 5. Learned senior counsel for the petitioner further submits that if the bank guarantee amount is forfeited by the respondent no. 2, a vibrant Public Sector Undertaking (PSU) of the State of Jharkhand would be rendered financially unstable affecting its other commercial and statutory liabilities including payment of dues and wages to its employees. The impugned action of the respondent no.2 will create such adverse financial impact on the petitioner that it may be rendered a defaulter on many scores threatening its very existence. Under such circumstances, the petitioner is compelled to move before this court under extra ordinary writ jurisdiction. It is also submitted that the impugned action of termination of the agreement by the respondents is also in violation of the principles of natural justice as well as contrary to clause 24.3.2 of the allotment agreement which provides for giving 15 days’ written notice to the allottee before passing the order of termination by the Nominated Authority upon occurrence of a termination event as stipulated in clause 24.3.1 of the said agreement, however the petitioner was not informed the decision contained in the impugned letter dated 11.11.2020 either through any letter or e-mail as claimed by the respondents. It is further submitted that vesting order issued by the respondent no. 2 in terms with Section 8 of the Act, 2015 obliges the - 7 - respondents to supply approved mining plan to the petitioner, however the respondents committed fraud and misrepresentation by supplying unapproved mining plan to it. The petitioner did not have sufficient time to go through the entire document to respond the vesting order i.e the offer made on behalf of the Central Government. 6. Per contra, Mr. Rajiv Sinha, learned ASGI appearing on behalf of the respondent-Union of India, submits that as per Section 27 of the Act, 2015, the petitioner has an efficacious and alternative remedy to get the matter adjudicated by the Tribunal constituted under Section 14(2) of the Coal Bearing Areas (Acquisition and Development) Act, 1957 (in short, “the Act, 1957”) with respect to any dispute arising out of any action of the Central Government nominated authority and thus the present writ petition is not maintainable. It is further submitted that the concerned coal mine allotted to the petitioner is located within the jurisdiction of Tribunal situated at Ranchi and the petitioner ought to have moved before the said Tribunal. Clauses 25.2 and 25.3 of the allotment agreement also provide mechanism for settlement of disputes between the parties and the petitioner without resorting to the settlement redressal mechanism as provided under Clause 25.2 of the allotment agreement, has prematurely approached this Court under Article 226 of the Constitution of India. The petitioner’s first request for surrender of coal mine was received vide its letter dated 19.12.2018. It is pertinent to mention here that in the best interest of the country, the allottees have to timely develop the coal mines for ensuring nationwide energy security. As such, the Union of India provided all possible technical assistance to the petitioner, however eventually it was for the allottees to take a final decision in this regard. The petitioner attempted to pass off its own commercial decision not to continue with the development of said coal mine treating it as an event of Force Majeure. The commercial hardship as cited by the writ petitioner does not fall within the ambit of Clause 23 of the allotment agreement dealing with the event of ‘Force Majeure’. It is also submitted that mere commercial hardship cannot be labeled as a ‘Force Majeure’. The said interpretation will violate the sanctity of all commercial contracts and the party in breach would be free to wriggle out its commercial obligations leaving the suffering party remediless. The respondent- Union of India kept encouraging and persuading the petitioner to develop the said coal mine and for the said purpose, it continuously provided all possible technical assistance to it. However, the petitioner again made an attempt to surrender the coal mine vide its letter dated 21.08.2020 - 8 - which shows its unwillingness and lackadaisical attitude to develop the said coal mine which is being attempted to be passed off on the ground of Force Majeure. In view of the reluctance of the petitioner to operationalize the said coal mine, the respondent no.2 decided to accept the request of the petitioner to surrender the coal mine and as such termination notice dated 11.11.2020 was served to the petitioner in accordance with Clause 24.3.2 of the allotment agreement which was effective after completion of notice period of 15 business days i.e from 02.12.2020. Learned A.S.G.I. further submits that serving of termination notice had two primary consequences; firstly that on and from 02.12.2020, the allotment agreement and allotment order stood terminated and secondly that the performance security/bank guarantee was to be encashed. The petitioner seems to be concerned only with the first consequence and not the second consequence of the termination notice which is purely monetary in nature. Such serious condition has been put in the allotment agreement keeping in view the national interest/the interest of public at large as well as to achieve the objective enshrined in the preamble of the Act, 1957. To ensure energy security in the country, the condition of performance security has been embedded in allotment agreement so that only serious contenders may be allotted the precious natural reserves of coal. The petitioner has wrongly alleged that no termination notice was served to it, rather the same was served to it through e-mail dated 11.11.2020. The only grievance of the petitioner is regarding encashment of Bank Guarantee which has monetary concern of an individual entity and that cannot supersede the public interest or national interest which is served by allotment of coal mines as also by making the same operational. Thus, the balance of convenience lies in favour of the respondent-Union of India. The State Government is benefitted from the coal mining and production of coal due to receipt of royalty and other statutory proceeds upon production of coal, however the same is possible only if the coal mine is put to allocation and is eventually made operational. In view of Clause 3.4.5 of the allotment document, the allottee is responsible for exploration, obtaining all approvals/clearances, acquisitions of land as applicable, rehabilitation, financing, development, mining and operation and maintenance of the coal mine and subsequent closure of the coal mine in accordance with the provisions of the allotment order as well as the allotment agreement. Clause 4.4.1 of the allotment document encourages the applicants to undertake site visit of coal mine at their cost and to themselves ascertain the site conditions, location, communication, - 9 - climate, availability of power, applicable laws and regulations and any other matter which may be considered relevant by them prior to submission of application. It is further submitted that the information provided in the ‘Mine Dossier’ at the time of allotment was based on the geological report prepared by the Mineral Exploration Corporation Limited (MECL) in December 2013 on detailed exploration of coal at PECB. The current mining plan is based on the same geographical report and only a few geo-mining parameters have changed. Such minor changes do not lead to any such repercussion as claimed by the petitioner. So far as average stripping ratio is concerned, there are many coal projects in the country where the average stripping ratio may be higher than that of PECB but are still considered fit for implementation. 7. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has challenged the action of the respondent no. 2 whereby the allotment agreement has been terminated and the respondent Bank has been directed to encash the bank guarantee issued by the petitioner in favour of the President of India and to transfer an amount of Rs.52,86,40,000/- to the account of PAO, Ministry of Coal, A/C No. 0276050414586 being maintained in the United Bank of India at Connaught Circus Branch, New Delhi. It is however apparent from the above facts that the petitioner itself had requested the respondent no. 2 to surrender the said coal mine allotted to it claiming that the same was not economically viable and thus the only grievance appears to be against encashment of the bank guarantee. 8. Mr. Rajiv Sinha, learned A.S.G.I., has raised preliminary objection with regard to maintainability of the present writ petition on the ground of availability of alternative/efficacious remedy to the petitioner to get the dispute settled in terms with Section 27 of the Act, 2015 before the Tribunal wherein it has been provided that any dispute arising out of any action of the nominated authority, Central Government shall be adjudicated by the Tribunal constituted under the Act, 1957. In support of the said contention, Mr. Sinha has put reliance on the following judgments rendered by the Hon’ble Supreme Court in the cases of- (i) Commissioner of Income Tax & Others Vs. Chhabil Dass Agarwal reported in (2014) 1 SCC 603 (ii) Authorized Officer, State Bank of Travancore & Another Vs. Mathew K.C reported in (2018) 3 SCC 85 (iii) ICICI Bank Limited & Others Vs. Umakanta Mohapatra & Others reported in (2019) 13 SCC 497 9. In the case of Commissioner of Income Tax & Ors. (supra.), the - 10 - Hon’ble Supreme Court has held as follows:- “11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh [AIR 1958 SC 86], [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433], Harbans la lSahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] and State of H.P. v. Gujarat Ambuja Cement Ltd. [(2005) 6 SCC 499]). 12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission [AIR 1954 SC 207], Sangram Singh v. Election Tribunal [AIR 1955 SC 425], Union of India v. T.R. Varma [AIR 1957 SC 882] , State of U.P. v. Mohd. Nooh [AIR 1958 SC 86] and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras [AIR 1966 SC 1089] have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. [See N.T. Veluswami Thevar v. G. Raja Nainar [AIR 1959 SC 422] , Municipal Council, Khurai v. Kamal Kumar [AIR 1965 SC 1321] , Siliguri Municipality v. Amalendu Das [(1984) 2 SCC 436] , S.T. Muthusami v. K. Natarajan [(1988) 1 SCC 572] , Rajasthan SRTC v. Krishna Kant [(1995) 5 SCC 75] , Kerala SEB v. Kurien E. Kalathil [(2000) 6 SCC 293], A. Venkatasubbiah Naidu v. S. Chellappan [(2000) 7 SCC 695] , L.L. Sudhakar Reddy v. State of A.P. [(2001) 6 SCC 634], Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [(2001) 8 SCC 509], Pratap Singh v. State of Haryana [(2002) 7 SCC 484] and GKN Driveshafts (India) Ltd. v. ITO [(2003) 1 SCC 72] .]” 10. The Hon’ble Apex Court in a judgment rendered in the case of State Bank of Travancore (supra) has held as under:- “10. In [United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110] the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the Sarfaesi Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding: (SCC pp. 123 & 128, paras 43 & 55) “43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under - 11 - Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. *** 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the Sarfaesi Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.” 11. In the case of ICICI Bank Ltd. (supra), the Hon’ble Supreme Court has held as under:- “2. Despite several judgments of this Court, including a judgment by Hon'ble Navin Sinha, J., as recently as on 30-1-2018, in State Bank of Travancore v. Mathew K.C. [State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85] , the High Courts continue to entertain matters which arise under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Sarfaesi), and keep granting interim orders in favour of persons who are non-performing assets (NPAs). 3. The writ petition itself was not maintainable, as a result of which, in view of our recent judgment, which has followed earlier judgments of this Court, held as follows: (SCC p. 94, para 17) “17. We cannot help but disapprove the approach of the High Court for reasons already noticed in [Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd., (1997) 6 SCC 450] , observing: (SCC p. 463, para 32) ‘32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.’ 4. The writ petition, in this case, being not maintainable, obviously, all orders passed must perish, including the impugned order [Umakanta Mohapatra v. ICICI Bank, WP (C) No. 5890 of 2012, order dated 3-2-2014 (Ori); Sabita Kumar Nayak v. ICICI Bank, WP (C) No. 18460 of 2013, order dated 3-2- - 12 - 2014 (Ori); Dharmendra Panigrahi v. ICICI Bank Ltd., 2014 SCC OnLine Ori 715; Satyajit K. Jena v. ICICI Bank Ltd., 2014 SCC OnLineOri 712; Kalandi Ch. Behera v. Icici Bank, 2014 SCC OnLineOri 713; Umasankar Misra v. ICICI Bank, 2014 SCC OnLineOri 716; Asutosh Mishra v. RBI, 2014 SCC OnLine Ori 714; Arabinda Mohanty v. ICICI Bank, 2014 SCC OnLine Ori 711] , which is set aside. 12. The learned senior counsel for the petitioner has placed reliance on a judgment rendered by the Hon’ble Supreme Court in the case of M/s Radha Krishan Industries Vs. State of Himachal Pradesh & Others reported in (2021) 6 SCC 771 and has submitted that in the said case, Their Lordships have held that the exceptions to the rule of alternative remedy would apply to entertain a writ petition by the High Court where (a) the writ petition has been filed for enforcement of fundamental right protected by Part-III of the Constitution of India; (b) there has been a violation of the principles of natural justice; (c) the order or proceeding is wholly without jurisdiction ; or (d) the vires of a legislation is challenged. It has further been submitted that in the present case, respondent no. 2 did not serve any notice to the petitioner before issuance of the impugned letter dated 11.11.2020 and thereby has violated the principles of natural justice. 13. Learned A.S.G.I. appearing for the respondent nos. 1 to 3 has also relied on the relevant parts of judgment rendered by the Hon’ble Supreme Court in the case of Radha Krishan Industries (supra), which are quoted hereinbelow:- “25. In this background, it becomes necessary for this Court, to dwell on the “rule of alternate remedy” and its judicial exposition. In [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] , a two-Judge Bench of this Court after reviewing the case law on this point, noted : (SCC pp. 9-10, paras 14-15) “14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”. 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely - 13 - on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” (emphasis supplied) 26. Following the dictum of this Court in [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1], in [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , this Court noted that : “7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies : (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn.v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] .) The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings.” (emphasis supplied) 27. The principles of law which emerge are that: 27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. 27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. 27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. 27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. 27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. 27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with. 14. In view of the aforesaid judicial pronouncements, it is now well settled that the High Court should not interfere in a matter where there is - 14 - alternative/efficacious remedy available to the aggrieved party unless certain exceptional ground warrants invocation of writ jurisdiction under Article 226 of the constitution of India. It has further been held that when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedy is a rule of policy, convenience and discretion. The High Court may also decide to decline jurisdiction in a writ petition in cases where there are disputed questions of fact unless it is of the view that the nature of controversy requires exercise of its writ jurisdiction. 15. The availability of alternative remedy has not been denied by the leaned senior counsel for the petitioner. In view of the aforesaid judicial pronouncements, the question before this Court is as to whether any exceptional ground is made out in this case so as to entertain the writ petition despite availability of alternative/efficacious remedy to the petitioner to get the dispute adjudicated in terms with the provisions of Section 27 of the Act, 2015 by the Tribunal constituted under the Act, 1957. 16. The claim of the petitioner is that as per pre-feasibility report prepared by CMPDIL, the project was not economically viable for the petitioner as the cost of mining would be more than the actual revenue to be procured by sale of coal and as such Section 56 of the Contract Act will be attracted in the present case. Hence, it cannot be compelled to continue with the contract and it is not liable to be penalized under the terms of the contract in the event of surrender. 17. The learned senior counsel for the petitioner has also relied on few paragraphs of the judgment rendered by the Hon’ble Supreme Court in the case of Delhi Development Authority Vs. Kenneth Builders & Developers Private Limited & Others reported in (2016) 13 SCC 561, which are quoted as under :- “25. What has been overlooked by the learned counsel is that the fresh view of MoEF is that the project land needs to be considered as Ridge. Consequently, no construction activity is permissible on the project land. That apart, Kenneth Builders did apply to DPCC for “consent to establish” for starting construction activity on the project land. For considering the request, DPCC required a ridge demarcation report which was not given by DDA to Kenneth Builders or to DPCC. Therefore, DPCC was not inclined to give its consent in the absence of the ridge demarcation report. Even after judgment was delivered by the High Court, Kenneth Builders applied to DPCC for “consent to establish” but to no effect in the absence of a ridge demarcation report and forest clearance. 26. It does appear from the record that the exact boundaries of - 15 - the Ridge had not been identified by anybody and this is apparent from a Letter dated 13-6-2008 sent by the Secretary (Environment) of Gnctd to DDA wherein it was pointed out that there is some discrepancy between the areas notified by the Ministry of Urban Development of the Government of India in the Notifications dated 8-1-2002 and 23-2-2006 and the boundaries of the Ridge. It was further pointed out that the process of identification had been initiated by the Department of Forests of Gnctd but it appears that the demarcation was not completed by the time the writ petition was filed by Kenneth Builders. According to DDA the letter was based on an incorrect appreciation of facts, but that does not concern us. All that is relevant is that Gnctd believed that the construction could not go on in the project land since it fell within the boundaries of the Ridge. 27. In this context, it must not be forgotten that even after having given environmental clearance to Kenneth Builders, MoEF had second thoughts regarding the status of the project land. This led MoEF to send the Letter dated 3-12-2009 referred to above. In other words, the status of the project land was generally “unclear” at least to Gnctd and MoEF. 28. Be that as it may, it appears to us that Kenneth Builders did take all necessary steps to commence the construction activity on the project land but due to the impasse created by the governmental agencies, it could not proceed in the development activity. We agree with the learned counsel for Kenneth Builders that under these circumstances, the provisions of Section 56 of the Contract Act, 1872 (the Contract Act) would be attracted to the facts of the case. 29. Section 56 of the Contract Act reads as follows: “56. Agreement to do impossible act.— An agreement to do an act impossible in itself is void. Contract to do act afterwards becoming impossible or unlawful.— A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Compensation for loss through non-performance of act known to be impossible or unlawful.— Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non- performance of the promise.” 30. The interpretation of Section 56 of the Contract Act came up for consideration in [Satyabrata Ghose v. Mugneeram Bangur & Co., AIR 1954 SC 44] It was held by this Court that the word “impossible” used in Section 56 of the Contract Act has not been used in the sense of physical or literal impossibility. It ought to be interpreted as impracticable and useless from the point of view of the object and purpose that the parties had in view when they entered into the contract. This impracticability or uselessness could arise due to some intervening or supervening circumstance which the parties had not contemplated. However, if the intervening circumstance was contemplated by the parties, then the contract would stand despite the occurrence of such circumstance. In such an event, “there can be no case of frustration because the basis of the contract being to demand performance despite the happening of a particular event, it cannot disappear when that event happens”. This is what this Court had to say: (AIR pp. 46-49, paras 9-10 & 17) “9. The first paragraph of the section lays down the law in the - 16 - same way as in England. It speaks of something which is impossible inherently or by its very nature, and no one can obviously be directed to perform such an act. The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. The wording of this paragraph is quite general, and though the illustrations attached to it are not at all happy, they cannot derogate from the general words used in the enactment. This much is clear that the word “impossible” has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor finds it impossible to do the act which he promised to do. 10. Although various theories have been propounded by the Judges and jurists in England regarding the juridical basis of the doctrine of frustration, yet the essential idea upon which the doctrine is based is that of impossibility of performance of the contract; in fact impossibility and frustration are often used as interchangeable expressions. The changed circumstances, it is said, make the performance of the contract impossible and the parties are absolved from the further performance of it as they did not promise to perform an impossibility. The parties shall be excused, as Lord Loreburn says [F.A. Tamplin Steamship Co. Ltd. v. Anglo-Mexican Petroleum Products Co. Ltd., (1916) 2 AC 397 (HL)] : (Tamplin case [F.A. Tamplin Steamship Co. Ltd. v. Anglo-Mexican Petroleum Products Co. Ltd., (1916) 2 AC 397 (HL)] , AC p. 406) ‘… If substantially the whole contract becomes impossible of performance or in other words impracticable by some cause for which neither was responsible.’ *** 17. It must be pointed out here that if the parties do contemplate the possibility of an intervening circumstance which might affect the performance of the contract, but expressly stipulate that the contract would stand despite such circumstance, there can be no case of frustration because the basis of the contract being to demand performance despite the happening of a particular event, it cannot disappear when that event happens. As Lord Atkinson said in Matthey v. Curling [Matthey v. Curling, (1922) 2 AC 180 (HL)] : (AC p. 234) ‘… a person who expressly contracts absolutely to do a thing not naturally impossible is not excused for non- performance because of being prevented by the act of God or the King's enemies … or vis major.’ This being the legal position, a contention in the extreme form that the doctrine of frustration as recognised in English law does not come at all within the purview of Section 56 of the Contract Act cannot be accepted.” (emphasis supplied) 31. Insofar as the present case is concerned, DDA certainly did not contemplate a prohibition on construction activity on the project land which would fall within the Ridge or had morphological similarity to the Ridge. It is this circumstance that frustrated the performance of the contract in the sense of making it impracticable of performance. 18. In the present case, the respondent- Union of India has denied the - 17 - factual assertion of the petitioner by stating in the counter affidavit that the respondent authority wrote letters dated 16.01.2019 and 31.05.2019 to CMD, CMPDIL requesting it to clarify whether information given by it in the ‘Mine Dossier’ at the time of allotment of coal mine is same or has changed since then. Pursuant to this, CMPDIL, vide letter dated 22.07.2019, replied that the information provided in the ‘Mine Dossier’ at the time of allotment was based on the geological report on detailed exploration of coal at Patal East Captive Coal Block which was prepared by MECL in December 2013 and an unapproved Mining Plan and Mine Closure Plan were prepared by MIN MEC Consultancy Pvt. Ltd. in the month of May, 2016 for the prior allottee M/s Bhushan Power and Steel Ltd. The current approved Mining Plan is based on the same geological report but some of the geo-mining parameters have changed. It was further stated that there are many coal projects in the country where the average stripping ratio may be higher than that of PECB but are being considered for implementation. This may be due to other factors/considerations such as alternate mode of implantation of the project (MDO/Outsourcing) which may have a market determined cost dynamics or the freight advantage due to project location vis-à-vis the end-use location, long term fuel supply security, alternate options for fuel supply local demand, consumers’ ability to pay a premium over notified prices and value addition through washing etc. for the project proponent. CMPDIL would thus not be able to comment on the project proponent’s decision to surrender the said coal block and its likely impact on the business risk of the petitioner. 19. On the one hand, the petitioner has relied upon the mining plan and pre-feasibility report prepared by the CMPDIL to substantiate its stand, and on the other hand the respondent-Union of India has relied upon the letter dated 22.07.2019 of CMPDIL showing its inability to comment on the project proponent’s decision to surrender the coal block. Thus, both the parties have raised respective factual plea in support of their claims. An adjudication on rival factual plea should not be done by this Court in exercise of extraordinary writ jurisdiction, rather the fact finding authority i.e the Tribunal constituted under the Act, 1957 is the proper authority to entertain and adjudicate such plea. 20. Learned senior counsel for the petitioner has vehemently contended before this Court that Clause 1.1.21 of the allotment document speaks of mining plan which is approved by the authorities under the applicable law but the respondents misled the petitioner by providing unapproved mining plan as well as Mine Dossier of the previous allottee and thus suppressed - 18 - the crucial facts which ought to have been brought to the notice of the petitioner before signing the lease agreement. 21. To counter the said argument, the learned A.S.G.I. has invited attention of this Court to the ‘Important Notice’ appended at page-49 of the allotment document (annexed as Annexure-2 to the counter affidavit filed on behalf of the respondent nos. 1 to 3) and submits that it was the responsibility of the petitioner to carry out its own survey, investigations and other detailed examination of the concerned coal mines before submitting its application. 22. I have perused the said notice wherein it has been stated that the allotment document is neither an agreement nor an offer by the Nominated Authority to the prospective applicant or any other person. The purpose of this allotment document is to provide interested parties with information that may be useful to them in making their applications pursuant to the allotment document. It has also been stated that the assumptions, assessments, statements and informations contained in the allotment document, including specifically the Mine Dossier, may not be complete, accurate, adequate or correct. Each applicant should, therefore, conduct its own investigations and analysis and should check the accuracy, adequacy, correctness, reliability and completeness of the assumptions, assessments, statements and informations contained in the allotment document as well as obtain independent advice from appropriate sources. The information provided in the allotment document has been collected from several sources, however the information given is not intended to be an exhaustive account of statutory requirements and should not be regarded as complete. The Nominated Authority accepts no responsibility for the accuracy or otherwise of any statement contained in the allotment document. The Mine Dossier of the coal mine is only a preliminary reference document by way of assistance to the applicants who are expected to carry out their own surveys, investigations and other detailed examination of the Coal Mine before submitting their applications and nothing contained in the Mine Dossier shall be binding on the Nominated Authority nor confer any right on the applicants. The Nominated Authority shall have no liability whatsoever in relation to or arising out of any or all contents of the Mine Dossier. 23. Thus, the petitioner has not been able to adduce clinching evidence before this Court in support of the allegation of fraud or misrepresentation committed by the respondents against it. In the case of Andhra Pradesh Pollution Control Board Vs. CCL Products (India) Ltd. reported in - 19 - (2019) 20 SCC 669 as has been relied upon by learned A.S.G.I., the Hon’ble Supreme Court has held that in absence of fraud, irretrievable injustice and special equities, the Court should not interfere with the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee itself. 24. One of the contentions of learned senior counsel for the petitioner is that Clause 24.3.2 of the allotment document mandates serving 15 business days’ notice to the allottee before passing the order of termination, however the petitioner was not served any such notice. Moreover, the petitioner has denied the claim of the respondent-Union of India that the impugned order of termination dated 11.11.2020 was served to the petitioner on its e-mail address. The petitioner in support of its claim has brought on record the details of all the e-mails received from the respondents by way of Annexure- 1 to the rejoinder affidavit. On the other hand, the respondents have also brought on record a copy of e-mail by way of Annexure-G to the counter affidavit so as to suggest that the impugned letter was sent to the petitioner to its e-mail address. Further claim of the respondent- Union of India is that the impugned letter was issued on 11.11.2020 mentioning therein at paragraph-13 of the same that the said letter may be treated as notice under Clause 24.3.2 of the allotment agreement and on completion of notice period of 15 business days i.e. on 2nd December, 2020, the allotment agreement and allotment order shall stand terminated. The present writ petition was filed on 27.11.2020 i.e. before completion of 15 business days’ notice period as mentioned in the impugned letter and it appears that by that time, the petitioner was having the impugned letter. The said fact would suggest that the petitioner had the knowledge of passing of the impugned order as contained in letter dated 11.11.2020 and as such it cannot claim violation of the principles of natural justice. 25. This Court is of the view that the allegation and counter allegation of both the parties regarding compliance of Clause 24.3.2 of the allotment agreement cannot be verified by this Court under its writ jurisdiction. Moreover, in terms with Section 27 of the Act, 2015, the petitioner can very well raise issue of non-compliance of Clause 24.3.2 of the allotment agreement before the Tribunal which is a fact finding body constituted as per the provisions of Section 14(2) of the Act, 1957. 26. The Act, 2015 has been promulgated to provide mechanism for allocation of coal mines and vesting of right, title and interest in and over the land and mines infrastructure together with mining leases to the - 20 - successful bidders and allottees with a view to ensure continuity in coal mining operations and production of coal, and for promoting optimum utilization of coal resources consistent with the requirement of the country in national interest and for the matters connected therewith or incidental thereto. 27. Section 27 of Act, 2015 reads as follows:- “27. Dispute settlement and Bar of Jurisdiction of civil courts.––(1) Any dispute arising out of any action of the Central Government, nominated authority or Commissioner of payment or designated custodian, or any dispute between the successful bidder or allottee and prior allottee arising out of any issue connected with the Act shall be adjudicated by the Tribunal constituted under the Coal Bearing Areas (Acquisition and Development) Act, 1957 (20 of 1957). (2) Where the Central Government is of the opinion that any dispute arising out of any issue connected with the Act exists or is apprehended and the dispute should be adjudicated by the Tribunal referred to in sub-section (1), then, the Central Government may by order in writing, refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, to the Tribunal for adjudication. (3) The Tribunal referred to in sub-section (1) shall, after hearing the parties to the dispute, make an award in writing within a period of ninety days from the institution or reference of the dispute. (4) On and from the commencement of the Act, no court or other authority, except the Supreme Court and a High Court, shall have, or be entitled to exercise, any jurisdiction, powers or authority, in relation to matters connected with the Act.” 28. In view of the aforesaid provision, the action of the respondent no. 2 in cancelling the agreement in purported exercise of power conferred under Clause 24.3.2 of the allotment agreement and encashment of bank guarantee can be adjudicated by the Tribunal constituted under the Act, 1957 which is the fact finding body having all the powers akin to a civil court while trying a suit under the Code of Civil Procedure, 1908 in respect of summoning and enforcing the attendance of any person, examining him on oath, requiring the discovery and production of any document, reception of evidence on affidavits, requisitioning any public record from any court or office and issuing commissions for examination of witnesses. Though, clause (4) of Section 27 of the Act, 2015 empowers the Supreme Court and the High Court to exercise any jurisdiction, power or authority in relation to matters connected with the Act, yet keeping in view that an adjudicatory body has been constituted for adjudicating any dispute between the nominated authority and the allottee, the High Court should be slow in entertaining the writ petitions of this nature unless the dispute so raised can - 21 - be decided on admitted facts brought before the writ court without requirement of leading of evidences by both the side. 29. Thus, I do not find any such exceptional circumstance to entertain the present writ petition. Rather, on the given circumstance, it would be appropriate to relegate the petitioner to avail the alternative/efficacious remedy in terms with Section 27 of the Act, 2015 wherein it has been provided that any dispute arising out of any action of the Nominated Authority, Central Government shall be adjudicated by the Tribunal constituted under the Act, 1957. 30. Otherwise also, the petitioner itself had requested the respondent no. 2 to accept its proposal for surrender of the PECB and the only grievance of the petitioner before this Court is to restrain the respondents from encashing the bank guarantee furnished by it. 31. The Hon’ble Supreme Court in the case of Gujarat Maritime Board Vs. Larsen & Toubro Infrastructure Development Projects Ltd. reported in (2016) 10 SCC 46, has laid down the extent of interference by a writ court in the matter of invocation of bank guarantee. “9. Unfortunately, the High Court went wrong both in its analysis of facts and approach on law. A cursory reading of LoI would clearly show that it is not a case of forfeiture of security deposit “… if the contract had frustrated on account of impossibility…” but invocation of the performance bank guarantee. On law, the High Court ought to have noticed that the bank guarantee is an independent contract between the guarantor Bank and the guarantee appellant. The guarantee is unconditional. No doubt, the performance guarantee is against the breach by the lead promoter viz. the first respondent. But between the bank and the appellant, the specific condition incorporated in the bank guarantee is that the decision of the appellant as to the breach is binding on the Bank. The justifiability of the decision is a different matter between the appellant and the first respondent and it is not for the High Court in a proceeding under Article 226 of the Constitution of India to go into that question since several disputed questions of fact are involved. 10. Recently, this Court in [Joshi Technologies International Inc. v. Union of India, (2015) 7 SCC 728] , where one of us (R.F. Nariman, J.) was a member, has surveyed the entire legal position on exercise of writ jurisdiction in contractual matters. The paragraphs which deal with the situation relevant to the case under appeal, read as follows: (SCC pp. 765-67, paras 68-70) “68. The Court thereafter summarised the legal position in the following manner: [ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553] , SCC p. 572, paras 27-28) ‘27. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition: (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to - 22 - entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable. 28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. ([Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1].) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.’ 69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, “normally”, the Court would not exercise such a discretion: 69.1. The Court may not examine the issue unless the action has some public law character attached to it. 69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration. 69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination. 69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances. 70. Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the State/public authority with private parties, can be summarised as under: 70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness. 70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discriminations. 70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can - 23 - direct the aggrieved party to resort to alternate remedy of civil suit, etc. 70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred. 70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business. 70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.” 11. It is contended on behalf of the first respondent that the invocation of bank guarantee depends on the cancellation of the contract and once the cancellation of the contract is not justified, the invocation of bank guarantee also is not justified. We are afraid that the contention cannot be appreciated. The bank guarantee is a separate contract and is not qualified by the contract on performance of the obligations. No doubt, in terms of the bank guarantee also, the invocation is only against a breach of the conditions in the LoI. But between the appellant and the Bank, it has been stipulated that the decision of the appellant as to the breach shall be absolute and binding on the Bank. 13. The guarantee given by the Bank to the appellant contains only the condition that in case of breach by the lead promoter viz. the first respondent of the conditions of LoI, the appellant is free to invoke the bank guarantee and the Bank should honour it “… without any demur, merely on a demand from GMB (appellant) stating that the said lead promoter failed to perform the covenants…”. It has also been undertaken by the Bank that such written demand from the appellant on the Bank shall be “… conclusive, absolute and unequivocal as regards the amount due and payable by the Bank under this guarantee”. Between the appellant and the first respondent, in the event of failure to perform the obligations under the LoI dated 6-2-2008, the appellant was entitled to cancel the LoI and invoke the bank guarantee. On being satisfied that the first respondent has failed to perform its obligations as covenanted, the appellant cancelled the LoI and resultantly invoked the bank guarantee. Whether the cancellation is legal and proper, and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first respondent justifying its inability to perform its obligations under the LoI, etc. are not within the purview of an inquiry under Article 226 of the Constitution of India. Between the Bank and the appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the appellant and the first respondent, as satisfied by the appellant, the Bank is bound to honour the payment under the guarantee.” 32. In the aforesaid case, the Hon’ble Supreme Court has held that the bank guarantee is a separate contract and is not qualified by the contract on performance of the obligations. Though the invocation of the bank guarantee is dependent on the breach of the condition of the Letter of - 24 - Intent (LoI), the decision of the authority holding the bank guarantee as to the breach shall be absolute and binding on the Bank. The question as to whether the cancellation of the contract was legal and proper and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first respondent justifying its inability to perform its obligations under the LoI, etc. were not within the purview of an inquiry under Article 226 of the Constitution of India. The moment the written demand for invoking the bank guarantee pursuant to breach of the covenants was made, the Bank was bound to honour the payment under the guarantee. 33. Under the aforesaid facts and circumstance, looking to the nature of dispute, the prayer of the petitioner and an alternative/efficacious remedy being available to it, I am of the considered view that the present case is not a fit one to be entertained under writ jurisdiction. 34. Thus, without entering into the merit of rival claims of the parties, the petitioner is given liberty to move before the Tribunal in terms with the provisions of Section 27 of the Act, 2015 for determination of the claim made by it. It however appears from the record that an interim relief has been granted to the petitioner vide order dated 01.12.2020 staying the implementation, execution and operation of order dated 11.11.2020. As such, if the petitioner moves before the Tribunal within one month from the date of this order with an application for interim relief, the stay granted against encashment of bank guarantee shall continue till the case is taken up by the Tribunal for the first time. If the petitioner makes prayer for interim relief, the same shall be considered by the Tribunal on the very first date of listing of the case on its own merit. It goes without saying that since the petitioner itself has surrendered the coal mine in question, the respondent-Union of India is free to proceed for allocating the said coal mine to any other eligible person in accordance with law. 35. The writ petition is disposed of with the aforesaid liberty and observations. (Rajesh Shankar, J.) Ritesh/-AFR "