Full Judgment
R.R.K. Trivedi and R.K. Singh, JJ.
1. Heard counsel for the petitioner andthe learned standing counsel.
2. This petition has been filed challenging the Government Orders, dated 19,9.1985 (Annexure-1 to the writ petition) and 4.4.1987 (Annexure-2 to the writ petition) by which the industrial units are required to obtain the licence under the U. P. Coal Control Order, 1977 and permission from the District Magistrate before disposal of the unused coal and coal dust. This controversy had already been settled by a Full Bench of this Court in case of Ashwani Cement Private Ltd. Shamli v. State of U. P. and others, 1991 11) EFR 160. wherein it has been held that the U. P. Coal Control Order, 1977 seeks to regulate the import, purchase. movement, storage and sale of coal within the State. It has evolved the system of licensing as a measure of such regulation and after considering the various provisions of the Control Order. Full Bench upheld the validity of the Government Order impugned in this petition. The learned counsel for the petitioner has.however, submitted that after the aforesaid judgment of the Full Bench of this Court, Hon'ble Supreme Court in case of State of U. P. v. M/s. Culshan Sugar and Chemicals Ltd., AIR 1996 SC 62, has held that the disposal of the rejected coal and coal dust which was collected during storage, loading and unloading of coal. and there being nothing on record to show that there was continuity in transactions of sale of coal dust or rejected coal by the Company, the Company cannot be said to be in the business of sale or storage for sale of coal, and consequently cannot be held to be dealer so as to require licence.
3. The submission of the learned counsel is that in view of the aforesaid judgment of the Hon'ble Supreme Court, the view expressed by Full Bench of this Court in Aswani's case (supra) cannot be said to be a good law and the writ petitions deserve to be allowed following the judgment of the Hon'ble Supreme Court.
4. Learned standing counsel, on the other hand, submitted that the opinion expressed by Hon'ble Supreme Court is confined to the one out of two points which were decided in Gulsfian Sugar and Chemicals Ltd. case (supra) by the Bench of this Court. The other provisions of Control Order of 1977 discussed by the Full Bench have neither been considered nor there is any observation in the judgment of Hon'ble Supreme Court on which basis it may be said that the view expressed by the Full Bench of this Court is not a good law.
5. We have considered the submissions of learned counsel for the parties and have also gone through the two Judgments. Hon'ble Supreme Court in paragraph 9 of its judgment has concluded the controversy in following words :
'Having been satisfied that there is nothing on record to show if the respondent was in the business of sale or storage for sale of coal, it is not necessary to express our views on the second reason of the High Court in accepting the case of the respondent. We dismiss the appeal on the limited ground that the respondent could not be proved to be in the aforesaid business. We leave open the legal question covered by the second reason.'
6. The questions for consideration before the Hon'ble Supreme Court as mentioned in Para 7 of the Judgment were the two grounds on which basis the petitioner in that case was not found dealer. The grounds were (i) as to whether he does not carry on the business of sale or storage of sale and (ii) it being a consumer of coal. It would not be dealer because of what has been mentioned in the last part of the definition of dealer. Hon'ble Supreme Court has concluded finding so far the first question is concerned. However, the other legal questions covered by the second ground have been left open. The impact of the judgment of the Hon'ble Supreme Court is thus that the sale of rejected/unused coal or coal dust by petitioner could not be treated as an activity of regular business so as to require a licence under the provisions of Control Order of 1977. However, it cannot be said that such sale of coal or coal dust could not be subject to other Controls provided under the various provisions of Control Order of 1977. Full Bench of this Court considered the legal position about controls under the various provisions In detail and held as under :
'It must be remembered that coal is an essential commodity. It is not freely available. The demand for coal in the country exceeds its supply. The petitioner obtains coal because he is sponsored by the State Coal Controller on the ground that he requires coal/coke for manufacturing cement. Unless sponsored he cannot get coal. The regulation sought to be imposed by the impugned circular is with respect to coal which the petitioner gets on being sponsored. In such a situation, is it beyond the power of the State to regulate the sale/disposal of the surplus coal by the petitioner? In our opinion the very power of allotment (sponsoring) includes the power to regulate its use and disposal.
X X X X Such a power is implicit in the very power to sponsor and allot. The coal not used for industrial purpose continues to be under the control of, and subject to the regulatory power of the State Coal Controller. He can still control its sale/disposal.
X X X X What it really says is that sale/disposal of the surplus coal/coke will be subject to the supervision and control of the authority specified thereunder.'
7. Thus, in our opinion, both Judgments can be reconciled in the manner that though the petitioner could not be treated as dealer so as to obtain any licence under the Coal Control Order, 1977, but as held by Full Bench he shall be subject to the other control restriction under the provisions of Control Order of 1977. The impugned Government Order requiring them to obtain prior permission of the District Magistrate before transferring the coal/coal dust is thus valid and justified.
8. For the reasons stated above, the writ petition is partly allowed. The Government Order, dated 19.9.1985 (Annexure-1) and Government Order, dated 4.4.1987 (Annexure-2) are partly quashed to the extent they require petitioners to obtain licence under the provisions of U. P. Coal Control Order, 1977. However, the remaining part of the Order shall remain unaffected. There will be no order as to costs.