JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. Shashank Thakur, learned counsel for the appellant. Also heard Mr. Vaibhav Shukla, learned counsel, appearing for the respondents. 2. This appeal is presented against an order dated 29.03.2022 passed by the learned Single Judge in Writ Petition (C) No.1811 of 2021, dismissing the writ petition. 3. The appellant is a Company registered under the Companies Act, 1956. For supply of Grade G6 category coal, the appellant had entered into three Fuel Supply Agreements (‘FSA’) being No. FSA No.A-276, executed on 08.08.2017, FSA No. A-368, executed on 29.12.2017 and FSA No. A-370, executed on 29.12.2017. As per Clause 2.2 of the FSAs, the agreements were for a period of five years Under Clause 17.1, there is a locking period of two years. Notice of 90 days for termination could be given as per Clause 17.2. The appellant submitted notice of termination in respect of all the three FSAs on 01.07.2020. Pursuant to the decision of 232nd Functional Directors meeting held on 27.06.2020 on dispensation of Non-power sector consumers to re-validate shortfall quantity and lift coal to the extent of Annual Contracted Quantity (for short, ACQ) under FSAs, a letter dated 03.07.2020, containing a ‘Scheme’, was issued by the Coal India Limited to all the coal companies including the South Eastern Coalfields Limited, the respondent No. 1 herein. The same was notified on 09.07.2020. 4. At this juncture, it will be appropriate to extract the relevant portion of the Scheme: “1. Purchasers who could not off-take the MSQ quantity (Scheduled quantity or SQ as per FSA) during Apr-June 20 under NRS Linkage auction FSA for any reason whatsoever may be allowed to book the unlifted/unbooked quantity in the subsequent months of current FY subject to availability of the coal at the coal company. 2. The willing consumers has to submit an undertaking stating that the coal taken under this relaxation shall be utilized against requirement of their EUP and they shall not procure the coal to the extent of such shortfall quantity through import during current FY. 3. The above dispensation of carry over of unlifted/unbooked quantity in a particular month shall be allowed for the entire FY subject to availability of coal at the coal company and within the ceiling of ACQ. 4. 3. The above dispensation of carry over of unlifted/unbooked quantity in a particular month shall be allowed for the entire FY subject to availability of coal at the coal company and within the ceiling of ACQ. 4. The same dispensation may also be extended for the willing non power FSA consumers other than NRS Linkage auction also to the extent of their ACQ irrespective of Import component under FSA. However, the same shall be allowed subject to fulfillment of all commercial obligation including performance security as per FSA provision. 5. The above dispensation shall be optional in nature. It was decided that the above “relaxations shall be given upto March’ 2021 without affecting the committed supply”. Coal companies are requested to take needful action for implementing the above.” 5. By an order dated 07.09.2020, the respondents, in terms of Clauses 17.1 and 17.2, terminated all the three FSAs with effect from 30.09.2020. 6. The appellant had submitted applications on 22.12.2020 to lift coal for the period April – June, 2020 in respect of FSA No.A-276 and FSA No. A-368 and had made necessary payment. However, as no decision was taken by the respondents, the appellant preferred a writ petition, registered as Writ Petition (C) No.1363 of 2021, which was disposed of by an order dated 08.03.2021, directing the respondents to consider the representation submitted by the appellant and to decide the same within a period of three weeks. 7. Subsequently, by an order dated 19.03.2021, the respondents rejected the representation and it is in that circumstance, the appellant had preferred the present writ petition, out of which this appeal arises. 8. The appellant had made the following prayers in the writ petition : “10.1 It is most respectfully prayed that this Hon’ble Court may kindly be pleased to issue appropriate writ/order/direction setting aside/quashing the order dated 19-03-2021 (Annexure P-1A) issued by respondent no. 4. 10.2 It is most respectfully prayed this Hon’ble Court may kindly be pleased to issue appropriate writ/order/direction to declare the petitioner as entitled to lift coal in terms of the scheme circulated by the CIL vide its letter dated 03-07- 2020 and notified by SECL on 09-07-2020 and further be pleased to direct the respondents to deliver the said coal for April to June 2020 to the petitioner with immediate effect. In alternative this Hon’ble Court may be pleased to direct that ; 10.3 It is most respectfully prayed this Hon’ble Court may kindly be pleased to issue appropriate writ/order/direction to the respondents that in the event of failure to supply the coal in terms of the CIL scheme announced on 03-07-2020 and notified by SECL on 09-07-2020 by the last date i.e., 31-03-2021 the respondents may be directed by this Hon’ble Court to reckon the said quantity of coal as having been lifted by the petitioner towards satisfaction of the Annual Contracted Quantity (ACQ) of coal; and consequently the respondents may further be directed to not impose any penalty(s) and/or make any deduction(s) for short lifting of the Annual Contracted Quantity of coal. This Hon’ble Court may also direct the respondents to suitably and adequately compensate the petitioner in equivalent value to amount of coal due to be supplied for the months of April to June 2020. 10.4 It is most respectfully prayed that this Hon’ble Court may kindly be pleased to direct the respondents to refund in toto, without any deduction, without imposing any penalty whatsoever, the performance security guarantees towards the three respective FSAs and also to refund in toto the amount deposited towards lifting of coal by RTGS on 22.12.2020. 10.5 It is most respectfully prayed that this Hon’ble Court may kindly be pleased to grant costs of the writ petition in favour of the petitioner. 10.6 Any other relief(s) that this Hon’ble Court deems fit in the facts and circumstances of the case.” 9. Mr. Shashank Thakur, learned counsel for the appellant submits that the learned Single Judge erroneously held the appellant to be a non-willing consumer and that no right had accrued in terms of Clause 17.3 of the FSAs in favour the appellant to avail the benefit of the Scheme. It is submitted by him that the appellant is entitled to the dispensation provided for by the letter dated 03.07.2020 in view of the FSAs being in force at the time of issuance of letter dated 03.07.2020 as also when the same was notified on 09.07.2020. It is submitted by him that the appellant is entitled to the dispensation provided for by the letter dated 03.07.2020 in view of the FSAs being in force at the time of issuance of letter dated 03.07.2020 as also when the same was notified on 09.07.2020. Accordingly, he submits that appropriate directions may be issued to the respondents to hold that the appellant is entitled to lift coal in terms of the Scheme and to direct the respondents to deliver coal for the period April – June, 2020, as prayed for by the appellant, after quashing the order dated 19.03.2021. 10. Mr. Vaibhav Shukla, learned counsel, appearing for the respondents, submits that an option was given to the consumers to avail the benefits in terms of letter dated 03.07.2020 and during the currency of the FSAs, the appellant did not exercise any option, and therefore, no right having accrued to the appellant during the currency of the FSAs, the learned Single Judge was justified in rejecting the writ petition. It is further submitted that as the Scheme was available only to willing consumers, the appellant could not have been considered to be a consumer when the applications to avail the benefit of the Scheme, spelt out by the letter dated 03.07.2020, was made. Accordingly, he submits that there is no merit in the writ appeal and the same is liable to be dismissed. 11. We have considered the submissions of the learned counsel for the parties and have perused the materials on record. 12. Having regard to the controversy, it will be appropriate to take note of Clause 17.3 of the FSAs : “17.3 Accrued rights to survive termination - Termination of this Agreement shall be without prejudice to the accrued rights and obligations of either Party arising immediately prior to the termination. In the event of termination of this Agreement, the Purchaser shall return all the Confidential Information in its possession to the Seller or destroy such information in accordance with the instructions of the Seller.” 13. It will also be appropriate to quote Clauses 8.2.2, 8.2.3 and 8.2.4, which are reproduced below : “8.2 Order Booking by Road. In the event of termination of this Agreement, the Purchaser shall return all the Confidential Information in its possession to the Seller or destroy such information in accordance with the instructions of the Seller.” 13. It will also be appropriate to quote Clauses 8.2.2, 8.2.3 and 8.2.4, which are reproduced below : “8.2 Order Booking by Road. 8.2.1 x x x x x 8.2.2 The Purchaser shall place orders with the Seller for the Scheduled Quantity by making advance payment of the full value of the respective order (“Advance Payment”), within the period as notified by the Seller. The Advance Payment may also be made in 3 (three installments each of 10 (ten) days value of the Contracted Grade of Coal in accordance with the terms and conditions including the time periods of depositing the installments, as stipulated in the monthly notice issued by the Seller under Clause 8.2.1. 8.2.3 Subject to the receipt of the Advance Payment along with the costs for third party sampling, if applicable, the Seller shall arrange to issue sale order (s)/delivery order(s) and shall also issue necessary loading programme/ schedule from time to time. The purchaser shall arrange to place the required number/type of trucks to lift the Contracted Grade of Coal as per such loading programme/schedule. The Seller shall ensure that the sale order/delivery order in favour of the Purchaser is prepared promptly upon receipt of a notice in this regard from the Purchaser and that the same reaches the Delivery Point/weighbridge within 5 (Five) working days of the last day specified in the notice for booking orders in terms of Clause 8.2.1. 8.2.4 The Seller shall ensure delivery and the Purchaser shall ensure lifting of the Contracted Grade of Coal against the sale order/delivery order of any month within the validity period of 45 (forty five) days, as mentioned in the sale order/delivery order.” 14. The request of the petitioner to lift coal for the period of April – June 2020 was turned down by order dated 19.03.2021, holding as follows: “1) The notice dated 03.07.2020/09.07.2020 gave only, an option to the consumers which was required to be exercised by them. First, within a prescribed time frame, to avail the opportunity, to lift coal as per the said scheme/notice. First, within a prescribed time frame, to avail the opportunity, to lift coal as per the said scheme/notice. However the said option, as per our records, has not been availed by you during the subsistence of your FSA(s) which expired on 30.09.2020. Thus there is an apparent waiver of right from your end. 2) Furthermore, vide your notice dated 01.07.2020, a clear intent to cease the contractual relations was communicated to us which, finally was given effect to as per your request and all contractual relations between the parties ended w.e.f. 30.09.2020. 3) From (1) and (2) above, it is inferred that no rights could be generated due to self waiver from your end and consequently nothing accrued in respect of the scheme, which can be availed under clause 17.3, post expiry of the FSA. 4) Moreover, the scheme/notice is only applicable to willing consumers and on the date of your aforementioned representations, you were no longer a consumer of SECL vis-a-vis the FSA. Hence, since your request/claim for lifting coal under the dispensation scheme/notice is not based on any subsisting legal agreement, the same is not permitted.” 15. The learned Single Judge at paragraphs-11 and 12 observed as follows : “11. In view of the above clauses, it appears to be clear that the petitioner had not placed any order during the currency of the FSAs for the month of April to June, 2020. Therefore, there was neither any proposal from the petitioner side nor any acceptance from the respondents side. The orders have been placed by the petitioner subsequently on 18.12.2020 after the termination of the FSAs and payment for the same was also made subsequently in the month of December, 2020. It was a proposal given by the petitioner, which has not been accepted by the respondents side. The fuel supply agreement has to be understood in broader sense. It is the terms and conditions, which are agreed on by the purchaser and the seller according to which the fuel supply has to be regulated. It was a proposal given by the petitioner, which has not been accepted by the respondents side. The fuel supply agreement has to be understood in broader sense. It is the terms and conditions, which are agreed on by the purchaser and the seller according to which the fuel supply has to be regulated. Termination of the agreements on the request of the petitioner by acceptance of the notice of termination on 07.09.2020 does not leave the petitioner in a position of a purchaser, therefore, another proposal made by the purchaser subsequent to such termination and without there being any FSAs existing between the petitioner and the respondents, has to be deemed as the proposal out of bounds of the FSAs and the respondent is under no compulsion to accept the same as the FSA that existed is no longer in force. Therefore, I am of this view that the petitioner though had entitled for lifting of the coal during the currency of FSAs, but petitioner did not place any order as required under Clause 8.2.2 of the agreement and therefore, there is no question of granting acceptance by the respondents as required under Clause 8.2.3 of the FSAs agreement. Hence, there is no reason to hold that any right has accrued in favour of the petitioner. The reference of the policy decision of the Coal India Limited dated 03.07.2020 (Annexure P-9) is necessary. The quoted points in the letter dated 03.07.2020 (Annexure P-9) are as follows :- “Quotes:- 1. Purchasers who could not off-take the MSQ quantity (Scheduled quantity or SQ as per FSA) during Apr-June 20 under NRS Linkage auction FSA for any reason whatsoever may be allowed to book the unlifted/unbooked quantity in the subsequent months of current FY subject to availability of the coal at the coal company. 2. The willing consumers has to submit an undertaking stating that the coal taken under this relaxation shall be utilized against requirement of their EUP and they shall not procure the coal to the extent of such shortfall quantity through import during current FY. 3. The above dispensation of carryover of unlifted/unbooked quantity in a particular month shall be allowed for the entire FY subject to availability of coal at the coal company and within the ceiling of ACQ. 4. 3. The above dispensation of carryover of unlifted/unbooked quantity in a particular month shall be allowed for the entire FY subject to availability of coal at the coal company and within the ceiling of ACQ. 4. The same dispensation may also be extended for the willing non power FSA consumers other than NRS Linkage auction also to the extent of their ACQ irrespective of Important component under FSA. However, the same shall be allowed subject to fulfillment of all commercial obligation including performance security as per FSA provision. 5. The above dispensation shall be optional in nature.” 12. The word purchaser and willing consumer is very specific in this letter and it is also specific that the dispensation was to be implemented under the FSAs existing between the parties. In the present case, the FSAs were not existing between the petitioner and the respondents on the date, the petitioner has made request for the release of the coal and deposited the price for the same. Hence, under these circumstances, I am of this view that the present petition is without any substance, which is dismissed and disposed off accordingly.” 16. We are unable to agree with the view taken by the learned Single Judge that though the appellant was entitled to lift the coal during the currency of FSAs, but as it did not place any order as required under Clause 8.2.2 of the FSAs, no right had accrued in favour of the appellant in terms of Clause 17.3. 17. The Scheme at paragraph-1 provides that the purchasers who could not off-take the Monthly Schedule Quantity (‘MSQ’) during April – June, 2020 under NRS Linage Auction FSA for any reason whatsoever may be allowed to book the unlifted/unbooked quantity in the subsequent months of the Financial Year subject to availability of coal with the coal company. 18. Thus, whether coal was booked or not during April – June, 2020 was not a relevant consideration for grant of benefit in terms of the Scheme in question. 19. The crucial question is whether any right had accrued in favour of the appellant during the validity of the FSAs as Clause 17.3 saved the accrued rights and obligations of either party arising immediately prior to termination. 19. The crucial question is whether any right had accrued in favour of the appellant during the validity of the FSAs as Clause 17.3 saved the accrued rights and obligations of either party arising immediately prior to termination. Though the appellant had sent notice of termination dated 01.07.2020, it is already noticed that the same was accepted by an order dated 07.09.2020 with effect from 30.09.2020. Thus, when the Scheme was floated by the letter dated 03.07.2020 and notified on 09.07.2020, notwithstanding the letter giving notice of termination on 01.07.2020, FSAs continued to be in existence till their termination on 30.09.2020, and therefore, the appellant certainly could have availed the benefit in terms of the letter dated 03.07.2020. 20. It is to be noticed that the dispensation as laid out by the letter dated 03.07.2020 is optional in nature, which, in other words, means one has to exercise an option to avail the benefit given under the Scheme. No right gets automatically vested on entities having FSAs with the respondents. The appellant did not exercise the option to avail the benefit during the period when the FSAs were in force, and therefore, it cannot be said that any right had accrued to the appellant prior to termination of the FSAs. If the appellant had exercised its option during the period from 03.07.2020 to 30.09.2020 to lift the unlifted/unbooked quantity, matter could have been seen in a different perspective. When the appellant had applied to avail the benefit of the Scheme, it was no longer a consumer of the respondent No. 1. The Scheme specifically lays down that the same is applicable only to willing consumers. 21. Though we had not entirely agreed with the reasoning given by the learned Single Judge as indicated in the present judgment, in view the reasons assigned by us that the appellant did not have an accrued right to book and lift the coal for the period April – June, 2020, no interference is called for with the order of the learned Single Judge. 22. Accordingly, the writ appeal is dismissed. No cost.