Rajesh Kumar Son of late Raghu Das v. Union of India
2018-03-16
RAJESH SHANKAR
body2018
DigiLaw.ai
ORDER : The present writ petition has been filed for issuance of direction upon the Nominated Authority (respondent no.2) for considering the representation relating to claim/compensation with regard to coal blocks under Schedule-III of the Coal Mines (Special Provisions) Act, 2015 (in short “ the Act, 2015”) at Sl. No. 18 Bridna, Sl. No. 19 Sisai and Sl. No. 20 Meral (hereinafter referred to as “the said coal blocks”) on account of purchase of land on behalf of M/s Abhijeet Infrastructure Ltd. in the capacity of authorized representative of the aforesaid company in accordance with the provisions of the Act, 2015. It has also been prayed for commanding upon the respondent no. 2 not to disburse any compensation payable to the prior allottee i.e. M/s Abhijeet Infrastructure Limited till the claim of the petitioner is settled. Further prayer has been made for restraining the respondents from using the plots of land purchased by the petitioner vide various sale deeds till the admitted dues is settled by the respondent no.2 in accordance with provisions of the Act, 2015. 2. On perusal of the record, it appears that vide order dated 01.03.2017, M/s. Trimula Industries Ltd., Varanasi was ordered to be impleaded as respondent no. 6 and dasti notice as well as the notice through registered post were issued to it. Subsequently, a supplementary affidavit was filed by the petitioner stating that the representative of the respondent no. 6 refused to accept the dasti notice, which was sought to be served to it on 10.03.2017. However, the service report of the registered notice issued under the registered post was awaited till 19.04.2017. Vide order dated 13.12.2017, fresh notice under registered post was ordered to be issued upon the respondent no. 6. On 21.02.2018, the writ petition was further taken up, however the same was adjourned awaiting service report of the notice to the respondent no.6. The position remained the same on the next date also i.e. 07.03.2018 and the case was ordered to be listed after one week. Under the aforesaid circumstance, it appears that sufficient steps have been taken for service of notice upon the respondent no.6. 3.
The position remained the same on the next date also i.e. 07.03.2018 and the case was ordered to be listed after one week. Under the aforesaid circumstance, it appears that sufficient steps have been taken for service of notice upon the respondent no.6. 3. The factual background of the case as stated in the writ petition is that on the strength of the power of attorney and authorization by the Board of Directors of M/s Abhijeet Infrastructure Limited (the respondent no.5), the petitioner purchased several plots of land for the said coal blocks from individual raiyats and invested huge money. Initially, some amount was paid to the petitioner, however after sometime when the respondent no. 5 was in receipt of the sale deeds relating to the land of the said coal blocks, the representative of the respondent no. 5 denied further payment of admitted dues of the petitioner. For purchasing some land in Meral Coal Block, money was advanced by the petitioner to the raiyats on the strength of power of attorney executed by the respondent no. 5 and the steps for seeking permission of Deputy Commissioner, Palamau was initiated but final sale deed could not be executed pending permission of competent authority. In the meantime, the said coal mines were realloted to Usha Martin Pvt. Ltd., Ranchi and Trimula Industries Ltd., Varanasi by way of auction pursuant to the provisions of the Act, 2015. 4. The learned counsel for the petitioner submits that the petitioner has invested huge amount for purchasing the land for the said coal blocks as authorized representative of the respondent no. 5 (the prior allottee) and as such in view of the provisions of section 9(b) of the Act, 2015, he is legally entitled to be compensated for the investment made by him in procurement of land. The Nominated Authority (respondent no.2) while adjudicating the claim of the petitioner is totally silent on the point of payment of compensation to the petitioner despite being the authorized representative of the prior allottee merely observing that the petitioner did not come under the definition of the secured creditor or government authorities.
The Nominated Authority (respondent no.2) while adjudicating the claim of the petitioner is totally silent on the point of payment of compensation to the petitioner despite being the authorized representative of the prior allottee merely observing that the petitioner did not come under the definition of the secured creditor or government authorities. It is further submitted that even if there is no other provision relating to direct payment to a third party by the respondent no.2, the principle of equity and fair play requires that till the dispute between the petitioner and the prior allottee is not settled, the amount of compensation should not be released to the prior allottee i.e. respondent no. 5. However, surprisingly, in spite of admitted facts and documents substantiating the claim of the petitioner, the respondent no.2 has released compensation in favour of prior allottee (the respondent no.5) in flagrant violation of the provisions of the Act, 2015. It is further submitted that the respondent no.2 is under legal obligation to decide the claim of the petitioner by way of making an adjudication on his representation in accordance with the provisions of the Act, 2015. The learned counsel for the petitioner refers Section 27(4) of the Act, 2015 and contends that by the mandate of law, no court or authority, except the Supreme Court and the High Court has the power, jurisdiction or authority in relation to the matters connected with the Act, 2015. Since the petitioner does not have any other remedy against the respondent no. 5, the present writ petition has been filed invoking extra ordinary jurisdiction of this Court. The petitioner purchased several acres of land utilizing his own fund on behalf of the prior allottee i.e. M/s Abhijeet Infrastructure Limited (respondent no. 5). By virtue of the provisions of the Act, 2015, the respondent no. 5 being the prior allottee would get the compensation through the respondent no.2 to be paid by the subsequent allottees i.e. M/s Usha Martin Pvt. Ltd, Ranchi and M/s. Trimula Industries Limited, Jagatganj, Varanasi, however, the petitioner, though acted on behalf of the earlier allottee would be deprived of his legitimate dues, if the respondent no. 5 chooses not to make payment invested by him in purchase of the land and thus would be remediless.
5 chooses not to make payment invested by him in purchase of the land and thus would be remediless. It is further submitted that the letter dated 29th September, 2016, which is said to be issued by the office of the Nominated Authority, Government of India (the respondent no.2), has been signed by one Section Officer, who cannot be an authority to take decision under the purview of the Act, 2015. Moreover, while rejecting the claim of the petitioner vide letter dated 29th September, 2016, the provision of Section 9(b) of the Act has not been taken into consideration which provides for compensation to be paid to the prior allottee in respect of Schedule I coal mine. Under the aforesaid background, the respondent no.2 being the representative of the Government of India under the Act, 2015 may be directed to hear the claim of the petitioner afresh on merit after providing a reasonable opportunity of hearing to him/his representative and to take a decision keeping in view that the petitioner’s claim is also entertainable under the provisions of the Act, 2015. Learned counsel for the petitioner by referring Section 14(1) of the Act, 2015 submits that the said provision mandates that no proceedings, orders of attachment, distress, receivership, execution or the like suits for the recovery of money, enforcement of a security or guarantee (except as otherwise provided for under the Act, 2015) shall lie and no remedy would be available against the successful bidder or allottee or as the case may be, or against the land and mine infrastructure in respect of Schedule-I coal mines. Thus, this court may exercise its extra ordinary writ jurisdiction by allowing the prayer’s made by the petitioner. 5. Learned A.S.G.I. while referring to the averments made in the counter affidavit filed on behalf of the respondent nos. 1 and 2 submits that pursuant to orders dated 18.05.2016 and 07.09.2016, the claim/representation of the petitioner submitted vide letter dated 28.05.2011 (Annexure-7 to the writ petition) has been examined by the respondent no.2 and the same has been disposed of vide letter no. 502/2/2016/NA dated 29.09.2016 (annexed as Annexure R-1 to the counter affidavit).
1 and 2 submits that pursuant to orders dated 18.05.2016 and 07.09.2016, the claim/representation of the petitioner submitted vide letter dated 28.05.2011 (Annexure-7 to the writ petition) has been examined by the respondent no.2 and the same has been disposed of vide letter no. 502/2/2016/NA dated 29.09.2016 (annexed as Annexure R-1 to the counter affidavit). The said letter dated 29.09.2016 issued on behalf of the respondent no.2 would show that the claim of the petitioner has been rejected primarily on the ground that under the Act, 2015, the compensation of land mine infrastructure for settlement of claim is confined only to the secured creditor and the government authorities. The petitioner’s claim not coming in the ambit of the same, is not entertainable. 6. Heard the learned counsel appearing on behalf of the parties and perused the materials available on record. The contention of the petitioner is that he has purchased land on behalf of the respondent no. 5 out of his own fund and as such in view of section 6(3)(e) of the Act, 2015, the respondent no.2 was required to adjudicate the claim of the petitioner and to reimburse him the invested amount to meet the loss suffered by him. 7. Earlier, the allocation of 204 Coal Blocks was challenged before the Hon’ble Supreme Court in the case of Monohar Lal Sharma Vs. UOI & Ors and finally vide order dated 25.08.2014, reported in (2014) 9 SCC 516 , the Coal Blocks including the coal blocks in question were cancelled. Thereafter, the Central Government promulgated the Act, 2015. The aims and object of the Act, 2015 is to ensure continuity in coal mining operation and production of coal as well as for promoting optimum utilization of coal resources consistent with the requirement of the country keeping in view the national interest and for matters connected therewith or incidental thereto. 8. I have perused section 6 (3) (e) of the Act, 2015, which provides that an officer of the rank of Joint Secretary to the Government of India is to be appointed as the Nominated Authority for looking after various assignments in terms with the provisions of the Act, 2015 including collection of auction proceeds, adjustment of preferential payments and transfer of amount to the respective State Governments where Schedule-I coal mine is located. 9.
9. Section 9 of the Act, 2015 further provides that the proceeds arising out of land and mine infrastructure in relation to Schedule-I coal mine shall be disbursed maintaining, inter alia, the priority of payments in accordance with the relevant laws and the rules as may be prescribed which reads as follows :– (a) payment to secured creditor for any portion of the secured debt in relation to Schedule I, coal mine which is unpaid as on the date of the vesting order; (b) compensation payable to the prior allottee in respect of the Schedule I coal mine. 10. In accordance with the provisions of Section 9, the Central Government framed Coal Mines (Special Provisions) Rules, 2014 (in short “the Rules, 2014”). Rule 15 of the Rules, 2014 provides priority of disbursal of proceeds to persons other than the prior allottee. Rule 15(1) reads as follows:- (1) In accordance with the provisions of section 9 of the Ordinance, the proceeds arising out of land and mine infrastructure in relation to a Schedule I Coal mine shall be disbursed priority wise in the following order, namely:- (a) payment to secured creditors in accordance with the provisions of clause (a) of section 9 of the Ordinance; Explanation:- In case where there are more than one secured creditors and the proceeds arising out of the land and mine infrastructure is not sufficient for full satisfaction of their claims, then the nominated authority shall pay such creditors in proportion to their secured claims. (b) all revenues, taxes, cess, additional levy and rates due from the prior allottee to the Central Government or a State Government or to a local authority at the relevant date, and having become due and payable within the twelve months, immediately before that date, with respect to the relevant Schedule I coal mine. The definition of Secured Creditor provided in Section 3(1)(s) of the Act, 2015 delineates that the term “Secured Creditor” shall have the same meaning as assigned to it in section 2(1)(zd) of the Securitization and Reconstruction of Security Interest Act, 2002 (in short “the SARFAESI Act”).
The definition of Secured Creditor provided in Section 3(1)(s) of the Act, 2015 delineates that the term “Secured Creditor” shall have the same meaning as assigned to it in section 2(1)(zd) of the Securitization and Reconstruction of Security Interest Act, 2002 (in short “the SARFAESI Act”). Section 2(1)(zd) of the SARFAESI Act reads as follows:- (zd) ‘secured creditor‘ means any bank or financial institution or any consortium or group of banks or financial institutions and includes‘ (i) debenture trustee appointed by any bank or financial institution; or (ii) securitisation company or reconstruction company, whether acting as such or managing a trust set up by such securitisation company or reconstruction company for the securitisation or reconstruction, as the case may be; or] (iii) any other trustee holding securities on behalf of a bank or financial institution, in whose favour security interest is created for due repayment by any borrower of any financial assistance; 11. The prior allottee is defined in Section 3(1)(n) of the Act, 2015 which reads as under:- 3(1)(n) “prior allottee” means prior allottee of Schedule I coal mines as listed therein who had been allotted coal mines between 1993 and 31st day of March, 2011, whose allotments have been cancelled pursuant to the judgment of the Supreme Court dated the 25th August, 2014 and its order dated 24th September, 2014 including those allotments which may have been de-allocated prior to and during the pendency of the Writ Petition (Criminal) No.120 of 2012. Explanation.- In case a mining lease has been executed in favour of a third party, subsequent to such allocation of Scheduled I coal mines, then, the third party shall be deemed to be the prior allottee; 12. Section 14 of the Act, 2015 provides for the liabilities of prior allottees, which reads thus: S. 14. (1) Notwithstanding anything contained in any other law for the time being in force, no proceedings, orders of attachment, distress, receivership, execution or the like, suits for the recovery of money, enforcement of a security or guarantee (except as otherwise provided for under this Act), prior to the date of commencement of this Act shall lie, or be proceeded further with and no remedies shall be available against the successful bidder, or allottee, as the case may be, or against the land and mine infrastructure in respect of Schedule I coal mines.
(2) The proceedings as referred to in sub-section (1), shall continue as a personal remedy against the prior allottee but shall not be maintainable or continued against the land or mine infrastructure of Schedule I coal mine or the successful bidder or allottee, pursuant to this Act. (3) Every liability of any prior allottee in relation to a Schedule I coal mine in respect of any period prior to the vesting order or allotment order, shall be the liability of such prior allottee and shall be enforceable against it and not against the successful bidder or allottee or the Central Government. (4) All unsecured loans shall continue to remain the liability of the prior allottee. (5) The additional levy imposed against the prior allottees of Schedule II coal mines shall continue to remain the liability of such prior allottees and such additional levy shall be collected by the Central Government in such manner as may be prescribed. (6) For the removal of doubts, it is hereby declared that- (a) no claim for wages, bonus, royalty, rate, rent, taxes, provident fund, pension, gratuity or any other dues in relation to a Schedule I coal mine in respect of any period prior to the date of vesting order or allotment order, as the case may be, shall be enforceable against the Central Government or the successful bidder or the allottee, as the case may be; (b) no award, decree, attachment or order of any court, tribunal or other authority in relation to any Schedule I coal mine passed prior to the date of commencement of this Act, in relation to the land and mine infrastructure of Schedule I coal mines, shall be enforceable against the Central Government or the successful bidder or the allottee, as the case may be; (c) no liability for the contravention of any provision of law for the time being in force, relating to any act or omission prior to the date of vesting order or allotment order, as the case may be, shall be enforceable against the successful bidder or allottee or the Central Government. 13. In the factual matrix of the present case, it transpires that the claim of the petitioner is with respect to the amount paid by him to the owners of the land which were purchased in the representative capacity of M/s Abhijit Infrastructure Pvt. Ltd. (the respondent no.5).
13. In the factual matrix of the present case, it transpires that the claim of the petitioner is with respect to the amount paid by him to the owners of the land which were purchased in the representative capacity of M/s Abhijit Infrastructure Pvt. Ltd. (the respondent no.5). The thrust of the argument of the learned counsel for the petitioner is that the petitioner has invested huge money in purchasing the land for the said coal blocks on behalf of the respondent no. 5 and as such, the respondent no. 2 is duty bound to decide his claim while disbursing the compensation in favour of the prior allottee. I do not find any substance in the argument of the learned counsel for the petitioner. The Act, 2015 specifically provides the manner in which the sale proceeds are to be disbursed. Except Secured Creditor and prior allottee(s), the claim of any other person is not covered in the scheme of the Act, 2015 and the Rule framed thereunder. Since the petitioner is neither the secured creditor nor the prior allottee, his claim has rightly been rejected by the respondent no. 2 for the reasons assigned in the letter dated 29.09.2016 (Annexure-R/1 to the counter affidavit). 14. Another contention of the learned counsel for the petitioner is that even if the petitioner does not come under the category of “secured creditor” or “prior allottee”, his claim is required to be decided by the respondent no. 2 on the ground of the principles of equity and fair play. The said contention is also not worth acceptance primarily for the reason that the Act, 2015 very specifically deals with the jurisdiction of the respondent no. 2 by reason of which he is duty bound to act in the manner provided under the Act, 2015 and the Rules, 2014. As such, there is no scope of applying principles of equity and fair play. The petitioner has filed the present writ petition with the notion that no other court has jurisdiction to decide the claim of the petitioner and thus he is remediless. I am of the view that the petitioner has misconstrued the provisions of the Act, 2015. It only ousts the jurisdiction of other courts in relation to the matter which are in the domain of the Act, 2015.
I am of the view that the petitioner has misconstrued the provisions of the Act, 2015. It only ousts the jurisdiction of other courts in relation to the matter which are in the domain of the Act, 2015. The disputes which are not covered under the Act, 2015 being the private dispute between the prior allottee and the third party, can certainly be agitated before different forums in accordance with law. 15. Under the aforesaid facts and circumstance, the present writ petition is dismissed. Consequently, I.A. No. 6561 of 2017 also stands disposed of. The petitioner is however at liberty to work out his remedies in accordance with law. Petition dismissed.