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2003 DIGILAW 1117 (JHR)

Techno Fuel (India) Ltd. v. Coal India Limited

2003-09-10

SUDHANSU JYOTI MUKHOPADHAYA

body2003
JUDGMENT S.J. Mukhopadhaya, J. 1. The petitioner has challenged the order dated 13th Mach, 2002 issued by the General Manager (S&M) (HQ), Coal India Limited (for short CIL), whereby and whereunder, the application of petitioner for revalidation of coal clearance certificate/linkage, has been rejected on the ground of inadequate availability of coal. 2. The petitioner initially established its unit at Patratu and a Coal Clearance Certificate/Linkage was granted in its favour vide order, contained in letter No. 208-09 dated 4th/6th October, 1989 issued by the CIL Calcutta. It was valid for two years. 3. There being dispute of land and Naxalite problem, the petitioner shifted its Unit to Rohtas (now in the State of Bihar), and, in the meantime, the period of Coal Clearance Certificate/Linkage expired. 4. As per terms and conditions the petitioner applied for extension of coal linkage which was placed before the Managing Committee of CIL which vide its meeting held on 24th December, 1998, vide Agenda No. 6, decided and recommended to grant Coal Clearance Certificate to petitioners Unit for another six months by extension after obtaining the opinion of the Central Coalfields Limited (for short CCL). Thereafter, the CCL having not forwarded its opinion, though the Central Mines, Planning and Design Institute Limited (for short CMPDI), vide letter dated 20th April, 1999 informed the Chief General Manager (Marketing Division), CIL Calcutta that the petitioner had already deposited the know how and consultancy fees, a Writ Petition, WP (C) No. 3232 of 2001 was preferred by the petitioner. In the said case, a Bench of this Court, vide order dated 23rd November, 2001, made the following observations and directions.:-- "The petitioner will represent the matter before the CMD, CCL, Ranchi for issuance of no Objection from their part and will also represent the matter before the competent authority of M/s. CIL, Calcutta. The CMD of M/s. CCL Ranchi will intimate the competent authority of M/s. CIL, Calcutta whether M/s. CCL has any objection if M/s. CIL grants extension of coal clearance/ revalidate the linkage as per police decision of M/s. CIL within a month from the date of receipt of representation. The competent authority of M/s. CIL is expected to pass final order relating to extension of coal clearance/revalidation of linkage within a month from the date of receipt of such information. The competent authority of M/s. CIL is expected to pass final order relating to extension of coal clearance/revalidation of linkage within a month from the date of receipt of such information. , If CMD of M/s. CCL does not file any objection within a period of one month, the competent authority of M/s. CIL Calcutta will determine of its own within three months from the date of receipt of representation, taking into consideration the decision of Linkage Committee dated 24th December, 1998." 5. The General Manager (S&M) (HQ) by impugned order dated 13th March, 2002 rejected the claim on the following grounds :-- "(i) CMD, CCL has earlier restricted grant of new linkage as well as revalidation of lapsed linkages due to inadequate availability of coal a/c. Non- core sector consumers and the same position persist. (ii) Consequent upon the decision taken by CIL in its Board meeting held on 6.6.2001 about decentralization in the system of sale of coal to non-core sector and the Subsidiary Coal Companies including CCL have been authorized to formulate their own procedure/system for sale of coal to non-core sector consumers and in that view of the matter CIL is not in a position to consider the case of extension of coal clearance/linkage. (iii) In view of foregoing and considering that the petitioners unit under the category of non-core sector, the petitioner has the option/opportunity to approach the concerned Coal Company, i.e., CCL for supply of coal as per their new sales policy for sale of coal to non-core sector consumers. (iv) In view of the option of CCL and, after considering the fact of inadequate availability of coal as expressed by CMD, CCL, CIL, is of the opinion that the request of M/s. Techno Fuel (India) Private Limited for revalidation of coal clearance/linkage does not merit consideration." 6. From the facts aforesaid, it will be evident that only ground taken is nonavailability of coal with the CCL. Non-application of mind on the part of the General Manager (S&M) (HQ) CIL is evident as the authority instead of taking the present position or the opinion of CMD of M/s. CCL passed order on the basis of an earlier order passed by the CMD M/s. CCL. 7. Non-application of mind on the part of the General Manager (S&M) (HQ) CIL is evident as the authority instead of taking the present position or the opinion of CMD of M/s. CCL passed order on the basis of an earlier order passed by the CMD M/s. CCL. 7. The Court while remanded the matter asked the CMD, CCL to send its opinion either by giving No Objection or forwarding the grounds of objections for revalidation of the linkage. This part of the Courts order has not been complied nor taken into consideration by the General Manager (S&M) (HQ) of the CIL, Calcutta. 8. The petitioner has specifically pleaded arbitrary and discriminatory attitude of the respondents as Coal Clearance Certificate has been granted by the CCL to those applied later than the petitioner, including five SSF Plants. The respondents have not disputed this fact, but merely stated that the five Mini SSF Units have been given coal clearance based on certain modified technology, goes to show that the coal is available with the CCL, but giving one or other ground, Coal Clearance Certificate is given to others, including those applied for Renewal/Fresh Coal Clearance Certificate, after the petitioner. But in the case of the petitioner, on the basis of old decision, the petitioner has been deprived of the benefit on the ground of non-availability of coal. 9. The stand of the respondents being changed from time to time and case to case, is very much evident from a number of Counter Affidavits filed by them in this very case. Initially, they have taken the plea of non-availability of coal followed by the plea that the action henceforth to be taken by the CCL, but lastly plea has been taken that coal can be released on the basis of the recent (New) Sales Policy. 10. From the recent Sales Policy, as high-lighted by the respondents, it appears that preference to the linked consumers has been given over others in the matter of executing agreement for supply of coal. If the Goal Clearance, Certificate/Linkage of petitioner is not renewed then it cannot ask for agreement along with other linkage holders, but will have to stand in queue with outsiders who have no linkage. Coal is available is evident from the fact that the linkage has been granted to those who applied after the petitioner, may be on some other ground. Coal is available is evident from the fact that the linkage has been granted to those who applied after the petitioner, may be on some other ground. There is no allegation against the petitioner made in the impugned order dated 13th March, 2002 nor in the Counter Affidavit. 11. In the circumstances, the Order dated 13th March, 2002, having passed in violation of Article 14 of the Constitution of India and on wrong presumption that the coal is not available, said order is set aside. 12. The case is remitted to the competent authority of M/s. CCL for renewal of linkage of petitioner so that the petitioner may request the competent authority to execute agreement as per the New Sales Policy. The competent authority of M/s. CCL will renew the coal linkage of petitioner, if there is no other impediment and there being nothing against the petitioner, within a period of two months from the date of receipt/production of a copy of this order. 13. However, the petitioner can lift the coal only after executing agreement with the competent authority as per the New Sales Policy on the basis of the renewed linkage. 14. The writ petition is allowed with the aforesaid observations and directions.