ORDER B.V. Nagarathna, J.— This company petition has been registered pursuant to an order dated 12.6.2000 passed by the Board of Industrial Financial Reconstruction ("BIFR", for the sake of brevity) vide reference No. 505/1992 dated 30.6.2000. Pursuant to the opinion of the BIFR that Bharath Gold Mines Limited ("BGML", for the sake of brevity) ought to be wound up, reference was made to this Court to consider the winding up of BGML in accordance with law. 2. In this application the applicant-BGML has sought permission to implement the proposal of the Union of India dated 7.8.2006, pursuant to the Division Bench Judgment in W.A. No. 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, alter 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 order dated 21.2.2000, BIFR rejected the submission made by its employees for revival and it found that the efforts of the government to privatize the company had tailed and the employees had no resources to bring promoters contribution of the required magnitude and recorded a prima facie conclusion that BGML should be wound up in public interest and directed to issue of show cause notice as to why a recommendation for winding up should not be issued, to all concerned. Alter considering the objections, BIFR passed a final order on 12.6.2000, continuing the prima facie opinion that the sick industrial company was not likely to make its net worth exceed its accumulated loss within a reasonable time while meeting ail its Financial obligations under the company, as a result thereof was not likely to become viable in future and that it was just and equitable and in public interest that it be wound up under Section 20 of SICA. 5. Being aggrieved by the said order various employees' associations filed appeals before the Appellate Authority (for short, "AAIFR"). Alter considering the matter, by order dated 15.11.2000 it dismissed the appeals and thereby confirmed the order of BIFR. The said order of AAIFR was challenged in several writ petitions before this Court and a learned single Judge by a common order dated 16.3.2001 allowed the writ petitions and quashed the order dated 12.6.2000, passed by BIFR, and order dated 15.11.2000 passed by AAIFR and order dated 29.1.2001, passed by Government of India under Section 25(O) of the Industrial Disputes Act, permitting the closure of BGML, with a further direction to BIFR to re-consider the claim made by employees' unions and to find ways and means to revive BGML. 6. Being aggrieved by the said order and direction the Union of India tiled Writ Appeal Nos. 1747-1757/2001. A Division Bench of this Court held that the learned single Judge could not have interfered with the decision of BIFR and AAIFR and thereby directing the BIKK to re-consider the same and further held that there was no infirmity in the order dated 21.1.2001 of the Central Government granting permission for closure of BGML under Section 25(O) of the Industrial Disputes Act. However, in its conclusion the Division Bench recorded that the employees' association could give proposals for settlement which could be considered with all seriousness by the Central 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. 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.p where the site area of which is below 1000 sq.ft, Rs. 20/- per sq.ft were live sitai area is more than 1000 sq.fi but less than 3000 sq.fi and Rs. 30/- per sq.ft were sitai are is more than 3000 sq.ft. Having regard to the fact that the structures are very old and most of them in a dilapidated condition and 'having regard to the fact that the houses are being offered under a retirement package at a concessional true nothing may be charged towards the value of structures. The benefit of transferring houses should be extended also to those who have already accepted the VRS. (iii) To take appropriate steps to enable such of the employees who have accepted VRS scheme to form an Employees Co-operative by providing them appropriate land and such machinery and equipment as it can spare so that they can take up projects with their specialized knowledge and experience. (iv) To allot the excess lands held by BGML to needy ex-employees at reasonable rates to help them rehabilitate themselves. (v) To give the employees another interim relief of Rs. 5000/- to each employee within two months to tide over their difficulties. Para 47: We have made the above only as recommendations and not as directions, when virtually a town is closed as a result of closure of BGML, special provisions are necessary and we do hope that the Central Government will do justice to the poor and suffering employees, as expeditiously as possible. Para 47: We have made the above only as recommendations and not as directions, when virtually a town is closed as a result of closure of BGML, special provisions are necessary and we do hope that the Central Government will do justice to the poor and suffering employees, as expeditiously as possible. We make it dear that Central Government may at its discretion modify the recommendations. The Central Government may also consider any fresh proposals for revival if it so deems fit. Be that as it may. The Division Bench subject to the above observations allowed the appeals of the Union of India and dismissed the writ petitions. 7. Thereafter another Division Bench of this Court while considering the Judgment of the teamed single Judge of tins court in a batch of writ petitions, calling in question the orders of termination issued by BGML, which orders of termination were quashed by the learned single Judge in its order dated 19.7.2004, observed in its order dated 17.8.2001, that the recommendations with regard to certain measures to be taken by the Central Government keeping in mind the interest of the employees and officers of BGML in W.A. No. 1747-1757/2001 should be treated as directions to the concerned authorities by its outer dated 26.9.2003. 8. Thereafter in the light of the observations of the Division Bench in its order dated 26.9.2003, a proposal was sent by the BGML Employees Supervisors and Officers United Forum (hereinafter referred to as the "Forum" for the sake of brevity). The forum proposed to establish 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 cooperative 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. The society in turn will float a company in association with a technical and financial collaborator. This company will acquire tire 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 society/society's company can only be considered on the basis of the market value of such assets. An internal assessment of the value of assets has been made but the said valuation is only indicative in nature and does not bring out the market value. Therefore, the Government proposes to invite global bids for the assets of the company and make a counter offer to the society/society's company which will either be the highest bid received or the value assessment made by the in-house committee (to be re-assessed again at the time of transfer), whichever is higher. The Forum will be asked to pay the amount so determined to the Government of India before the assets can be transferred to them. In return for the above mentioned purchase preference, the society/its company will, firstly, undertake to pay to the employees, in addition to the sale value paid to the Government, the difference between the STEP and the VRS of 6.11.2001; and secondly, employ on priority the erstwhile employees of BGML. The following procedure will be followed. c) The Ministry of Mines/BGML will engage a consultant-adviser after following due procedure. An Inter Ministerial Group (IMG), under the Chairmanship of Secretary (Mines) will be set up to oversee the tendering process and obtain technical, financial and legal advice whenever necessary. The IMG will determine the highest bid and make the counter offer as mentioned above. In case, the Forum's society/company accepts the offer of the Government to purchase the assets as proposed above the assets will be sold to them after getting all the requisite approvals as mentioned below. If not, then the assets will be sold to the highest bidder after getting similar approvals. The IMG wilt make its recommendation to a Committee of Secretaries on the above lines. If not, then the assets will be sold to the highest bidder after getting similar approvals. The IMG wilt make its recommendation to a Committee of Secretaries on the above lines. Thereafter the matter will be submitted to the cabinet with the recommendations of the committee of Secretaries for approval of the final disposal of the assets. d) The proceeds from the above sales will be disturbed among all creditors of the company in equal proportion. To the extent that the proceeds from the sale of assets as per the above procedure falls short of the liabilities, the creditors will be moved to make their sacrifices proportionately. Since the Central Government is the major creditor, writing off the balance liabilities of Central Government has been approved in-principle by the Government. 9. It is in this context that tins application has been tiled seeking permission to implement the proposal of Union of India dated 7/8.8.2006 by BQML. The two volumes 01 the Global lender documents have also been tiled. By order dated 22.11/2005 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 thee 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 lender, only for the purpose of ascertaining Hue 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 Government regarding the other methods of valuation and about the probable market value and thereafter the application for calling the global tender may be considered after considering the valuation arrived at by an alternative method also. Under the circumstances, call the application on 15.12.2006. Under the circumstances, call the application on 15.12.2006. Affidavit on behalf of the Central Government to be filed in the meanwhile and it shall also be stated in the affidavit as to whether the other directions given by the Division Bench of this Court regarding payment of amount has been complied or any other steps taken in that behalf. It is also open to the learned senior Counsel appearing for Forum, Society or any other party in the application to give alternative mode of valuation and suggest the market value. The valuation so arrived at, shall be made available to the learned Assistant Solicitor General one week next before 15.12.2006 Subsequently by order dated 15.12.2006 this Court granted permission to the Government of India to invite global tender to ascertain the actual market value or the assets of the BGML in order to consider revival of the BGML in the following terms: Para 11: In the circumstances, this Court is of the opinion that the Government of India has to be permitted to invite global tender by fixing reserve price of Rs. 250 crores. Para 13: in the circumstances, C.A is disposed of granting permission for the Government of India to invite global tender to ascertain the actual market value of the assets of the BGML in order to consider the revival of the BGML either by the Forum or by any other authority and Government of India shall make its submissions in regard to the amount payable to each of the employees as an Interim measure subject to final accounts. Subsequently, by order dated 12.1.2007 it was observed as follows: In so far as the doubt of Government of India is concerned, this Court has permitted the Government of India to invite global tender by fixing reserve price of Rs. 250 crores to assess the market value of the BGML and this Court has not ordered that the BGML has to be revived by handing over the same either to the Forum or arty other Authority for the reserve price only. This question has to be considered by the Government of India; only after opening the global tender and has to determine the market value, Therefore, this Court is of the opinion that no clarification is required as sought by the Government of India. This question has to be considered by the Government of India; only after opening the global tender and has to determine the market value, Therefore, this Court is of the opinion that 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 tins court and by order dated 6.3.2008 a further period of tour weeks was granted for the said purpose. By another order dated 10.4.2008 time was extended till 5.6.2008 to finalize 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 market value of the assets of BGML in the context, of revival of the company. Preliminary Objections 11. At the outset it is necessary to consider the preliminary objection raised by M/s, Bharat Earth Movers Limited (BEML)-respondent No. 30 with regard to the jurisdiction of the company court to deal with the aspect of revival of a company during the course of winding up proceedings after the recommendation of BIFR. As already stated, by order dated 12.6.2000, BIFR expressed its opinion under Section 20(1) of SICA that the company in question cannot be revived and therefore, it was just and equitable and in the public interest that the company be wound up. The said order was confirmed by the appellate authority and also by the Division Bench of this Court by its order dated 26.9.2003. The said order was confirmed by the appellate authority and also by the Division Bench of this Court by its order dated 26.9.2003. However, since the Division Bench had expressed that proposals for revival of the company could be considered by the Central Government and on the initiative of the Forum, a decision was taken to ascertain the market value of the company, which has been followed by the orders of this Court to call for global tenders, the action for revival of the company as a precursor, during the course of winding up of the company has been initiated. However, learned senior Counsel Sri. Gopalan has submitted that the company court does not have the jurisdiction to consider revival of the company when once the BIFR has sent its opinion to the company court to complete the winding up process. According to him the company court is bound by the opinion of BIFR or AAIFR as the case may be and hence has no option but to wind-up the company. It is submitted that in the event of the process of revival being commenced, then the only authority which can have jurisdiction is BIFR. He has also submitted that in the instant case, global bids have been called for sale of assets, which can only take place under the jurisdiction of BIFR. In support of his submission, he has relied upon a decision of the Apex court in the case of NGEF Ltd. Vs. Chandra Developers Pvt. Ltd. and Another, JT (2005) 12 SC 29. He submits that the ratio of the said decision has been followed in three other decisions of the Apex Court reported in Tata Motors Ltd. Vs. Pharmaceutical Products of India Ltd. and Another, (2008) 4 BomCR 707 ; Kerala State Financial Enterprises Ltd. Vs. Official Liquidator, High Court of Kerala, AIR 2007 SC 63 and Jay Engineering Works Ltd. Vs. Industry Facilitation Council and Another, AIR 2006 SC 3252 . 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 would up the company in question. 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 would up the company in question. He further submits that under company Jaw, 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 B1KK, but m 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 revival of the company and not sale of its assets, it is only the company court which has jurisdiction and not the BIFR. In support of his submission he has relied upon three decisions reported in V.R. Ramaraju Vs. Union of India (UOI) and Others, (1997) 89 CompCas 609 (SC) . 13. It is further submitted that BEML's objection raised with regard to revival of BEML is virtually a challenge to the order dated 5.12.2006 as well as the Division Bench order and such a submission with regard to the revival cannot be entertained by this Court. Reliance is placed on the following decisions: (1) Pune Municipal Corporation Vs. State of Maharashtra and Others, AIR 2007 SC 2414 (2) Shiv Chander Kapoor Vs. Amar Bose, AIR 1990 SC 325 (3) M. Meenakshi and Others Vs. Metadin Agarwal (D) by LRs. and Others, 2006 (8) SCALE 566 , (4) V.R. Ramaraju Vs. Reliance is placed on the following decisions: (1) Pune Municipal Corporation Vs. State of Maharashtra and Others, AIR 2007 SC 2414 (2) Shiv Chander Kapoor Vs. Amar Bose, AIR 1990 SC 325 (3) M. Meenakshi and Others Vs. Metadin Agarwal (D) by LRs. and Others, 2006 (8) SCALE 566 , (4) V.R. Ramaraju Vs. Union of India (UOI) and Others, (1997) 89 CompCas 609 (SC) & He also submits that in view of the Division Bench order and the order dated 5.12.2006 passed by the company court, the cases cited by Senior Counsel for BEML would not apply to the facts of the present case. 14. The case of Pune Municipal Corporation Vs. State of Maharashtra and Others, AIR 2007 SC 2414 is relied upon to contend that no order of a court or authority can be ignored altogether unless a finding is given that it is illegal, void or not in consonance with law. He also relied upon Shiv Chander Kapoor Vs. Amar Bose, AIR 1990 SC 325 to contend that a person assailing the validity of an order has to get such a declaration from a proper forum in a proper proceeding and unless the same is done, the order is enforceable. To the same effect is the decision in the case of M. Meenakshi and Others Vs. Metadin Agarwal (D) by LRs. and Others, 2006 (8) SCALE 566 wherein it has been held that even it an order is void, the same is required to be set aside by a competent court of law and that an order cannot be declared to be void in a collateral proceeding. 15. While adverting to the role of the company judge after receiving the opinion under Section 20 of SICA, reliance is placed on the decision of the Gujarat High Court in the case of BIFR v. Unity Steels Ltd., decided on 19.7.1999 wherein it has been held that the High Court cannot be a rubber stamp upon the receipt of the board opinion, but toe High Court m deciding the winding up of the company has to take into account the opinion forwarded by the Board and is not abdicate its own decision on the question of winding up. 16. 16. 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 6 and after consideration of all the relevant facts and circumstances and after giving an opportunity of being heard to aft 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 ail 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 sick industrial company, the High Court may appoint any officer of the operating agency, if the operating agency gives its consent, as the liquidator of the sick industrial company and the officer so appointed shall for the purpose of the winding-up of the sick industrial company be deemed to be, and have alt the powers of, the official liquidator under the Companies Act, 1956 (1 of 1956). (4) Notwithstanding anything contained in Sub-section (2) or Sub-section (3), the Board may cause to be sold the assets of the sick industrial company in such 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 529A, and other provisions of the Companies Act, 1956 (1 of 1956). 18. Under Section 20(1) of the Act, the BIFR can record and forward its opinion to the concerned High Court stating that the sick industrial company has to be wound up for just and equitable reasons. 18. Under Section 20(1) of the Act, the BIFR can record and forward its opinion to the concerned High Court stating that the sick industrial company has to be wound up for just and equitable reasons. The High Court on the basis of the said opinion of the BIFR can order winding up of the sick industrial company in accordance with the provisions of the Companies Act and for the purpose of winding up of the sick industrial company, a liquidator can be appointed who shall have the powers of the official liquidator under to Companies Act. Therefore, Sections 20(2) and (3) deal with the winding up of the sick industrial company in accordance with the provisions of the Companies Act by the High Court. However, Section 20(4) begins with a non-obstante clause and irrespective of the provisions of Sections 20(2) and (3), the Board is also empowered to sell the assets of the SK industrial company in such manner as it deems fit and forward the sale proceeds to the High Court for distribute in accordance with the provisions of Section 529(A) and other provisions of the Companies Act. On a combine reading of all the Sub-sections of Section 20, it become apparent that it steps have to be taken for winding up of the sick industrial company in accordance with the provisions of the Companies Act, then it is the High Court which is empowered to do so, but under Section 20(4), the High Court can also request the board to sell the assets of the sick industrial company 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. It has to be therefore understood that when once the BIFR records an opinion for winding up or the sick industrial company, it is mandatory that the said opinion must be forwarded to the concerned High Court. It has to be therefore understood that when once the BIFR records an opinion for winding up or the sick industrial company, it is mandatory that the said opinion must be forwarded to the concerned High Court. However, it 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 dehors 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 sate 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 B1KK 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. Vs. Chandra Developers Pvt. Ltd. and Another, JT (2005) 12 SC 29 the industry became sick and reference was made to BIFR in terms of the provisions of SJCA and by an order dated 15.9.2001, the State of Karnataka took a decision to disinvest its snares in the said company (90.18%) pursuant to which, global tenders were invited by an advertisement dated 15.9.2001. M/s. Chandra Developers submitted its bid for purchase of 40.45 acres of land and B1FK by its order dated 25.2.2002 held that the company had to seek an appropriate direction from the High Court concerned regarding sale of its assets and accordingly, this Court registered the recommendation of the BIFR as a company petition by order dated 8.10.2003. The approval for the sale of 40.45 acres of land by the company to M/s. Chandra Developers was sanctioned and the same was continued by the Division Bench of this Court by its older dated 5.1.2004. The said order was challenged before the Apex Court. The approval for the sale of 40.45 acres of land by the company to M/s. Chandra Developers was sanctioned and the same was continued by the Division Bench of this Court by its older dated 5.1.2004. The said order was challenged before the Apex Court. The Apex Court alter analysing the provisions of the Companies Act, 1956 and the provisions of SICA held that in the case of a winding up proceeding, being initiated in terms of recommendation made by BIFR/AAIFR, as the case may be, where the reference is made to the company court, the Company Court would apply its mind to initiate proceeding for winding up. The Apex Court further held that a company declared to be sick in terms of the provisions of SICA continues to be sick unless it is directed to be wound up as the company court deems tit. That BIFR alone has jurisdiction regarding sale of assets till the winding up order is passed by the Company Court, in such a manner as it may deem lit and it is also empowered to forward the sale proceeds to the High Court for orders for distribution in accordance with Section 529(A) and other provisions of the Companies Act, which m no uncertain terms would be for the purpose of meeting the needs of the creditors in the manner laid down therein. The said conclusion was arrived by considering the fact that SICA is a special statute as compared to the Companies Act which prevails over the provisions of the Companies Act, particularly, having regard to the phraseology used in Section 20(1) of the SICA. The Apex Court further held that BIFR is the authority proprio vigore which continues to remain as custodian of the assets of the company till a winding up order is passed by the High Court. On the facts of the said case, it held that since the company court had no jurisdiction to pass the order for sanctioning of sale of assets by the company in question, it could not derive any jurisdiction, only because BIFR had said so. 20. In the case of Jay Engineering Works Ltd. Vs. On the facts of the said case, it held that since the company court had no jurisdiction to pass the order for sanctioning of sale of assets by the company in question, it could not derive any jurisdiction, only because BIFR had said so. 20. In the case of Jay Engineering Works Ltd. Vs. Industry Facilitation Council and Another, AIR 2006 SC 3252 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 it 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., 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. Vs. Official Liquidator, High Court of Kerala, AIR 2007 SC 63 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 provided for recovery only, leaving the rights and liabilities of the parties to be dealt with a general law. In the said decision the contention that the Kerala Act would prevail over the Companies Act was not accepted. 22. In the case of Tata Motors Ltd. Vs. Pharmaceutical Products of India Ltd. and Another, (2008) 4 BomCR 707 the Apex Court held that the jurisdiction of the company judge of the High Court is subsequent to reference to BIFR and that the reference made to BIFR under the provisions of SICA would have to be taken to its logical conclusion and that during the pendency of the said reference before BIFR, the company court cannot approve any scheme under Sections 391 - 394 of the Companies Act. In the said case, the company judge of the High Court on a petition under Section 391 of the Companies Act had approved a scheme pertaining to the sick industry subject to appropriate orders to be made by the BIFR. BIFR, on the basis of the order of the High Court granted sanction of the said scheme. The said order was set aside by the Apex Court and the matter was remitted to BIFR to proceed in accordance with the provisions of SICA afresh. Alter referring to NGEF's case, the Apex Court held that the Company Court and the BIFR did not exercise concurrent jurisdiction and that it was not possible to harmonise the provisions of Sections 391 - 394 of the Companies Act with the provisions of SICA, that is during the pendency of the matter before BIFR. 23. What becomes apparent from a reading of the aforesaid judgments is that the case of NGEF Ltd., was one of sale of assets after the BIFR had referred the matter to the company court for winding up. In Jay Engineering Works Ltd., the Apex Court held that once the amount awarded by the Industry Facilitation Council in terms of the provisions of the 1993 Act was enacted, to provide for and regulate payment of Interest on Delayed Payments to Small-Scale industries, a scheme for revival of a sick company was not envisaged by the said Act, the High Court could not have intervened in the matter only because the debt had been incurred after the company was declared sick since the provisions of SICA had an overriding effect over the aforesaid 1993 enactment. In the case of Kerala State financial Enterprises Ltd., the Apex Court categorically held that in the absence of a clear provision, the 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., the Apex Court held that when the matter is seized by the BIFR, provisions of Sections 391 - 394 of the Companies Act cannot be applied. 24. In the case of Tata Motors Ltd., the Apex Court held that when the matter is seized by the BIFR, provisions of Sections 391 - 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 case and secondly, the non-applicability of Sections 391 - 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 the company after the recommendation of the BIFR has been made to tins court. It is not a case where before the recommendation of the BIFR, action has been initiated under Sections 391 - 394 of the Companies Act. Further, it is well-settled in law that during the course of winding up under the provisions of the Companies Act, the company court is empowered to consider a case for revival of the company under Sections 391 - 394 of the Companies Act it is in fact, an alternative to winding up, in which event a winding up order would not be passed by the company court it the company could be sustained and revived. Therefore, when the matter is seized by the company court subsequent to the recommendation of the BIFR and in the context of winding up of the company, the question of revival can be considered. 25. In the context of rescuing, salvaging and reviving of industries rather than closing it down, even where a reference is made by the BIFR to wind up a company, the company court has the discretion to consider a scheme for revival of the company rather than winding up. 25. In the context of rescuing, salvaging and reviving of industries rather than closing it down, even where a reference is made by the BIFR to wind up a company, the company court has the discretion to consider a scheme for revival of the company rather than winding up. Intact, a scheme for a revival of company which is wound up can also be sanctioned where the same is fair and reasonable vide Richa Jain v. ROC 1990(69) Comp Cas 248. If a scheme is workable for the revival of the company with or without modification, then the court has no power to pass a winding up order under Sub-section (2) of Section 392. The court must attempt to find out what modifications it any are necessary to make a scheme workable and it necessary may proceed suo motu in this regard. In S.K. Gupta v. K.P. Jain AIR 1979 SC 734 it is stated that a condition precedent to make up a winding up order under Section 392 is that the compromise or arrangement cannot be worked out satisfactorily with or without modifications, it is only where the court has specified that the scheme cannot be worked out satisfactorily that the court must close the chapter by ordering winding up vide D.S. Venkatraman Vs. Gujarat Industries Pvt. Ltd., (1977) 47 CompCas 352 (Bom). in the instant case the observations made by the Division Bench with regard to the revival of BGML has to be understood in the context, of pendency of the present company petition for winding up since the Division Bench consciously noted the pendency of this company petition while considering the validity of 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 tune. The revival of the company is to give potent his 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. 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. Intact, 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 necessary for the High Court to refer the matter back to BIFR. The jurisdiction to consider revival of the company is vested with the company court. In the instant case, while confirming the order of BIFR, the Division Bench has reserved liberty to consider revival of the company. When the said observations were made, the Division Bench was conscious of the pendency of this proceeding for winding up and the fact that any action for revival of the company could be in this proceeding only. Hence, the contention of the learned Senior Counsel that the company judge has no jurisdiction to consider the issue of revival is without merit. 27. At this stage, the following decisions cited by the learned Senior Counsel who appeared for BGML have to be adverted to as they squarely apply to the facts of the present case. In the case of J.M. Malhotra v. Union of India and Anr. reported in 1997 (89) Comp Cas 600, the Division Bench of the Madras High Court held while considering Section 20(2) of SICA that it is not obligatory on the High Court to order winding up of the sick industrial company once it receives an opinion from the Board in this regard without examining the correctness of such opinion on hearing the concerned parties. However, normally, such opinion being one tendered by the Board consisting of experts acting judicially wilt have a greater weight while deciding the question of winding up of the sick industrial company. However, normally, such opinion being one tendered by the Board consisting of experts acting judicially wilt have a greater weight while deciding the question of winding up of the sick industrial company. Such opinion of the Board cannot lightly be brushed aside, liven otherwise, it is a jurisdiction conferred upon the High Courts under the Companies Act and any jurisdiction conferred on the High Courts under a statute has to be exercised as per the statute. The said decision was appealed before the Apex Court and the same was upheld in the decision reported in V.R. Ramaraju Vs. Union of India (UOI) and Others, (1997) 89 CompCas 609 (SC) , by holding that in deciding the question of winding up of the company, the High Court has to take into account the decision of the board following Section 20 of SICA but it cannot abdicate its own function of determining the question of winding up. 28. Similarly, in the case of Loharu Steel Industries Ltd., Bangalore v. D.C.M. Ltd., New Delhi and Anr. reported in 2002(3) Kar LJ 618, a Division Bench of this Court has held that opinion of the Board, that it is just and equitable to wind up is not conclusive and binding on the company court and that the company court can go into the correctness of the opinion of the Board. Since the power conferred on the High court being judicial in nature, this Court is required to apply its mind and consider the material on record and take a decision. White 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 BIKK 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. 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 Vs. Union of India and others, (1996) 5 AD SC 678 the Apex Court held that where legal issues are intertwined with those involving determination of policy and a plethora of technical issues, in such a situation, courts of law have to be very wary and must exercise their jurisdiction with circumspection for they must not transgress into the realm of policy making, unless the policy is inconsistent with the Constitution and the laws. On matters affecting policy and those that require technical expertise, the court should show deference to, and follow the recommendations of, the Committee which is more qualified to address the issues. In the case of Federation of Railway Officers Association and Others Vs. Union of India (UOI), AIR 2003 SC 1344 the Apex Court held that in examining a question of this nature where a policy is evolved by the Government, judicial review thereof is limited. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters. In the first case, the matter pertained to renewal of mining lease in the interest of mineral development with regard to chromite mines. In Orissa and in the second case the formation of a new railway zone to meet the demands of backward areas the Government had to take a decision to create six new railway zones. The Apex Court opined that to meet the demands of backward areas cannot by itself be in consistent with efficiency and that the concept of "efficiency" should not be approached in a doctrinaire or pedantic manner. 31. In the case of M/s. Shri Sitaram Sugar Co. Ltd. and another Vs. The Apex Court opined that to meet the demands of backward areas cannot by itself be in consistent with efficiency and that the concept of "efficiency" should not be approached in a doctrinaire or pedantic manner. 31. In the case of M/s. Shri Sitaram Sugar Co. Ltd. and another Vs. Union of India and others, AIR 1990 SC 1277 , the Constitution Bench of the Apex Court while dealing with compensation payable to a seller in the context of Essential Commodities Act, 1955 held that judicial review is not concerned with matters of economic policy. The court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The court does not supplant the "feel of the expert" by its own views. In all such cases judicial inquiry is confined to the question whether the findings of feet are reasonably based on evidence and whether such findings are consistent with the laws 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 ail 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 can not 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. 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 of BGML and it is tins body which has entrusted the matter to the consultant, namely M/s Ernst & Young Private Limited who have prepared the two volumes "Request for Proposal" and "Information Memorandum". Thereafter the said tender documents were deliberated upon by the Inter Ministerial Group. 35. At the outset it is of relevance to notice some of the salient features of the bid documents. Volume-1 is the request for proposal, which has the following parts: 1) introduction, 2) Instructions to bidders, 3) Evaluation for qualification, 4) Technical proposal screening, 5) Valuation of price proposal, 6) Contents for proposal. Though volume-I is entitled request for proposal, its short title is "sale of assets" Clause 1.1.7 reads as follows: 1.1.7 Based on the affidavit filed by the Ministry of Mines and subsequent order of the Hon'ble Court, it was decided to sell ail the assets of BGML subject to the following conditions: (a) The assets of BGML shall be utilized for the purpose of mining only till a final closure of mines is achieved and duly approved/certified by Indian Bureau of Mines (IBM) (elaborated in Clause 4.2.2 of Section 4); (b) A Highest Bidder (hereinafter defined in Section 5) shall be identified through a competitive bidding process for purchase of assets of BGML; (c) A Cooperative Society having largest number of Ex-Employees (those regular ex-employees who were on the rolls of the Company at the time of its closure, i.e., 01 March 2001) of BGML as its members or a company of such society (herein after both the society and the company is referred to as 'Ex-Employees Cooperative Society') shall have the first right of refusal for purchase of assets of BGML; (d) Upon or before identification of Highest Bidder, BGML shall ascertain and satisfy itself of the qualification/eligibility and technical plans/competence of the Ex-Employees Cooperative Society before making an offer to exercise first right of refusal. The basis of ascertaining the qualification and technical plans shall be the same as set out for other Bidders and provided in this RFP document; (e) the assets of BGML shall be offered to the Ex-Employees Cooperative Society at a price equal to a price which is higher of the Price Proposal of the Highest Bidder and the Reserve Price and the Ex-Employees Cooperative Society shall have the first right of refusal for the purchase of assets at such price; (f) Successful Bidder, which could be the Highest Bidder or the Ex-Employees Cooperative 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 REP 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 earned 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 opinion of BGML, would be evaluated in the next stage, i.e., the Qualification Stage. (b) In the Qualification Step, the information of the Bidders relating to their experience and financial capability would be evaluated. Bidders meeting the experience and financial capability criteria as set out in this RFP document shall be short-listed ("Qualified Bidders") for further evaluation. (Refer: Section 3 of Volume 1) (c) In the third step, the Technical Proposals from Qualified Bidders would be screened for certain compliance. Only Bidders whose technical proposals are found to be acceptable ("Technically Acceptable Bidders") would be considered for evaluation in the next stage. (Refer: Section 3 of Volume 1) (c) In the third step, the Technical Proposals from Qualified Bidders would be screened for certain compliance. Only Bidders whose technical proposals are found to be acceptable ("Technically Acceptable Bidders") would be considered for evaluation in the next stage. (Refer: Section 4 of Volume 1) (d) In the fourth step, the Price Proposals of the Technically Acceptable Bidders would be evaluated based on the specified evaluation criteria for the Price Proposal in order to identify the Highest Bidder.' (Refer Section 5 of Volume 1) Clause 2.15.4 reads follows: 2.15.4 Each of the envelopes (outer and inner) shall clearly bear the following identification: Proposal for Sale of Assets of BGML Clause 2.27 reads as follows: 2.27 Declaration of Successful Bidder 2.27.1 BGML shall, after identification of Highest Bidder approach the Ex-Employees Cooperative Society and make an offer for purchase of the assets on certain conciliations as decided by Government of India on 27 July 2006. 2.27.2 if Ex-Employees Cooperative Society accepts the offer of BGML which would be higher of the Price Proposal of the Highest Bidder and Reserve Price, BGML shall declare the Employees Cooperative Society or its Company as Successful Bidder. 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 REP document. Provided further that the Society or its Company shall also agree to the conditions as mentioned in Clause 2.27.1. 2.27.3 If Ex-Employees Cooperative 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. 2.27.4 Decision of BGML on the above shall be final and binding on all the Bidders and the Ex-Employees Cooperative Society. 36. 2.27.3 If Ex-Employees Cooperative 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. 2.27.4 Decision of BGML on the above shall be final and binding on all the Bidders and the Ex-Employees Cooperative 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 teased to Bharat Earth Movers Limited (BEML), which consist of two workshops and vacant land It was leased on 04 May, 2004 and is expected to expire on 04 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 a part 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 Court He drew my attention to Annexure-A to the objections and suggested certain changes to be made in the bid documents. 38. Sri. Subbarao, learned senior Counsel appearing for respondent No. 4 submitted that two issues have not been addressed by M/s. Ernst & Young Pvt. Ltd., the firm entrusted with the preparation of the bid documents. One, is that out of the 12,000 acres of land available for extraction of the metal, certain extent are leased by the Karnataka Government to BGML and remaining extent is leased by the Andhra Pradesh Government to the said Company, Whereas the lease in respect of underground mine is from the Karnataka Government, the lease of the surface mine is from the Andhra Pradesh Government and the lease by the Karnataka Government to the company would expire and that the lease by the Andhra Pradesh Government to the company has already expired. Secondly, he submitted that the mines are flooded with water, but none of the above facts are referred to in the report of M/s. Ernst and Young Pvt. Ltd. He also doubted as to whether the consultant had made a spot inspection before they prepared the said documents. He expressed strong reservation to the valuation made by M/s. Ernst & Young Pvt. Ltd. 39. In the context of the global bid to ascertain the market value of the assets of the company, he said that the said exercise must be in the context of the Division Bench order regarding revival of the company and hence, the valuation is required only for that purpose and not for sale of assets. While referring to the title of the tender document as "sale of assets" he submitted that if it is a case of sale of assets, then a winding up order has to be made and the official liquidator would step in and he alone can sell the assets and not the company as such. Therefore, the order of this Court dated 15.12.2006 sanctioning global bids has to be read in the context of the order of the Division Bench for revival of the company. He therefore, stated that global tender for the "sale of assets" is contrary to the Division Bench directions. The purpose of the global tender is only to ascertain the market value and nothing else, He also objected to BGML taking steps in the matter by preparing the bid documents as it is not ah agent of the Central Government though the Central Government has 100% shares in the company. In this context, he relied upon Heavy Engineering Mazdoor Union Vs. State of Bihar and Others, AIR 1970 SC 82 which has been approved by the five judge bench decision in Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., AIR 2001 SC 3527 . He also referred to Rashtriya Mill Mazdoor Sangh, Nagpur Vs. Model Mills, Nagpur and Another, AIR 1984 SC 1813 . While elaborate his submission in the context of revival, Mr. Subba Rao also submitted that after the valuation is made, the otter must be made to the workmen and only if the workmen are unable to accept the Government can take further decision in the matter. 40. Mr. Model Mills, Nagpur and Another, AIR 1984 SC 1813 . While elaborate his submission in the context of revival, Mr. Subba Rao also submitted that after the valuation is made, the otter must be made to the workmen and only if the workmen are unable to accept the Government can take further decision in the matter. 40. Mr. Subba Rao, also relied upon the decision reported in Heavy Engineering Mazdoor Union Vs. State of Bihar and Others, AIR 1970 SC 82 to contend that if an industry is earned 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 earned 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 ail its shares does not make the company an agent either of the President of the Central Government. He has also relied upon the case of Rashtriya Mill Mazdoor Sangh, Nagpur Vs. Model Mills, Nagpur and Another, AIR 1984 SC 1813 which is a case which arose under the Payment of Bonus Act, 1965 which provides that nothing in the Act shall apply to the employees employed by an establishment engaged in any industry earned on under the authority of the Department of the Central Government or State Government or a local authority, to have an authorized control of an industrial undertaking could not convert it as one being earned on under the authority or the Department of the Central Government. Reference is made to the Constitution Bench decision of the Hon'ble Supreme Court in the case of Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., AIR 2001 SC 3527 wherein the aforesaid decisions have been approved. 41. Sri. Gopalan, learned senior Counsel, along with Sri. S.J. Chouta submitted that M/s Bharat Earth Movers Ltd., (BEML, for the sake of brevity) respondent No. 30 herein, is in possession of a portion of the land by virtue of a lease executed by BGML, which is being used as a defence entity. 41. Sri. Gopalan, learned senior Counsel, along with Sri. S.J. Chouta submitted that M/s Bharat Earth Movers Ltd., (BEML, for the sake of brevity) respondent No. 30 herein, is in possession of a portion of the land by virtue of a lease executed by BGML, which is being used as a defence entity. He submitted that the requirement of the leased portion of the land by BGML is a national requirement and that a defence activity is being earned out in the leased portion of the land, and that both aiming activity as well as the defence activity can co-exist, in mutually, exclusive portions of the land. He therefore, submitted that the portion of the land leased to BEML has to be excluded from the tender documents. 42. Sri. Gopalan, also submitted that BEML is ready to pay the market value for the extent of land which had been let to it by way of lease. He drew my attention to the amendment sought to volume-I and volume-II of the tender documents. 43. In their counter affidavit, BEML has stated that an extent of 1109 acres of land is in their possession and that they have been using it and therefore, the said extent has to be excluded in the valuation of the assets, and in the said document and that their interest in the company petition is only with regard to seeking exclusion of the said extent of land train the valuation of the assets of BGML. 44. Mr. Satishchandra appealing for respondent No. 32 submitted that after the highest price was determined by the Central Government, then amongst the employees it must be offered to all the unions and any union 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. UdayaHolla, learned senior Counsel along with Sri. 45. Sri. UdayaHolla, learned senior Counsel along with Sri. Rajaram appealing for BGML in their reply to the objections raised by various respondents contended that BGML is an entity of the Central Government and 100% 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 proceedings 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 tease 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 the details regarding the lease with BEML has been mentioned. It is further submitted that in their counter affidavit BEML has admitted that the lease is subject to the approval of this Court and therefore, the company court is yet to decide on the legality or otherwise of the said lease. 47. With regard to the opportunity to be given to the workers' union to have a say in the matter, it is submitted that depending upon the strength of the workers union after Registrar that the right of first refusal would be offered to that union which has the highest number of membership of employees of BGML. 48. Before answering the said contentions, it is necessary to notice that BIFR in its final order dated 12.5.2000 while expressing its opinion under Section 20(1) of SICA noted as follows: The bench, therefore, concludes that the present promoters after careful examination of various alternatives have expressed their inability to revive the company. 48. Before answering the said contentions, it is necessary to notice that BIFR in its final order dated 12.5.2000 while expressing its opinion under Section 20(1) of SICA noted as follows: The bench, therefore, concludes that the present promoters after careful examination of various alternatives have expressed their inability to revive the company. As there is also no other rehabilitation proposal with means of finance fully tied up for consideration of the Hoard despite ample opportunities having been given to all concerned, the bench confirms its prima facie opinion that the sick industrial company M/s. Bharat Gold Mines Ltd., is not likely to make its net worth exceed is accumulated losses within a reasonable time while meeting all financial obligations, and that the company as a result thereof is not likely to become viable in future and that it is just, equitable and in public interest that it is wound up Under Section 20(1) of the Act. The opinion may be forwarded to the concerned High Court along with copies of all earlier orders/proceedings, for necessary action according to law. The said opinion was recorded by BIFR having regard to the following factors: (a) Though, the Government of Karnataka expressed its keenness to revive the company, it refused to contribute any fund for revival; (b) The Ministry of Mines, Government of India which was the promoter of the company, categorically stated that it would not provide any additional funds at all for the revival of the company and it had no objection for the company being wound up; (c) Inspite of grant of adequate opportunities from 199'J the various labour unions had not come forward with any viable revival scheme for the company; (d) Any revival plan for the company would require a minimum infusion of Rs. 100 Crore (winch may go up to even Rs. 150 to 200 crores and neither the labour unions nor any cooperative 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 put forth by the KGMNL had been considered and rejected by the High Power committee appointed by the Ministry of Mines. 49. 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 Mmes, Government of India to contribute any hind for revival and that the various labour unions had not come forward with any viable proposal for revival or 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 not bring any amount of money required to revive the company, the AAIFR the appellate authority before whom the order dated 12.6.2000 was challenged, gave the following similar reasons for dismissal of the appeal at para 8 page 20-21 of the said judgment. When the matter came up on 16.11.2000, the Unions stated that the workers were not in a position to contribute any fund for rehabilitation of BGML, but suggested that BGML should dispose of the 12000 acres of land held by it so as to generate adequate funds for its rehabilitation. After considering the matter AAIFR by order dated 16.11.2000 dismissed the appeals. AAIFR gave the following reasons for such dismissal: (a) Government of India had clearly indicated that it would not give any additional fund for investment in BGML except for the VRS for the workers; (5) The State Government was unwilling to make any investment for rehabilitation of BGML; c) As against the new worth of Rs. 53.29 crores (that is share capital of Rs. 51.06 crores and reserves and surplus of Rs. 2.23 crores) the accumulated losses were Rs. 409.03 crores as on 31.3.1999; d) As BGML continued to make huge losses every year and was heavily indebted, there was no possibility of rehabilitating it, e) The proposal by KGMNL to purchase the assets for a small consideration of Rs. 51.06 crores and reserves and surplus of Rs. 2.23 crores) the accumulated losses were Rs. 409.03 crores as on 31.3.1999; d) As BGML continued to make huge losses every year and was heavily indebted, there was no possibility of rehabilitating it, e) The proposal by KGMNL to purchase the assets for a small consideration of Rs. 31.32 crores having been rejected by the Government of India, the said proposal cannot form basis of preparing any workable rehabilitation scheme; f) The employees were neither willing to not in a position to make any investment; g) The employees' unions had not come up with any workable rehabilitation proposal and their suggestions depended upon substantial financial investment by Government of India, which had already indicated that it was not willing to make any such financial investment; h) it was not possible for BGML to raise sufficient funds by sale of available vacant land for revival and the suggestion of Employees Union mat BGML own generate sufficient funds for rehabilitation by selling 12000 acres of land held by it was not tenable. 50. In the year 1993 a Parliamentary committee identified BGML as one of the subjects for independent study and submitted a report dated 30.3.1994 expressing a view that the Central Government and BGML to take steps to revive BGML and in that context several suggestions were made which arc noted as follows by the Division Bench: (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 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 stand as a guarantor to enable the company to get loans from Banks. (d) BGML should try to raise requisite funds for revival by sellingh its surplus land. (e) Security network to be strandline 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. (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 said to be an arbitrary or unreasonable decision. However, at para 37.1 of its order, the Division Bench observed as follows: White there can be no doubt that every effort should be made to revive the company and protect the labour, the court cannot merely on sympathy and sentiment interfere with the orders of BIFR/AAIFR. The main question is whether the opinion reached by BIFR/AAIFR that "the BGML, is not likely to make its net worm exceed its accumulated loss within a reasonable time, while meeting ail its financial obligations and BGML as a result thereof, is not likely to become viable in future, and therefore it is just and equitable that the company should be wound up", is proper or not. If the conditions necessary to reach, such a conclusion exists, the mere fad that it is likely to cause hardship to the employees will not be a around to reverse the decision. The government has offered a VRS package to the employees to mitigate such hardship. It is in the said context that at para 47 the Division Bench observed that the Central Government could consider a fresh proposal for revival if it so deems tit. Possibly the Division Bench was persuaded by the following points urged by the employees while making the above observation. BGML is the only gold mine in India and therefore, it should not be closed down. Operations at the mines have become uneconomical because market price has not been paid to the company for producing gold. Finances have not been provided for revival/modernization of mines. The prospect of opening up shallow mines has not been fully explored. The high cost of power is mainly because only one shaft is operated in the entire stretch of 8 kilometres of the mines. There is 40 tonnes of gold available from tailing which has not been recovered. Finances have not been provided for revival/modernization of mines. The prospect of opening up shallow mines has not been fully explored. The high cost of power is mainly because only one shaft is operated in the entire stretch of 8 kilometres of the mines. There is 40 tonnes of gold available from tailing which has not been recovered. There are huge land assets of the company which have not been fully utilized/sold for realizing funds for rehabilitation of the company. 10,000 families will be affected and reduced to penury if the workers are rendered jobless as a result of closure. 52. It is in the above context that the procuring or global bids have to be viewed. 53. As regards the contention that for the purpose of ascertaining the value of the assets of BGML, it is not necessary to call for global bids, it is necessary to take into consideration the report of the Sub-Group-II on Mineral Out put Industries of the working group on Mineral Exploration and Development (other than coal and lignite) for the 11th rive 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 upto 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 delineation of favourable targets for detailed exploration. Although substantial progress has been made in the country in such studies, suit a gap in technology appears to exist in determining exploration targets from the regional data base by these methods. Although substantial progress has been made in the country in such studies, suit a gap in technology appears to exist in determining exploration targets from the regional data base by these methods. Para 6.4: MNC's have to be inducted for this purpose with application of state of the art technology. The mining sector, which has been thrown open for private entrepreneurs and MNC's, has to provide with fast disposal and support from the Government so as to attract more and more investments. 54. It is pertinent to note that by order dated 15.12.2006 this Court granted permission to the Government of India to invite global tender to ascertain the actual market value of the assets of BGML in order to consider the revival of the company. The said order was made alter hearing the parties concerned and taking note of their submission. Therefore, at this point of time it cannot be contended that it is not necessary to ascertain the value of the assets of BGML by means of a global bid. in this context the decisions relied upon by the Counsel for the applicant that an order cannot be assailed in a collateral proceeding, but can be challenged only before a competent higher authority are squarely applicable. 55. it is submitted by Sri. Subbarao and also by Sri. Gopalan, learned Senior Counsel that in the instant case the initiative for inviting global bids etc., has been taken by BGML whereas the direction was given by the Division Bench to the Central Government to initiate steps for the revival of the Company and that BGML has no authority to invite the global bids. In this regard Sri. Gopalan invited my attention to the orders passed by this Court dated 22.11.2006, 15.12.2006, 12.1.2007, 15.2.2007, 31.8.2007, 17.8.2007, 17.12.2007, 10.1.2007 and 6.3.2007 to point out that initially it was the Central Government which was taking steps in the matter, but subsequently the company's advocate was making submissions and that the tender documents have also been prepared by BGML and not by the Central Government. On a close perusal of the aforesaid orders it is noticed that it has always been the Union of India which has tiled affidavits and pleadings and that a representation was made by the company's advocate on behalf of the Union of India seeking time to finalize the tender documents. On a close perusal of the aforesaid orders it is noticed that it has always been the Union of India which has tiled affidavits and pleadings and that a representation was made by the company's advocate on behalf of the Union of India seeking time to finalize the tender documents. Therefore, for all practical purposes it is the Central Government which is monitoring the enure 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 locustandi 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 enure process with regard to revival of the company. 57. With regard to submission made by learned Senior Counsel Sri. S.P. Shankar appearing on behalf of respondent No. 31 on the changes to be incorporated m the bid documents which is tabulated below, the following would be my answer to the same. Para No. Existing Text Replacement Text 1.1.7(d) Upon or before identification of Highest Bidder, BGML shall ascertain and satisfy itself of the qualification/eligibility and technical plans/competence of the Ex-Employees Co- operative Society before making an offer to exercise first right of refusal. Para No. Existing Text Replacement Text 1.1.7(d) Upon or before identification of Highest Bidder, BGML shall ascertain and satisfy itself of the qualification/eligibility and technical plans/competence of the Ex-Employees Co- operative Society before making an offer to exercise first right of refusal. The basis of ascertaining the qualification and technical plans shall be the same as set out for other Bidders and provided in this RFP document; Technical feasibility should be filed to meet minimum standards of mining should be met by Forum But they cannot be on par with global bidders. 1.1.7(1) Successful Bidder, which could be the Highest Bidder or the Ex- Employees Co-operative Society, shall then be identified on decision of Ex-Employees Society to refuse the offer. Successful Bidder, which could be the Highest Bidder or the Ex-Employees Co-operative Society, shall then be identified on, decision of Ex- Employees Society, to accept or refuse the offer. 2.2.1 (a) The number of members in a Consortium would be limited to three (3) members; The number of members in a Consortium would be limited to three (3) members provided that a fourth (4th) member may be allowed if he has experience extracting and processing gold from Tailings and in such a case the minimum shareholding of the 3rd and 4th member shall be not less than 5% each. 2.11.4 (c) If the Successful Bidder fails to deposit 50% amount of the Price Proposal as required in Clause 2.30 and Clause 2.31, within the stipulated time or any extension thereof provided by BGML If the Successful Bidder fails to deposit 50% amount of the Price Proposal and in addition the full STBP-Modified VRS differential amount into the escrow account as required in Clause 2.30 and Clause 2.31 within the stipulated time or any extension thereof provided by BGML, 2.27.1 BGML shall, after identification of Highest Bidder, approach the Ex- Employees Co-operative Society and make an offer for purchase of the assets on certain conditions. 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 Cooperative 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. 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 ottered 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 are 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 Society or its Company rejects the offer of BGML; BGML, shall declare the Highest Bidder as the Successful Bidder subject to its willingness to comply with the conditions imposed on the Employees' Co- operative Society, as decided by the Government of India on 27.07.2006, namely to pay to the ex-employees of BGML the difference between the STBP package and the modified VRS amounting to about Rs. 52 crore and to employ on priority basis the ex-employees of BGML. Before declaring the highest bidder as the successful bidder, the Highest Bidder shall furnish a write undertaking from the Highest Bidder stating that all conditions imposed on the Employees' Co-operative Society as decided by the Government of India on 27 July 2006 would be duly complied with prior to transfer of assets in pursuance of the tender. 2.30.2 Within thirty (30) days of receiving intimation of acceptance of its Proposal from BGML, the Successful Bidder shall acknowledge the Letter of Award and deposit 50% o the amount indicated in the Price Proposal into the said Escrow Account. Failure to deposit said amount on or before the due date into the Escrow, Account will result in forfeiture of the Bid Security and rejection of the Proposal. Failure to deposit said amount on or before the due date into the Escrow, Account will result in forfeiture of the Bid Security and rejection of the Proposal. Within thirty (30) days of receiving intimation of acceptance of its Proposal form BGML, the Successful Bidder shall acknowledge the Letter of Award and deposit 50% of the amount indicated in the Price Proposal and in addition the full differential amount between the STBP package and the VRS of about Rs. 52 crores into the said Escrow Account. Failure to deposit the said amounts on or before the due date into the Escrow Account will result in foifeiture of the Bid Security and rejection of the Proposal. 2.30.3 The Escrow arrangement will stipulate that if the 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% value of Price Proposal directly to BGML upon the finaliTation of the said draft agreement and the transfer of assets. The interest earned on the deposit in the Escrow account, if any, shall belong to the Bidder. The Escrow arrangement will stipulate that if the 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 he free to withdraw the amount and pay the 100% value of Price Proposal and the STBP-VRS differential directly to BGML upon the finalization of the said draft agreement 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% 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 condition 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 06.11.2001 to ex- employees of BGML and the deposit of 50% of the price proposal into the escrow account. The draft agreement shall, in addition to process of transferring of assets will comprise of all terms and conditions of sale indicated in this RFP document (Volume I & Volume II) and term of all any written undertakings furnished by the highest bidder regarding re employment of ex-employees at the time of his declaration as the successful bidder. 2.31.4 If the finalization of the draft agreement is delayed beyond one hundred and twenty (120) days of deposit of first installment of 50% of the amount in the Escrow Account and the Bidder has withdrawn the amount deposited in the Escrow Account in terms of Clause 2.30.3, the Bidder shall forthwith pay 100% of value of Price Proposal directly to BGML. If for any reasons whatsoever the Successful Bidder fails to make the 100% payment to BGML within thirty (30) days of the agreement being finalized, the Bid Security shall be forfeited and the Proposal snail stant rejected. If the finalization of the draft agreement is delayed beyond one hundred and twenty (120) days of deposit of first installment of 50% of the bid amount and the STB-VRS differential in the Escrow Account and the Bidder has withdrawn the amount deposited in the Escrow Account in terms of Clause 2.30.3, the Bidder shall forthwith pay 100% of value of Price Proposal and the STBP-VRS differential directly to BGML. If for any reasons whatsoever the Successful Bidder fails to make the above payments to BGML within. thirty (30) days of the agreement being finalized, the Bid Security shall be forfeited and the proposal shall stand rejected. Section 3 a) Surface Mining (wherever it occurs); b) Metallic Ores (wherever it occurs) a) Open Pit Mining b) Shall be deleted 3.1.1 The Bidder's competence and capability is proposed to be established by the following parameters: a) Bidder would be evaluated in terms of its experience in; i) Underground/Surface Mining of any metallic ore/; ii) Underground/ Surface Mining of Gold. b) Financial capability in terms of; i) Net worth; and ii) Annual sales turnover. b) Financial capability in terms of; i) Net worth; and ii) Annual sales turnover. The Bidder's competence and capability is proposed to be established by the following parameters: a) Bidder would be evaluated in terms of its experience in Underground/ 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 as eligible experience: a) Open Pit  Mining of Gold Ore 3.2.2 (b) Surface HMining 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 mines 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 crete may be used. A haul road is situated at the side of the pit, forming a ramp up which trucks can drive, carrying ore and waste rock. 3.3.1 Provided that, if the Bidder is demonstrating experience as a Developer, Extraction value of the entire project shall be considered, provided that the Bidder holds 50% or more stake in such projects or has 50% or more levenue accruing from such project and if experience as a Developer, Extraction value of the entire project shall be considered, provided that the Bidder holds 50% or more stake in such projects or has 50% or more revenue accruing from such project and if the Bidder is  demonstrating experience as a Contractor, Extraction value of only ore extracted by the Bidder in its individual capacity shall be considered. Further, experience of Contractor of mere removal of overburden or movement of earth/ore from one point to other shall not be treated as experience of extraction. Further, experience of Contractor of mere removal of overburden or movement of earth/ore from one point to other shall not be treated as experience of extraction. Provided that, if the Bidder is demonstrating experience as a Developer, Extraction value of the entire project shall be considered, provided that, the Bidder holds 50% demonstrating experience as a Developer, Extraction value of the entire project shall be considered, provided that the Bidder holds 50% or more stake in such projects or has 50% or more revenue accruing the from such project; and extraction value of 70% of the project will be considered provided that the bidder holds 30% or more but less than 50% of the project or has 30% or more but less than 50% of the revenue: Provided further that if the Bidder is demonstrating experience as a Contractor, Extraction value of only the ore extracted by the Bidder in its individual capacity shall be considered. Further, experience of Contractor of medre removal of overburden or movement of earth/ore from one point to other shall not be treated as experience of extraction. 3.3.2 Evaluation parameters for Mining experience The experience of the Bidders in terms of their mining experience shall be awarded marks/points based on the nature of mining-  Underground/Surface and the type of ore extracted through mining- Coal/metallic ore/Gold. the points to be awarded for each type of nature of mining and nature of ore is set out in the table below: EXISTING TABLE Evaluation parameters for Gold Mining experience. the points to be awarded for each type of nature of mining and nature of ore is set out in the table below: EXISTING TABLE Evaluation parameters for Gold 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 Underground Mining and/or Surface Mining of any metal/ore/gold for at least in any one project continuously since April 01, 2003 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 xperience Score of Underground Mining shall be at least be 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 cont- inuous year should be of gold mining, either Underground or underground and Open pit both. 3.9.2 Under Option 1; The Lead Technical Member would be required to: a) Achieve the experience score of at least 25 marks for Experience Score for Underground Mining or Gold Mining calculated in accordance with Clause 3.3; b) Commit to hold a minimum equity stake equal to 26% of the aggregate shareholding in the SPV at least till implementation of the final closure of mines as approved by IBM. And Under Option 1; The Lead Technical Member would be required to a) Achieve the experience score of at least 25 marks for Experience Score for Underground and/or Open pit gold mining calculated in accordance with Clause 3.3; b) commit to hold a minimum equity state equal to 26% of the aggregate shareholding in eh SPV for a minimum period of 5 years or until listing whichever is earlier; And 3.9.3 Under Option 2, the Lead Member would be required to; a) achieve the experience score of at least 25 marks for Experience Score for Underground Mining or Gold Mining calculated in accordance with Clause 3.3; and b) meet at least 50% of the financial capability criteria in terms of networth and average turnover mentioned in Clause 3.6; c) commit to hold a minimum equity stake equal to 50% of the aggregate shareholding in the SPV till implementation of the final closure of mines as approved by IBM. Under Option 2, the Lead Member would be required to: a) achieve the experience score of at least 25 marks for Experience Score for Underground and/or Open pit Gold Mining calculated in accordance with Clause 3.3; b) meet at least 50% of the financial capability criteria in terms of net worth and average turnover mentioned in Clause 3.6; and c) commit to hold a minimum equity stake equal to 50% of the aggregate shareholding in the SPV for a minimum period of 5 years or until listing whichever is earlier; 3.9.4 Incase 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% of the aggregate shareholding in the SPV till the implementation of the final closure of mines as approved by IBM. In case 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% of the aggregate shareholding in the SPV for a minimum period of 5 years or until listing whichever is earlier: Volume II 1.5 Services of all employeees of the company had been terminated and all their liabilities have been settled under STBP. Presently there is no regular employe 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 pawl 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 04 May, 2004 and is expected to expire on 04 May, 2014. About 1109 acres of land is stated to have been leased to Bharat Earth Movers Limited (BEML) by BGML up to 04 May, 2014. However, the said lease has been challenged by the Unions on the grounds that i) the lease is illegal since the assets were under the charge of the court and the court's permission was not obtained for giving the land on lease; ii) the leased land is the main potential area being fully mineralized; and iii) the two workshops are vital for Revival. The matter is in court and the court's decision will be binding on the successful bidder Explanatory  Remarks   in * All freehold land should e solely used for the purpose of mining and no other commercial use until final closure of mines are completed and after a mine closure plan is approved by Indian * All freehold land should be solely used for the purpose of mining and allied activities and for no other commercial use. After mining is completed a Mine Closure Plan be Box below 3.3.2 Bureau of Mines (IBM) Got approved by IBM and implemented. Thereafter, the land shall lapse back to the government useless separate permission is obtained for nominee related use. Re: 1.1.7(d) - The qualification/eligibility and technical plans/competence of the Ex-Employees Co-operative Society need not be the same as set out for other bidders and provided in the bid document. Thereafter, the land shall lapse back to the government useless separate permission is obtained for nominee related use. Re: 1.1.7(d) - The qualification/eligibility and technical plans/competence of the Ex-Employees Co-operative Society need not be the same as set out for other bidders and provided in the bid document. It the object and purpose of the entire exercise is to ultimately achieve the revival plan envisaged for the company keeping in mind the welfare of the workmen, then, in my view, it would not be necessary that the eligibility and technical competence of the Employees Society should be on par with that of the other bidders. Of course, the Employees Society should meet the minimum standards of having the eligibility or qualification as well as the technical competence for the purpose of meeting the operational standards in the event of the company being handed over to the Ex-Employees Co-operative Society. Therefore, a Clause that their eligibility and technical competence should be on par with the other bidders has to be amended by stating that the minimum eligibility and technical competence as required for operating the company must be met by the Employees Society which require to be put forth when the otter 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: 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 otter 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 27.7.2006. Re: 3.1.1, 3.2.1 - It is noticed that the eligibility or competence of the bidder is extended to not only a person having the competence in underground/Surface mining of gold but also extended to a person or entity having the experience of underground/surface mining in any metallic ore. Further, in 3.2.1, it is noticed that the eligibility and experience is with regard to underground/surface mining of any metallic ore or coal or underground/surface mining of gold. It is submitted on behalf of respondent No. 31 that gold mining being a specialized activity in mining, the competence and capability of a person or an entity in gold mining cannot be equal to the competence or capability of a person or entity having experience in mining of any other metallic ore or coal. Therefore, the eligibility conditions cannot be on par and hence, the scope for bidding by person or entity engaged in any other metallic ore or coal cannot be said to have the same competence for mining of gold and hence, they ought not to be permitted and that the eligibility and experience and competence of the bidders must be restricted to those persons who have the said competence in mining of gold only. 58. 58. Per contra, it is submitted by the Counsel for the company that since the technology is same for other metallic ores as well as for extraction of gold and that a better value or bid could be secured by expanding the scope of bidding to persons engaged in mining of other metallic ore therefore, the eligibility criteria has been expanded. 59. in my view, the level of experience that a person has in the mining of gold cannot be compromised in order to secure a higher price or market value. Gold mining activity being a specialized activity, keeping in mind the very meager quantity of metal that can be extracted either from the surface or from the underground as compared to any other metallic metal or coal, the eligibility criteria and conditions must be restricted to persons engaged in the activity of gold mining only. In the written arguments filed on 3.4.2009 by the Forum respondent No. 31 a list of 944 Gold Companies world wide as in November 2008 has been given and therefore, the global bid in the instant case must be restricted to only companies dealing in extraction of gold and gold mine activity only and not to entities concerned with extraction of other metals or 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 held of mining. Re: 3.4.1. - The condition in Clause (b) that the bidder has been carrying out either underground mining and/or surface milling of any metal/ore/gold for at least live years in any one project continuously since 1st April 2003 has to be interpreted to mean that the bidder must be engaged in at least one project continuously since 1st April 2003 so as to show continuous mining activity at least in one project, it not more and it, does not mean that the bidder must be engaged in a single project continuously since 1st April 2003. Re: 3.3.1 - The information that the lease is subject to challenge before tins 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) 2.30.2, 2.30.3, 2.31.1, 2.31.4, 3.3.1, 3.9.2, 3.9.3, 3.9.4 in Vol. I and II Clause 1.5 in Vol. II do not require any changes to be incorporated. 61. However, the following changes are require to be made in the Vol. I and II of the tender documents. (i) At the outset it is noticed that the said documents axe also entitled as - "safe of assets". Since the endeavour in the instant case is for revival of BGML, the phrase "sale of assets" ought to he understood in the context of revival of BGML in view of the reasoning given by me while dealing with the preliminary objection. Therefore, the bid documents must clearly state that "sale of assets" is in the context of revival of BGML and not in the context of winding up of the company. (ii) Similarly in Clause 1.1.7 the phrase "sale of assets of BGML" requires modification as stated above. (iii) In Clause 1.1.7(b) the phrase "purchase of assets BGML" requires substitution as when there is no "sale of assets", there cannot be purchase of assets of BGML rather, the "purchase of assets" is also in the context of revival of the company. (iv) 1.1.7(c) ought to be deleted and instead it shall be stated that alter the bids are received, BGML shall approach this Court for determining as to who shall be offered the first right of refusal considering the fact, that there are several unions of ex-employees of BGML. (v) With regard to "reserve price" mentioned in 1.1.7(e) & (1) from the letter date 7/8.8.20O6, it is seen that the government proposes to invite global bids with regard to the assets of the company and make a counter otter to the ex-employees society or unions which will either be the highest, bid received or the value assessment made by the in house committee "to be re-assessed at the time of transfer" whichever is "higher". Therefore, there is no reserve once as such which is fixed prior to the calling for bids. Therefore, there is no reserve once as such which is fixed prior to the calling for bids. According to the aforesaid letter, the in house committee would value the assets independently and the higher of the two values namely the value assessed by the in house committee or the highest bid to be offered to the ex-employees. Normally reserve once is made known to the bidder. However, in the instant case, the in house committee intends to assess the value of the assets of the BGML which would in fact have to be placed in a sealed cover and tiled to this Court. It is only alter all the 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. It according to the letter dated 7/8.8.2006, it 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 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 highest bidder would be offered as per his quotation, which would in fact be lower than the valuation arrived at by the in house committee. This in my view, would be a discrimination against the ex-employees unions who would be constrained to accept a higher arrived by the in house committee as against the price quoted by the highest bidder. This in my view, would be a discrimination against the ex-employees unions who would be constrained to accept a higher arrived by the in house committee as against the price quoted by the highest bidder. On the other hand, it between the valuation arrived at by the highest bidder and the valuation arrived at by the in house committee, whichever is "lower" is offered to the Ex-employees and in case the offer, then the highest bidder be offered at the rate which the highest bidder has quoted. Since the entire exercise is being earned out in the context of revival of BGML and not in the context of sale of assets of BGML, the purpose is not to realize the highest or the best market value for the assets of BGML, but rather to revive the company in a most economically viable manner. If the above method is followed then in that case the possibility or chances of the Ex-employees accepting the price would be greater, which would also be in tine with the observations made by the Division Bench in the context of revival of company. Further, in case the Ex-employees refuse even the lower valuation, then the highest bidder can be offered at the price it has quoted in which event, it would be in consonance with the of offer of the highest bidder at the price that it quoted. On the other hand, it as between the valuation arrived at by the in house committee and the highest bidder, the higher of the two valuation is offered to the Ex-employees and on their refusal, then in that event, the highest bidder cannot be offered, the valuation of the in house committee which is higher, but at a lower valuation which is the price quoted by the highest bidder in which event the object of procuring the bids would be defeated since the offer would be made to the highest bidder but at a value lower than the in house valuation. 62. The raison (sic) of the entire exercise must be borne in i.e., to revive BGML in a most economically viable manner and not to sell the assets of BGML at the best or the highest price. If the Ex-employees of BGML accept the offer made by the Central Government, then in that event, inviting the highest bidder would not arise. The raison (sic) of the entire exercise must be borne in i.e., to revive BGML in a most economically viable manner and not to sell the assets of BGML at the best or the highest price. If the Ex-employees of BGML accept the offer made by the Central Government, then in that event, inviting the highest bidder would not arise. On the other hand it the Ex-employees refuse 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 otter 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 and conditions of the bid documents shall be declared to be the successful bidder. Hence suitable amendments in Clause (e) and (f) of 1.1.7 have to be made in the following manner: 1.1.7(e). The assets of BGML shall be offered to the Ex-employees Co-operative Society at a price equal to a price which is lower of the price proposal of the highest bidder and the valuation arrived at by the In House Committee and the Ex-employees Co-operative Society shall have the first tight of refusal for the purchase of assets at such price. 1.1.7(i). 1.1.7(i). Successful bidder which could be the highest bidder or the &x-employees shall then be identified based on the decision of Ex-employees Society to refuse the offer. (vii) 2.15.4. Proposal for sale of assets of BGML has to be amended. It could be "proposal for revival of BGML". (viii) Similarly in 2.2.7 and its various Clauses appropriate amendments would have to be made with regard to declaration of successful bidder in terms of the above observations. (ix) In Vol II the sub-title "sale of assets" would have to be understood in the context of revival of BGML. 64. Directions: The applicant is directed to carry out the amendments to Vol. I & II of the bid documents in the following manner: i) The applicant to amend the respective Clauses referred to in para 57 above. (ii) The applicant to amend as per para No 61(I) to (IX) (iii) The price determined by the in House Valuation Committee shall be placed in a sealed cover and deposited with the Registrar General of this Court before the bids are opened. (iv) The applicant shall give sufficient publicity with regard to inviting of global bids for receiving offers from the potential bidders. (v) It is directed that the applicant would seek permission of this Court before making an offer to the employees and their unions and making a declaration of the successful bidder. 65. For the aforesaid reasons, the prayers made by the applicant in affidavit dated 9.7.2008 are allowed in part.