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2016 DIGILAW 30 (JHR)

Central Coalfields Limited v. State of Jharkhand

2016-01-05

SHREE CHANDRASHEKHAR

body2016
ORDER : 1. Aggrieved by order dated 20.02.2013 in Certificate Case No. 05 of 2012-13 the present writ petition has been filed. 2. The learned counsel for the petitioner submits that the objection under Section 9 of the Bihar and Orissa Public Demands Recovery Act, 1914 has been dismissed vide order dated 20.02.2013 without considering the plea taken by the petitioner and on the same day a direction has been issued by the Certificate Officer to the petitioner to deposit Rs. 56,38,150/- with interest. It is contended that the procedure prescribed under the 1914 Act has not been followed by the Certificate Officer in as much as, no proper opportunity was given to the petitioner nor the petitioner was permitted to lead evidence. There is no final determination of the certificate amount by the Certificate Officer and therefore, the petitioner can maintain the writ petition avoiding the statutory provision under Section 60 of the Act. 3. Relying on the decision of the Hon'ble Supreme Court in Whirlpool Corporation vs. Registrar of Trade Marks, (1998) 8 SCC 1 , the learned counsel for the petitioner submits that the impugned order dated 20.02.2013 is liable to the set-aside. 4. It appears that on the requisition of the Project Officer, Swang Colliery of M/s CCL for recovery of an amount of Rs. 56,38,150/- the certificate proceeding vide Certificate Case No. 05 of 2012-13 was initiated. A notice under Section-7 was issued to the petitioner on 31.10.2012. It appears that on 21.12.2012 an application under Section 9 was filed by the petitioner. The petitioner raised a plea that under the Central Government notification 5% rebate was given on the price of coal supplied to the power sector. It is contended that the petitioner produced the details of coal supplied to the power house through Railways however, that has not been considered by the Certificate Officer. In the counter affidavit, plea that the rebate of 5% on the price of the coal was allowed to the power sector as claimed by the petitioner has been disputed. It is stated that the petitioner-M/s CCL dispatched 1587271.94 MT coal during the period June, 2009 to March, 2011 and out of the said quantity, only 361445.99 MT has been shown in the monthly return dispatched to the power sector during the said period. It is stated that the petitioner-M/s CCL dispatched 1587271.94 MT coal during the period June, 2009 to March, 2011 and out of the said quantity, only 361445.99 MT has been shown in the monthly return dispatched to the power sector during the said period. It is pleaded by the respondents that 1225825.95 MT coal was dispatched to the railway siding from the lease hold area and the petitioner availed rebate of 5% for supply of washery grade coking coal to the power house for the entire dispatched quantity. Raising a plea of alternative remedy, the respondent-State has averred as under:- “23. That in reply to para 18 it is stated that the alternative and equally efficacious remedies are available under Section 60 and 63 of the Bihar and Orissa Public Demand Recovery Act, 1914 by filing an appeal before the Deputy Commissioner, Bokaro against the order dated 20.02.2013 passed by the Certificate Officer, if aggrieved. The petitioner company made an application to file review petition under Section 63 of the Orissa and Bihar Public Demand Recovery Act, 1914 against the order dated 20.02.2013 before the Certificate Officer, Mines Circle, Dhanbad on 30.04.2013 asking one month time to file review petition. Several opportunities has been given to the petitioner but the petitioner could not be able to file the review petition and finally the Certificate Officer upheld the order dated 20.02.2013 and 30.10.2013. The petitioner did not avail such opportunity and adopted the course of writ to avoid to deposit 40% of the certificated amount, a precondition for filing an appeal under Section 60 of the Act. So this WP (C) No. 7200 of 2013, Central Coalfields Ltd vs. State of Jharkhand and Others is fit to be dismissed.” 5. It appears that vide order dated 30.10.2013 the Certificate Officer has further considered the plea raised by the petitioner and affirmed order dated 20.02.2013. Order dated 30.10.2013 is not impugned in the present proceeding. The respondent-State of Jharkhand has raised a question of maintainability of the writ petition on the ground of availability of the alternative remedy under Section 60 of the Bihar and Orissa Public Demands Recovery Act, 1914. It has been contended that under the statutory provision, the appellant is required to deposit 40% of the certificate demand and the petitioner is trying to short-circuit the statutory provisions. It has been contended that under the statutory provision, the appellant is required to deposit 40% of the certificate demand and the petitioner is trying to short-circuit the statutory provisions. The learned counsel for the petitioner has contended that the procedure prescribed under the 1914 Act has not been followed. 6. From the proceeding in Certificate Case No. 05 of 2012-13, it appears that the petitioner produced details of supply of coal to the power house through Railways and the same has been noticed by the Certificate Officer. The only plea raised by the petitioner in the objection under Section 9 is that 5% rebate has been given on the price of coal supplied to the power house. The plea raised by the petitioner in the present proceeding is in fact, on the merits of the matter. Regarding the proceeding in Certificate Case No. 5 of 2012-13, prima-facie, I am of the opinion that procedure under the Act has been followed by the Certificate Officer. The dismissal of the objection under Section 9 has resulted in affirmation of the certificate amount as claimed by the respondent-State. In Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433 , the Hon'ble Supreme Court has held as under:- “11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.” 7. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.” 7. Considering the aforesaid facts, the present writ petition is dismissed as not maintainable however, the petitioner may avail statutory remedy under Section 60 of the Bihar and Orissa Public Demands Recovery Act, 1914, in accordance with law.