AI Drafter 
TaxTMI 
TaxTMI 
2009 (7) TMI 779
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....on of India dated 7-8-2006, pursuant to the Division Bench judgment in W.A. Nos. 1747-1757/2001 dated 26-9-2003 and particularly the documents pertaining to global bid which have been filed in two volumes. Factual Matrix 3. BGML, which is a Government company, wholly-owned by Government of India, was incorporated in the year 1972 and the main object of the company is to extract gold in Kolar Gold Fields (KGF) and surrounding areas. Originally the said gold fields were being run by M/s. John Taylor & Sons and the same was acquired by the erstwhile Government of Mysore and in December, 1962 the mines were transferred to the Central Government and was known as Kolar Gold Mines undertaking. In the year 1972, after the incorporation of BGML it started incurring loss and the net worth of the company became less, than the accumulated loss and thus became a sick industrial company within the meaning of Sick Industrial Companies Act ("SICA", for the sake of brevity). 4. The Board of Directors of the Company passed a resolution on 13-2-1992 for making a reference to BIFR and accordingly a case was registered under section 15(1) of the SICA in Case No. 505/1992 before the BIFR. By an....
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....tral Government. After considering the proposals and counter proposals made by the employees unions and the Central Government, the Division Bench suggested certain measures to be undertaken by the Central Government in the matter of benefit of voluntary retirement scheme and residential quarters and interim monetary relief to each of the employees to help them tide over the difficulties. Having said that the Division Bench further opined as follows : "Para 46. On the peculiar facts and circumstances of the case, we commend to the Central Government the following measures : (i)To extend to the employees of BGML, the benefit of VRS as already offered with the further modification contained in the Official Memorandum dated 6-11-2001. (ii)To transfer/convey the quarters/houses which have been allotted to the employees of BGML, at a concessional price, say at the rate of Rs. 10 per sq. ft. where the site area of which is below 1000 sq. ft. Rs. 20 per sq. ft. where the sital area is more than 1000 sq. ft. but less than 3000 sq. ft. and Rs. 30 per sq. ft. were sital area is more than 3000 sq. ft. Having regard to the fact that the structures are very old and most of them in a di....
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....the Co-operative Society of the employees. Supervisors of BGML and the society was to in turn float a company in association with the technical and financial collaborator and the company was to acquire the assets of BGML and to operate the mines. The Forum desired that the Government should sell the assets of BGML for a sum of Rs. 1,00,00,000. On consideration of the said proposal a letter was addressed by the Director in the Ministry of Mines, Government of India to the Managing Director of BGML on 7/8-8-2006, which, inter alia, states as follows : "(a)Main features of the proposal : The Forum proposes to establish, in the first instance, a co-operative society of the employees, supervisors and officers of BGML. The society in turn will float a company in association with a technical and financial collaborator. This company will acquire the assets of BGML and operate the mines. The Form has desired that the Government should sell assets of BGML to the said company of the said society for a sum of Rs. 150 crores. (b)The Government has considered the proposal of the Forum and is of the view that the proposal of the Employees Forum for the transfer of assets of BGML to the soci....
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....principle by the Government." 9. It is in this context that this application has been filed seeking permission to implement the proposal of Union of India dated 7/8-8-2006 by BGML. The two volumes of the Global Tender documents have also been filed. By order dated 22-11-2006 this Court observed as follows : "It is clear from the perusal of the averments made that the whole object of relief sought for in the application is to comply with the directions issued in W.A. Nos. 1747-1757/2001 dated 26-9-2003 and in order to comply with the directions and to ascertain the market value of the assets, it is sought in the application to call for global tender. It cannot be disputed that apart from calling the global tender, there are other methods of ascertaining the market value and instead of calling the global tender, only for the purpose of ascertaining the market value, it would be appropriate to consider the other methods of valuation also and thereafter consider the prayer of the applicant in the application. Under the circumstances, the learned Assistant Solicitor General submitted that he may be granted two weeks' time and an affidavit will be filed on behalf of the Central ....
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....no clarification is required as sought by the Government of India." Thereafter, on 7-12-2007 it was recorded by this Court that the consultant appointed by the Union of India had taken a month's time from 26-11-2007 to assess the value of assets of BGML and prepare the detailed information memorandum of the assets of BGML and Global tender documents and those documents were to be submitted before this Court for approval. Thereafter by order dated 10-1-2008 time was granted till 28-2-2008 for compliance with the previous orders of this Court and by order dated 6-3-2008 a further period of four weeks was granted for the said purpose. By another order dated 10-4-2008 time was extended till 5-6-2008 to finalise the terms and conditions of the Global Tender and place the same before this Court. By further orders time was further extended and finally the draft global tender documents were filed. 10. Some of the respondents have filed their objections to the said application as well as to the global tender documents filed by the BGML. The main prayer of the applicant is to seek approval of the said global tender document so that further steps could be initiated for ascertaining the ....
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.... Council [2006] 71 SCL 189 . 12. Per contra, it is submitted by the learned senior counsel, Sri Udaya Holla along with Sri Rajaram, Advocate, that once the opinion under section 20 of the SICA is expressed by the BIFR and the matter is referred to the Company Court, it is only the Company Court which can wind up the company in question. He further submits that under company law, revival of a company is an alternative to winding up and since the recommendation of BIFR is not binding on the Company Court, the revival of the company can be considered by the Company Court as the provisions of the Companies Act vests adequate powers with the Company Court to do so. He however, submits that if it is a case of "sale of assets," then the matter may have to be considered by the BIFR, but in the instant case what is being considered by the Company Court is not "sale of assets" but the revival of the company and under the circumstances, the Company Court alone has the jurisdiction to deal with the question of revival of the company. He further submits that there is nothing in SICA with regard to the modalities of the winding up of a company. He states that since the issue is with regard to....
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..... In order to answer the question of jurisdiction raised by the learned senior counsel for M/s. BEML, it is necessary to refer to section 20 of SICA and analyse the decisions referred to above. 17. Section 20 reads as follows : "Winding up of sick industrial company.-(1) Where the Board, after making inquiry under section 16 and after consideration of all the relevant facts and circumstances and after giving an opportunity of being heard to all concerned parties, is of opinion that the sick industrial company is not likely to make its net worth exceed the accumulated losses within a reasonable time while meeting all its financial obligations and that the company as a result thereof is not likely to become viable in future and that it is just and equitable that the company should be wound up, it may record and forward its opinion to the concerned High Court. (2) The High Court shall, on the basis of the opinion of the Board order winding up of the sick industrial company and may proceed and cause to proceed with the winding up of the sick industrial company in accordance with the provisions of the Companies Act, 1956 (1 of 1956). (3) For the purpose of winding up of the ....
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.... the Act. It has to be therefore understood that when once the BIFR records an opinion for winding up of the sick industrial company, it is mandatory that the said opinion must be forwarded to the concerned High Court. However, if the High Court is of the view that instead of winding up of the sick industrial company in accordance with the provisions of the Companies Act, the Board can be directed to sell the assets of the sick industrial company and, therefore, makes an order for sale of assets of a sick industrial company de hors any order of winding up under the Companies Act, then in that case, the High Court can direct BIFR to cause the sale of assets of the sick industrial company in such a manner as it may deem fit and forward the sale proceeds to the High Court for orders for distribution in accordance with the provisions of section 529(A) and other provisions of the Act since it is the BIFR which would have the custody of the assets of the company till a winding up order is passed by the High Court. 19. In the case of NGEF Ltd. (supra) the industry became sick and reference was made to BIFR in terms of the provisions of SICA and by an order dated 15-9-2001, the State of....
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....uld not derive any jurisdiction, only because BIFR had said so. 20. In the case of Jay Engg. Works Ltd. (supra) the Apex Court while dealing with the provisions of SICA and interest on Delayed Payments to Small Scale Industries and Ancillary Unit Act, 1993 held that if there are two statutes each containing a non obstante clause, the ordinary rule of construction would be that the later would prevail. However, the Apex Court held that the endeavour of the Court would otherwise be to adopt the rule of harmonious construction and in the said context, by referring to the case of NGEF Ltd. (supra) reiterated that having regard to the provisions of section 20 of SICA, BIFR is the authority which continues to remain as a custodian of the assets of the company till the winding up order is passed by the High Court. 21. In Kerala State Financial Enterprises Ltd.'s case (supra ), while dealing with the sale of properties attached under Kerala Revenue Recovery Act, 1968, the Apex Court referred to the above noted decisions to hold that while SICA might prevail over the Companies Act, but in the absence of a clear provision, the Companies Act cannot be held to give way for another Act pr....
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.... Companies Act cannot be held to give way to another Act providing for recovery only leaving the rights and liabilities of the parties to be dealt with under a general law. In the case of Tata Motors Ltd. (supra), the Apex Court held that when the matter is seized by the BIFR, provisions of sections 391 to 394 of the Companies Act cannot be applied. 24. Two significant points to be noted from the above decisions are, firstly, that the Apex Court was dealing with a case of sale of assets of a sick industrial unit in NGEF Ltd.'s case (supra) and secondly, the non-applicability of sections 391 to 394 of the Companies Act when the matter is seized by BIFR and it is in the context of those circumstances, that the Apex Court held that the company Court does not have the jurisdiction in such matters. In the instant case, the revival of BGML is in the context of the observations of the Division Bench of this Court and on the subsequent developments which have taken place pursuant to the said observations. In the instant case it is a "revival of the company" and not a case of mere "sale of assets". Further revival of a company has to be considered as an alternative to the winding up of t....
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.... the orders made by BIFR recommending winding up of the company. 26. As already stated, revival of a company cannot mean sale of its assets. In fact, the two concepts are diametrically opposite and cannot co-exist at the same time. The revival of the company is to give potent life to a sick company and endeavour to make it once again an activated unit. It can be in the context of amelioration of the company so as to ensure that the company sheds its sickness and once again becomes an active unit. On the other hand, sale of assets would be in line with the action undertaken for the ultimate winding up of the company. The assets could be sold in piece meal or as a whole, but what becomes certain is that the company would never be revived as such. In fact, the logical conclusion would be to ultimately dissolve the company. There is therefore a marked distinction between revival of a company and sale of assets. It is only in the context of sale of assets that the Apex Court has held that the matter is in the realm of jurisdiction of the BIFR and not the Company Court. If the question is with regard to revival of the company, as an alternative to winding up, in that event, it is not ....
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....re, this Court is required to apply its mind and consider the material on record and take a decision. While so doing, the Division Bench referred to the two judgments of the Apex Court cited above. Therefore the contention that the opinion or recommendation of the BIFR is binding on the Company Court, that is, the High Court which cannot adopt any other course of action except to wind up the company as per the recommendation of the BIFR is also without any merit. 29. Having held that the company Court has the jurisdiction to consider the question of revival in the context of a reference made by the BIFR for winding up of sick industrial unit, the next issue that has to be considered is with regard to the approval to be granted to the documents submitted by the BGML calling for global tenders, in order to ascertain the market value of the company. 30. Before going into the objections raised by various parties with regard to the said documents entitled "sale of assets" it is necessary to keep in mind the dicta of the Apex Court in the context of matters involving technical expertise and economic viability of proposed actions. In the case of Tata Iron & Steel Co. Ltd. v. Union o....
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....s of the land. In this case it was held that price fixation is not within the province of the Courts. According to the Apex Court, judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclusions reached by the concerned authority. 32. Therefore, it is not the duty of this Court to see whether a party's offer is accepted or not in the instant case, but it is the duty of all concerned to see that the company in question revives on the basis of a revival plan which is economically viable and is offered by a party who is otherwise able and competent financially to fulfil the commitment and who cannot only revive but to continue to fulfil the objects with which the company was established including giving employment to its workmen. 33. With the above dicta in mind, the objections raised by various respondents to the tender documents would have to be considered. Salient Features of the Bid Documents 34. Counsel for the applicant has also placed on record the minutes of the meeting of Inter Ministerial Group (IMG) held on 24-1-2007 comprising of Secretaries of various Departments and Ministries concerned with the revival....
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....efusal for the purchase of assets at such price; (f)Successful Bidder, which could be the Highest Bidder or the Ex-Employees Co-operative Society shall then be identified based on decision of Ex-Employees Society to refuse the offer." Clause 1.2 reads as follows : "Brief Description of Bidding Process 1.2.1 BGML intends to follow three cover single stage process for selection of the Highest Bidder. Bidders would need to submit the following three sets of documents in separate sealed envelopes as part of their Proposal; (a)Documents relating to establishing the qualification of the Bidder in terms of the qualification criteria set out in this section 3 of the RFP document ("Qualification Submissions"). (b)Documents relating to technical aspects/proposal of the Bidder to implement the Project in accordance with Section 4 of the RFP document ("Technical Proposal"), and (c)Price related proposals would be carried out in four steps. 1.2.2 The evaluation of the Proposals would be carried out in four steps. (a)The first step would involve a test of responsiveness based on Qualification Submissions. Those proposals found to be substantially responsive in the opin....
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....27.4 Decision of BGML on the above shall be final and binding on all the Bidders and the Ex-Employees Co-operative Society." 36. Volume-II is entitled information memorandum and is also subtitled as "sale of assets" and gives the details of the assets of BGML and also at page 28 at para 3.3 with regard to the lease of the various extent of land of BGML it is stated as follows : "3.3.1 About 1109 acres of land is leased to Bharat Earth Movers Limited (BEML), which consist of two workshops and vacant land. It was leased on 4 May, 2004 and is expected to expire on 4 May, 2014. 3.3.2 Other area of over 300 acres has been offered on lease for period ranging between 10-50 years for various social and institutional purposes. A list of about one ninety (190) such leases is provided in Enclosure 5." Contentions 37. Sri S. P. Shankar, learned senior counsel appearing for respondent Nos. 3, 9. 11, 22, 24 to 28 who are all apart of the "Forum" while adverting to the objections filed on 6-8-2008 submitted that these respondents do not have any grievance with regard to the proposal for revival of BGML as such, but however, the modalities would require decision at the hands of this....
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....relied upon Heavy Engg. Mazdoor Union v. State of Bihar AIR 1970 SC 82 which has been approved by the five Judge Bench decision in Steel Authority of India Ltd. v. National Union Water Front Workers AIR 2001 SC 3527. He also referred to Rashtriya Mill Mazdoor Sangh v. Model Mills [1984] (Supp) SCC 443 and Ram Suresh Singh's case (supra). While elaborating his submission in the context of revival. Mr. Subba Rao also submitted that after the valuation is made, the offer must be made to the workmen and only if the workmen are unable to accept the offer, then the Government can take further decision in the matter. 40. Mr. Subba Rao, also relied upon the decision reported in the case of Heavy Engg. Mazdoor Union (supra) to contend that if an industry is carried on by a corporation incorporated under Companies Act and not directly by the Central Government or any of its departments, such an industry is not carried by the Central Government though all the shares are owned by President of India or some of the officials. In the same case, it was held that the company and the shareholders being described as entities the fact that the President of India and certain officers hold all its sh....
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....n which offers a price higher than the price determined by the Central Government must be entrusted with the company for the purpose of revival. 45. Sri Udaya Holla, learned senior counsel along with Sri Rajaram appearing for BGML in their reply to the objections raised by various respondents contended that BGML is an entity of the Central Government and 100 per cent share holding is by the Central Government. The entire process of winding up of the company or its revival has to be actually carried by BGML under the guidance of Central Government, BGML is an instrumentality of Central Government and therefore, the contention of learned senior counsel that BGML has no authority to call for global tender is without any basis as it is the revival of BGML as an alternative to its winding up is the subject-matter of this proceeding. 46. As far as the lease of 13,000 acres by BGML to BEML is concerned, it is submitted that the lease period is for ten years and it expires in the year 2014 and after the said land would revert back to BGML. Moreover, the lease is a subject matter of challenge in C.A. No. 668/08 and further in volume-II of the tender documents at page 28 at para 3.3.1 ....
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....y revival plan for the company would require a minimum infusion of Rs. 100 crores which may go up to even Rs. 150 to 200 crores and neither the labour unions nor any co-operative that may be formed by the employees or group of professional consultants could bring in that amount of money required to revive the company; and (e) The proposal/scheme putforth by the KGMNL had been considered and rejected by the High Power Committee appointed by the Ministry of Mines. 49. A careful reading of the same brings out the following aspects viz., that the promoters expressed their inability to revive the company and no other rehabilitation proposal with means of finance fully tied up came for consideration of the Board. The factors recorded by BIFR was basically with regard to the refusal by Government of Karnataka or by the Ministry of Mines, Government of India to contribute any fund for revival and that the various labour unions had not come forward with any viable proposal for revival of the company and that any revival scheme would require minimum infusion of 100 crores which may go upto Rs. 150 to 200 crores and that a labour union or any co-operative could hot bring any amount of mone....
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....a)The reference made to BIFR should be revoked and matter should be taken out of the purview of BIFR. (b)Requisite funds should be made available by the Central Government to BGML to establish a plant for recycling the huge stock of tailings and extract gold therefrom. (c)Government should make available immediately Rs. 41 crores as soft loan or stant as a guarantor to enable the company to get loans from Banks. (d)BGML should try to raise requisite funds for revival by selling its surplus land. (e)Security network to be streamlined to prevent pilferage of gold. (f)Survey of gold deposits in the area should be conducted in a more scientific way if necessary, by using technology from other countries. (g)Diversification activities by way of manufacturing mining equipment and providing mining consultancy services should be encouraged. 51. The Division Bench has noted that the main recommendation was that the Central Government should provide funds in modernisation. However, the Government of India took a policy decision that BGML should be closed. The Division Bench noted that the decision of the Central Government taken then for not reviving BGML could not be sai....
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....tput Industries of the working group on Mineral Exploration and Development (other than coal and lignite) for the 11th five year plan under the aegis of the Planning Commission of India wherein it has been stated in the context of gold and precious metals as follows : "Para 6.1 : The geological occurrences of gold have been reported from various parts of the country. Many of them have been explored and a number of deposits established. The deposits are generally of low grade and low tonnage which are not being exploited. Para 6.2 : The mining sector calls for improved method of narrow vein mining for their economic exploitation. Introduction of small scale mining culture in gold industry is a need of the day. Adoption of modern gold extraction technology is an immediate need to treat low grade and complex ore type. For augmenting gold reserves in the country further detailed explorations have to be taken up for the deposits where preliminary assessment up to a shallow depth has been completed. Para 6.3 : Wider application of latest techniques of remote sensing, regional geochemical methods and multi-sensor aerial surveys are necessary for fast scanning as well as delineati....
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.... purposes it is the Central Government which is monitoring the entire scheme of revival of BGML but since the present proceeding is on a reference from BIFR and Union of India is not a party as such in the proceeding, it is only the company which has to be mainly concerned with regard to its revival as such, but under the guidance of the Central Government. 56. The other issue raised is in the context of "sale of assets" which has found a place in the order of this Court dated 31-8-2007 and in subsequent orders. However, the use of the said phrase has to be understood in the context of the Division Bench observations referring to revival of the company on which aspect. I have already answered while dealing with the preliminary issue and therefore the submission of the learned counsel on the locus standi of BGML to take steps in this matter is without basis. In this context it would be of relevance to refer to the contents of the letter dated 7/8-8-2006 written by the Director, Ministry of Mines, Government of India to the Managing Director of BGML in which it is evident that it is the Central Government which is in-charge of the entire process with regard to revoval of the compa....
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....itions. BGML shall, after identification of Highest Bidder, approach the Ex-Employees' Co-operative Society of the FORUM namely, the Bharath Gold Mines All Employees Industrial Co-operative Society and make an offer for purchase of the assets on certain conditions. 2.27.2 (Proviso to be replaced) Provided that the offer to the Society or its Company shall be made after ascertaining the technical competence, qualification criteria and business plan of such Society. The criteria for assessment of technical competence, qualification and business plan by the Society or its Company shall be same as that for Bidders provided in this RFP Document. Provided that the Valuation based Reserve Price to be offered to the Society (if the highest bid is less than the valuation) shall be finalized only after the date of tender closure and will be submitted to the Hon'ble Court in a sealed envelope before the tenders arc opened. 2.27.3 If Employees Co-operative Society or its Company rejects the offer of BGML or does not satisfy the qualification and technical conditions as set out above BGML shall declare the Highest Bidder as the Successful Bidder. If Employees Co-operative S....
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....finalization of the draft agreement as mentioned in Clause 2.31 is not completed within one hundred and twenty (120) days of the deposit to Escrow Account, the Successful Bidder shall be free to withdraw the amount and pay the 100 per cent value of Price Proposal and the STBP-VRS differential directly to BGML upon the finalization of the said draft agreement [[ Para No. Existing Text Replacement Text and the transfer of assets. The interest earned on the deposit in the Escrow Account, if any, shall belong to the Bidder. 2.31.1 A draft agreement between BGML and Successful Bidder shall be presented for approval to the Hon'ble Court after deposit of 50 per cent of the Price Proposal into the Escrow Account. The draft agreement shall in addition to process of transferring of assets will comprise of all the terms and conditions of sale indicated in this RFP Document (Volume I and Volume II). A draft agreement between BGML and Successful Bidder shall be presented for approval of the Hon'ble Court after the deposit of the entire differential VRS benefits between STBP and VRS of 6-11-2001 to ex-employees of BGML and the deposit of 50 per cent of t....
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....erground/Open Pit Mining of Gold ore; (b)Financial capability in terms of : (i)Net worth; and (ii)Annual sales turnover. 3.2.1 The following shall qualify as eligible experience : (a) Underground/Surface Mining of any metallic ore/coal; OR (b) Underground/Surface Mining of Gold. The following shall qualify a eligible experience : (a)Open Pit Mining of Gold ore 3.2.2(b) Surface Mining shall mean a method of extracting ore which are close to the surface by any method including hydraulic mining, mountain top removal mining, open cast mining, placer mining, quarrying mining and strip mining; Open Pit Gold Mining shall mean a method of extracting ore from mining which take the shape of inverted cones and are dug on benches which describe vertical levels of the hole. The benches are usually on four meter to sixty meter intervals and the walls of the pit are generally dug on an angle less than vertical with the walls being stepped. The inclined section of the wall is known as the batter, and the flat part of the step is known as the bench or berm. In some instances additional ground support is required and rock bolts, cable bolts and shot-create may ....
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.... Existing Table Evaluation parameters for Mining experience : The experience of the Bidders in terms of their gold mining experience shall be awarded marks/points based on the nature of mining- Underground/Open Pit 3.4.1 The Bidder shall be considered to meet the Experience Criteria if and only if : (a) Either the Bidder achieves a Composite Experience Score of at least 50 points of which Experience Score of Underground Mining shall at least be 25 points; and (b) Bidder has been carrying out either Under-ground Mining and/or Surface Mining of any The Bidder shall be considered to meet the Experience Criteria if : (a)The Bidder achieves a Composite Experience Score of at least 50 points of which Experience Score of Underground [[[[ Para No. Existing Text Replacement Text metal/ore/gold for at least in any one project continuously since April 1, 2003 Mining shall be at least 10 points; and (b)Bidder has been carrying out gold ore exploration, mine development and gold ore mining for a period of at least three years in a single project of which at least one continuous year should be of gold mining, either Underground o....
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....ase of an ordinary member of the Consortium who is neither a Lead Technical Member/Lead Financial Member nor a Lead Member, the member would be required to commit to hold a minimum equity stake equal to 10 per cent of the aggregate shareholding in the SPV for a minimum period of 5 years or until listing whichever earlier; Volume II 1.5 Services of all employees of the company had been terminated and all their liabilities have been settled under STBP. Presently there is no regular employee on the roll of the company and affairs of the company are being managed through employees hired on contractual basis. Services of all employees of the company have been terminated and their liabilities settled under STBP subject to the condition that the difference between the STBP package and modified VRS would be paid to them by the successful bidder. Presently there is no regular employee on the roll of the company and affairs of the company are being managed through employees hired on contractual basis. 3.3.1 About 1109 acres of land is leased to Bharat Earth Movers Limited (BEML) which consists of two workshops and vacant land. It was leased on 4 May, 2004 ....
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....when the offer is made to the ex-employees. The minimum eligibility criteria and technical competence have to be determined by an expert committee. Re : 1.1.7(f) - This objection is adverted to in the later paragraphs. Re : 2.27.1 - The suggestion that BGML has to approach only the forum and make an effort for purchase of the assets on certain conditions after identifying the highest bidder and not any other Employees Society or Union is an untenable objection. Re : 2.27.2 - The answer to the said objection is as is stated by me with regard to para No. 1.1.7(d). Re : 2.27.3 - The suggestion made that in the event of the Employees Society rejecting the owner of BGML and the BGML declaring the highest bidder as the successful bidder, then in that case, the conditions imposed on the Employees Society as decided by the Government of India on 27-7-2006 viz., to pay the ex-employees of BGML the difference between the STBP package and the modified VRS amounting to about 52 crores and to employ on priority basis the ex-employees of BGML should also be complied with by the highest bidder; is a tenable suggestion which should be implemented as decided by Government of India on 27....
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.... coal. The concern of the Central Government that in order to ensure greater competition entities dealing with metals and ores other than gold can also be invited for the global bid, in the instant case is not well founded. Re : 3.2-2(b)-This clause deals with a purely technical matter, which cannot be interfered with by the Court and must be left to the wisdom of the experts in the field of mining. Re : 3.4-1-The condition in clause (b) that the bidder has been carrying out either underground mining and/or surface mining of any metal/ore/gold for atleast five years in any one project continuously since 1-4-2003 has to be interpreted to mean that the bidder must be engaged in at least one project continuously since 1-4-2003 so as to show continuous mining activity at least in one project, if not more and it does not mean that the bidder must be engaged in a single project continuously since 1-4-2003. Re : 3.3-1-The information that the lease is subject to challenge before this Court and the decision would be binding on the successful bidder has to be incorporated in the document. 60. Apart from the above clauses, the other clauses namely, clause 2.2-1(a), 2.11-4(c), 2.3....
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.... bids are received that the comparative values assessed by the in-house Committee and that given by the highest bidder would have to be considered. (vi)However, one aspect of the matter requires consideration. If according to the letter dated 7/8-8-2006, if the valuation arrived at by the in-house Committee is higher than the highest bid amount and the higher of the two prices are offered to the Ex-employees and the Ex-employees refuse the same, then the question would arise as to whether the highest bidder would be offered at the value quoted by the highest bidder or the higher value arrived at by the in-house Committee. In the event of there being a refusal by the Ex-employees, then in my view, the higher value arrived at by the in-house Committee cannot be the value to be offered to the highest bidder since the highest bidder cannot be made to accept a value higher than what has been quoted in the bid, in which event, the value quoted by the highest bidder would have to be offered to the highest bidder. Thereby it would mean that the in-house valuation which is higher than what is quoted by the highest bidder would be offered only to the Ex-employees and on their refusal, the....
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....use the offer made by the Central Government, then the highest bidder would have to be offered the company at the price quoted by the highest bidder and not at any higher valuation arrived at by the in-house Committee or for that matter at any other lower price. 63. At this point it may be questioned as to why a lower of the two valuations referred to above have to be offered to the Ex-employees. Since the whole intention is to revive BGML keeping in mind the interest of the Ex-employees also, in order to ensure that the said object is achieved as per the observations of the Division Bench, it is necessary that the lower of the two valuations has to be taken into consideration. But when once the Ex-employees refuse the offer of the Central Government, then the intention would be to offer BGML to the highest bidder. The offer shall be made to the Ex-employees in terms of the above observations, i.e., as between the highest global bid and the In-house Valuation, the lower price shall be offered to the Ex-employees who shall have the first right of refusal. In the event of the Ex-employees refusing to accept the bid then the highest bidder who is otherwise eligible as per the terms....