1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR WRIT PETITION NO.1192 OF 2009 (Indo Unique Flame Ltd. and others ..vs.. The Union of India and others) ------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Shri G.R. Agrawal, Counsel for the petitioners, Shri S.K. Mishra, A.S.G. for respondent No.1, Shri S.C. Mehadia, Counsel for respondent Nos. 2 & 3. CORAM:- D.B. BHOSALE AND P. B. VARALE, JJ. DATED :- 06 th JULY, 2010 1. In this writ petition under Article 226 of the Constitution of India, the petitioners have prayed for declaration that the action of respondent Nos. 2 and 3 i.e. Coal India Limited and Western Coalfields Limited respectively, in resorting to indefinite suspension of 'coal linkages' of the petitioners, by letter dated 02-03-2006 and their inaction to take final decision in the matter and decide whether to restore coal supplies to the petitioners, is illegal, arbitrary and violative of Article 14 of the Constitution of India. The petitioners have also prayed for direction to respondent Nos. 2 and 3 to follow the principles of natural justice, grant reasonable opportunity of hearing to the petitioners, and to take final decision on the question 2 whether the coal linkages of the petitioners should be restored. In short, the petitioners are challenging the order dated 02-03-2006 issued by respondent No.3, by which the supplies of coal to the petitioners was discontinued. 2. The petitioners state that they all are valid non-core sector consumers and that they were engaged in manufacturing smokeless fuel, Undersized coal, Coal Tar, Crust Devolatise Domestic Fuel, Coal Briquette etc. They further state that for manufacturing of these products they were requiring coal, and for their requirement they were linked with respondent Nos. 2 and 3, vide linkage order dated 29-04-1989 issued by respondent No.2-The Coal India Limited. 3. By the impugned order dated 02-03-2006 issued by respondent No.3, the supplies of coal was discontinued to 159 the non-core sector consumers, whose working status/ bonafide use of coal could not be established after completion of verification process. 4. It appears that the Ministry of State (Coal and Mines), Government of India with Coal Companies on 24-11-2004, at Kolkatta deliberated the issue of supply of coal to the bogus units under non-core sector consumer and it was 3 decided to verify the genuineness of bonafide use of coal by the non-core sector consumers to whom the coal was released from various coal Companies. Accordingly, all the non-core sector consumers, including the petitioners, were asked to supply documents numbering 19 vide order dated 01-12-2004 for the purpose of verification alongwith the affidavit certifying that the quantity of the coal received by them in the past had been fully consumed by these units. While conducting the verification, it appears from the submissions filed on behalf of respondent nos. 2 and 3 that sufficient opportunity was given to the petitioners to produce documents in support of their claim. It would be advantageous to reproduce relevant paragraphs from the submissions of respondent Nos. 2 and 3 so as to find out whether sufficient opportunity was given to the petitioners before issuing the order dated 02-03-2006 issued by respondent No.3. The relevant paragraphs read thus: “The issue was deliberated in the meeting held by the Hon'ble Minister of State (Coal and Mines), Govt. of India with Coal companies on 24-11-2004, at Kolkata. The Minister of State (Coal and Mines), Govt. of India, during this meeting had made serious concern that supply of coal to bogus units under non core sector encourage black marketing and hence, stressed that steps should be taken to eliminate such cases. As such, it was decided 4 in the meeting that the genuineness/bonafide use of coal by the non core sector consumers released coal from various coal companies should be ascertained by seeking various documents related to coal utilisation. Accordingly, all the non core sector consumers numbering 369 units, were advised by WCL vide letter No. NGP/WCL/SALES/R/2684-3081 dt. 1-12-2004 to submit 19 documents for the purpose of such verification along with the sworn affidavit certifying that coal received by them in the past had been fully consumed by their unit and the information furnished in response to the above referred letter are correct and true to the best of their knowledge. Thus it is submitted that the verification exercise was initiated by the answering respondents at the directives of the Govt. to weed out the bogus units engaged in profiteering by selling of coal released to them against the linkage, at premiums in the market, at the same time denying the genuine coal requirement of the actual consumers. The verification exercise of the respondents was no where related to the e-auction scheme launched during April'05, which was mainly aimed at meeting the coal requirement of non linked consumers. 5. That by the letter dated 1-12-04 all the non core sector linkage holders, including the petitioners, who were drawing coal from WCL were called upon to submit 19 documents for verification of the bonafide use of coal. However, by the communication dated 30-9-2005 the respondents had deleted 6 documents from the said list and the linkage holders including the petitioners were given another opportunity to submit the documents to establish bonafide usage of coal released to them. When the bonafide usage of coal could not be established in case of many of the units, including the petitioners, from the documents submitted by them in response to the communications dated 1-12-04 and 30-9-05 of the Respondent No.3, they were again given 5 opportunity to submit the documents/ clarifications by 31-12-05 vide notice dated 30-11-05. The time limit for submission of documents/clarifications by the units was further extended upto 15-1-06 vide notice dated 14-12-05 and the linkage holders were advised that they were free to call on the members of the verification teams of the answering Respondent to understand the deficiencies found in the documents submitted and about the documents that have not been submitted. In response to the said communications, the petitioners had submitted further documents/clarifications. The said documents were duly scrutinized by the verification committee. The verification committee after duly taking in to consideration all the documents submitted by the petitioners had reached the conclusion that the petitioners have failed to prove the bonafide use of coal supplied to them under the linkage and hence, the instructions were given on 2-3-06 for discontinuing the supply of coal to the petitioners.” 5. Respondent Nos. 2 and 3 in their reply have further stated that the petitioners are trying to term the order dated 02-03-2006 as a mere suspension order with the sole intention to overcome the ground of delay and laches. They have further stated that the order dated 02-03-2006 was passed in case of about 159 consumers and all of them, including the petitioners, properly understood the same as final order for discontinuation of supply of coal. Learned Counsel appearing for respondent Nos. 2 and 3 submitted that it is true that the order dated 02-03-2006 is not 6 happily worded and it gives an impression that it is not a final order and the supply of coal was suspended until further orders. He submitted that infact this order was final order and it was passed after giving an ample opportunity to all the 159 non-core sector consumers, including the petitioners and that they have taken it as final order. 6. Immediately after issuance of the order dated 02-03-2006, some non-core sector consumers had challenged the same by filing writ petitions in this court. One of such writ petitions was filed by Saibaba Industries, being Writ Petition No. 2395 of 2006. In that writ petition, the challenge to the order dated 02-03-2006 was on similar grounds as raised in the present writ petition. To be more precise, in that writ petition also, while taking exception to the order dated 02-03-2006, it was contended that before issuing impugned communication dated 02-03-2006, the respondents had not given an opportunity of hearing to the petitioners either to explain that their unit was very much in existence and whole quantity of coal had been consumed by their unit and that the principles of natural justice were not followed by the respondents before discontinuing coal supply to the Units of the petitioners. In 7 that writ petition, this court after hearing learned counsel for the parties at considerable length and having examined the case and perusing the record, held that the petitioners were given sufficient opportunity of hearing and therefore, the impugned communication is not violative of principles of natural justice. It would be advantageous to reproduce the relevant observations from the order passed by the Division Bench of this court dated 26-06-2006 in Writ Petition No. 2395/2006, which reads thus: “10. We have given anxious thought to the various contentions canvassed by the respective counsel. In the backdrop of the above referred fact, it is evident that there are disputed question of facts. However, we have considered the validity of the impugned communication in view of the facts placed before us by the rival parties. 11. In the instant case, the Committee was constituted by the Western Coalfields in order to find out as to whether the non-core sector consumers are utilizing the quantity of coal supplied to them in toto for the purpose of their unit and to verify the said aspect the notices were issued to the non-core sector consumers and they were called to submit documents 19 in number to establish the genuineness of their unit, and the consumption of coal by such Unit. In the case of the petitioner, the petitioner also received notices in this regard and pursuant to that submitted documents to the Verification Committee. Perusal of the submissions filed on behalf of respondent No.2 shows that the Committee, after taking into consideration the 8 documentary evidence submitted that by the petitioner, found certain deficiencies/ shortcomings which are already placed before this court by Mr. Mehadia, the learned counsel for the respondent/WCL and we have already referred to it in our earlier part of the order. It is brought to the notice of this court by Mr. Mehadia, the learned counsel for the respondent that vide notice dated 30/9/2005 the petitioner was informed to submit more documents if the petitioner so desired to justify its claim that the Unit is in running condition and consumption of quantity of coal supply to them. The respondents once again vide notice dated 14-12-2005 referred to herein above, asked the non-core sector consumers, if they so desired, to call on the respondents and explain their stand or deficiencies in regard to the documentary evidence submitted by them. In the instant case, it is not in dispute that the petitioner submitted some documents after 14/12/2005 and as per the statement made in the submission filed on behalf of the respondent no.2 it appears that the petitioner also appeared before the authority. 12. In view of the above referred facts and circumstances, we are of the view that the procedure adopted by the respondent/ committee in order to find out status of the Unit run by non-core sector consumers cannot said to de hors of the principles of natural justice and therefore, the impugned communication is not violative of principles of natural justice.” 7. The learned counsel for the petitioners could not and did not distinguish the case of the present petitioners and the petitioners in the aforesaid writ petition. It is clear from perusal of the aforesaid observations that the procedure followed by the respondents while terminating 9 coal supply to the non-core sector consumers, including the petitioners, the due procedure was followed and that they were given ample opportunity of hearing and for producing documents in support of their contentions. From bare perusal of the order dated 26th June, 2006 coupled with the submissions filed in the present writ petition by respondent nos. 2 and 3 and more particularly the paragraphs reproduced herein above, it cannot be stated that the order dated 02-03-2006 was not final order as tried to be contended by Shri Agrawal, learned Counsel for the petitioners. The submissions advanced by learned Counsel for the petitioners in this respect were also advanced before the Division Bench in Writ Petition No. 2395/2006, and in order to avoid repetition, we have not quoted all the submissions advanced before us. The order dated 02-03-2006, in our opinion, was final order, which is also evident from the conduct of the petitioners. The petitioners kept quiet after the order was communicated to them till filing of the present writ petition. The petitioners state that when the supply of coal was stopped, their entire manufacturing process came to stand-still and since then (i.e. 2.3.2006) the petitioners are suffering irreparable loss. If that was true, the petitioners would not have waited for 10 about four years to approach this Court. 8. At this stage, it is also pertinent to note that one more writ petition was filed in 2008 by one another non- core sector consumer namely; M/s Daga Fuels and Binders and that Writ Petition (Writ Petition No. 4884/2008) was also dismissed, holding that the doctrine of delay and laches in challenging the order dated 02-03-2006 in 2008 was attracted. While dismissing the petition, the Division Bench also observed that the documentary evidence, which was submitted by the petitioners was scrutinized by the competent authority and on the basis thereof, came to the conclusion that the petitioners failed to demonstrate bonafide use of coal and in the circumstances, the court refused to interfere. We do not find any difference between the petitioners in the writ petitions mentioned above and the present writ petition, and hence the present writ petition also deserves to be dismissed.. 9. Shri Agrawal, learned Counsel for the petitioners, invited our attention to the order passed by this Court in Writ Petition No. 4722/2007 and submitted that the petitioners in that writ petition and the present petitioners are similarly placed and therefore, this writ petition also 11 deserves to be allowed in terms of the order dated 11-12-2008, by which the said writ petition was disposed of. The order passed by the Division Bench dated 11-12-2008 reads thus: “The matter is not on board for final hearing. By consent of parties, we have taken it on final hearing board. We have heard learned counsel for both the sides. 1) The learned Additional Solicitor General of India appearing for respondent No. 2 & 3 states that the orders dated 5-11-2007, at Annexure : Z-1 to Z-4 stand withdrawn. He further states that show cause notices will be issued along with the relevant documents including fresh documents and grounds within four weeks from today by the Chairman cum Managing Director, Western Coalfields Limited to those whose claims had been rejected by the High Power Review Committee. That the persons to whom show cause notices would be given will be given four weeks time from the date of receipt of the show cause notices to submit their reply representation alongwith all relevant documents. On receipt of their reply, a final decision in the matter would be taken in accordance with law by the Director (Marketing) Coal India Limited and communicated to the petitioners. The statement is accepted. 2) In view of this statement, no further orders are necessary. It is clarified that in case in the reply the petitioners seek an opportunity of oral hearing, whether to grant them oral hearing or not, shall be in the discretion of the competent authority.” 10. It appears that the Ministry of Coal had issued directions vide their letter dated 15-12-2007 and in view of 12 the directions, a decision was taken to review the cases of the Units whose representations were received upto 31-03-2007. According to the respondents, the petitioners had not made any representation prior to 31-03-2007 and hence they cannot claim parity with the petitioners in that writ petition. Learned counsel for the petitioners invited our attention to their letter dated 15-03-2006 addressed to the respondent No.3 to submit that it was their representation and they ought to have considered the same alongwith the others, including the petitioners, in Writ Petition No. 4722/2007. We have perused the letter dated 15/03/2006. In our opinion, by no stretch of imagination the said letter could be termed as representation for seeking review of their case. If the petitioners claim that their letter dated 15-3-2006 in fact was their representation and it ought to have been considered by the respondents alongwith other 50 non-core sector consumers, they would not have waited for more than three years to approach this court by way of the present writ petition. On this ground also, the present writ petition deserves to be dismissed. 11. In view of the observations made in the foregoing paragraphs, in our opinion, the judgments relied upon by 13 the learned counsel for the petitioners, are no avail to the petitioners. The first judgment relied upon by the petitioners was Ashok Kumar vs. State of Bihar and others, 2008(6) SCALE 702. The petitioners relied upon this judgment on the point of delay and laches. We have perused the said judgment and in our opinion, it would not apply to the facts of the present case. Moreover, the petitioners have not made any efforts to explain the delay of more than four years in approaching this Court. Then the learned counsel for the petitioners also placed reliance upon the judgment of the Supreme Court in O.P. Gupta vs. Union of India and others, (1987) 4 SCC 328, to contend that the respondents ought to have concluded the enquiry and/or passed final orders after the impugned order was issued in 2006. This submission also deserves to be rejected outright, in view of the findings recorded by us that the impugned order was passed after giving reasonable/sufficient opportunity to the petitioners and that it was not an interim order of suspension, as tried to be contended by the learned counsel for the petitioners. Then the reliance was placed on the judgment in State of Haryana & others vs. Gurcharan Singh, 14 2004(12) SCC 540, to contend that the Government cannot discriminate. In our opinion, there is absolutely no discrimination made by the respondents in the present case and the sufficient opportunity was given to more than 159 non-core sector consumers, including the petitioners, before issuing the impugned order. Moreover, we have already observed that the petitioners did not make representation for review of their case. This judgment also is of no avail to the petitioners. Then the petitioners also relied upon the judgment of this Court in Bombay Municipal Pensioner's Association vs. Municipal Corporation of Greater Bombay, 1994 Mh.L.J. 1458, to contend that the cut off date fixed by the respondent to make representations seeking review of their cases was irrational. In our opinion, this judgment also is of no avail to the petitioners for simple reason that the petitioners failed to make representation seeking review of their case. In the circumstances, this writ petition fails and dismissed as such. JUDGE JUDGE pma 15