- (1.) The appellants in the three appeals who had approached the High Court under Article 226 of the Constitution of India have been non-suited on the ground that the contract entered into by them with the Coal India Ltd. for supply of explosives was in the realm of a private contract involving no public law element and, hence, not amenable to scrutiny in the exercise of jurisdiction under Article 226 of the Constitution. Aggrieved these appeals have been filed.
(2.) We have perused the order of the High Court under challenge and have heard the learned counsels for the parties.
(3.) The grievance raised by the appellants, as writ petitioners, which have been refused an adjudication on merits, is that a supplementary clause in the contract/agreement which has the effect of novation of the contract has been unilaterally inserted therein by the respondent - Coal India Ltd. It was urged that the said supplementary clause clearly nullifies the clear understanding and terms of the original contract contained in Clause XV. Clause XV of the Original Contract and the supplementary clause inserted are in the following terms: "CLAUSE XV - PERFORMANCE 1(A). Review of your product performance will be made on the basis of fragmentation/muck piling costs per Cu.M. and Capacity improvement achieved for the total system. In the event of your Product not providing satisfactory results mutually agreed upon, proportionate reduction in prices for the Products which failed will be made. You are to provide optimum blast design for each mine benchwise and render all related including provisioning of vibration monitoring. In the event of failure of Blast, the cost of Explosives used in the Blast, and all other incidental charges will be recovered from you. B) If there is a complaint for low powder factor, you must be penalized/supply restricted for continuous poor performance. The management of the respective subsidiary companies, would then divert the balance quantity (supposed to be allotted to you and there is a product complaint for low powder factor etc. against your past supplies) to the other manufacturers (on pro-rata basis) whose products are having better powder factor. This diversion of quantities due to poor product performance should be made with the approval of D(T) of concerned subsidiary companies. 2. The limits of Velocity of Detonation, Density and Cap/Booster Sensitivity which will govern at the time of Random Testing of the products ordered on you are indicated below:- JUDGEMENT_143_LAWS(SC)11_2017_1.html *** SUPPLEMENTARY CLAUSE XV (PERFORMANCE CLAUSE) "The weighted average Powder Factor separately for Coal and OB for 10 years commencing from 2004-05 to 1995-96 and that of 2004-05 shall be worked out mine-wise. The higher of weighted average Powder Factor for 10(ten) years (from 2004-05 to 1995-96] and that of 2004-05 shall be hereinafter referred to as the minimum yield. The mine-wise achievement of Powder Factor should not be less than the minimum yield referred to above. For every 1% (one per cent) or part thereof, decrease in Powder Factor of Coal/OB compared to the minimum yield as above, commensurate deduction of the cost of explosives and accessories shall be made. Such computation for deduction shall be made on monthly basis.";