JUDGMENT All the matters mentioned hereafter were heard together : (A) Five writ applications; (B) Three several applications of Premium Fuels for addition of party and for variation of interim order dated June 20, 1984 in C.R. No. 14809(W) of 1983; C.R. No. 14811(W) of 1983 and C.R. No. 14812(W) of 1983 filed on June, 6 1984; (C) Interim applications filed by Shree Shyam Industries, Shree Jagadamba Coke Manufacturing Enterprises and Tetulia Coke Plant on June 18, 1984. Interim applications filed by Bajrangbali Coal Company and another on July 11, 1984 and August 24, 1984 ; (D) Four applications filed by Industrial Engineering Company on January 25, 1985 for being added as party respondent and for vacation of the interim orders passed in C.R. Nos. 14809 (W) to 14812 (W) of 1983; (E) Applications filed by Shree Shyam Industries Limited. Bajrangbali Coal Co., Shri Jagadamba Coke Manufacturing Enterprises and Tetulia Coke Plant on December 19, 1984 for further interim order. All these matters involve a common issue, that is, supply of coal, inter alia, by Bharat Coking Coal Limited (hereinafter referred to as BCCL) and Coal India Limited (hereinafter referred to as CIL) to coke oven plants. Background : 2. From the pleadings of the parties before me, certain facts emerge which are not in dispute. These facts are stated briefly hereafter. 2.1 There are over 100 coke oven plants in operation. Most of them are situated in the State of Bihar. Each coke oven plant has been set up with the permission of the State Government concerned. Only the coke oven plant of Premium Fuels is situated in West Bengal. The coke oven plants of other writ petitioners are situated in the State of Bihar. For manufacturing hard coke, these coke oven plants require coking coal. BCCL mainly owns the collieries from which such coking coal is available. BCCL and other subsidiaries of CIL distribute amongst coke oven plants diverse quantities of coal every month from various collieries. The total quantity from the collieries belonging to CIL and/or its subsidiaries constitutes the available coal for all coke ovens. Coking coal of all the collieries and of all grades are, however, not suitable for manufacturing hard coke. The quality of coal varies from colliery to colliery. Some collieries produce coal which is more suitable for manufacturing coke than others. The total quantity from the collieries belonging to CIL and/or its subsidiaries constitutes the available coal for all coke ovens. Coking coal of all the collieries and of all grades are, however, not suitable for manufacturing hard coke. The quality of coal varies from colliery to colliery. Some collieries produce coal which is more suitable for manufacturing coke than others. The facts remains that the total quantity of suitable coal is not enough to meet the requirements of all the coke oven plants. BCCL and other subsidiaries of CIL also make supplies of less suitable coal. It is also claimed that sometimes totally unsuitable coal is supplied to the coke oven plants. It is the scarcity of the availability of suitable coking coal to meet the demands of all the coke oven plants which has given rise to the disputes in these proceedings. 2.2 The collieries which supply coking coal are nationalized collieries. The question is whether in distributing the available coal, the CIL and its subsidiaries should proceed equitably. This means that each coke oven plant should get a share of the suitable as well as less suitable and unsuitable coal. But from the records and proceedings of this Court, it appears to me that by reason of the various orders obtained from this Court, some of the writ petitioners are favourably treated than others as a result whereof equilibrium has been disturbed. It has to be seen whether this had been done by CIL and BCCL with a view to favour some of the writ petitioners or with a view to implement and policy decision resulting in some inequality. 3. Certain facts leasing to the initiation of various proceedings by the writ petitioners in this Court are required to be stated. 3.1 On November 12, 1977 and agreement was entered by and between Premium Fuels (who owns coke oven plants at Salanpur, District Burdwan) and BCCL for supply of 24,000 M.T. Gr.-II ROM from East Ramnagar Section of Damagoria Colliery. The said agreement, inter alia, provided as follows :- (a) Premium Fuels would have to lift minimum quantity of 2000 M.T. per month, failing which penalty would be imposed @ Rs. 1/- per tonne on the short-fall. (b) The quantity allotted can be increased or decreased. (c) BCCL reserves the right to terminate the agreement fully or partly with 15 days’ notice. 1/- per tonne on the short-fall. (b) The quantity allotted can be increased or decreased. (c) BCCL reserves the right to terminate the agreement fully or partly with 15 days’ notice. 3.2 On April 24, 1979, Shri Shyam Industries and Anr. filed a writ petition in the Original Side of this Court being Matter No. 297 of 1979 alleging that they were entitled to get supply of coal from nine specified collieries of BCCL, that is, (i) Kusunda Nayadee HH ; (ii) Lodhna HH; (iii) New Sudamdih HH; (iv) South Tista F; (v) Khas Jeenagora HH ; (vi) Jayrampur HH ; (vii) Gubindpur HH ; (viii) East Ramnagar 'J' (Damagoria Colliery) and (ix) Ema-HH. Similar writ applications were also filed by three other petitioners, viz., Shree Jagadamba Coke Manufacturing Enterprises and Anr. (hereinafter referred to as Shree Jagadamba) being Matter No. 298 of 1978 ; Tetulia Coking Plant (hereinafter referred to as Tetulia), being Matter No. 350 of 1979 and Bajrangbali Coal Co. (hereinafter referred to as Bajrangbali) being Matter No. 351 of 1979. In all these four applications Rule was issued on April 24, 1979 by T.K. Basu, J. (as His Lordship then was). On April 30, 1979 T.K. Basu, J. (as His Lordship then was) passed an interim order to the following effect:- "The Court: This application is disposed of by the following order :- That on top of the 1220 Metric Tonnes of H.H. Coal that Mr. Chatterjee's client is already getting from the Respondent No. 3, the Respondent No. 3 will supply to the petitioner another 600 Metric Tonnes of H.H. or J & K quality of coking coal pending in the disposal of this Rule. Mr. Shibdas Banerjee and Mr. Milan Banerjee, Advocates appearing for the Respondent Nos. 1, 2, 3 and 4 waive service of the rule. All affidavits-in-opposition to be filed by 30.5.79. Affidavit-in-reply to be filed by 12.6.79 and the matter is adjourned till 14.6.79. The allegation contained in the petition are not admitted by the respondents and this order is made without prejudice to the rights and contentions of the parties. All parties to act on a signed copy of the minutes." The Respondent No. 3 in the said application is BCCL. The allegation contained in the petition are not admitted by the respondents and this order is made without prejudice to the rights and contentions of the parties. All parties to act on a signed copy of the minutes." The Respondent No. 3 in the said application is BCCL. 3.3 On May 14, 1979, further interim order was passed by T.K. Sasu, J. (as His Lordship then was) to the following effect :- "There will be an interim order directing the Respondent No. 2 to direct the Respondent No. 3 to apply 1600 metric tonnes of coking coke to the petitioners. Out of this the supply is at present of 800 metric tonnes would be of the same variety as being received by them now of the additional supply of another 800 metric tonnes it may be either of H.H. or failing that of J or K quality of coking coke pending this disposal of the Rule. Let it appear again as a New Motion one week after the Summer Vacation. Liberty to apply for variation of the interim order. The Coal Controller and all parties to act on a signed copy of the minutes." 3.4 On July 27, 1979, Premium Fuels filed a writ petition alleging that it had right to obtain 2000 M.T. of Grade II ROM coal per month from the East Ramnagar Section of Damagoria Colliery of BCCL by virtue of the agreement dated November 12, 1977 and that BCCL had adopted wrongful, illegal and arbitrary attitude of not supplying the requisite coal from the said colliery. Rule was issued by T.K. Basu, J. and interim order was also passed directing BCCL to supply 1200 M.T. of Grade 'J' Coal from East Ramnagar Section of Damagoria Colliery subject to availability. The said interim order is to the following effect; "27.7.1979 : After hearing the parties, I make the following order :- The respondent Coal Controller is hereby directed to order the Respondent No. 3 BCCL, to supply to the petitioner per month a quantity of 1200 (twelve hundred) M/Tonnes of Grade 'J' Coal from the Damagoria Colliery (East Ramnagar Section) subject to the stocks and availability of the coal thereof, failing which the requisite coal may be supplied from any other nearby colliery. Time to file the affidavit-in-opposition is extended by one week from today and the reply thereto by one week from today and the reply thereto by one week thereafter. Let this application come up for hearing two weeks hence. Let a plain copy of this order, duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates for the petitioner." 3.5 On August 1, 1979 Shree Shyam Industries filed an application for Contempt before T.K. Basu, J. alleging violation of order dated April 30, 1979 (in Matter No. 785 of 1979). A Rule was issued and liberty was given to apply for interim order upon notice to the respondents. Three similar contempt applications were filed by the other three writ petitioners, viz., Bajrangbali, Tetulia and Shree Jagadamba. 3.6 On August 9, 1979 an interim order was passed by T.K. Basu, J. in the said contempt matters directing that BCCL would at the first instance attempt to supply the quantity of coal requisitioned by the concerned petitioners from the collieries mentioned by them, but if they are unable to supply, they would be at liberty to make such supplies from any other available sources. The order dated August 9, 1979 is to the following effect:- "So far as the alleged contemporaneous who are officers of the Respondent No. 1 are concerned, their personal appearance is exempted. It is hereby recorded that Mr. Banerjee's client is accepting the cheques, bank drafts and the accompanying forms which are being handed over to Mr. Somnath Chatterjee in Court, Mr. Banerjee's client would in the first instance attempt to supply the quantity of coal requisitioned in terms of this order from the colliery mentioned there. In the event they are unable to supply in the manner they would be at liberty to make these supplies from any other available sources. These supplies of 1800 tonnes of coal for which the bank drafts and other forms have been received in Court as aforesaid, will be completed by Monday next having on delivery order from BCCL to Mr. Chatterjee's client. In so far as supplies to future months are concerned they are to be done in the matter as aforesaid. Mr. Shibdas Banerjee appearing for all the respondents waives service of the Rule. Affidavit-in-opposition to be filed by 7.9.79. Affidavit-in-reply to be filed by 27.10.79. Adjd. till 20.10.79. Chatterjee's client. In so far as supplies to future months are concerned they are to be done in the matter as aforesaid. Mr. Shibdas Banerjee appearing for all the respondents waives service of the Rule. Affidavit-in-opposition to be filed by 7.9.79. Affidavit-in-reply to be filed by 27.10.79. Adjd. till 20.10.79. Learned Advocates on record of both the parties are hereby directed to make a list of various bank drafts which have been handed over to the parties. The above direction with regard to the supplies will appear on and from the month of May, 1979. All parties to act on a signed copy of the minutes." 3.7 On September 19, 1979, another coke oven plant, that is, Foundry Fuel Products, filed an application in the said Matter No. 2977 of 1979 in (1) Shree Shyam Industries & Anr. v. Union of India and Ors. for intervention on the ground that the order passed by T.K. Basu, J. in the said matter had the effect of preferential treatment being given to the parties concerned, that is, Shyam Industries and Others. On the said intervention application, T.K. Basu, J. passed an interim order to the following effect :- "There will be an order in terms of prayer (a). I make it clear that notwithstanding my order dated 9.8.79 which is the subject-matter of this application, M/s Bharat Coking Coal Ltd. will make every possible attempt not to disturb the supplies to other parties including the client of Mr. Dipankar Gupta, as far as possible pending the disposal of this application. They will attempt to continue the supplies in so far as it is practicable, as was being done before. All affidavits-in-opposition to be filed 6.11.79. Affidavit-in-reply by 19.11.79 and adjourned till 21.11.79. All parties including the Registrar, O.S. to act on the signed copy of the minutes." 3.8 The said Foundry Fuel Products also filed on an intervention application in the contempt matters referred to above. T.K. Basu, J. passed an order on September 19, 1979 in the contempt application of Shree Shyam Industries to the following effect :- "There will be an order in terms of prayer (a) and the applicant is being added as party at its own risk as to cost. The order already made in the earlier application being Matter No. 297 of 1979 will also be the order in this application. The order already made in the earlier application being Matter No. 297 of 1979 will also be the order in this application. All parties including the Registrar, O.S. will act on a signed copy of the minutes." 3.9 On September 12, 1980, a letter was issued from the Coal India Limited (hereinafter referred to as CIL) to the General Manager (Sales), BCCL., Dhanbad, enclosing a copy of the agreement entered into by and between CIL and Premium Fuels for supply of coal from East Ramnagar Section of Damagoria Colliery for 24 months. 3.10 On December 15, 1980, applications were filed by BCCL in Matter No. 297 of 1979 (Shree Shyam Industries) and in other three matters relating to Bajrangbali, Tetulia and Shree Jagadamba for certain variation/clarification of earlier orders passed in the said matters. B.C. Basak, J. passed an interim order on December 15, 1980 to the following effect :- "A/O by 5th January, 1981. A/R by 10th January, 1981 and the Matter will be heard on the 12th January, 1981. The interim orders passed already is clarified to this extent that this interim order will not entitle the respondents to make discrimination in respect of any of the customers. It is directed that all the customers are to be treated equally regarding the supply of coal. This interim order is also made subject to the availability of coals. All parties concerned to act on a signed copy of the minutes of this order on the usual undertaking." 3.11 On September 12, 1980 the Sales Officer of Coal India Ltd. forwarded to the General Manager (Sales), BCCL, a copy of the application for agreement for supply of coal for cokaries applied by the Premium Fuels signed by Coal India Limited and Premium Fuels in respect of the allocation of coal for their cokeries. Thereafter, on January 16, 1981 the said writ petition filed by Premium Fuels on July 27, 1979 was withdrawn and the following order was passed:- "The learned Advocate for the petitioner states that in view of the agreement between the parties recorded in the letter dated September 12, 1980, he does not wish to press this rule. The Rule is, therefore, discharged and all interim orders are vacated. The Rule is, therefore, discharged and all interim orders are vacated. There will be no order as to costs." Let the letter filed in Court to day be kept on record." Sd/- T.K. Basu." 3.12 On August 27, 1981, the learned Counsel appearing on behalf of BCCL and the said four parties, that is, Shree Shyam Industries, Bajrangbali Tetulia and Shree Jagadamba submitted before T.K. Basu, J. that the disputes between the writ petitioners in the said Matters of Shree Shyam Industries, Bajrangbali, Tetulia and Shree Jagadamba have been referred to arbitration and as such the writ petitioners did not wish to arbitration and as such the writ petitioners did not wish to proceed with the matters. Rule was accordingly discharged and all interim orders were vacated. The said order dated August 27, 1981 reads thus :- "In view of the fact that the disputes between the petitioners and the Bharat Coking Coal have been referred to arbitration, Mr. Pratap Chatterjee appearing for the petitioners states that his client does not wish to proceed with the matters. The Rule is discharged. The interim orders are vacated. There will be no order as to costs. The connected applications are disposed of on the above terms. All parties to act on a signed copy of the minutes." 3.13 In the contempt application filed by Shyam Industries and Shree Jagadamba, the following order was passed by T.K. Basu, J. on August 27, 1981 :- "The Rule is discharged. All interim orders are vacated. There will be no order as to costs. All parties to act on a signed copy of the minutes." 3.14 The interveners in the case of Bajrangbali and Tetulia also moved before T.K. Basu, J. on August 27, 1981 and the following order was passed:- "In view of the fact that the writ petition in which this application has been filed has not been pressed, the petitioner does not wish to proceed with this application. The application is dismissed without any costs. This order, however, will not prevent the petitioner the added parties from proceeding against the Bharat Coke if so advised in accordance with law. All parties to act on signed copy of the minutes." 3.15 On September 8, 1981, a writ application was filed by Shri Krishna Hard Coke Industries challenging the action of BCCL in entering into the said arbitration agreements as being malafide. Rule was issued. All parties to act on signed copy of the minutes." 3.15 On September 8, 1981, a writ application was filed by Shri Krishna Hard Coke Industries challenging the action of BCCL in entering into the said arbitration agreements as being malafide. Rule was issued. Interim order was granted to the effect that the arbitration should not be proceeded with. The said matter is still pending. 3.16 On September 9, 1981 arbitration agreements were entered by and between Shree Shyam Industries, Bajrangbali, Tetulia and Shree Jagadamba and BCCL. These agreements also provided that until arbitrator makes and publishes his award the BCCL shall continue to supply every month 1200 M.T. of coal in terms of the said order dated August 9, 1979 passed by T.K. Basu, J. The arbitration agreement is in the following terms :- "We the undersigned hereby agree to refer our disputes arising out of allocation supply of coal and which is the subject-matter of dispute in the writ application filed in the Hon'ble High Court at Calcutta being No. 297/79 (Shree Shyam Industries v. Union of India & Ors.) to the sole arbitration of Mr. R.P. Sinha, Chief Mining Adviser, Railway Board. The learned Arbitrator is to enquire, ascertain and adjudicate upon the aforesaid dispute between the parties and the same shall be deemed to be reference to arbitration under the Indian Arbitration Act, 1940 or any statutory modification or enactment thereto. The Arbitrator shall have summary power and shall be entitled to call upon the parties to produce all records and papers in relation to the disputes and differences and for oral evidence if any of the parties and if any of the parties have failed to produce or make available such documents and papers the Arbitrator shall be entitled to proceed ex-parte. The Arbitrator shall make and publish his award within four months from the date of his entering upon the reference. The Arbitrator shall also have summary power in adjudicating the disputes between parties. It is also hereby agreed that until such time the Arbitrator makes and publishes award BCCL shall continue to supply every month 1200 M.T. of coal in terms of the order dated 9th August, 1979 made by Lordship The Hon'ble Mr. Justice T.K. Basu of the required specifications and grade and shall not withhold the said supplies. It is also hereby agreed that until such time the Arbitrator makes and publishes award BCCL shall continue to supply every month 1200 M.T. of coal in terms of the order dated 9th August, 1979 made by Lordship The Hon'ble Mr. Justice T.K. Basu of the required specifications and grade and shall not withhold the said supplies. (Emphasis supplied) 3.17 In August 1982, the agreement dated September 12, 1980 between Premium Fuels and BCCL expired. On November 9, 1982, a letter was issued by this General Manager (Sales) of BCCL to the General Manager, Area No. XII stating that decision has been taken to maintain status quo regarding the supply of W-III coal to Premium Fuels from Damagoria Colliery and requested to resume supply of coal to Premium Fuels as per earlier agreement till further advice. 3.18 On September 27, 1983, Shree Shyam Industries, Bajrangbali, Shree Jagadamba and Tetutia filed further writ petitions in the Appellate Side of this Court before A.K. Janah, J. (as His Lordship then was) alleging that they had right to get supply of coal from the said 9 collieries on the basis of the basis of the order dated August 9, 1979 passed by T.K. Basu, J. Rules were issued being Civil Rule Nos. 14809 (W) of 1983, 14810 (W) of 1983, 14811 (W) of 1983 and 14812 (W) of 1983. Interim order was passed in terms of prayer (i) of the respective petitions. The prayer (i) of the petition is in the following terms: "The Respondent Nos. 3 and 4 should be directed to supply 1800 M.T. of coal from three collieries, i.e., Lodna, New Sudamidh and East Ramnagar month by month and every month by offerings the same to the petitioner in writing and the Coal Controller being the Respondent No. 2 should be directed to issue release order on the said respondents month by month and every month for immediate supply of coal from the said three collieries." Excepting the quantity of coal mentioned in prayer (i), the rest of the prayer is identical in all other three writ applications. It appears that BCCL and/or CIL filed an appeal to the Division Bench from the said order dated September 27, 1983 passed by A.K. Janah, J. Upon the said application the Appeal Court passed an order directing that BCCL shall continue to effect the supply in accordance with the Agreement dated September, 1981 to the said four writ petitioners. It was further directed that BCCL shall also complete the supply of arrears of coal to be supplied under the said Agreement within the reasonable time subject to the availability of time. 3.19 On December 23, 1983. Premium Filed a writ application challenging a circular issued by CIL and BCCL requiring coke oven plants to file certain documents and also to file affidavit as a condition for obtaining supply of coal. Rule was issued by A.K. Janah, J. Interim order was also passed directing, inter alia, maintenance of status quo with regard to supply of coal to Premium Fuels. 3.20 On January 19/25, 1984, orders were passed by Suhas Ch. Sen and Umesh Chandra Banerjee, JJ. in the appeals preferred by BCCL and CIL against the order dated September 27, 1983 passed by A.K. Janah, J. on the applications of Shree Shyam Industries, Bajrangbali, Shree Jagadamba and Tetulia. The Division Bench directed the BCCL and CIL to continue supply in accordance with the agreement dated September 9, 1981 to Shree Shyam Industries, Bajrangbali, Tetulia and Shree Jagadamba. The order dated January 19, 1984 is to the following effect :- "Heard learned Counsel for the parties. This appeal is treated as on day's list for hearing. Both the appeal and the application are disposed of by the following order: Learned Advocates for the respondents state that he has not filed any affidavit-in-opposition. He may not be treated as having admitted any of the allegations made in this application. The appellants shall continue to effect supply in accordance with the agreement dated September 9, 1981 to the Respondent No. 1. The appellant shall also complete the supply of the arrears of coal to be supplied under the said agreement within a reasonable time to the availability of coal. The appellants shall continue to effect supply in accordance with the agreement dated September 9, 1981 to the Respondent No. 1. The appellant shall also complete the supply of the arrears of coal to be supplied under the said agreement within a reasonable time to the availability of coal. There will be no order as to costs." 3.21 On June 18, 1984 Shree Shyam Industries, Tetulia and Shree Jagadamba filed three interlocutory applications in the pending writ petitions filed by them praying for direction upon BCCL to supply specified quantities of coal from East Ramnagar Sec. of Damagoria Colliery. The said applications were moved before me. At the instance of Mr. Somnath Chatterjee, learned Advocate for the writ petitioners, Mr. Gautam Chakraborty, learned Advocate for the BCCL virtually agreed to the order being passed in terms of prayer (a) of the said application. Accordingly on June 20, 1984 I passed the following order :- "There will be an order in terms of prayer (a) of the above three applications. Let affidavits-in-opposition to these applications be filed by June 29, 1984, reply, if any, thereto by 4th July, 1984. Let the matters appear as contested applications on 6th July, 1984 : This order is without prejudice to the rights and contentions of the parties in the main application. Let the applications be heard analogously. Let a plain copy of the order, duly countersigned by an Officer of this Court be given to the learned Advocate for the petitioner." 3.22 On 5, 1984, Premium Fuels applied for being added as a party to the said writ applications filed by Shree Shyam Industries, Tetulia, Shree Jagadamba and Bajrangbali and for vacating and/or variation of the said order dated June 20, 1984 passed by me. On July 9, 1984 I allowed the application for addition of party and also directed that the order dated June 20, 1984 passed by me will remain stayed till Tuesday week from that date. 3.23 On July 13, 1984 I passed an order directing the respondents to supply W-II Grade Coal from East Ramnagar Colliery (Damagoria) to the five writ petitioners, Premium Fuels, Shree Jagadamba, Tetulia, Shree Shyam Industries and Bajrangbali and the quantities were also specified having regard to the requirements of the parties. 3.23 On July 13, 1984 I passed an order directing the respondents to supply W-II Grade Coal from East Ramnagar Colliery (Damagoria) to the five writ petitioners, Premium Fuels, Shree Jagadamba, Tetulia, Shree Shyam Industries and Bajrangbali and the quantities were also specified having regard to the requirements of the parties. It may be mentioned that Bajrangbali had also made an interlocutory application before the order dated July 13, 1984 was passed and accordingly the order dated July 13, 1984 directed supply of coal to Bajrangbali also. 3.24 On July 13, 1984 Industrial Engineering Company filed a writ petition before this Court contending that all available coal should be equitably distributed amongst all coke oven planes on a pro-rata basis and interim order was passed for production of the records by BCCL as regards the distribution of the coal to the coke oven plants. 3.25 On July 29, 1984 an interim order was passed in the writ petition filed by Industrial Engineering Company directing the BCCL to produce records relating to certain specified matters. In the said writ application of Industrial Engineering Company, Premium Coke Manufacturing Company, Shree Shyam Industries, Shree Jagadamba, Tetulia and Bajrangbali were added as parties, Premium Fuels was also added as a party-respondent. 3.26 Premium Fuels filed an appeal from the order dated July 13, 1984 passed by me directing supply of specified quantities to the five parties. It appears that the Appeal Court did not interfere with the said order but desired that the matter should be disposed of expeditiously. 3.27 BCCL did not file any affidavit in the application made by Shree Shyam Industries, Bajrangbali, Tetulia and Shree Jagadamba, but filed an affidavit in the application filed by the Industrial Engineering Company. 3.28 By the order dated July 13, 1984 BCCL was directed to specify in their affidavit the supplies made from East Ramnagar Colliery (Ramnagar) W-II Grade Coal to the said five parties for the last three years as well as from other collieries as the case may be. It was further directed that BCCL shall also specify the reasons for maintaining the status quo of the supply of the said coal from East Ramnagar Colliery to Premium Fuels. It was further directed that BCCL shall also specify the reasons for maintaining the status quo of the supply of the said coal from East Ramnagar Colliery to Premium Fuels. BCCL and Coal India Limited were also directed to explain why and under what circumstances the Premium Fuels were supplied W-II Grade Coal instead of W-III Grade coal and why there were solely allotted East Ramnagar Colliery for the purpose. It was further directed that the BCCL shall also specify in their affidavit the availability of W-III Grade coal from other collieries for supply to the aforesaid parties per month and to give the details how the transactions of sale for W-II Grade coal from different collieries were entered into by them and what are the principles and guidelines in entering such agreements. It was also directed that the records relating to the allotment of W-Grade Coal under the Collieries of BCCL for the last three years shall be made available to the Court. 3.29 The narration of events will not be complete unless a further fact is mentioned. During the Christmas vacation one Akash Coke Industries filed a writ application under Article 226 of the Constitution against BCCL and obtained an interim order. Against the said interim order BCCL filed an appeal being FMAT No. 198 of 1985. In the said appeal an application for stay was also filed. It appears that the Appeal Court consisting of M.N. Roy and Amarendra Nath Sengupta, JJ. passed an order on 30th January, 1985 directing BCCL to offer and/or allocate and/or supply available coking coal to all private cokeries/parties/consumers irrespective of any order that might have been passed by this Court. It may be mentioned here that on December 1984, Shree Shyam Industries, Bajrangbali, Tetulia and Shree Jagadamba filed applications for direction upon BCCL for supply of coal. 4. All the applications were heard from time to time. Elaborate arguments have been made by the learned Counsel appearing for the writ petitioners. It may be mentioned that the Industrial Engineering has alleged that special treatment is being shown to M/s. Premium Fuels, Shyam Industries, Bajrangbali, Tetulia and Shree Jagadamba whereas Shree Shyam Industries and others have supported Industrial Engineering in so far as their grievance against Premium Fuel is concerned. It will be convenient to summarise the contentions raised by the writ petitioners and the respondents one after another. It will be convenient to summarise the contentions raised by the writ petitioners and the respondents one after another. Contention of the Premium Fuels : 4.1. The Premium Fuels in the year 1973 started construction of a small scale industry for manufacture of low valatile fuels (hard coke) and it was completed in 1974. The main idea of setting up of the said industry at Salanpur in the District of Burdwan was to feed the said plant by the coal produced by a nearby colliery, namely, Damagoria. It is alleged that at that point of time coal of Damagoria Colliery was on free sale. 4.2. Coke Oven Plants all over the Country are located near and around collieries producing suitable coal which are owned by BCCL or ECL. Shree Shyam Industries are located near Kusunda Nayadih, Ema Collieries which are about 7 k.m. away from their coke oven plants. Shree Jagadamba Coke Manufacturing Enterprises is situated within the distance of 17 km. from these two aforesaid mines, Bajragbali within the same distance, Tetulia near selected Fatku, Shyampur, Gopinathpur Collieries etc. Premium Fuels is situated at the distance of 2 k.m. from East Ramnagar Section of Damagoria Colliery. The respective distance from the Damagoria Colliery (East Ramnagar Section) and other mines to the Coke Ovens of the parties are as follows:- Distance in K.M. from: Colliery Premium Fuels Shree Shyam Bajrangbali Jagadamba Tetulia Coke Industries Coal Co. Coke Mfg. Plant Ent. Kasunda 58 K.M. 7 K.M. 17 K.M. 17 K.M. 30 K.M. Nayadih Lodna 66 K.M. 16 K.M. 25 K.M. 25 K.M. 38 K.M. Patherdih 71 K.M. 20 K.M. 30 K.M. 30 K.M. 43 K.M. South Tista 63 K.M. 13 K.M. 21 K.M. 21 K.M. 34 K.M. Khas 63 K.M. 13 K.M. 21 K.M. 21 K.M. 34 K.M. Genagora Jayrampur 63 K.M. 13 K.M. 21 K.M. 21 K.M. 34 K.M. Govindpur 64 K.M. 23 K.M. 22 K.M. 22 K.M. 35 K.M. East Ramnagar 2 K.M. 57 K.M. 42 K.M. 42 K.M. 31 K.M. Section Ema 59 K.M. 8 K.M. 17 K.M. 17 K.M. 29 K.M. 4.3. It is also alleged that apart from those, there are various other collieries near to the Coke Oven Plants of the said four parties. It is also alleged that apart from those, there are various other collieries near to the Coke Oven Plants of the said four parties. Moreover Tetulia Coke Plant is within a distance of 5 to 10 K.M. from the coking coal mines of E.C.L. and has been drawing regular supplies from the same collieries of E.C.L. 4.4. It is contended that under such circumstances Coke Oven Plants used to get supply of coking coal from the near about collieries and were actually getting such coal from near about collieries since establishment of the respective coke oven plant. 4.5. Coal of East Ramnagar Section of Damagoria Colliery was on free sale till early part of the year 1978. No Coke Oven Plant showed any interest of getting coal from East Ramnagar Section of Damagoria Colliery and as such till the end of 1977 when the Premium Fuels was made to enter into an agreement by BCCL it was getting supply of coal from East Ramnagar Section of Damagoria Colliery. 4.6. To have a good and assured market for coal of East Ramnagar Section BCCL bound the Premium Fuels with an agreement for taking supply of coal from East Ramnagar Section and a penalty clause was included in the agreement dated November 12, 1977. It is alleged that the Premium Fuels was all along getting coal from the said colliery regularly. The Respondent No. 3, BCCL with a view to getting a regular and permanent customer of the said coal from the said colliery and in consideration of and in recognition of the need of the Premium Fuels of getting regular supply of coal from the said colliery and in pursuance of the solemn assurance given to the Premium Fuels for maintaining such supply of coal to the Premium Fuels, pressured the Premium Fuels to enter into the said written contract on November 12, 1977 for one year supply of coal from the said colliery at the rate of 2,000 Metric Tonnes per month. 4.7. 4.7. On disruption of supply of coal after expiry of the said 1977 agreement and consequential disruption of the manufacture of coke, the Premium Fuels moved this Court under Article 226 of the Constitution of India and T.K. Basu, J. (as His Lordship then was) after considering the case of the Premium Fuels was pleased to pass an order on July 27, 1979 to the effect as hereunder :- “........ The respondent Coal Controller is hereby directed to order the Respondent No. 3, BCCL, to supply to the Premium Fuels per month quantity of 1200 Metric Tonnes of Grade 'J' coal from Damagoria (East Ramnagar Section) subject to the stock and availability of the coal thereof, failing which the requisite coal may be supplied from any other nearby colliery........... 4.8. It is alleged that by an ad-hoc arrangement, the Premium Fuels was however getting supply of coal from other sources to keep its coke oven plant going during the intervening period. While the aforesaid state of affairs was continuing, a letter was written to Coal India Limited by the learned Advocate of the Premium Fuels that they were interested in settling the matter out of Court by entering into a long term agreement with Coal India Limited for supply of coal in the light of agreement that has been entered into by Coal India Ltd. with one Premium Coke Manufacturing Company (P) Ltd. of Dhanbad. The Premium Fuels thereafter, negotiated with Coal India Limited for a long terms agreement with Coal India Ltd. for supply of coal from East Ramnagar Section of Damagoria Colliery as they were getting already in the past on a regular basis. The result of the discussions was recorded in a letter of the learned Advocate of the Premium Fuels in his letter dated September 3, 1980. 4.9. In this background on September 12, 1980 Coal India Limited entered into an agreement with the Premium Fuels for supply of 2000 Metric Tonnes of coal per month from the East Ramnagar Section of Damagoria Colliery. It was specifically mentioned in this connection that the agreement was initially for a period of 24 months. It is further contended that on August, 1982 the Coal India Limited took a decision generally applicable to all the Coke Oven Plants situate in Bihar and Bengal that they shall maintain status quo regarding the supply of coal. It was specifically mentioned in this connection that the agreement was initially for a period of 24 months. It is further contended that on August, 1982 the Coal India Limited took a decision generally applicable to all the Coke Oven Plants situate in Bihar and Bengal that they shall maintain status quo regarding the supply of coal. Shree Shyam Industries and Tetulia Coke Plant obtained the benefits of the said decision of the Coal India Limited inasmuch as they were getting supply of coal from nine selected collieries in preference to other Coke Oven Plants. It is contended that the status quo so far as the Premium Fuels is concerned, should be maintained according to the agreement dated September 3, 1980 and the Premium Fuels was getting supply of coal on the basis of the said decision. 4.10. In or about December 1983 the Coal India Limited published a general circular that in order to maintain existing linkage of supply of coal with the collieries all parties should affirm an affidavit along with the annexure mentioned in the said circular. The said affidavit contained various unreasonable clauses. The Premium Fuels wrote to the BCCL about the said objectionable clauses and sent them a draft modified affidavit for their approval and also requested them for fixing up a date and time for discussing the said terms and conditions of the said affidavit. 4.11 It was also stated that if no reply was received by Premium Fuels from BCCL by December 14, 1983 it would be presumed that the said draft affidavit had been accepted by BCCL and thereafter would submit the affidavit by December 15, 1983, which was the last date of submission of the same in compliance with the original request made by Coal India/BCCL. Since no reply was received from BCCL the said affidavit was sworn and submitted by the Premium Fuels on December is, 1983 along with documents called for. Later Premium Fuels came to know that inspite of the same BCCL intended to stop supply of coal even on receipt of the same from the 1st day of January, 1984 thereby leaving Premium Fuels with no alternative but of taking shelter from this Court by moving application under Article 226 of the Constitution of India before A.K. Janah, J. (as His Lordship then was). 4.12. 4.12. About 28 coke oven plants moved this Court about the same time and obtained orders against the affidavit. Although the Premium Fuels had submitted the affidavit/documents most of the other 28 parties who had moved this Court did not submit any affidavit at all in any manner whatsoever. 4.13. Since BCCL did not give any answer as to whether the modified affidavit submitted by Premium Fuels was accepted or not, whereas in the circular letter referred to hereinabove in the absence of affidavit that the existing linkage would be disrupted, the Premium Fuels moved this Court and obtained Rule and interim order being C.R. No. 12803 (W) of 1983. 4.14. Thereafter sometime in April, 1984 again supply of coal of the Premium Fuels was disrupted. On the complaint made by the Premium Fuels on April 24, 1984 again a letter was addressed by the Area Sales Manager of BCCL to the Superintendent Damagoria Colliery to ensure supply of coal from East Ramnagar Section to the Premium Fuels. 4.15. The even thereafter supply of coal was again disrupted. On information from the office of BCCL the Premium Fuels came to know that such disruption had taken place due to certain order passed by this Court in their proceedings. It appears to the Premium Fuels that Shree Shyam Industries, Jagadamba Coke Manufacturing Enterprises, Bajrangbali Coal Company and Tetulia Coke Plant obtained an order from this Court for supply of specified quantity of coal to them behind the back of the Premium Fuels. It is contended that the said order was obtained by misleading this Court on erroneous facts and suppression of material fact. 4.16. On the aforesaid facts it is contended that it shall be apparent that prior to entering into agreement on September 12, 1980, discussions were held with Premium Fuels and Coal India Limited that long term agreement should be entered into and that for the said reason the agreement dated September 12, 1980 was entered into which provided that the agreement was initially for a period of 24 months. It is, therefore, contended that after the expiry of the said 24 months, BCCL and CIL went on the basis that the said agreement which was in force by their over conduct and expressly indicated the same in its letter dated November 9, 1982. It is, therefore, contended that after the expiry of the said 24 months, BCCL and CIL went on the basis that the said agreement which was in force by their over conduct and expressly indicated the same in its letter dated November 9, 1982. The description of the offer and acceptance of coal and the allotments made in favour of the petitioner and that there was written or spoken words either in the offer and in the acceptance thereof suggest inference that the conduct forms a binding agreement between the parties. 4.17. There is, therefore, a binding contract between the BCCL/CIL and Premium Fuels for supply of 2.000 Metric Tonnes of Coal per month from East Ramnagar Section of Damagoria Colliery. Relying upon an order of the Supreme Court it has been contended that in case of a binding contract between the parties BCCL and/or CIL is under contractual obligation to supply coal in terms of the said agreement dated September 12, 1980. 4.18. It has been also contended that the said four parties, that is to say, Shree Shyam Industries, Jagadamba Coke Manufacturing Enterprises, Bajrangbali Coal Company and Tetulia Coke Plant have practised fraud upon the Court and their proceedings are gross abuse of process of this Court. They were indulged in unclean practice. It is further contended that had the Arbitration Agreement been entered into bona-fide then they ought to have come for vacating the interim order passed in the matter of Pawan Hard Coke which was passed staying the order of Arbitration proceedings. 4.19. It is further contended that Damagoria consists of many sections. Since East Ramnagar was the only coking coal section of Damagoria, no mention was made of that section and sale order mentioned the grade of the coal washery Grade II or Grade III. 4.20. Since March, 1984, another coking coal section (Dehabagan) was opened producing washery grade coal as such mention of this section was necessary. Since four writ petitioners were getting coal from various collieries including nine collieries their allotment and lifting from East Ramnagar was small. This is also because of the raising of East Ramnagar which were considerably less than that from other collieries. The production of other coking coal mines is far higher than East Ramnagar Section. 4.21. Since four writ petitioners were getting coal from various collieries including nine collieries their allotment and lifting from East Ramnagar was small. This is also because of the raising of East Ramnagar which were considerably less than that from other collieries. The production of other coking coal mines is far higher than East Ramnagar Section. 4.21. If under such circumstances it is brought that pro-rata distribution of about 2,000 tonnes of monthly production amongst the 130 coke oven plants is to be made, it cannot be feasible for any of the coke oven plant to make their plants variable depending on the supply of coal from East Ramnagar Section. It will lead to undesirable fragmentation of East Ramnagar supply. 4.22. Production of East Ramnagar Section comes to about 2% of the total quantity of over 1 lakh metric tonnes of coking coal distributed by BCCL to coke oven plants. Under such circumstances having regard to the situation of the East Ramnagar Section being far away from the other coke oven plants situated in Bihar, any decision of supplying coking coal to a particular plant with some priority stands on a reasonable footing as the method will be economical distribution of coking coal. 4.23. Thus, if coal of East Ramnagar is distributed on pro-rata basis to all the coke oven plants, then out of the total quantity of over one lakh tonnes of coal given every month to coke ovens, the plants of Bihar in and around Dhanbad will be getting 98% of their supply of coal within Dhanhad region, that is, colliery in their proximity and they will have to carry 2% of the supplies from distant collieries. Similarly under these circumstances Premium Fuels would have to bring 98% of their supply from distant collieries of the Dhanbad Region and they shall be getting only 2% of their supplies from nearby colliery, thereby putting them on unequal footing and disadvantageous position with the other coke oven plants. As such, since Premium Fuels is not equally situated with the other plants in the matter of supply of coal from East Ramnagar Section, such pro-rata distribution East Ramnagar will be violative of Article 14 of the Constitution of India. 4.24. As such, since Premium Fuels is not equally situated with the other plants in the matter of supply of coal from East Ramnagar Section, such pro-rata distribution East Ramnagar will be violative of Article 14 of the Constitution of India. 4.24. It has also been contended that priority clause was incorporated in the agreement not for the purpose of giving undue advantage to Premium Fuels but for bringing them on an equal footing with other coke oven plants who are differently situated in relation to Premium Fuels. It is also contended that the claim that East Ramnagar is the only good quality producing colliery, is wholly wrong, unjustified and misleading. There are other coal mines in the district of Dhanbad in adjacent areas producing coal of suitable quality for manufacturing hard coke. 4.25. It is also contended that location of industry is one of the facts which has to be taken into consideration. It is a matter of convenience that the supplies of coal are being made to the industries from the collieries which are situated in a proximity. The other policy decision of the BCCL has not been challenged by anyone to be a bad one. T.K. Basu, J. directed that the coal was to be supplied to Premium Fuels from nearby colliery in the absence of availability of the East Ramnagar Section. It is further contended that Premium Fuels is not a member of any association nor in any way related to with Agarwalla group whereas the other five writ petitioners belong to Agarwalla group. It is lastly contended that demand of back-log is highly suggestive of dealing with such back-log of coal in black market to other coke ovens in their vicinity on the strength of the orders of this Court. 5. Contentions of Shree Shyam Industtries, Shree Jagadamba Coke Manufacturing Enterprises, Tetulia Coke Plant and Bajrangbali Coal Co. are as follows. 5.1. The main contention of these writ petitioners is that they have their rights to obtain supplies on the basis of the Arbitration Agreement dated September 9, 1981 read with the order dated August 9, 1979. They contend that they are entitled to supply coal from the nine specified collieries in terms of the Arbitration Agreement. are as follows. 5.1. The main contention of these writ petitioners is that they have their rights to obtain supplies on the basis of the Arbitration Agreement dated September 9, 1981 read with the order dated August 9, 1979. They contend that they are entitled to supply coal from the nine specified collieries in terms of the Arbitration Agreement. It is also their contention that by virtue of the order passed by the Court of Appeal on January 19, 1984 they are entitled to the supply of coal in accordance with the Agreement dated September 9, 1981. They have opposed the claim of the Premium Fuels and have submitted that Premium Fuels cannot obtain undue and unfair advantage of getting suitable quality of coal from East Ramnagar Section of Damagoria Colliery. It has been contended that the claim made by the Premium Fuels that it is entitled to have priority in the matter of receiving at least 2000 metric tonnes of coal from East Ramnagar Section of Damagoria Colliery before any other consumer is allowed to take any coal from that colliery is without any substance. The reasons are as follows: (a) There is no evidence that Premium Fuels received Grade-II coal from Damagoria colliery between 1974 and 1977 and its claim in this behalf is without foundation. (b) The contract of 1977 by and between Premium Fuels and the BCCL does not contain any clause giving any priority to Premium in the matter of supplies of coal from Damagoria. There is a reference in that concerned contract that the supply would be from Damagoria Colliery but no priority or preferential treatment was agreed to be given to Premium Fuels event at that point of time. (c) The contract of 1977 admittedly expired in the year following, that is, by August, 1978. After that Premium Fuels had no contract and quite obviously BCCL was not contractually (or otherwise) bound to give any preferential treatment to Premium either in the matter of allotment or in the matter of lifting or otherwise in any way in respect of the yield of Damagoria Colliery. Premium in fact admitted in its writ petition filed in 1979 that after its contract for 1978 expired, BCCL had stopped supplying coal from Damagoria colliery and that is why it was compelled to file the writ petition of 1979. Premium in fact admitted in its writ petition filed in 1979 that after its contract for 1978 expired, BCCL had stopped supplying coal from Damagoria colliery and that is why it was compelled to file the writ petition of 1979. (d) The fact stated in the writ petition of 1979 deserve special mention. In paragraph 26 of that petition Premium Fuels admitted that all the four opposing parties, that is Shree Shyam Industries and others, were also receiving supplies of coal from Damagoria Colliery. In fact since 1977 onwards, Shree Shyam Industries and others from time to time have received various allotments of coal from Damagoria Colliery which goes to show that Premium cannot possibly claim to exclusively enjoy the entire yield of Damagoria. (e) In Premium's present petition there is no case pleaded that it is exclusively entitled to receive the entire yield of the Damagoria Colliery or is entitled to priority in any way at all. In the writ petition there is no assertion that Premium is entitled to priority or preferential treatment either in the matter of quantity allotted to it or in the matter of loading before any other consumer. (f) By the Order dated July 27, 1979, T.K. Basu, J. directed that supplies may be made from Damagoria only subject to availability or alternatively from other collieries thereby making it evident that no previlege was given to Premium in respect of the yield of Damagoria. Therefore, Premium cannot derive any advantage from the earlier order dated July 27, 1979. (g) The most startling feature of Premium's case is that it managed to get a contract dated September 3, 1980 from Coal India Limited. This contract deserves particular consideration. It purports to be in the prescribed form of BCCL and it is admitted that generally the terms contained are the terms negotiated by BCCL with all other consumers. However, in paragraph 3(b) and in paragraph 4, there are significant variations from the ordinary form used by BCCL. In clause 3(b) the words "from Damagoria Colliery, East Ramnagar Section" have been specifically inserted in describing the source of supply and in clause 4, the words "we shall have priority over other consumers" have also been specially inserted. These special interpolations distinguish the contract of 1980 made by Premium with BCCL from all other contracts made by BCCL which have been produced before this Hon'ble Court. These special interpolations distinguish the contract of 1980 made by Premium with BCCL from all other contracts made by BCCL which have been produced before this Hon'ble Court. It is submitted that the interpolations are fraudulent and procured. (h) Premium has suppressed that it throughout received supplies from other collieries also. If there was any truth in Premium's claim that it was exclusively entitled to the yield of Damagoria Colliery, then there was no occasion for it to receive coal from other sources. Supplies to Premium from other sources clearly show that it had no priority in the matter of the said colliery. (i) The principal grievance in the present writ petition was against the circular letter of BCCL and the form of the draft affidavit. The complaint, principally, was against the 'obstruction' that BCCL may cause to the sale of so called 'unsuitable quality of coal'. All these allegations have been jettisoned and given a total go by. The argument now advanced is for preference and exclusiveness in complete abandonment of the pleaded cast. (j) After 1982, it will be seen that various 'status quo' terms were obtained from BCCL, although there was not even a contract with Premium during that period. Premium has failed to establish why, in what circumstances, and how such privileged terms came to be given to it in the matter of supplies of coal from Damagoria, and it is submitted that such privileged terms were procured by nepotism. (k) Premium is unable to show any right to receive any coal from Damagoria Colliery. The order itself is vague, and, it is submitted, was obtained by practising fraud and should be vacated at this stage of the proceedings. (l) Premium is not a party having any contractual or other right whatsoever to receive any coal from the said Damagoria Colliery, far less has it any right to exclusively enjoy at least 2000 Matric Tonnes of the yield of that colliery in priority over all other consumers. (m) The principal (and virtually the only) argument advanced on behalf of Premium was to the effect that in establishing its coke oven plant only a mile away from Damagoria colliery, Premium had shown rare 'entrepreneurial' ex parties and, therefore, should continue to get the privilege of getting its entire requirement from Damagoria to the exclusion of all others. (m) The principal (and virtually the only) argument advanced on behalf of Premium was to the effect that in establishing its coke oven plant only a mile away from Damagoria colliery, Premium had shown rare 'entrepreneurial' ex parties and, therefore, should continue to get the privilege of getting its entire requirement from Damagoria to the exclusion of all others. Neither contract nor principle nor authority can support any such contention. 5.2 These writ petitioners have assailed the conduct of BCCL as follows : (i) There is no explanation as yet why the special contract was entered into on September 3, 1980 with Premium. No officer has come forward to provide the circumstances in which such an unusual and privileged contract came to be made with Premium. The records to prove that the startling contract was made in the ordinary course have also not been produced. (ii) There is no explanation why various letters agreeing to the so called status quo in the matter of supplies to Premium were issued by BCCL. No officer has deposed with regard to the unusual privileges given to Premium by BCCL. (iii) Significantly, in the Court of Appeal, BCCL filed its 'affidavit-in-opposition' within 3 days (and them pleaded its inability to file an 'opposition' in the Trial Court). This affidavit is itself plain proof of collusion and conspiracy between the officers of BCCL and Premium. The affidavit does not rebut a single sentence in Premium's application filed in the Appeal Court. Rather the deponent has gone out of his way to unconditionally corroborate and confirm every assertion of Premium. Dishonesty and fraud in respect of matter affecting the administration of BCCL's affairs in relation to Premium is writ large in every word of this affidavit as has been submitted at the hearing. 6. Contentions of Industrial Engineering Company are as follows: (i) The Industrial Engineering Company is not bound by any previous order or agreement. (ii) The order dated August 9, 1979 did not even on its terms grant any exclusive right. The same was expressly modified on September 19, 1979 and on December 15, 1980. In any event all these orders were vacated on August 27, 1981. The arbitration agreement dated September 9, 1981 seeking to revive the order dated August 9, 1979 is a subterfuge. The present petition on which Shyam Industries and three others are claiming suppressed the correct picture. In any event all these orders were vacated on August 27, 1981. The arbitration agreement dated September 9, 1981 seeking to revive the order dated August 9, 1979 is a subterfuge. The present petition on which Shyam Industries and three others are claiming suppressed the correct picture. (iii) In any event confining attention to the order dated August 9, 1979 its terms cannot form the basis of a contract or give rise to any enforceable right. The language of the order is not the language of a contract. A contract using the language of the order is not a contract at all and no right can be postulated on the basis thereof. (iv) In any event the entire matter is now before the Court. Coal is national wealth. Such Coke has been set up after complying with legal formalities and with the approval of the State Government concerned. CIL or BCCL cannot discriminate in the matter of supplies. There is no order which permits or directs special treatment to anybody. There is no right contractual or otherwise for any special treatment. Even if it is found that there is a special contract, the same is without any rational basis and discriminatory. The Court's aid cannot be invoked in order to enforce such purported special contracts. 7. Contention of BCCL are as follows : It has been submitted on behalf of the BCCL that there is no subsisting agreement between BCCL and Premium Fuels. They have also disputed the right of Shree Shyam Industries, Bajrangbali, Tetulia and Shree Jagadamba to receive coal from the nine specified collieries. Although BCCL have not filed any affidavit before this Court in the application of Shree Shyam Industries and three others, it has been submitted that the BCCL have adopted a policy decision for equitable distribution of coal to all Coke Oven Plants and they would continue to do so subject to the orders which were passed by this Court from time to time. 7.1 However, the case made out by the BCCL in MAT No. 3334 of 1983 which was filed against the order dated September 27, 1983 passed by A.K. Janab, J. is that "taking advantage of the interim order", the writ petitioners were "putting undue pressure upon BCCL to gain undue advantage". 7.1 However, the case made out by the BCCL in MAT No. 3334 of 1983 which was filed against the order dated September 27, 1983 passed by A.K. Janab, J. is that "taking advantage of the interim order", the writ petitioners were "putting undue pressure upon BCCL to gain undue advantage". It was also submitted in the said affidavit filed on January 18, 1984 that after meeting the demands of the priority industries, the BCCL made every effort to meet the demands of other industries and consumers like the writ petitioners depending on the availability. It is also stated that in the matter of distribution and sale of coal to general consumers like the writ petitioners, the BCCL have been following the policy of fair distribution amongst all consumers on the basis of availability vis-a-vis pro rata allocation of the same on month to month basis. 7.2 In the affidavit filed by BCCL on September 20, 1984 in opposition to the writ application filed by the Industrial Engineering Company it has been, inter alia, stated that five cokeries, that is, Shree Shyam Industries Ltd. and three others and Premium Fuels were getting much more better quality of coal than what would have been available to them on the pro rata quota basis if the same yard stick of distribution is applied to them as is being applied to all the remaining other cokeries. 7.3 It is further stated in the said affidavit that there are about 70 number of Beehive hard coke ovens situated in and around Jharia Coalfields which are being supplied their requirements of coal from BCCL. Their total demand is about 1,30,000 tonnes per month. This demand is being met from several collieries which are having a surplus production of W-I, W-II, W-III and W-IV grades of coal after meeting the requirements of the priority sector and BCCL's own consumption. The surplus availability from each of such collieries is calculated and thereafter each of these cokeries are given a proportionate quota from each of these collieries on the same proportion as the monthly requirement compares with the total monthly requirement of all cokeries. These quotas are notified and cokeries book their requirements accordingly. This system ensures that there is a total equitable distribution of all the available resources in relation to the requirement and no cokery can claim favour being shown to any other cokery. These quotas are notified and cokeries book their requirements accordingly. This system ensures that there is a total equitable distribution of all the available resources in relation to the requirement and no cokery can claim favour being shown to any other cokery. All are treated on the same footing. 7.4 It is also alleged that the five cokeries involved in the present proceedings get much better treatment because of their obtaining the Court's orders from time to time and to that extent other cokeries suffer as these five cokeries take a major share of the available better quality of coal. In addition to above, there are 35 cokeries situated in Mugma field whose basic requirement is met from Eastern Coalfields Limited and the balance quantity is given from BCCL again on the same type of pro rata basis. Further, there are five other cokeries which are manufacturing low ask coke for special purpose which are being given batter quality of coking coal on specific releases made by Coal Controller as this is out of coking coals being supplied to Steel Plants/Washeries. 7.5 It is further alleged that by virtue of Court's order five cokeries are getting preferential treatment in the matter of supply of much better quality of coal as compared to similar other coke oven plants. (Emphasis Supplied) 7.6 It is then alleged that there are 65 other coke oven plants situated in and around Jharia Coalfield, which are having same type of plant and as such same type of demand of coal as the said writ petitioners. The plant of M/s, Premium Fuels is situated in Salanpur area near Asansol in close proximity to East Ramnagar Section of Damagoria Colliery which have also applied for washery-II grade coal and BCCL supplies the available W-II grade coal to all the cokeries on a pro rata basis, excepting these five cokeries involved in the present proceedings. They have been able to get their supplies of higher grade of coal as per the Court's order from time to time obtained by them which is far in excess of what they would have got if they were also treated on the same footing as other cokeries. They have been able to get their supplies of higher grade of coal as per the Court's order from time to time obtained by them which is far in excess of what they would have got if they were also treated on the same footing as other cokeries. The balance requirements of those cokeries are again met from the next grade of coal, that is, W-III grade and W-IV grade which again is distributed on pro rata basis depending upon the availability and the total requirement. 7.7 It has also been submitted that all these 69 cokeries in and around Jharia Coalfield should be allowed to be treated on the same footing as all other cokeries and each one of them should be given their pro rata quota of various grades calculated on the basis of availability of coal from time to time and their pro rata quota of various grades calculated on the basis of availability of coal from time to time and their total requirements. 7.8 It is also submitted that the 35 cokeries situated in Mugma Coalfield which is somewhat away from Jharia Coalfield and Messrs Premium Fuels should be treated on the same equal footing and it should first get its coal requirement from Eastern Coalfields Limited find thereafter the balance quantity from BCCL on pro rata basis. Such system of distribution of coal should be made from Mugma Coalfield. 7.9 It is worthwhile to set the following statements made in the said affidavit: "By reason of getting coal from specified sources these five cokeries are taking major share of the available better quality of coal under the Court's order from time to time. As such they are getting preferential treatment in the matter of supply of such better quality coal as compared to similar other cokeries. It is further submitted that in view of anomalous position created by these five cokeries involved in the present proceedings discontentment has been generated amongst all other cokeries and these five cokeries have made it impossible for BCCL to follow the pro rata basis of distribution of coal in the manner aforesaid. It is further submitted that in view of anomalous position created by these five cokeries involved in the present proceedings discontentment has been generated amongst all other cokeries and these five cokeries have made it impossible for BCCL to follow the pro rata basis of distribution of coal in the manner aforesaid. It is reasonably and bona fide apprehended that if such anomalous situation is allowed to be continued by which these five cokerise are getting preference floodgate of litigations will be opened and all other cokeries will try to get similar advantage by filing similar applications." 7.10 It is submitted that there are number of other cokeries which are manufacturing hard coke of the same type as that are being produced by the said writ petitioners out of the coal supplied to them from the collieries other than the said nine specified collieries from which the said writ petitioners are claiming for supply of coal there are several other collieries from which coking coal is raised which is suitable for manufacture of hard coke as is being produced by the said four writ petitioners situated in or around Jharia Coalfield and all of them need coking coal of the same type and specification and grade as is required by the said writ petitioners. 7.11 It is also submitted that BCCL being a public sector undertaking cannot deny a very large number of cokeries, having exactly the same type of coke oven and demand of coal as that of the parties involved in the present proceedings their rightful claim to deprive of their legitimate demand and restrict supply only to the parties in the present proceedings. (Emphasis Supplied) 8. I have given anxious consideration to the elaborate submissions made by the learned Advocates appearing for the parties. 8.1 In 1972 all coking coal mines were nationalised under Coking Coal Mines (Nationalisation) Act, 1972. The objects of the Coking Coal Mines (Nationalisation) Act, 1972 were to reorganise and reconstruct the coking coal mines for the purpose of protecting, conserving and promoting scientific development of the resources of the coking coal. In view of the nationalisation of Coal Mines, the distribution and supply of coking coal is controlled by the Coal India Limited. The objects of the Coking Coal Mines (Nationalisation) Act, 1972 were to reorganise and reconstruct the coking coal mines for the purpose of protecting, conserving and promoting scientific development of the resources of the coking coal. In view of the nationalisation of Coal Mines, the distribution and supply of coking coal is controlled by the Coal India Limited. The entire source of coking coal is from the Coking Coal Mines belonging to and/or under the control and management of Coal India Limited or its subsidiaries, e.g., BCCL, Eastern Coalfields Limited, Western Coalfields Limited and Central Coalfields Limited. It is not in dispute that higher grade of coking coal is required for steel industries and metallurgical purposes. The coal mines in the Eastern Region, that is to say, coal mines of Bihar and West Bengal, mainly meet the requirements of the coke oven plants located at Bihar and West Bengal. It cannot be disputed that certain preferential treatment was given to Premium Fuels. Shree Shyam Industries, Shree Jagadamba, Tetulia and Bajrangbali. Various methods were adopted by these writ petitioners for obtaining preferential treatment from the BCCL and/or Coal India Limited in the matter of supply of coking coal to them. The claim for preferential treatment of Premium Fuels is based on the Agreement of 1980 whereas the claim of other four writ petitioners being Shree Shyam Industries, Shree Jagadamba, Tetulia and Bajrangbali is based on Arbitration Agreements but in all these Agreements the role of BCCL is very significant. 8.2 In 1980 before the agreement was entered into with the Premium Fuels the following notes appeared in the file: "The representative of Premium Fuels called on me on more than two occasions with reference to their application dated 23.7.80, placed below. On similar case with Premium Coke Manufacturing Co., we have entered into agreement with them with specific understanding that the court cases should be withdrawn by them. In order to avoid litigation with those parties who have withdrawn the court cases, the case of Premium Fuels is also to be decided on the same lines and we should enter into agreement for supply of coal to them (on the same norms as we had applied for Premium Coke Mfg. Co., Dhanbad). The agreement may be finalised early and meanwhile we can send communication to the party today and also obtain their letter for withdrawal of the case. Co., Dhanbad). The agreement may be finalised early and meanwhile we can send communication to the party today and also obtain their letter for withdrawal of the case. Sd/- Illegible COMD 1.9.80" "Shri Goel Discussed with COMD who desired for a letter from the party's advocate for withdrawal of cases and submission of application for agreement. Party has been conveyed this. Sd/- Illegible 1.9." "Party's Advocate has given the requisite letter dated 3.9.80. Chairman & COMD spoke to me today and confirmed that as in the case of Premium Coke name of the colliery to be mentioned in the agreement. COMD may kindly see for. Sd/- Illegible 11.9.80" "COMD COMD has been this and has instructed for issue of the agreement to BCCL & the party. Sd/- Illegible. 12.9.80" 8.3 The agreement dated September 12, 1980 entered by and between Premium Fuels and the BCCL contained the terms which are not found in any other agreement for supply of coal to other coke oven plants. This agreement provides that the Premium Fuels would be entitled to supply coal of specified quantity from Damagoria Colliery (East Ramnagar Section). The said agreement also provides that the said agreement would not bind the BCCL to fulfil the commitment in the event of demand for such coal by steel mills/steel plants/coat washeries and coke oven belonging to CIL or its subsidiaries and other high priority consumers in a particular month but Premium Fuels shall have the priority over other consumers. This agreement has two salient features which are absent in other similar agreements. Firstly, Premium Fuels has been given exclusive right to obtain the supply of coal from Damagoria Colliery (East Ramnagar Section). Secondly, it has a priority over other consumers similarly situated. It has not been explained by BCCL why this preferential treatment has been given to Premium Fuels. Even after the expiry of this Agreement in 1982 the release of coal on priority basis from Damagoria Colliery (East Ramnagar Section) was maintained. 8.4 The said agreement dated September 12, 1980 as indicated earlier, gave two priorities to the Premium Fuels as regards the supply of coal. Even after the expiry of this Agreement in 1982 the release of coal on priority basis from Damagoria Colliery (East Ramnagar Section) was maintained. 8.4 The said agreement dated September 12, 1980 as indicated earlier, gave two priorities to the Premium Fuels as regards the supply of coal. Director (Finance) of BCCL by a letter dated 25/26th September, 1980 informed COMD of CIL as follows : "We have received a letter No. CIL/C-4D/43579 dated 12th September, 1980 from Shri Jawahar Goel, Sales Officer, CIL., addressed to our General Manager (Sales) with which an agreement entered into with M/s. Premium Fuels, Salanpur, is also enclosed. The agreement states that BCCL would have to supply 2,000 tonnes of Coal every month to them for a period from September 1980 to August 1982 from Damagoria Colliery (East Ramnagar Section). Ordinarily no commitment is entered with any party for supply of coal from a particular colliery and that too from a particular section of the Colliery. Production from this section of Damagoria Colliery is about 2,500 tonnes per month, out of which according to the agreement, 2,000 tonnes are required to be given to the party, depriving opportunities to other cokeries to receive coal from this particular section. I also understand that this party went to the Court and secured an interim Court Order by virtue of which we are required to supply 1,200 tonnes of this coal from the particular section. In such a situation while we should ordinarily take efforts to vacate the interim order, it is surprising that an agreement has been entered into by, CIL with the party for the supply of 2,000 tonnes when we have resisted the supply of even 1,200 tonnes. The agreement is also not in proper from. Actually the party has issued a letter to CIL stipulating a number of terms end conditions and on the party’s letter CIL have recorded the acceptance of the terms and conditions. For your information I am sending herewith a copy of Shri Jawahar Goel's letter as also a copy of the agreement entered into. Such an agreement is likely to prejudice our position before the Court in respect of the cases taken by other cokeries. I would, therefore, request you to kindly let me have you advice. I discussed this case with you during my last visit to Calcutta. With regards. Yours sincerely, Sd/- B.S. MURTHY" 8.5. Such an agreement is likely to prejudice our position before the Court in respect of the cases taken by other cokeries. I would, therefore, request you to kindly let me have you advice. I discussed this case with you during my last visit to Calcutta. With regards. Yours sincerely, Sd/- B.S. MURTHY" 8.5. The justification for the said agreement was made by the COMD in his letter dated October 10, 1980 which is in the following terms: "Please refer to your secret D.O. letter No. D(F)/PS/80/2/2760/61, dated 25/26th September, 1980. The contents of your letter under reply have been examined and I regret to point out that the points raised by you are factually incorrect. The terms and conditions, as agreed to with Premium Fuels, Salanpur, are the same as in the case of other parties with the exception that in the instant case the sources of supply has been indicated. This Unit was inspected by BCCL during 1974 and BCCL for reasons best known to them has issued a certificated dated 17.4.1979 signed by the Manager, Damagoria Colliery, confirming that this unit has lifted around 2,000 tonnes per month during 1977/78. Furthermore, during 1977 BCCL Jealgora Office vide their letter dated 12.7.1977 have offered to the party 24,000 tonnes of coal from East Ramnagar Section of Damagoria Colliery with the stipulation that they should lift a minimum quantity of 2,000 tonnes per month etc. Unfortunately all of a sudden BCCL had stopped release of coal to this unit from East Ramnagar Section from December, 1979 unilaterally and the party has convinced us with documents that inspite of their several representations they did not get any positive response and having no other alternative left they have to move the Calcutta High Court and obtained a Rule etc., which directed BCCL to supply coal to them from East Ramnagar Section subject to availability and stock etc. The agreement for 2 years has been drawn up in the usual from after the party withdraw the Court cases, as we in Coal India felt that avoidable litigation should not be pursued wasting valuable executive time and money, which I am sure you would also agree. During your last visit to my office this case was discussed with you and you were explained in detail. You are also requested to honour the agreement on receipt of this letter. With regards. During your last visit to my office this case was discussed with you and you were explained in detail. You are also requested to honour the agreement on receipt of this letter. With regards. Yours sincerely, Sd/- M.P. NARAYANAN" 8.6. Thereafter on July 2, 1982 the following note appears in the file :- "Sub: Brief note of discussion for supply of coal to Pvt. Cokeries held at Calcutta on 24th June, 1982. Further to my note No. BCCL/S & M/RS/Cokery/16/2795 dated 29/30.6.82 the point I para 2 is clarified as under :- M/s. Premium Fuels with whom agreement is operative upto August, 1982 for supply of 2,000 M.T. coal from Damagoria W-III coal will continue to get supplies as per agreement till next meeting to be held in July, 1982. Following four parties also had cases before Calcutta High Court regarding coal supplies to them. They have withdrawn court cases and agreement entered into for arbitration. M/s. Tetulia Coke Plant. M/s. Bajrangbali Coal Co. M/s. Shree Jagadamba Hard Coke Mfg Entp. M/s. Shree Shyam Indus., Bhuli Rd., Dhanbad. M/s. Tetulia Coke Plant is situated in Nirsa and used to get supplies from ECL and 1,200 M.T. from BCCL. Rest they get coal from Jharia field. Status quo will be maintained in regard to all there four parties till next meeting to be held in July, 82. Sd/- P.K. Lala Sr. S. Officer." 8.7. On August 30, 1982, Deputy Sales Manager, CIL sent the following telex message to the General Manager (S), BCCL as under: "CCMO DESIRES STATUS QUO SHOULD BE MAINTAINED IN SUPPLY OF COAL TO M/S. PREMIUM FUELS SALANPUR (.) LETTER FOLLOWS (.)" 88. It appears from the records produced before me that on January 6, 1983 Premium Fuels made an application for supply of 2,000 M.T. of W. Grade III coal from Damagoria Colliery for a period of five years on the terms and conditions of 1980 Agreement. BCCL put up a note on May 28, 1983 on the same application which is as follows: "At one time there was sufficient stock of this coal at Damagoria Colliery and the despatches were poor, hence BCCL to dispose off this stock entered into an agreement with the above party on 12.11.77 for supply of 24,000 tonnes of this coal @ 2,000 tonnes per month failing which a penalty @ Re. 1/- per tonne will be imposed on the shortfall calculated on the minimum quantity as per Clause III of the agreement. Gradually the coals suitable for coke making for B.H. Ovens from Jharia coal from many sources have dried down namely Lodha, Joyrampur, Patherdih etc., hence there was a big claimer for this coal which is very good for coke making. It was not known earlier and it was known only later that this coal is suitable and in demand by cokeries. When this party approached again for continuing the supply of this coal to them, BCCL in view of above, did not agree for the same and in fact started giving this coal to all the cokeries. The party went to Calcutta High Court and vide order dated 27.7.79 a quantity of 1,200 tonnes of Gr. J. coal from Damagoria Colliery was to be supplied subject to stock and availability of coal thereat, failing which the requisite coal may be supplied from any nearby colliery. While the case was going on in the Calcutta High Court, the CIL without obtaining the opinion of BCCL entered into an agreement with the party on 11.9.80 for supply of 2,000 tonnes of Damagoria coal commencing from the month of September, 80 to August, 82. This agreement also expired in the month of September, 82 but on 3.9.82 we received a telex message from Shri G.K. Moitra, Dy. SM., CIL, indicating that Chief CMO desires that status quo should be maintained in supply of coal to M/s. Premium Fuels, Salanpur. Accordingly Area XII was advised in the month of November, 82. This was also discussed in the 2nd meeting of the Committee on linkages for non-core sectors held on 2.11.82 at CIL and the decision taken is: "It was informed that the agreement for Premium Fuels, which was signed during September, 80 has lapsed by August, 1982. Provisionally the release is continuing on the same basis as during the period of agreement. However, in order to implement the General Coal Distribution Policy uniformly for coke ovens, it was decided that the matter concerning Premium Fuels should be legally examined by the Manager (Legal), Coal India Ltd., and also by our Solicitor, if necessary, and the opinion to be placed before the next Committee for taking suitable decision in this regard. However, in order to implement the General Coal Distribution Policy uniformly for coke ovens, it was decided that the matter concerning Premium Fuels should be legally examined by the Manager (Legal), Coal India Ltd., and also by our Solicitor, if necessary, and the opinion to be placed before the next Committee for taking suitable decision in this regard. This was, however, amended as follows : The General Manager, Sales, BCCL, desired that the papers on the party should be sent to BCCL, for his examination in consultation with their Legal Adviser." M/s. Premium Fuels is a unit manufacturing S.H.H. Coke and their plant is situated at Salanpur, Dist. Burdwan. This registered unit under the Registrar of firms from 28.12.73. M/s. Premium Fuels were and are taking coal from us and producing B.H.H. Coke in their unit. Inspections of their plant done by us also confirms that their coke ovens are in operative conditions. Now under the circumstances prevailing this coal is wanted by other coke ovens placed on the similar footings. The other cokeries are also feeling because they did not go to the Court of law hence they are being deprived of this suitable source. Further we cannot relinquish our right of distribution of any coal according to the situation. Regarding renewal of agreement dated 11.8.1980 which expired in the month of September, 1982, it may be stated that all agreements with Private Cokeries are finalised and entered into by CIL. This particular agreement was also entered into by CIL. BCCL's stand regarding allocation of coal to Private Cokeries has been on pro rata basis from available sourced, other units are also claiming this coal which we are not able to give as after meeting the demand of this party there is hardly any left over. Options before us are :- (1) Since CIL had entered into agreement, leave it to them to decide about renewal. (2) If we have to take a view, it could be either (a) conditions which prevailed when CIL entered into agreement continue now and unit is genuine. Same can be extended. (or) (b) If we have to relook about holding the principle of pro rata distribution like others. This party be also treated as such, which means we are opening doors for litigation (CIL has expressed to prevent avoidable litigation, agreement entered into is justified). Same can be extended. (or) (b) If we have to relook about holding the principle of pro rata distribution like others. This party be also treated as such, which means we are opening doors for litigation (CIL has expressed to prevent avoidable litigation, agreement entered into is justified). (c) The quantity of coal available is meagre, in distributing to so many, we will hardly satisfy any. Keeping the above we have to take a view before sending our proposal. Sd/- S.V. Krishnamurthy General Manager (S)." "D(F) In view of what has been stated above, the best course of action would be to take up the matter with the linkage committee for consideration. Sd/- Illegible 28/5." "GM (Sales) CMD may see Sd/- Illegible Law department may also examine the matter as desired by linkage committee. Sd/- Illegible. As has rightly been observed by GM (Sales) it appears that the conditions which prevailed at the time when the agreement was entered into between the party and CIL have not changed and hence there does not appear to be any objection for extending contract or entering into a fresh contract on the expiry of the old contract for such period and for such quantity as the company may deem fit subject to approval of CIL and linkage committee." 8.9. It further appears that General Manager (Sales) of BCCL wrote to the GM (S & M) of CIL on 22nd July, 1983 to the following effect : "An agreement was entered into on 3rd September, 1980 between Coal India and M/s. Premium Fuels, Salanpur, Dist. Burdwan, forwarded under the cover of letter No. CIL/C-4D-43579 dated 12th September, 1980 from Shri Jawahar Goel, Sales Officer, to General Manager (Sales), BCCL, by virtue of which it was agreed that M/s. Premium Fuels would be supplied coal to the extent of 2,000 tonnes per month from Damagoria, East Ramnagar Section, for a period of two years. This agreement expired in August, 1982. The party approached BCCL for the renewal of the agreement for a further period of seven years. This matter was also discussed in the meeting of the Linkage Committee for non-Core Sector held on 3.11.1982 and it was felt that legal opinion should be obtained in regard to the renewal or otherwise of the agreement which had lapsed. The party approached BCCL for the renewal of the agreement for a further period of seven years. This matter was also discussed in the meeting of the Linkage Committee for non-Core Sector held on 3.11.1982 and it was felt that legal opinion should be obtained in regard to the renewal or otherwise of the agreement which had lapsed. Pending renewal of the agreement, we were directed vide Coal India's telex post confirmatory copy No. CIL/C-4/(b) 44566 dated 30.8.82 to maintain the status quo. On this basis, we have been supplying coal even after the expiry of the agreement. The manufacturing unit of M/s. Premium Fuels is situated at Salanpur and it is also a registered unit. Inspection of the plant done by us also confirmed that their coke ovens are in good working condition. As was decided upon in the meeting of the Linkage Committed the request of M/s. Premium Fuels was examined by our Legal Department and the Department's views are as under :- "As has rightly been observed by GM (Sales) it appears that the conditions which prevailed at the time when the agreement was entered into between the party and CIL, have not changed, there does not appear to be any objection for extending the contract or entering into a fresh contract on the expiry of the old contract for such period and for such quantity as the company may deem fit, subject to the approval of CIL and the Linkage Committee." A copy of our note No. BCCL/S & M/RS/Cokery-16(3) dated 20th May, 83 on which the Law Officer has recorded his view is attached herewith. As decided by the Linkage Committee, the views expressed by our Legal Dept. may kindly be placed before the next Linkage Committee meeting for considering this case." 8.10. Thereafter a note was prepared by Senior Sales Officer of Coal India on December 21, 1983 on the following terms : "An agreement was entered into during September, 80 between CIL and M/s. Premium Fuels, Salanpur, Burdwan for supply of coal at the rate of 2,000 tonnes per month for the period September, 80 to August, 82. As per clause 3(c) of the agreement, the coal was to be supplied from Damagoria Colliery (East Ramnagar Section). This agreement has expired in August, 82. As per clause 3(c) of the agreement, the coal was to be supplied from Damagoria Colliery (East Ramnagar Section). This agreement has expired in August, 82. However, as per the confirmation copy of the CIL Telex No. CIL/C4B/44566 dated 30.8.82, status quo is being maintained for supply of coal to M/s. Premium Fuels. Since it has not been decided to enter into any fresh agreement with any private coke oven units for supply of coal to them, the question of entering into any fresh agreement with this unit did not arise. However, the unit continues to get coal from a particular source as committed in the previous agreement which is already lapsed. Therefore, it is considered necessary that this unit is treated at par with all other such private coke ovens in regard to supply of coal based on CIL's pro-rata coal distribution policy as applicable in general. Here, it may be necessary to recall that this party had earlier entered into an agreement with BCCL for purchasing 2,000 M.T. of coal per month from East Ramnagar Section of Damagoria Colliery for a period of one year from November, 77 to October, 78. On expiry of the agreement, insisting for supply and extension of the agreement they filed a writ petition before Calcutta High Court in June, 1979 and sought an ad interim order dated 27.7.79 for supply of 1200 M.T. of Grade-J coal per month from East Ramnagar Sec. of Damagoria Colliery, subject to stock and availability of the said colliery, failing which, coal was to be supplied from any other nearby colliery. Before entering into fresh agreement in September, 80 the party had given an undertaking to withdraw the case after discussion with the then Chief CMO. Letters dated 1.9.80 and 3.9.80 from their Advocate Shri Sundarananda Pal addressed to Chief CMO may be seen as enclosed. GM (Sales), BCCL, has sent a legal opinion sought on the matter from BCCL's Legal Department and photocopy of the note of GM (Sales), BCCL, on which the opinion of the Legal Department is also noted, is enclosed. A list of all the enclosures is given below. Legal opinion is sought in regard to the renewal or otherwise of the agreement, which has lapsed. A list of all the enclosures is given below. Legal opinion is sought in regard to the renewal or otherwise of the agreement, which has lapsed. Also, opinion may please be given on the status pending renewal of the agreement indicating, in view of all references, whether it would be legally viable to change the status quo for supply of coal to this unit from Damagoria Colliery (East Ramnagar Section) and bring them in line with all other such private coke ovens. If so, whether this would call for any notice to be served to the party, requiring which, a draft may please be sent." "It is understood from the letter dated 23.12.83 of Shri Ashoke Kumar Dasadhikari, Advocate, that M/s. Premium Fuels moved a writ petition challenging, inter alia, Circular No. BCCL/S & M/RS/l2 dated Nil on 23.12.83 before the Hon'ble Mr. Justice A.K. Janah on Calcutta High Court and obtained an ad interim order, inter alia, for maintaining status quo in regard to supply of coal to the party till final disposal of the Rule. A copy of the letter dated 23.12.83 of Shri Dasadhikari with enclosure is placed below for information and necessary action. We have advised BCCL to contest/ defend the case and to get the interim order vacated as early as possible. In view of the above development no opinion could be offered at this stage. Sd/- J.D. Purohit Asstt. Legal Manager 28.12.83." 8.11. The facts stated hereinabove are eloquent, meaningful and expressive. No amplification perhaps is necessary. The anxiety of BCCL as demonstrated in the affidavits referred to hereinabove was not reflected in their acts and deeds, conduct and course of dealing. It is admitted by them that by reason of getting coal from specific sources the 5 writ petitioners were taking a major share of the available better quality of coal under the Court's Order from time to time and they have been getting preferential treatment in the matter of supply of better quality of coal as compared to similar other cokeries. It is also stated that if such an anomalous situation is allowed to be perpetuated by which the 5 cokeries are getting preference, flood-gate of litigations would be opened and all other cokeries would get similar advantages by filing similar applications. It is also stated that if such an anomalous situation is allowed to be perpetuated by which the 5 cokeries are getting preference, flood-gate of litigations would be opened and all other cokeries would get similar advantages by filing similar applications. It is also admitted that there are several other collieries from which coking coal is raised which is suitable for manufacture of hard coke as is being made by the 5 writ petitioners. The sermon of BCCL is that BCCL being a public sector undertaking cannot deny a large number of cokeries having the same type of coke ovens and demand of coal as that of the parties involved in the present proceedings, their rightful claim or deprive them of their legitimate demand. On the other hand, from the notings in the file as reproduced earlier, it is evident that the case made out for entering into special agreements with the 5 writ petitioners was with the object that "avoidable litigation should not be pursued wasting valuable executive time and money". CIL and BCCL did not practise what they have preached either in the affidavits or in their inter-departmental correspondence. The Director (Finance) of BCCL rightly pointed out that ordinarily no commitment is entered with any party for supply of coal from a particular colliery and that too from a particular section of the colliery. It is also stated by him that in a situation like this where the parties went to the Court and obtained interim orders for getting preferential treatment, steps should have been taken to vacate the interim orders. Instead of doing so, the agreement was entered into by CIL with Premium Fuels. The view expressed by the Director (Finance) was that such an agreement was likely to prejudice the position of BCCL in respect of cases initiated by other collieries. Strangely enough, one of the officers of Coal India Ltd. (COMD) justified the action taken by CIL and even after the expiry of the agreement with Premium Fuels, directed the continuance of the status quo as regards the supply to Premium Fuels from East Ramnagar Section of Damagoria Colliery. On the one hand CIL and BCCL are preaching about the avowed policy of equitable distribution of coal on pro rata basis. On the one hand CIL and BCCL are preaching about the avowed policy of equitable distribution of coal on pro rata basis. On the other hand they have, as the facts demonstrate, actively colluded and connived with some of the writ petitioners to enable them to get preferential treatment. 8.12. From the facts as narrated above, it would be evident that Coal India Ltd. and/or BCCL acted in a manner which is not expected of public undertakings having monopoly of national wealth in the form of coal. The conduct of CIL and/or BCCL in the setting and context of the facts as stated hereinabove is neither commendable nor bona fide. The records, papers and documents produced before this Court do not reveal the actual state of affairs. It is not yet clear why special contract giving priority not only in respect of the quantity but also of the source was entered into on 12th September, 1980 with Premium Fuels. Why was the order of status quo issued when the matter should have been sorted out in the Court? The purported decision to continue status quo in the matter of supplies to Premium Fuels was not the decision of Coal India Ltd. BCCL acted on the basis of certain communication sent by one of the officers of CIL. No records have been produced before me to show that the authorities who are competent to take the decision in such an important matter, took any decision for maintaining status quo as regards the supply of coal to Premium Fuels. It appears that an officer (CCMO) of Coal India Ltd. intimated BCCL to maintain the status quo. The rellvant correspondence and the notings in the file have already been reproduced hereinbefore. In the affidavit filed before the Appeal Court, the stand taken by BCCL is not consistent with the avowed policy of equitable distribution of coal. I shall also refer to certain other averments made by BCCL in the affidavit at the appropriate stage. 8.13. The main contention of Premium Fuels is that after the expiry of the agreement dated September 12, 1980 BCCL and CIL went on the basis that the said agreement was in force "or deemed to be continued". BCCL and CIL have accepted by their words, written or spoken, that such an agreement was in force. At least their conduct manufested such an agreement. BCCL and CIL have accepted by their words, written or spoken, that such an agreement was in force. At least their conduct manufested such an agreement. It is, therefore, contended that the conduct forms a binding agreement between BCCL and CIL on the one hand and Premium Fuels on the other. It is, therefore, contended that Premium Fuels, by reason of the said binding contract, is entitled to supply 2,000 metric tonnes of coal per month from East Ramnagar Section of Damagoria Colliery in terms of the said agreement. A reference has also been made to the order of the Supreme Court passed in C.M.P. No. 33808/82 in the case of Coal India Ltd. v. Chhindwara Fuels. In that case the following order was passed by the Supreme Court on January 14, 1983 :- "In view of the fact that the written agreement executed by the parties on 9th September, 1980 expired on 9th September, 1982, we modify our order dated April 6, 1982 by directing that the appellants are not any longer under any contractual obligations under the aforesaid contract to supply coal to the respondents after the end of August, 1982. This modification will, however, be without prejudice to the arbitration proceedings which are going on before Justice A.C. Gupta which proceedings will continue and will be disposed in accordance with law despite this modification. In the event that the respondents enter into a fresh agreement with the appellants in accordance with the form of the agreement forwarded by the appellants to the respondents, the arbitration proceedings will not in any manner be affected or prejudiced and the same shall go on notwithstanding with the execution of the fresh agreement. C.M.P. is disposed of in terms of this order." On the basis of the said Order of the Supreme Court, it is contended that BCCL and CIL are bound to honour the agreement and supply the particular grade of coal from the specified colliery. I am, however, unable to accept the contention of Premium Fuels. The status quo order, as I indicated earlier, was not the final decision, nor was it a decision of CIL. Even in the written agreement of 1980 there was a term to the effect that CIL or BCCL was empowered to terminate the agreement. If by 'status quo' that agreement is continuing, it must continue in full force. The status quo order, as I indicated earlier, was not the final decision, nor was it a decision of CIL. Even in the written agreement of 1980 there was a term to the effect that CIL or BCCL was empowered to terminate the agreement. If by 'status quo' that agreement is continuing, it must continue in full force. Therefore, BCCL and CIL can terminate the agreement even if there was any, for the purpose of ensuring justice to all. In the context of the facts and circumstances of this case, the question whether there is any subsisting agreement between BCCL and CIL and Premium Fuels or any other consumer is immaterial and irrelevant. When coal is nationalised and CIL and its subsidiaries are controlling the distribution of the entire source of supply, they are bound to all equitably irrespective of any agreement. Even if a consumer has not entered into an agreement, if he asks for coking coal for his cokery, BCCL or CIL cannot deny him such coal on the ground that there is no contract of supply by and between BCCL or CIL. It is the special contracts giving preferential treatment to some which have been assailed in these proceedings. I am of the view that Premium Fuels cannot take the advantage of the status quo order issued by CIL in their favour for obtaining coal from East Ramnagar Section of Damagoria Colliery. 8.14. The other ground is that Premium Fuels has selected the site for their Coke Oven Plant near Eastern Ramnagar Section of Damagoria Colliery so that they can take advantage of the close proximity of the colliery for obtaining their supply of coal. It cannot be disputed that the Coke Oven Plants are set up near the collieries which supply Coking Coal. In this judgment I have referred to a chart showing the distance of Coke Oven Plants of the five writ petitioners from the different collieries. It is true that the Coke Oven Plant of Premium Fuels is very close to Damagoria Colliery. But that does not give Premium Fuels any right or privilege in getting the coal only from that particular colliery. One cannot enjoy exclusive benefit of a particular colliery unless it can be shown that the same or similar grade of coal is also available from other collieries. But that does not give Premium Fuels any right or privilege in getting the coal only from that particular colliery. One cannot enjoy exclusive benefit of a particular colliery unless it can be shown that the same or similar grade of coal is also available from other collieries. If same or similar grade of coal is available in more than one colliery, in that event, in making equitable distribution of available coal to different collieries, the authorities concerned should take into consideration the location of the particular Coke Oven Plant. The transportation cost may be an element in determining the quantum of profit, but it cannot be a valid ground for getting coal from a particular source just because the source is situated nearby. If, however, it is possible to distribute coal from the nearby colliery having regard to the quality and quantity required by the consumers, BCCL and CIL should make such colliery so that equities are maintained. 8.15. The further contention of Premium Fuels is that there is nothing unreasonable or unfair in the matter of supply of coal to them exclusively from East Damagoria Colliery in terms of the agreement. Whatever might have been the position in the year 1977, one has to look to the facts as are existing now. The national wealth has to be distributed in a most equitable manner and none of the private cokeries can ask for any special treatment in the matter of distribution of coal to them. The case of Premium Fuels made in the writ application is that "Premium was surprised to receive a circular from BCCL whereby it was informed that as per the new policy linkage for coal would be treated as lapsed with effect from December 31, 1983 unless renewed on a fresh application to be submitted by December 13, 1983". Along with such circular a draft affidavit was forwarded by BCCL which was required to be filed by all consumers. Premium Fuels was aggrieved by paragraph 6 of the said draft affidavit because an undertaking had been sought that the consumer ‘would not self, transfer or dispose of coal supplied by Coal India Ltd. for any reason whatsoever’. Premium Fuels was aggrieved by this clause because it put an ‘unreasonable burden’ upon it and ‘prohibited it from disposing off unsuitable and inferior quality of coal’ supplied by BCCL. 8.16. Premium Fuels was aggrieved by this clause because it put an ‘unreasonable burden’ upon it and ‘prohibited it from disposing off unsuitable and inferior quality of coal’ supplied by BCCL. 8.16. But the main ground taken in the writ application is as follows : "It is the duty of and obligation of the respondents to ensure fair supply of the available coking coal to the consumers of coke oven plant owners with due and proper consideration for the proximity of the source of supply from the point of consumption. The respondents by wrongfully attempting to stop the monthly quota of the petitioner and/or by alternating to refuse to supply 2,000 Metric Tonnes of coking coal to the petitioner firm every month from the Damagoria Colliery (East Ramnagar Section) have failed to discharge their said duties and obligations and have acted arbitrarily." 8.17. Being aggrieved by the said circular Premium Fuels presented the writ petition and sought an interim order in the following terms: "(j) Status quo regarding supply of coal to the petitioner be continued and maintained by the respondents till the final disposal of the Rule." Premium Fuels obtained an order on December 23, 1983 in terms of the prayers therein. 8.18. Thus the claim is for getting the coal from a particular source, because of the proximity of the source of supplies from the point of consumption. This claim is not sustainable in law or on equity. Where the demand is more than supply, if such claim is accepted it would amount to hostile discrimination. It is not the quantity alone, but the quality as well, which would regulate the demand and supply. The authorities must hold the balance between the competing interests by making equitable distribution on pro rata basis of the different grades of coal. 8.19. The case of the four writ petitioners being Shree Shyam Industries, Shree Jagadamba, Bajrangbali and Tetulia are no better. It is also a case where the BCCL acted in a manner which is not only unwarranted but also spells out collusion. B.C. Basak, J. passed an interim order on February 15, 1980 directing that the interim order already passed would not entitle the respondents to make discrimination in respect of any of the customers. It was also directed that all the customers are to be treated equally regarding supply of coal. B.C. Basak, J. passed an interim order on February 15, 1980 directing that the interim order already passed would not entitle the respondents to make discrimination in respect of any of the customers. It was also directed that all the customers are to be treated equally regarding supply of coal. The said interim order was also made subject to the availability of coal. 8.20. On August 27, 1981 four writ petitioners being Shree Shyam Industries, Shree Jagadamba, Shree Bajrangbali and Tetulia had withdrawn their writ applications in view of the alleged disputes having been referred to Arbitration and on September 9, 1981 the alleged Arbitration agreement was entered into which, inter alia, contained that until the Arbitrator makes and publishes his Award, BCCL shall continue to supply every month at 2,000 metric tonnes of coal in terms of the order dated August 9, 1979 passed by T.K. Basu, J. This is a novel way of getting indirectly what could not be obtained directly. There is a method in this move. The order passed by B.C. Basak, J. on February 15, 1980 directing that interim order already passed would not entitle the respondents to take discrimination in respect of any of the customers, did not serve the purpose of the said writ petitioners. They wanted discrimination to continue in their favour. That is why the device of arbitration was adopted. After the writ applications were withdrawn and all interim orders were vacated, how could an order which had spent its force could be incorporated in the arbitration agreement? Why did BCCL agree to that when the proceedings were pending in this Court? The arbitration agreements were entered into to over-reach the Court. CIL must find out who were the officers responsible for execution of such agreements. 8.21. It is not stated by BCCL what was the pending dispute. Assuming the dispute was with regard to supply of coal, did the said four writ petitioners have any right to any preferential treatment of having coal from specified collieries? Why were the arbitration agreements entered into? The irresistible conclusion is that these agreement were entered into for ulterior motive. The said four writ petitioners thus obtained unfair advantage over others. The arbitration proceedings were stayed by this Court and no step was taken by the concerned respondents for vacating such interim order so that the arbitration agreement could come to an end. The irresistible conclusion is that these agreement were entered into for ulterior motive. The said four writ petitioners thus obtained unfair advantage over others. The arbitration proceedings were stayed by this Court and no step was taken by the concerned respondents for vacating such interim order so that the arbitration agreement could come to an end. The whole things was engineered to suit the ends of certain interested parties. The validity of the arbitration proceedings has been challenged by Pawan Hard Coke and arbitration proceedings have been stayed. So long the validity of such agreement is not determined, the parties cannot be allowed to reap the benefit thereof. Otherwise proceedings will remain stayed for ever and other part of the agreement for supply of coal would continue indefinitely. There cannot be any other reason for such arrangements being made. It is very significant that from time to time different parties at different times came to this Court and obtained interim order resulting discriminatory treatment meted out to those who have not come before this Court. This was only possible because BCCL and CIL never placed the entire facts before any Court. In passing the interim order the Court was only concerned with that particular writ petitioner and the interim orders which were passed by this Court from time to time were on the facts and in the circumstances of the case as made out in the writ petition. The Court was never apprised of the entire setting and context of facts of the case. Strangely enough, what BCCL or CIL preached in the affidavits they did not practise them in the matter of equitable distribution of coal. They have very conveniently put the blame on the Court. As indicated earlier in one of the affidavits of BCCL it was stated that the orders of the Court gave the aforesaid five cokeries preferential treatment and right to get better grade of coal. It was BCCL who entered into arbitration agreements keeping their eyes open. The explanation given in the affidavit filed by Senior Sales Officer, BCCL, in February, 1985 in the petition filed for stay of the order passed by Mrs. Justice Jyotirmoyee Nag on January 5, 1985 is not at all convincing. It was BCCL who entered into arbitration agreements keeping their eyes open. The explanation given in the affidavit filed by Senior Sales Officer, BCCL, in February, 1985 in the petition filed for stay of the order passed by Mrs. Justice Jyotirmoyee Nag on January 5, 1985 is not at all convincing. It has been stated in the said affidavit, inter alia, as follows :- "That due to the pendency of the aforesaid writ petition for a long time and due to various other litigations, namely, interlocutory applications and also in view of the prolonged litigation with the aforesaid four parties/cokeries, it was decided that the alleged dispute should be resolved by referring the same to arbitration and decision was taken at the instance and at the requests of the aforesaid four parties/cokeries. On the basis of the said decision an arbitration agreement was entered into by and between BCCL and the aforesaid four parties/cokeries. It was provided in the said arbitration agreement that the arbitrator shall adjudicate upon the alleged dispute with the four parties and publish his award from the four months from the date of entering upon reference. The said arbitration agreement was entered into with the sole object of thrashing out the alleged dispute at the shortest possible time. As a consequential measure and in order to avoid further complications it was also agreed upon that until such time the arbitrator shall make and/or publish his award, BCCL will supply the required quantity of coal to the aforesaid four parties in terms of the order passed by His Lordship The Hon'ble Mr. Justice Tarun Kumar Basu on the contempt application filed by the aforesaid four parties/cokeries." 8.22. In the four writ applications the case made out, is that BCCL was not supplying the coal under the arbitration agreement and accordingly they obtained the interim order. Against the order of the Appeal Court BCCL did not go to the Supreme Court if they were so anxious to do away with inequality and injustice. Why did they remain silent after the order was passed by the Appeal Court? Nothing has been said in the affidavit so far as Premium Fuels is concerned. On the contrary in the affidavit filed by BCCL in the Appeal Court in the appeal preferred by Premium Fuels, BCCL virtually echoed the case of Premium Fuels. It is stated in the said affidavit. Nothing has been said in the affidavit so far as Premium Fuels is concerned. On the contrary in the affidavit filed by BCCL in the Appeal Court in the appeal preferred by Premium Fuels, BCCL virtually echoed the case of Premium Fuels. It is stated in the said affidavit. inter alia, as follows : "I say that instructions had been issued that M/s. Premium Fuels is to be given priority over other consumers for supply of coal from East Ramnagar Section of Damagoria Colliery. The said instructions were issued in order to remove any doubt, difficulty and/or anomaly as to who should be given priority regarding supply of coal from said East Ramnagar Section of Damagoria Colliery. And sale order was also issued in favour of Respondent No. 6 on Damagoria Colliery and not on East Ramnagar Section. The said instructions had been issued in pursuance of the fact that the sale order of M/s. Premium Fuels was for East Ramnagar Section of Dimagoria Colliery and the petitioner was to be given priority in terms of Clause IV of the agreement entered into by and between CIL and M/s. Premium Fuels in or about September, 1980 which though expired after two years but was deemed to be continued on the basis of the status quo order passed by CIL and thereafter, the status quo order passed by His Lordship the Hon'ble Mr. Justice A.K. Janah on December 23, 1983." 8.23. From the records as indicated earlier, it is evident that Premium Fuels obtained the benefit by reason of the order of 'status quo' as regards supply. This order of status quo was not passed by this Court. The officers of BCCL and CIL have failed in their duty to place before the Court the entire facts and circumstances relating to the distribution of the coal to the cokeries. They have supported directly or indirectly the cause of the five cokeries. It does not lie in their mouth to say that by reason of the orders of this Court preferential treatments were made to some parties. It is also significant that against the interim order passed by A.K. Janah, J. on the application of Premium Fuels for maintaining status quo, no appeal was filed by BCCL. Thus BCCL supported the cause of Premium Fuels actively and passively. They have deliberately acquiesced to the said interim order. 8.24. It is also significant that against the interim order passed by A.K. Janah, J. on the application of Premium Fuels for maintaining status quo, no appeal was filed by BCCL. Thus BCCL supported the cause of Premium Fuels actively and passively. They have deliberately acquiesced to the said interim order. 8.24. If the Premium Fuels cannot get or obtain most suitable quality of coal from Ramnagar Section of Damagoria Colliery the four writ petitioners cannot also get any undue or unfair advantage in the matter of distribution of coal. 8.25. In the context of the facts the question whether there is any subsisting agreement between BCCL and the consumers is not at all material or relevant. Each of the consumers is entitled to supply of coal for its coke oven plant. An agreement may be entered into on the basis of the quantity of different grades of coal available for distribution to each of such consumers, but no special treatment or priority can be given to any of the consumers similarly situated. 8.26. There is no reasonable or rational, logical or factual justification demonstrated for preferential treatment either to Premium Fuels or other four writ petitioners. Distribution of raw materials owned by the State must be based on equitable and fair considerations. It is the actual requirement of the raw materials by the consuming units which must form the basis of fair and equitable scheme of distribution. The decision by BCCL and CIL in the context of scarcity of suitable coal to supply the entire coal to Premium Fuel from Damagoria Colliery is prima facie discriminatory in favour of Premium Fuels. Similarly a clause containing an order of T.K. Basu, J. which stood vacated cannot also from the basis of any arbitration agreement. Assuming that BCCL by entering into such arbitration agreement created rights in favour of the said four parties to obtain coal from the 9 specified collieries, the question which requires serious consideration is as to whether any agency of the State can allocate more suitable quality of coals is favour of few selected consumers when the general policy also is undoubtedly to make a pro rata distribution. It appears that allocation in the case of five petitioners were kept outside the general pro rata distribution and were made from the Head Office as they are treated as a special class. It appears that allocation in the case of five petitioners were kept outside the general pro rata distribution and were made from the Head Office as they are treated as a special class. Thus, one way or other in respect of five writ petitioners the authorities concerned had made preferential treatment giving them undue advantage. Even though the other consumers have obtained coal from the nine collieries specified for the four writ petitioners the quantity received by them is extremely meagne as is evident from the allocation made. It is manifest that there is no uniform pro rata allocation. The discrimination in favour of Premium Fuels is not justified nor the discrimination in favour of other four writ petitioners can be sustained. 8.27. As a matter of fact after 1982 there is no contract by and between BCCL and Premium Fuels and as such the respondents were not bound to supply coal to Premium Fuels from Damagoria Colliery. The Arbitration Agreement cannot also curb the right of others to get coal for their coke oven plants. By reasons of the different offers passed by this Court Premium Fuels as well as four other petitioners (Shree Shyam Industries and others) obtained indirectly what they could not get directly. 8.28. One other aspect of the matter is required to be mentioned. The four writ petitioners wanted to have backlog of over 20,00 metric tonnes of coal. The question of clearance of any backlog in the supply does not and cannot arise at all Coking coal is required for current production. It is one of the essential raw materials for coke oven plants and is required for day-to-day running of the coke oven plants. Each coke oven plant has its installed capacity. If any particular coke oven plant does not get the entire supply for the month then it cannot work to its full capacity. It cannot make up the deficit in production by getting more coal over and above the current requirement subsequently, say, after lapse of few months or year. The anxiety of some of the petitioners to get the backlog only suggests that extra coal in the shape of backlog is not meant for the purpose for which it is obtained. It is therefore, incumbent on the respondents not to release any coal on the ground that there is any backlog in the supply of coal. The anxiety of some of the petitioners to get the backlog only suggests that extra coal in the shape of backlog is not meant for the purpose for which it is obtained. It is therefore, incumbent on the respondents not to release any coal on the ground that there is any backlog in the supply of coal. It is also incumbent upon the respondents to consider whether, as in the case of Industrial Engineering, the consumers have any other source of supply of coal. 8.29. Although in the writ application Industrial Engineering Company have asked for various reliefs including the refund of certain amount, the main relief is for distribution of coal from the different collieries to the said petitioner and others. At the time of hearing the main contention raised was that neither the Arbitration Agreement nor any other agreement can bind the Industrial Engineering Company and the respondents cannot supply coal to these writ petitioners in preference to others. In substance the contention is that there is no right contractual or otherwise for any special treatment. It is their contention that there should be pro rata distribution of available coal irrespective of any special agreement. 8.30. I am, therefore, of the view that it is incumbent on the respondents to make equitable distribution of coal to all the cokeries. Etch cokery should get fair and equitable share of coal available for distribution to the cokeries. No one should get any undue or unfair advantage by reason of extraneous considerations. The case made out by five cokeries that unless the particular grade of coal is available they cannot manufacture the particular quality of hard coke that are being manufactured by them, is also not supported by any evidence. On the contrary, from the affidavit filed by BCCL it appears that it is not at all correct that for manufacture of hard coke only coking coal having ash contract less than 25% is required. Shree Shyam Industries and three others have been using coking coal containing more than 24% ash. Other consumers and/or manufacturers for hard coke are also using coal having more than 24% ash content. More than hundred Beehive Coke Oven Plants are located within the district of Dhanbad and they have been using coal having ash content more than 24% for the manufacture of BH Hard Coke. Other consumers and/or manufacturers for hard coke are also using coal having more than 24% ash content. More than hundred Beehive Coke Oven Plants are located within the district of Dhanbad and they have been using coal having ash content more than 24% for the manufacture of BH Hard Coke. Thus, it cannot be said that five cokeries are producing special type of hard coke for which they require special grade of coal from selected collieries. No legal right has been established by any of the parties for favourable, discriminatory and differential treatment. Whatever has happened so long cannot be continued, nor this discrimination can be perpetuated having regard to the setting and the context of the facts now brought on record. 9. Order: In the light of the findings aforesaid, I dispose of the five writ applications on the following terms : (a) Coal India Ltd. shall ascertain the available coal for distribution to the private cokeries from all the collieries under the control and management of Coal India Ltd. through the 4 subsidiaries. (b) Coal India Ltd. and/or its subsidiaries shall prepare a chart and/or statement of available coal for distribution to the cokeries grade-wise and colliery-wise, month by month. (c) Coal India Ltd. will assess the requirements of coal of each of the cokeries on the basis of the performance of the last three years and allot coal on pro rata basis having regard to the actual requirement. Subject to what is stated hereinafter, no coal should be allotted to any of the cokeries on the basis of the installed capacity of Coke Oven Plants or on the basis of the certificates that might be issued by the Director of Industries or District Industries Centre as the case may be. (d) Where, however, the Coke Oven Plant which, although installed, but has not started functioning, or has not commenced production, the requirement of such Coke Oven Plant shall be determined on the basis of the installed capacity. The allocation to such plant or plants may be revised thereafter, after making proper and necessary enquiry as to the actual requirement of and utilisation by such Coke Oven Plants. The allocation to such plant or plants may be revised thereafter, after making proper and necessary enquiry as to the actual requirement of and utilisation by such Coke Oven Plants. (e) In assessing the performance of the last three years the Coal India Ltd. and/or its subsidiaries shall be at liberty to consider whether the decline in the performance of any year or years was due to the non-availability of requisite quantity of coal. In such event, the said respondents may adopt any reasonable basis for assessing the performance. (f) Coal India Ltd. and/or its subsidiaries shall revise the schedule of requirement of the private cokeries on the assessment of performance from time to time. Such assessment shall be made after thorough investigation and scrutiny and only if they are satisfied that the revision is called for. (g) Coal India Ltd. and/or its subsidiaries shall consider whether having regard to the available coal for distribution to the existing private cokeries any further licence should be issued for installation of any further private cokeries. So long as the policy decision is not taken by the Government as regards the issuance of licence to private cokeries, CIL and/or its subsidiaries shall distribute to the Coke Oven Plants which may be installed hereafter on the basis of their actual requirement or installed capacity and there should be corresponding revision of the distribution schedule to all the cokeries. (h) In the distribution of coal to the private cokeries the Coal India Ltd. and/or its subsidiaries shall not make any discrimination nor shall they enter into any special contract or give any special treatment to any of the cokeries except to the extent indicated hereinafter. They shall distribute the available coal to the cokeries on pro rata basis irrespective of any special agreement or agreements or orders or direction, as regards preferential allocation of coal. (i) If same or similar grade of coal is available from more than one colliery, in that event Coal India Ltd. and/or its subsidiaries shall be at liberty to supply coal to a consumer from the colliery which is nearest to the Coke Oven Plant of such consumer. Otherwise, no consumer should be linked with a particular colliery even though such colliery is situated within stone-throw of the Coke Oven Plant. Otherwise, no consumer should be linked with a particular colliery even though such colliery is situated within stone-throw of the Coke Oven Plant. (j) Coal India Limited in fixing the quota of each consumer shall take into account whether any such consumer is receiving coal from any other source and to that extent their quota shall be reduced. In the event a particular grade of coal is available from only one colliery and the total production of such coal is not sufficient to meet even a negligible percentage of requirement of each of the consumers, in that event Coal India Limited or its subsidiaries would be at liberty to distribute the coal of such colliery to such of the Coke Oven Plants whose substantial requirement can be satisfied from such supply. Coal India Ltd. will also be at liberty to take into consideration the location of Coke Oven Plants in distribution of such coal. Coal India Ltd. and its subsidiaries will be at liberty to formulate policy for distribution of such coal but under no circumstances, such coal should be exclusively given to only one consumer even if such consumer is in close proximity of such colliery. (k) Coal India Limited will be at liberty to enter into individual agreement with the consumers for monthly distribution of coal, the quantum being determined in terms of this order. (l) Coal India Limited and/or its subsidiaries shall obtain a statement from each of the consumers pertaining to the industries in respect of their identification, requirement of coal and production, particulars of the industry which would, inter alia, include particulars of the factory licence, particulars of the product manufactured, total installed capacity, capacity actually utilised during the last preceding three years, description of coal consuming equipment, details of receipt and consumption of coal and proceeding for three years. Each consumer shall furnish data sheet for assessment of quality of coal as may be required by the Coal India Limited and/or its subsidiaries. Each consumer shall furnish data sheet for assessment of quality of coal as may be required by the Coal India Limited and/or its subsidiaries. (m) The Coal India Limited and/or its subsidiaries shall obtain a statement on oath and/or undertaking from each of the consumers, inter alia, to the following effect :- (i) In case the Coke Oven Plant is closed and/or does not consume coal supplied for whatsoever reason within 48 hours thereof, the consumer shall inform the Coal India Ltd. and/or its subsidiaries in writing to enable them to suspend the supply of coal to the said coke oven plant; (ii) Each consumer shall allow the officers of Coal India Limited and/or its subsidiaries to inspect the Coke Oven Plant at any time and furnish any information and documents, registration certificate etc. and any other records which may be called for by Coal India Limited and/or its subsidiaries; (iii) The entire quantity of coal to be supplied by Coal India Limited and/or its subsidiaries shall be absolutely consumed and/or utilised by Coke Oven Plant and shall not be disposed of in any way or used for any other purposes and shall not be sold, transferred or disposed of to any other person for any reason whatsoever. (n) In case any discrepancy is found in regard to coal supplied and consumption thereof or in regard to the statement which might be furnished by the consumers, Coal India Ltd. and/or its subsidiaries will have the right to stop the supply of coal after giving opportunity being heard to the consumers who might be affected by such action. (o) Coal India Limited and/or its subsidiaries its shall from time to time inspect the cokeries and find out whether the coal supplied was absolutely consumed and/or utilised by the Coke Oven Plants. If there is any misuse of such coal, Coal India Limited and/or its subsidiaries shall be entitled to take appropriate steps against the consumers in accordance with law. (p) Under no circumstances, Coal India Limited and/or its subsidiaries shall allot any quantity of coal to any of the consumers towards any alleged backlog. Those of the consumers who would not lift quota of coal to be allotted to them within the time specified, the Coal India Limited and/or its subsidiaries shall consider such coal to be surplus and add them to the available quantity for the next following month. Those of the consumers who would not lift quota of coal to be allotted to them within the time specified, the Coal India Limited and/or its subsidiaries shall consider such coal to be surplus and add them to the available quantity for the next following month. (q) The Coal India Limited and/or subsidiaries shall not act on the basis of any arbitration agreement or any other agreement or any order of status quo passed by the Coal India Limited and/or by its subsidiaries. (r) The Coal India Limited and/or its subsidiaries shall give effect to this order from the month of March, 1985. Save as aforesaid all interim orders are vacated. It may be mentioned that Premium Coke Manufacturing Company Private Limited filed an affidavit on September 12, 1984 to the application filed by Industrial Engineering Company. I have not decided any of the contentions raised by Premium Coke Manufacturing Company Private Limited in the said affidavit. This order relates to the distribution of quantity of coking coal as available for being offered to the private cokeries. Mr. Pratap Chatterjee prayed for stay of operation of the order for a period of two weeks from date, but having regard to the facts and circumstances of the case, such prayer is refused. On the undertaking to apply for a certified copy of this order and upon the further undertakings of the parties to put in requisite folios and stamps thereof in the department, let a plain copy of this judgment, duly counter-signed by an Officer of this Court, be given to the learned Advocates appearing for the parties.