Back
2004 Supreme(SC) 262
2004(6) Supreme 77
SUPREME COURT OF INDIA
(From Calcutta High Court)
S.N. Variava & H.K. Sema, JJ.
The Chief of Marketing (Marketing Division), Coal India Ltd. & Anr. -Appellants
versus
Mewat Chemicals & Tiny S.S.I. Coal Pulverision Unit & Ors. -Respondents
Civil Appeal No. 6310 of 1998
Decided on 26-3-2004
Counsel for the Parties :
For the Appearing Parties : Harish N. Salve, S.K. Dholakia, G.L. Sanghi, N.N. Goswami, Sr. Advocates, K.S. Bhati, Rupesh Ranjan, Satish Mudgil, M.P. Jha, Ram Ekbal Roy, Harshvardhan Jha, Anil K. Chopra, Ms. R. Pattanaik, Rajendra Kumar, N.D.B. Raju, Ms. Bharathi, Ms. Prerna Kumari, Goodwill Indeevar, Shakil Ahmed Syed, Anip Sachthey, Shriniwas R. Khalap, E. Venu Kumar, Harshad V. Hameed, Hemant Sharma, Mrs. Anita Verma, Ajay Sharma, D.S. Mahra, Arvind Kumar Sharma, Advocates.
IMPORTANT POINT
Under the Colliery Control Order, it is the Central Government who can decide policy matters in respect of questions of production, distribution and sale of coal.
Headnote:Essential Commodities Act, 1955-Section 3-Colliery Control Order-Clause 12A-Authorities competent to allot quota of coal to any person or class of persons-Every such authority shall allot coal subject to such instructions as the Central Government may issue from time to time-Notification dated 25.6.1992 specifying the Coal Controller as the competent authority to allot coal-Respondents made applications for allotment of coal and applied for linkages-Order of Joint Secretary, Ministry of Coal that Coal Controller was not authorized to grant any long term linkages and that allotment of coal by the Coal Controller had to be subject to such instructions that the Central Government may issue from time to time-Whether order passed by Joint Secretary was sustainable-(Yes).
Held : Certain functions have been specifically given to the Coal Controller. However the control of the Central Government is all pervasive. Clause 12A also makes it clear that it is the Central Government who has to specify who is the authority authorized to allot coal. That authority is subject to the instructions issued by the Central Government from time to time. Undoubtedly, under Clause 15 the Coal Controller may also exercise the powers which could be exercised by the Central Government under the clauses mentioned therein. However, such a power is merely a delegated power. The Coal Controller is not an authority equal to the Central Government. Only the Central Government can decide policy matters in respect of questions of production, distribution and sale of coal. (Para 11)
The order of the Coal Controller dated 21st June, 1996 shows that it has been passed in pursuance of the powers given to him by the Central Government under Clause 12A of the Colliery Control Order. Clause 12A clearly stipulates that such an authority is bound by the instructions issued by the Central Government from time to time. The Circular dated 5th January, 1995 is an instruction which is binding on the Coal Controller under Clause 12A. The Coal Controller being bound by such a Circular could not have given linkages in the manner he purported to do by his Order dated 25th June, 1996. (Para 14)
The High Court was also in error in concluding that the position prevailing on the date of the application must apply. It is settled law that there is no vested right when a person makes an application. The position prevailing at the time the allotment is to apply. Before the allotment was made the Circular dated 5th January, 1995 had already been issued. The Coal Controller whilst allotting was bound to take note of that Circular. The Joint Secretary by his fax dated 8th January, 1996 had brought it to the notice of the Coal Controller. Thereafter guidelines had also been issued on 23rd April, 1996. The Coal Controller was bound to take note of those guidelines also. We are unable to understand the reasoning given by the High Court that those guidelines had been issued by a Director and thus could not be said to be guidelines issued by the Central Government. These guidelines have been issued by the Ministry of Coal. Merely because they are forwarded not by a Joint Secretary but by a Director would not mean that they are not binding on the Coal Controller. If there was any doubt as to whether they had been issued by the Central Government, the Coal Controller should have asked for clarification from the Central Government. (Para 16)
JUDGMENT
S.N. Variava, J.-This Appeal is against the Judgment of the Calcutta High Court dated 20th March, 1998.
2. Briefly stated the facts are are follows :
In pursuance of the power under Section 3 of the Essential Commodities Act, 1955 the Colliery Control Order was framed. Under Clause 12A of the Colliery Control Order the Central Government could by Notification specify the authorities competent to allot quota of coal to any person or class of persons. Clause 12A further provides that every such authority shall allot coal subject to such instructions as the Central Government may issue from time to time.
3. On 25th June, 1992 the Central Government issued a Notification specifying the Coal Controller as the competent authority to allot coal. On 5th January, 1995 a Circular was issued by the Central Government specifying that Coal India Ltd. would give coal clearances/linkages to the new applicants up to 5,000 tones per month and applications for more than 5,000 tones per month were to be decided by the Ministry of Coal. This Circular also specified that no allocation of coal could be made to private cookeries from any mines that are linked to washeries.
4. It appears that the Respondents had made applications for allotment of coal and had also applied for linkages. As their applications were not decided they filed Writ Petitions which were disposed off by an Order dated 25th September, 1995. The Coal Controller was directed to consider the representations of the Respondents within 6 weeks. On 8th January, 1996 the Joint Secretary (Coal), New Delhi sent a fax message to the Coal Collector setting out that the Order of the High Court had not been complied with. It was pointed out that the Coal Controller was not vested with the power to give linkages, but that he could allot quota of coal. The Coal Controller was requested to intimate the latest position.
5. Thereafter on 23rd April, 1996 a Circular was issued by the then Director, Ministry of Coal, wherein it was specified that all grades of coal which were governed by notified prices should only be allotted to power sector. It was specified that other consumers of coal had to be given coals of grades for which the prices have been decontrolled. This Circular also withdrew allotment of coal of D grade and below to small scale industries and Vriquetting units.
6. On 21st June, 1996 the Coal Controller passed the following Order:
"Having heard at length to all the present Parties and gone through this Office Order dated 17th October `95 & 27th November `95 as well as Ministry of Coal, Government of India s directive vide Ministry of Coal letter No. 23028/18/95-CPD dated 9th November `95 in the matter in pursuance of the Order of the Hon ble High Court at Calcutta and the Inspection Report submitted by Coal India Ltd., vide their letter No. CIL/C4B/48912/599-601 dated 30.3.96/3.4.96 in respect of all the petitioner Units, I, in exercise of the provision under Clause -12A of the Colliery Control Order, 1945, do hereby grant linkage/quota of coal in quantities of 500 M.T. D, E & F Grade Steam/ROM Coal per month (6000 M.T. per annum) from the sources of Northern Coalfields Limited and 480 M.T. D, E & F Grade Steam/ROM Coal per month (5,760 M.T. per annum) from the sources of Eastern Coalfields Limited by road/rail from the date of issuance of this Order with the details noted below:
Name of the Allocation of Quantity Source with Petitioner Tiny/ Quota of coal per annum mode of SSI Units per month in with grade transportation situated in the quantity & Distt. of grade of Gurgaon (Haryana)
1. Suraj Coal 500 m.te. D, 6,000 m.te N.C.L. Chemicals E&F Grade Steam/ ROM
