ORDER M.Y. Eqbal, J. 1. Heard Mr. A.K. Sinha, learned senior counsel appearing for the petitioners and Mr. M.M. Banerjee, learned counsel for the respondents on the modification application dated 21.12.99 filed by the respondents for modification/clarification of the judgment and order dated 28,11.97 passed in the instant writ petition. 2. Firstly, 1 will refer some of the important facts which are relevant for the purpose of disposal of the modification application. Petitioners in the instant writ application had prayed for issuance of appropriate writ directing the respondents to release full quota of coal as agreed by the respondent-Coal Companies for the purpose of establishment of Special Smokeless Fuel Plant of the petitioner. Petitioners case in the writ application was that consequent upon a decision taken by the Coal Ministry, Govt. of India to make available coal to the private interprenure for production of Special Smokeless Fuel Technology, which was developed by Central Mines Planning & Design Institute (in short CMPDI), the CMPDI offered their consultancy services for the establishment of the said industry including supply of technical know how. This decision was taken by the Coal Ministry, Govt. of India duly approved by the Coal India Ltd. Petitioners further case was that an advertisement was made inviting persons interested in the establishment of the Special Smokeless Fuel Plant for the purpose of manufacturing domestic coal to be supplied to the consumers. Pursuant to the advertisement published in the newspaper. Persons who were interested had to approach the CMPDI for project report and to enter into an agreement far the purpose of supply of technical know-how. Each petitioners said to have deposited Rs. 25,000/- for getting project report prepared in their respective names and further a sum of Rs. 42,700/- was deposited to get technical know-how. According to the petitioners project cost comes to about Rs. One Crore and the only material to be used in the said plant is coal. As per the capacity of the plant, the petitioners were to get 5000 Metric Tonnes coal as fixed by the coal company. Petitioners further case was that they were duly registered under the Industry Department and for the purpose of establishment of big plant, the petitioners applied before the Bihar State Credit & Investment Corporation Limited for the loan and they were granted loan of Rs. 54-50 lakhs. Petitioners also took Rs. Petitioners further case was that they were duly registered under the Industry Department and for the purpose of establishment of big plant, the petitioners applied before the Bihar State Credit & Investment Corporation Limited for the loan and they were granted loan of Rs. 54-50 lakhs. Petitioners also took Rs. 45 lakhs by way of working capital from different Nationalised Bank. The plants of the petitioners being heat intensive in nature required to be kept in operation in all the 365 days of the year and as such, sufficient man power was provided for running the plant. The grievance of the petitioners in the writ petition was that despite minimum requirement of 5000 MT of coal, respondents were not releasing full quota of coal to the petitioners although they received the price of the coal in advance. 3. The writ petition was allowed by this Court in terms of judgment dated 28.11.1997. The operative portion of the judgment reads as under: "In view of the specific stand taken by the Respondents that they have been releasing full quantity of coal to the petitioners every month, I do not want to go into the question whether in past the respondents have failed or neglected to supply the agreed quantity of coal. In order to resolve the dispute for future transactions, in my opinion, the following directions will meet the ends of justice for both the parties and would be more fair and reasonable:-- (i) The respondents shall henceforth issue release order and despatch the fixed quantity (5000 MT) of monthly quota of coal, i.e. graded washery-III/IV or equal grade of coal within 45 days from the date of deposit of value coal and before the deposit of the amount for the subsequent month. (ii) Coal shall be released and despatched by the respondents to the petitioners from the collieries mentioned in Annexure 14, other than Parej East and Keribanda, so that the petitioners may not be put to extra burden of service charges and transportation charges. In case of difficulty the respondents may allot coal from any of the collieries mentioned in paragraph-6 of the reply to the counter affidavit before selling the same in open market. The petitioners shall get preference in the delivery of coal from such collieries and the respondents shall prefer to release the coal from the collieries which are nearer to the petitioners-establishment. The petitioners shall get preference in the delivery of coal from such collieries and the respondents shall prefer to release the coal from the collieries which are nearer to the petitioners-establishment. (iii) Since the petitioners have been depositing the price of coal every month after getting finance from Bank the respondents shall release and/or despatch coal within the agreed period of 45 days, failing which the amount lying with the respondents shall carry interest at the same rate which the petitioners pay to the concerned bank. In the result, this writ application is allowed and Annexure 14 so far it relates to allotment of coal from Parej East and Keribanda is quashed. The respondents are directed to release the coal in terms of directions given above. 4. Respondents, aggrieved by the aforesaid judgment preferred Letters Patent Appeal being L.P.A. No. 618/97(R) which was dismissed by a Division Bench of this Court. 5. Respondents then preferred Civil Appeal before the Honble Supreme Court of India being Civil Appeal No. 6317 of 1998. The Honble Supreme Court disposed of the Civil Appeal on 22.3.1999 by passing the following order: "By consent of all parties, the appeal itself is taken for hearing. The impugned order to the extent that it directs the petitioners to supply coal from any specific colliery is set aside. The appellant, however, states that subject to availability, the direction for supply of coal shall be, as far as possible, from a nearby colliery. It is directed accordingly. The civil appeal is disposed of." 5. It is, therefore, clear that the judgment and order passed in the writ application was affirmed subject to modification in direction No. (ii) to the extent that instead of delivery of coal from the collieries nearer to the petitioners establishment, supply of coal shall be subject to availability from the nearby colliery as far as possible, respondents then filed application on 21.12.99 for modification of the judgment dated 28.11.1997 passed in the instant writ petition by adding one more condition i.e. if the petitioners fail to lift fixed quantity of coal within the stipulated day then the respondents would be entitled to deduct the quantity of coal or forfeit the money lying with the respondents. The said application was heard by this Court and the modification application was rejected in terms of order dated 16.3.2000, which reads as under:-- "Heard Mr. The said application was heard by this Court and the modification application was rejected in terms of order dated 16.3.2000, which reads as under:-- "Heard Mr. M.M. Banerjee, learned counsel for petitioner-respondents on the application at Flag B wherein prayer has been made for modification of the judgment and order dated 28.11.97 passed in CWJC No. 2750/97(R). It appears that against the aforesaid judgment the respondents preferred Letters Patent Appeal being LPA No. 618/97(R) which was dismissed by a Divi-sion Bench. The respondents then filed Civil Appeal No. 6317/98 before the Supreme Court. The Supreme Court disposed of the said appeal by passing the following order:-- "By consent of the parties, this appeal itself is taken for hearing. The impugned order to the extent that it directs the petitioners to supply coal from any specific colliery is set aside. The appellant, however, states that subject to availability, the direction for supply of coal shall be, as far as possible, from a nearly colliery. It is directed accordingly. The Civil appeal is disposed of." It is, therefore, evident that the judgment and order passed by this Court finally affirmed by the Supreme Court with certain modification. I am, therefore, of the opinion that having regard to the aforesaid fact, there is no scope of any further modification by this Court. This application at flag B is accordingly rejected." 6. Respondents then again moved to the Supreme Court against the aforesaid order by filing Special Leave Petition (C) No. 12317 of 2000, which was converted into Civil Appeal No. 566 of 2001. The said appeal was finally heard by the Supreme Court and was disposed of on 15.1.2001. The order dated 15.1.2001 passed by the Supreme Court is reproduced here in below: "Delay in filing rejoinder affidavit is condoned. Leave granted. Heard learned counsel for the parties. We dispose of this appeal with the clarification that the orders made by this Court in Civil Appeal No. 6317 of 1998 on March 22, 1999 shall not come in the way of either party to seek appropriate relief from the High Court should there be any change of circumstances. Leave granted. Heard learned counsel for the parties. We dispose of this appeal with the clarification that the orders made by this Court in Civil Appeal No. 6317 of 1998 on March 22, 1999 shall not come in the way of either party to seek appropriate relief from the High Court should there be any change of circumstances. Thus whether there is any justification for modification of the judgment and order dated 28.11.1997 passed in CWJC No. 2750 of 1997, in the light of what we have said above, shall have to be decided by the High Court uninfluenced by the orders made by this Court in Civil Appeal No. 6317 of 1998 on March 22, 1999. The impugned order dated 16.3.2000 is accordingly set aside. The application seeking modification is remanded to High Court for its fresh disposal in the light of what we have said above. It shall be open to the respondent to raise all Such objections in the High Court as are permissible in law. including the preliminary objection to maintainability of the application. The appeal is disposed of in the above terms. No costs." 7. This is how the modification petition dated 21.12.99 filed by the respondents has been placed for hearing before this Bench. 8. The modification/clarification of the judgment sought for by the respondents Central Coalfields Ltd. is to the extent that in case of failure of the petitioner to lift the fixed quantity of coal reasonable penalty may also be imposed. For better appreciation, paragraph 5, 6, 7, 8 and 9 of the modification application are reproduced herein below: (5) "That the respondents state that from the judgment passed by this Honble Court it would appeal that this Honble Court had given a direction that if the respondents fail to release coal within the agreed period of 45 days then in that event the respondents will be liable to pay interest at the same rate which the petitioners pay to the concerned Bank. (6) That the respondents state that however, on some occasion the purchasers of coal including the petitioners fail to lift the quota of coal within the stipulated period i.e. 45 days for no fault of the respondents. (6) That the respondents state that however, on some occasion the purchasers of coal including the petitioners fail to lift the quota of coal within the stipulated period i.e. 45 days for no fault of the respondents. (7) That the respondents state that for non-lifting of coal within the specific period of 45 days by the petitioner No. 1 and its members the respondents also suffer loss in as much as the entire process of supply and distribution gets affected resulting in financial loss also. (8) That the respondents state that however, this Honble Court had not given any direction that in case the petitioners who are unable to lift the coal within the stipulated date then in that event the respondents may either deduct the quantity of coal or forfeit the money lying with the respondents or to curtail the quota of coal to be allotted to the petitioners for the next month. (9) That the respondents state that in view of the aforesaid fact the respondents have been advised to file this application for necessary modification/clarification of the judgment passed by this Honble Court dated 28th November, 1997." 9. Mr. M.M. Banerjee, learned counsel for the respondent Central Coalfields Ltd. drawn my attention to the supplementary affidavit and the documents annexed therewith and firstly submitted that the Coal India Ltd. (in short CIL) time to lime issued guidelines in the matter of supply of coal which are to be followed by the Coal companies strictly. It is further stated that linkage of a plant is reviewed every year to work out the quantity on the basis of their best average booking of the previous years as such a linkage for a particular unit can vary in different years for a unit. The sale policy has been modified in the year 2001 wherein average booking of last three years was taken into consideration before fixing the entire quantity for the next year. Learned counsel further submitted that although there is direction in the judgment/order for supply of 5000 MT of coal to the petitioner but at no point of time since passing of the order petitioner ever booked more than 60% of the 5000 MT of coal. Learned counsel submitted that as per the new sales policy system of linkage and sponsorship have been done away with. Learned counsel submitted that as per the new sales policy system of linkage and sponsorship have been done away with. Learned counsel submitted that although in the event of non supply of coal by the respondents they have been made liable to pay interest but no liberty has been given to the respondents to charge any interest if the petitioners do not book entire quantity of 5000 MT of coal per month. It is further contended that Clause 12A of the Colliery Control Order under which linkage was granted has been deleted in the new Colliery Control Order, 2001. Mr. Banerjee, lastly submitted that respondent C.C. Ltd. is ready to supply coal but that should be subject to guidelines provided in the letter dated 23.7.2001 issued by Coal India Ltd. In other words, it is submitted that the petitioners are entitled to supply of coal subject to maximum permissible quota i.e. average of quantity of coal booked during the past three years. 10. On the other hand, Mr. A.K. Sinha, learned senior counsel appearing for the petitioners firstly raised objection with regard to maintainability of the modification application. Learned counsel submitted that the Supreme Court while remanding the matter gave liberty to the petitioners to raise preliminary objection with regard to maintainability of such application. Learned counsel further submitted that once the writ petition has been disposed of finally, it cannot be reopened by means of miscellaneous application. In this connection, learned counsel put heavy reliance on the decision of the Supreme Court in the case of "State of U.P. v. Brahm Datt Sharma, AIR 1987 SC 943 and in the case of Comorin Match Industries (Pvt.) Ltd. v. State of Tamil Nadu 1996 (5) Judgments Today SC 167. Learned counsel then referred relevant provisions of the newly framed Colliery Control Order and submitted that the said order has no application with respect to things already done and the order already passed pursuant to the Colliery Control Order 1945. Learned counsel further submitted that the power to regulate the disposal of the coal has been delegated only to the Coal Controller and the respondents have no authority to formulate their own sales policy. Learned counsel submitted that the petitioners industries have been established at the instance of the respondents on their commitment to supply required quantity of coal and for that petitioners have deposited Rs. Learned counsel submitted that the petitioners industries have been established at the instance of the respondents on their commitment to supply required quantity of coal and for that petitioners have deposited Rs. 6 crores for the supply of coal every month. Learned counsel then submitted that the circular issued by the Govt. fixing maximum permissible quantity of coal to be supplied and the guidelines have been suspended and implementation of this circular have been kept in abeyance. Learned counsel lastly submitted that several contempt petitions have been filed against the respondents for non- compliance of the direction given in the judgment which has been affirmed upto the Supreme Court and the respondents in order to safe their skin have sought modification of the judgment by filing instant application. 11. In the main modification application respondents have sought modification of the judgment only to the extent that a penalty may also be imposed on the petitioner in the event of non-lifting of fixed quantity of 5000 MT of coal for the reasons stated in para 5 to 9 of the said application quoted herein before. However, in the supplementary affidavit subsequently filed by the respondents they have referred the new Collery Control Order and various circulars to show that respondent are not duty bound to supply the fixed quantity of coal to the respondents because of a abolition of linkage system. 12. As noticed above, petitioners industries were established on the basis of the decision taken by the Coal Ministry, Govt. of India to make available coal to the private interprenures for production of Special Smokeless Fuel Technology which was developed by CMPDI. The decision of the Coal Ministry, Govt. of India was approved by the Coal India Ltd. and pursuant to advertisement made by Coal India Ltd. for establishment of Special Smokeless Fuel Plant petitioners agreed for the same and they after obtaining Project Report from the, CMPDI agreed to establish such industry. The petitioners were provided technical know how by CMPDI and they invested crores of rupees in the establishment of Special Smokeless Fuel Plant for the purpose of manufacturing of domestic coal and on the assurance of the respondents to supply fixed quantity of coal for their establishment. The petitioners were provided technical know how by CMPDI and they invested crores of rupees in the establishment of Special Smokeless Fuel Plant for the purpose of manufacturing of domestic coal and on the assurance of the respondents to supply fixed quantity of coal for their establishment. This was the main reason why this Court in the Judgment issued direction to the respondents to supply fixed quantity of coal every month within 45 days from the date of deposit of value of the coal and this direction given in the judgment was affirmed by the Supreme Court. However, the Supreme Court set aside one of the direction issued to the respondents to release the coal from the collieries which are nearer to the petitioners establishments. This part of the direction was modified by the Supreme Court to the extent that release of coal shall be subject to availability of coal from nearer colliery as far as possible. 13- The New Colliery Control Order 2000 came into force from 1st January, 2000. The relevant provision of the said control order reads as under: "S.O.1 (E)--In exercise of the powers conferred by Section 3 read with Section 5 of the Essential Commodities Act, 1955 (10 of 1955) and in Supersession of the Colliery Control Order, 1945. except as respects things done or omitted to be done before such supersession, the Central Government hereby makes the following Order." 14. It is, therefore, evident that the Old Colliery Control Order, 1945 has been super-ceeded but the things already done under the said order has been saved. It also appears that by the said order power to regulate the disposal of coal stock have been delegated to the Coal Controller under Clause 13 of the said order. 15. Mr. Banerjee, learned counsel for the respondents also drawn my attention to the guidelines issued by the Coal India Ltd. vide letter dated 27.3.2001 in the matter of fixation of maximum permissible quantity (MPQ) of coal to be released to non-core sector linked consumers as applicable with effect from January, 2001. The letter reads as under: Sub: MPQ for 2001 "The methodology of computation of MPQ for the year 2001 for all Non-core Sector linked consumers as application with effect from January, 2001 was decided in the 109th meeting of NCLC held on 17.01.2001 and subsequently ratified in the 73rd CMD meet held on 30.01.2001. The letter reads as under: Sub: MPQ for 2001 "The methodology of computation of MPQ for the year 2001 for all Non-core Sector linked consumers as application with effect from January, 2001 was decided in the 109th meeting of NCLC held on 17.01.2001 and subsequently ratified in the 73rd CMD meet held on 30.01.2001. The same was again reviewed in the CMDs meet held on dated 3rd March, 2001. As decided CGM/GM (S&M)s of the coal Companies met on the subject on 15.3.2001 when you were present. The subject was deliberated upon in the same meeting when a new methodology was worked out, which was discussed and agreed to in the CMDs meet held on 19.03.2001. Accordingly the new methodology for computation of MPQ as applicable for the year 2001 would be based on the highest valid order booking in any of the calendar years of 1998, 1999 and 2000. It was further agreed that MPQ as applicable for the year 2001 for each individual consumer in non-core sector drawing coal by rail or road would be computed according to the new methodology and furnished to this office latest by 30th April, 2001. You are, therefore, requested to work out the requisite data for each individual Non-core Sector consumer and send the same to this office latest by 30th April. 2001. The codified frozen list of the consumers along with MPQ computed as per earlier methodology is being sent herewith a blank column for filling in the requisite date based on revised methodology as above. The data (as Text file) is also being sent in floppy to facilitate the exercise at your end expeditiously." Yours faithfully Sd/- General Manager (S&M HQ) 16. Learned counsel submitted that the maximum quantity of coal booked by the petitioners during the calendar year 1998, 1999 and 2000 was 60% of the fixed quantity i.e. 5000 MT of Coal and therefore petitioners are entitled to 3000 MT of coal every month for this year and for the subsequent years. Controverting the said statement, petitioners in their reply have submitted that it is the respondents who have never supplied full quantity of coal although petitioners deposited Rs. 6.00 crores for supply of full quantity of coal. Controverting the said statement, petitioners in their reply have submitted that it is the respondents who have never supplied full quantity of coal although petitioners deposited Rs. 6.00 crores for supply of full quantity of coal. Besides the above, petitioners annexed circular dated 29.9.2001 issued by the Deputy Chief Sales Manager as Annexure-1 to the reply to show that such booking under MPQ system has been kept in abeyance. Petitioners have also annexed a letter under reference No. CCL/HE/C4/MPQ/ 2001/1469 dated 27/29-1-2001 issued by the Director (Tech) (Opr.), C.C. Ltd. addressed to the Director (Marketing), Coal India Ltd, Calcutta, Relevant portion of the letter reads as under:-- "In this context, it is to stated that implementation of MPQ for coal allocation without any consideration for the actual need of the consumers (as was done during the previous years by obtaining consumers reaction and details of their requirement through prescribed linkage procure documents), would create serious problem in CCL. Some of permanent linked consumers like C and various Industrial Associations, during the discussions, have indicated that implementation of MPQ without any assessment of their actual requirement would creat lot of hardships to the industrial units linked with CCL which may even lead to closure of units. This matter has already attracted criticism in the local news papers and delegation of the consumers met us on 24.1.2001 and informed of serious consequences of implementing MPQ in CCL without considering actual requirement of different consumers. In view of the above, we are giving coal as per the norms adopted till Dec. 20OO, in the meantime, we request CIL to provide a comprehensive scheme for introducing MPQ and restoration of the entitled quantity of permanent linked con-sumers." 17. From all the letters and circulars issued by the Coal India Ltd. or Central Coalfields Ltd. as referred by the respondents, it appears that respondents are not disputing entitlement of linked consumers to get regular supply of coal irrespective of the new Colliery Control Order or new Sales Policy or other guidelines like MPQ. Respondents are anxious only on the question that linked consumers should get supply of only required quantity of coal. Moreover, the new Colliery Control Order and the new Sales Policy have been challenged by different consumers and in those cases interim orders have been passed by this Court. Respondents are anxious only on the question that linked consumers should get supply of only required quantity of coal. Moreover, the new Colliery Control Order and the new Sales Policy have been challenged by different consumers and in those cases interim orders have been passed by this Court. Annexure-2 and 3 are the copies of interim orders passed in W.P. (C) No. 6724 of 2001 and W.P. (C) No. 4917 of 2001. By interim order dated 26.9.2001 and 3.10.2001 this Court directed the respondent CCL to supply coal to those writ petitioners as per the linkage and subject to availability and decision of this Court. 18. Be that as it may, the question whether the said Colliery Control Order and the Sales Policy are applicable to the petitioners and whether respondents could take steps against the petitioners on the basis of their sales policy and guidelines cannot be the subject matter of this writ petition which has already been disposed of by a judgment which has been affirmed up to the Honble Supreme Court subject to modification. The subsequent change in the Colliery Control Order and the Sales Police may be fresh cause of action but on these grounds the instant proceeding cannot be re-opened by means of miscellaneous application, 19. In the case of State of U.P. v. Brahm Datt Sharma, (supra) their lordships observed that: "The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the respondents application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the Court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning." 20. However, in terms of the direction of the Honble Supreme Court in Civil Appeal No. 566/2001, this Court considered the modification application filed by the respondents and discussed herein above all the relevant materials brought by the respondents on record. However, in terms of the direction of the Honble Supreme Court in Civil Appeal No. 566/2001, this Court considered the modification application filed by the respondents and discussed herein above all the relevant materials brought by the respondents on record. As noticed above, the only modification of the judgment sought by the respondents in the modification petition dated 21.12.99 is that a condition may be imposed on the petitioners to the effect that in the event petitioners fail to lift the full quantity of coal within the stipulated period then the respondents may either deduct the quantity of coal or forfeit the money lying with the respondents or to curtail the quota of coal to be allotted to the petitioners. This modification was sought on the ground that for non lifting of coal within the specific period of 45 days respondents also suffer loss inasmuch as entire process of supply and the distribution gets effected resulting financial loss also. 21. It is worth to mention here that after the matter was remitted back by the Supreme Court for passing a fresh order on the modification application the respondents by filing supplementary affidavit has taken additional ground that the petitioners at no point of time booked more than 60% of 5000 MT of coal as directed in the judgment and therefore applying the new "MPQ" policy the quantity of coal be reduced to 3000 MT from 5000 MT. On the contrary, petitioners consistent case is that they have already deposited about Rs. 6 crores for the supply of full quantity of coal but the respondents have neither been releasing coal nor have been paying interest on the said amount. Some time they released coal only to the extent of 20 to 30% of different grade. 22. Although respondents sought modification of the judgment to the extent that some penal clause may also be provided for non lifting of full quantity of coal but they have not pleaded that the petitioners were at any point of time by notices or reminders asked to lift full quantity of coal and/or respondents have not shown their readiness to release full quantity of coal for which admittedly petitioners deposited huge amount. It is specific case of the petitioners that about Rs. It is specific case of the petitioners that about Rs. 6 crores is lying in deposit with the respondents for supply of full quantity of coal and such fact has not been disputed by the respondents. There is also no allegation from the side of the respondents that the coal supplied by the respondents are not being used by the petitioners in their establishments. 23. As noticed above, it is not a case where petitioners established their industries at their own, rather it is only after the decision taken by the Coal Ministry, Govt. of India and the Project Report and Technical know-how provided by the CMPDI, the petitioners established Special Smokeless Fuel Plant for the purpose of manufacturing domestic coal and on the commitment of the respondents- Coal Companies to supply 5000 MT, i.e. required quantity of coal. If the petitioners fail to deposit the price for the supply of full quantity of coal, respondents would be at liberty not to supply full quantity of coal. There is no dispute that the supply of required quantity of coal to the petitioners is subject to deposit of price of the coal and in that view of the matter, question of reducing of quantity of coal does not arise. 24. Having regard to the facts and law discussed herein above, I do not find any reason to modify the judgment and order passed in this writ petition. Accordingly, the modification application dated 21.12.99 at flag B is rejected. 25. Application rejected.