IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8144 of 2009 M/S SUSHILA CHEMICALS PVT.LTD. Versus THE BHARAT COKING COAL LTD.&OR With CWJC No.8311 of 2009 M/S MAGADH SMOKELESS COKING CO Versus THE BHARAT COKING COAL LTD.&OR ----------- For the Petitioners : Mr. Y.V.Giri, Sr.Advocate Mr. Rajkishore Prasad, Advocate Mr.Tej Bahadur Roy, Advocate For the Respondents : Mr. V.M.K. Sinha, Advocate 5 26.8.2009 Heard counsel for the parties. The petitioners seek quashing of wireless message dated 13.6.2009 issued by the General Manager (S & M) vide Ref.No.BCCL/S&M/PS/F-180/4761, contained in Annexure-12, be which he has issued direction to all C.G.M./G.Ms of area including C.C.W.O. suspended the coal supply of petitioners‟ unit including other units. The petitioners are proprietary unit established for producing special smokeless fuel. Earlier the supply of coal was made on the basis of linkage system. The linkage system was not found sub serving the interest of coal company as well as the common citizen and as such the same was given a go bye. Litigations in this respect were carried up to the Hon‟ble Apex Court. Pursuant to the direction of the Hon‟ble Apex Court in the case of Ashoka Smokeless reported in (2007) 2 SCC 640, the Ministry of Coal formulated a new Coal Distribution Policy. The aforesaid policy provided for replacement of linkage 2 system by fuel supply agreement. Consequently the petitioners entered into fuel supply agreement with B.C.C.L. Dhanbad in November, 2008. The B.C.C.L. began to supply the coal as per the terms and conditions of the agreement. On 13.6.2009 the respondent General Manager vide his wireless message addressed to various officials of B.C.C.L. bearing vide Ref. No.BCCL/S&M/PS/F- 180/4761 directed suspension of supply of coal to various units including the petitioners‟ unit. The petitioners are aggrieved by the aforesaid wireless message dated 13.6.2009, contained in Annexure- 12. The wireless message did not contain any reason for suspending the supply of coal. The petitioner has assailed the impugned order mainly on two grounds; firstly the order in question not only assigned any reason for suspending the coal supply but the same has been passed in utter disregard of the principle of natural justice. Secondly, the impugned order has been passed in violation of clause 13 of the agreement which provides the circumstances under which coal supply can be suspended. Counsel for the respondents submits that the coal supply has been suspended as the C.B.I. has instituted a case against ten units including the petitioners‟ units for misusing the coal supplied to them. He further submits that the impugned order has been passed in public interest also. In order to appreciate the rival contentions of the parties, it would be expedient to take note of some relevant provisions 3 including the provisions of suspension and termination which are contained in Coal Supply Agreement. Clause 2.2 of the agreement states that unless terminated in accordance with the terms hereof, the agreement shall remain in force for a period of five years from the effective date. Clause 13 of the agreement deals with the suspension of coal supply. Clause 13.1 deals the ground on which the coal supply can be suspended. It would be relevant to quote clause 13.1 of the agreement which reads as follows: “13.1 Notwithstanding other provisions of this Agreement, in the event the purchaser fails to pay any amount including any interest, due to the Seller under this Agreement within a period of thirty (30) days of the same falling due, the Seller shall have the right to resort to any one or more of the following: (a) Adjust the outstanding amount against the Security Deposit or by invoking the Security Deposit BG maintained in terms of Clause 3 or such portion of it as available; and/or (b) invoke the Financial Coverage Bank Guarantee or any cash deposit towards Financial Coverage to the extent available and necessary to meet the outstanding dues; and/or (c) Suspend supplies of coal to the Purchaser” Clause 15 of the agreement deals with termination of agreement. Clause 15.1.1 to Clause 15.1.8 enumerates the grounds which can lead to termination of an agreement. For instance, if a 4 purchaser misuses the coal or uses it for the purpose not prescribed under the agreement, the same can be terminated. The petitioners state that they had not defaulted in making payment of coal supplied to them or otherwise even and as such the supply of coal cannot be suspended. They further submit that the aforesaid facts have not been denied by the respondent in their counter affidavit. Counsel for the respondents states that earlier also the supply of coal was suspended to one of the petitioners namely petitioner in C.W.J.C.No.8144 of 2009 as necessary documents were not furnished. The petitioners moved this court in C.W.J.C.No.10653 of 2007 and this court by order dated 10.1.2008 set aside the order of respondent coal company stopping the supply of coal to the petitioners. Against the aforesaid order, the respondent B.C.C.L. went in appeal being L.P.A.No.174 of 2008 and the Division Bench of this court by order dated 24.4.2008 found that sufficient opportunity was given to the defaulting parties to make up the deficiency and as the deficiency was not made up the supply of coal was rightly suspended in public interest till the enquiry in this matter was finally determined. Counsel for the petitioners, however, submits that the Hon‟ble Apex Curt in Civil Appeal No.375 of 2009 which was disposed of by order dated 22.1.2009 directed the respondents coal company that in case the petitioners are unable to produce a particular document, the authorities of the B.C.C.L. would permit 5 the petitioners to produce the supporting documents in corroboration of the documents which they are unable to produce. He further submits that during the pendency of the S.L.P., the coal supply was resumed to the petitioner. In the instant case the suspension of supply of coal and termination of an agreement is specifically governed by various terms and conditions enumerated in the agreement itself. Clause 13 of the agreement deals with suspension of supply of coal to the purchasing unit. It states that if the purchaser fails to pay any amount including any interest, the Seller shall have the right to resort to any one of three penal measures including suspending the supply of coal to the purchaser. The respondents do not state that the petitioners had failed to pay any amount including interest due to the seller. When the manner and the circumstances in which the coal supply could be suspended or terminated is provided for, the same has to be strictly adhered to more so when the provisions start with a non obstante clause. The clause starts with the words “Notwithstanding other provisions of this Agreement…..” The principle contained in maxim „Expressio unius est exclusion alterius” that expression of one thing or specific condition tantamount to exclusion of others would also be applicable in the instant case. The Hon‟ble Apex Court in the case of Hukum Chand Shyam Lal Vs Union of India & ors, reported in A.I.R. 1976 SC 789 wherein in paragraph 18 it has been held as follows: “18. It is well settled that where a power is required to 6 KHAN be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice……” The institution of criminal case or misuse of coal is no ground for suspension of coal supply in the agreement. The suspension clause in agreement no where states that the coal supply could be suspended if coal is misused or F.I.R. is lodged. However, these grounds could be germane as per clause 15 of the agreement for terminating the agreement itself. This court finds that the respondent General Manager (S&M) vide his letter dated 16.7.2009 contained in Annexure-R to counter affidavit has already issued show cause to various units including petitioners‟ units for cancelling the agreement on grounds of misuse of coal and institution of F.I.R. It would be open to the respondents to proceed further in the matter pursuant to Annexure-R in accordance with law. None the less the respondents cannot suspend the supply of coal on the ground that a first information report has been instituted as the same dehors the grounds on which the supply can be suspended. For the reasons stated above, the impugned order directing suspension of supply of coal so far as it relates to the petitioners is quashed and these writ petitions are accordingly allowed. (S.P.Singh,J) 7