KARNATAKA POWER CORPORATION VS EMTA COAL LIMITED & ANR.

KARNATAKA POWER CORPORATION VS EMTA COAL LIMITED & ANR.


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले




NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 5401­5404 OF 2017
KARNATAKA POWER CORPORATION                …APPELLANT
LIMITED
VERSUS
EMTA COAL LIMITED & ANR.             …RESPONDENTS
JUDGMENT
N. V. RAMANA, CJI
1 The present Civil Appeals, by way of Special Leave, arise out
of the impugned common judgment dated 24.03.2016 passed by
the High Court of Karnataka, at Bengaluru, whereby the High
Court allowed the writ petitions filed by the respondents herein.
By way of the writ petitions, the respondents had challenged the
adverse   decisions   taken   by  the   appellant   with  respect   to   the
arrangement   regarding   coal   procurement   entered   into   by   the
parties for the purposes of the appellant’s thermal power projects
in the State of Karnataka. 
2 A conspectus of the facts necessary for the disposal of the
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present appeal is as follows: the appellant was allotted coal mines
by the Union of India for captive consumption for their thermal
power projects in the State of Karnataka. In 2002, M/s EMTA
Coal Limited (hereinafter, “EMTA”) was selected to form a joint
venture with the appellant for the development of the mines, and
the supply of coal to the said power projects. After setting up of
the joint venture­ Karnataka EMTA Coal Mines Limited (in short,
“KEMTA”)   by   the   appellant   and   EMTA,   all   three   companies
entered into various contracts for development of the coal mines
and supply and delivery of coal. 
3 The   above   arrangement   progressed   without   any   dispute,
until the Comptroller and Auditor  General of India (in short,
“CAG”)   submitted   a   report   for   the   year   ending   March   2013,
wherein it was observed that minimum quantity of coal rejects
should be 10% per centum of the total production, valuing Rs.
52,37,00,000 (Rupees fifty two crore thirty seven lakh). At the
first instance, the appellant raised objections to the CAG report
stating that quantification of the coal rejects should be based on
actuals, i.e., the quantity of coal actually sent to the washery and
the quantity of coal dispatched thereafter to the thermal power
stations,   after   processing.   The   appellant   specifically   indicated
that quantification of the coal rejects in the CAG report was
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erroneous. However, despite the said objections raised by the
appellant, the CAG finalized its report which was made available
to the appellant. 
4 It was only after receipt of this report that the appellant
demanded reimbursement of Rs. 52,37,00,000 (Rupees fifty two
crore thirty seven lakh) from KEMTA by demand letters dated
July 31, 2014 and December 24, 2014. These two demand letters
were impugned by the respondents in Writ Petition Nos. 2995­
2996 of 2016 before the High Court of Karnataka. 
5 Parallelly, it appears that a dispute subsisted between the
respondents   and   the   appellant   regarding   certain   deductions
made by the appellant on bills payable to KEMTA on account of
washing charges which was based on the quantification by the
CAG. The said deductions were challenged by the respondents
vide Writ Petition Nos. 2997 and 2998 of 2016 before the High
Court of Karnataka whereby the respondents additionally sought
refund of Rs 59.78 crores (Rupees Fifty Nine Crores Seventy Eight
Lakhs) with interest at the rate of 18% p.a. from 30.06.2012.
6 The above writ petitions were heard together by the High
Court of Karnataka. Vide the impugned judgment, the High Court
of   Karnataka   allowed   the   said   writ   petitions   and,  inter   alia,
directed   the   appellant   to   not   initiate   recovery   from   the
respondents solely on the basis of the CAG report dated March
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2013 and held that the respondents would be entitled to receive
reimbursements for deductions made by the appellant from the
bills. 
7 Aggrieved by the above, the appellant has filed the present
appeal   by   way   of   special   leave   under   Article   136   of   the
Constitution. 
8 The   primary   submission   of   the   learned   senior   counsel
appearing   on   behalf   of   the   appellant   is   that   the   High   Court
granted the relief without adjudicating the disputes between the
parties or properly appreciating the facts in issue. 
9 On the other hand, learned counsel for the respondents
supports the impugned judgment and submits that no grounds
are made out by the appellant for this Court to interfere in the
present matter in exercise of its powers under Article 136 of the
Constitution. 
10 Heard the counsel for the parties, and perused the material
on record. 
11 It appears that one of the grounds raised by the appellant in
the present case relates to whether the High Court has correctly
exercised its discretion in entertaining the subject writ petitions.
Although this ground was initially raised by the appellant before
the High Court, it appears that it was not pressed at the time of
final hearing, as recorded in the impugned judgment. 
12 It is worth noting that this Court has already held that in
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matters   pertaining   to   a   state   instrumentality,   a   writ   may   be
maintainable   in   matters   concerning   contractual   disputes   in
certain   circumstances.   While   there   is   no   bar   on   the
maintainability of such writ petitions, the discretion lies with the
High Courts as to whether to exercise the said jurisdiction or not.
This Court has elaborately discussed the principles that must
guide the High Courts while deciding whether to exercise their
writ jurisdiction in contractual disputes between a State and a
private party in a catena of judgments. [See ABL International
Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004)
3 SCC 553; Joshi Technologies International Inc. v. Union of
India, (2015) 7 SCC 728] 
13    However, we are not inclined to delve into the issue of
whether   the   High   Court’s   exercise   of   writ   jurisdiction   was
appropriate, due to the peculiar facts and circumstances of the
present case. The present matter pertains to a tender that was
awarded by the appellant to EMTA nearly twenty years ago, in the
year 2002. The CAG report that appears to have been the starting
point for the entire dispute between the parties is dated March,
2013, close to a decade back. In such circumstances, to even
advert to arguments on the maintainability of the writ petitions
would be unjust to the parties involved. 
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14 Coming   to   the   merits   of   the   appeal,   from   the   facts,   it
appears that in the first instance, when the CAG report was first
submitted,   the   appellant   itself   had   raised   objections   to   the
quantification of coal rejects arrived at by the CAG. However,
when the audit objections were rejected by the CAG, and the final
report   was   made   available,   the   appellant   demanded
reimbursement from KEMTA based on the same CAG report to
which it had filed objections. Such a change of stand by the
appellant has not been sufficiently explained.
15 Additionally, a bare perusal of the clauses contained in the
various agreements entered into between the parties does not
indicate that such deductions could be made for the purposes of
washing charges. There does not appear to be any specification
laid down as to the method required to be adopted for washing of
coal.
16 No material has been placed on record by the appellant to
suggest that there was ever any problem with respect to the
quality of coal being supplied by KEMTA to the appellant. Rather,
the impugned order suggests that coal supplied by KEMTA was
utilized by the appellant in its thermal power plants in order to
generate electricity.
17 Taking   into   consideration   the   above   facts   and
circumstances, we are of the opinion that no material has been
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brought to the notice of this Court that would compel us to
interfere with the impugned common judgment passed by the
High Court in exercise of our jurisdiction under Article 136 of the
Constitution.
18 Accordingly,   the   Civil   Appeals   filed   by   the   appellant   are
dismissed. 
19 Pending applications, if any, are accordingly disposed of.
...........................CJI.
(N.V. RAMANA)
      
 ...........................J.
(KRISHNA MURARI)
...........................J.
(HIMA KOHLI)
NEW DELHI;
MAY 20, 2022.
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