Letters Patent Appeal No.558 of 2001 ( Against judgment and order dated 3.5.2001, passed in CWJC No. 4337 of 2001, by Hon’ble Mr. Justice Ram Nandan Prasad ) ******* M/S CENTRAL COALFIELDS LTD, having its registered office at Darbhanga House, Ranchi, through its Chairman-cum-Managing Director 2. Chairman-cum-Managing Director, M/s Central Coalfields Limited, Darbhanga House, Ranchi 3. Director (Finance), M/s Central Coalfields Limited, Darbhanga House, Ranchi …….. Respondents -Appellants Versus 1. M/S RAHUL INDUSTRIES , a proprietorship firm, having its unit at Bhojpur Road, Udaypur, District – Rohtas (Bihar), through its proprietors Smt. Deep Shikha Dhanuka & Others 2. M/s Economical Coke Company 3. M/s Pearl Industries 4. M/s Jai Durga Fuel Industries 5. M/s Samrat Fuel Enterprises, Dehri, Disttt. Rohtas ……..Petitioners-Respondents ****** For the Appellants : Mr. V M K Sinha For the Respondents : M/s Devi Prasad Pal, Senior Advocate S D Sanjay, Amarnath Sen, Abhijit Ganguly, Gautam Kejriwal, Ms. Shabina Rubab ****** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR.KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar & Kishore K Mandal, J.J. This appeal under clause 10 of the Letters Patent of the High Court of Judicature of Patna arises out of the order dated 3.5.2001, passed by a learned single Judge of this Court, in CWJC No. 4337 of 2001 (Rahul Industries vs. Central Coalfields Limited & Ors.). The appellants pray to dispose of this appeal after taking into account the Pendente Lite developments. 2. Before we proceed further, we would like to clarify that the impugned order disposed of two writ petitions, namely, the present CWJC No. 4337 of 2001, preferred by the five petitioners (respondents herein), and CWJC No. 4339 of 2001 (M/s Hindustan Industries vs. Central Coalfields Ltd.). The present appeal is confined to CWJC No. 4337 of 2001. It may further be stated that LPA 2 No. 527 of 2001, arising out of part of the common order impugned herein, and arising out of CWJC No.4339 of 2001, was also laid before us preceding the present appeal, and has today been disposed of in view of the agreement inter- parties arrived at during the pendency of the present appeal. 3. A brief statements of facts essential for the disposal of the appeal may be indicated hereinbelow. A different writ petition bearing CWJC No.2750 of 1997® (Special Smokeless Fuel Manufacturers Association vs. CMD, Central Coalfields Ltd.), was preferred before the Ranchi Bench of the Patna High Court, and was disposed of by judgment dated 28.11.98, with the direction that the writ petitioner would be entitled to supply of 5000 metric tones of monthly quota of coal as per the linkage system from a set of collieries nominated by the coal company. The same was affirmed by a Division Bench of the High Court by order dated 17.8.98, passed in LPA No.618 of 1997. Aggrieved by the same, Central Coalfields Limited (CCL, in brief) preferred Civil Appeal no.6317 of 1998 (CCL vs.Special Smokeless Fuel Manufacturers Association), before the Supreme Court, which was disposed of by the following order:- “ In consent of all parties, the appeal itself is taken for hearing. The impugned order to the extent that it directs the petitioners to supply coal from any specific colliery is set aside. The appellant, however, states that subject to availability, the direction for supply of coal shall be, as far as possible, from a nearly colliery. It is directed accordingly. The civil appeal is disposed of.” 4. CCL thereafter filed an application in the said CWJC No.2750 of 1997 for modification of the said order dated 28.11.97, which was rejected by order dated 16.3.2000. Aggrieved by this order , CCL preferred Civil Appeal No.566 of 2001 before the Supreme Court, which was disposed of by order dated 15.1.2001, whereby the said order dated 16.3.2000 was set aside, and the application for modification was remitted to the High Court for its fresh disposal in the light of the observations made in the order. The modification application was disposed of by the High Court by order dated 16.10.2001, whereby the learned single Judge of the Jharkhand High Court rejected the same and reaffirmed the earlier order. 5. Taking inspiration from the orders passed in the said CWJC No.2750 of 1997, the respondents herein preferred the said CWJC No.4337 of 2001, for identical relief. The same has been allowed by a learned Single Judge of this 3 Court on 3.5.2001, and impugned herein. It has been directed that the Coal Company shall supply 500 metric tonnes of coal per month to each writ petitioner from nearby colliery. CCL has filed this appeal for modification of the impugned order in terms of the Pendente Lite developments. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the policy relating to allotment of assured quantities of coal to manufacturers of smokeless fuel has since been changed. The same was done in pursuance of the judgment of the Supreme Court in the case reported in 2007(2) SCC 640 (Ashoka Smokeless Coal India Limited vs. Union of India), paragraphs 188, 189, and 190 of which are relevant and reproduced hereinbelow for the facility of quick reference:- “ 188. Coal being a scarce commodity, its utility for the purpose for which it is needed is essential. Although, technically, in view of the fact that no price is fixed for coal, there may not be any black marketing in the technical sense of the terms; but this Court cannot also encourage black marketing in general sense. Nobody should be allowed to take undue advantage while dealing with a scarce commodity. The very fact that despite best efforts of the Central Government, the coal companies failed to curb the menace of a section of people and to deal in coal excluding other general people therefrom or the linked consumers misusing their position of obtaining allotment of coal either wholly or in part, it is absolutely necessary that some mechanism should be found out for plugging the loopholes. The Union of India or the coal companies appear to have lost confidence in the State Governments. They had carried out joint inspection and in that process they must have arrived at a satisfaction about the genuineness of the claims of industrial units for which the linkage system was meant for. “189. Before us most of the consumers, with a view to obtain supply of coal had filed documents to prove their genuineness. The said documents must be scrutinized by the authorities of the coal companies. In the event, they have any suspicion, inspection should be carried out by officers appointed by the Chairman-cum- Managing Director of the company concerned within whose jurisdiction the unit is situated. “190. With a view to evolve a viable policy, a committee should be constituted by the Union of India with the Secretary of Coal being the Chairman. In such a committee, a technical expert in coal should also be associated as most of the projects involve consumers of coal, particularly manufacturers of hard coke and smokeless fuel. In our opinion, it may not be difficult to find out, having regard to the technologies used therein as regards the ratio of the input vis-à-vis the output, with a balance and 10% margin. On the basis of such finding alone, apart from the requirements of five years, supply should form the basis of MPQ. We may, however, hasten to add that the Central Government in collaboration with the coal companies would be at liberty to evolve a policy which would meet the requirements of public interest vis- à-vis the interest of consumers of coal. They would be entitled to 4 lay down such norms as may be found fit and proper. They would be entitled to fix appropriate norms therefore. In the event, any industrial unit is found to violate the norms, it should be stringently dealt with.” It is relevant to state that the respondents herein were parties before the Supreme Court. 7. Taking note of the observations/directions of the Supreme Court extracted hereinabove, the coal companies have formulated and promulgated a fresh policy for allotment of coal to the manufacturers of smokeless fuel, substituting the earlier one. The present respondents have entered into agreements with coal company on various dates in June 2008, and supplies are being made to them as per the agreements inter-parties. Validity of the new policy and connected matters are pending adjudication before the Supreme Court in SLP(Civil) No.12526- 12532 of 2008, wherein the present respondents are also parties, and the following interim order has been passed :- “ Let all these matters be taken up together, since the pleadings are complete. This will not prevent the respondents from entering into FS Agreements in terms of the policy, and, in the event, such Agreements are signed, the petitioners in all the matters shall supply coal to the respondents who have signed such Agreements as indicated in the policy. This would be subject to the final decision in all the matters which are taken up today. In the event any orders of allocation have been made in the months of April and May, 2008, the same should not be disturbed. These directions will, however, not be applied as far as SLP© Nos.12526-12532/08 are concerned.” 8. Learned counsel for the appellant submits before us that the parties are now bound by the agreements inter-parties, the appeals may be disposed of accordingly, and the order of the learned single Judge has to be modified accordingly. On the other hand, learned counsel for the respondents submits that the present appeal has to be disposed of in view of the frame of the present writ petition. Validity of the agreement is not the subject matter of the present appeal and has, therefore, to be left alone for adjudication in separate proceedings. He submits in the same vein that so long this Court is satisfied that the order impugned herein is consistent with the orders passed in CWJC No. 2750 of 1997, read with the order of the Supreme Court in the proceedings arising thereto, the appeal has to be dismissed. He lastly submits that the appellant has monopoly 5 over coal in the country, the respondents herein did not have the requisite bargaining power, and were compelled to enter into unconscionable agreements to keep themselves alive. 9. It appears to us that the parties have, during the pendency of the present proceedings, entered into agreements inter-parties concluded on various dates in June 2008. These were prima facie voluntary acts of the parties and will continue to bind them till such time the same are modified or set aside by a competent court of jurisdiction. We are informed at the Bar that identical issues are pending adjudication before the Supreme Court in the said SLP © Nos. 12526-12532 of 2008, and connected matters, and the respondents herein are parties to those proceedings. We are, therefore, constrained to take note of the Pendente Lite developments and are of the view that the parties shall be bound by the agreements inter-parties till such time the same are modified or set aside by a court of competent jurisdiction. 10. In the result, the appeal is allowed in the manner indicated hereinabove. The order in so far as it covers CWJC No. 4337 of 2001, is accordingly modified. ( S K Katriar ) ( Kishore K Mandal ) Patna High Court, Patna The 21st of December 2009 NAFR/mrl