APO No.174 of 2014 WP No.989 of 2011 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE BHARAT COKING COAL LIMITED & ANR.
Versus PUSKAR MAL DOKANIA & ORS.BEFORE: The Hon'ble CHIEF JUSTICE MRS.MANJULA CHELLUR AND The Hon'ble JUSTICE JOYMALYA BAGCHI Date: 19th January, 2016 Appearance Mr.Saptangshu Basu, Adv.with Mr.Aniruddha Mitra, Adv.Mr.Nikhil Roy, Adv.Ms.Veeneta Meharia, Adv.with Mr.Amit Kumar Nag, Adv.Mr.Piyush Agarwal, Adv.Heard learned Counsel for the appellants as well as respondents.
The respondents before us were the writ petitioners who approached the learned Single Judge challenging the report of the committee dated 6.9.2010 formed by the Coal India Limited in pursuance of the order passed by I.P.Mukerji, J.
in the year 2010.
It is not in dispute that the respondents-writ petitioners carry on business of operating metallurgical coke oven units and for the purpose of running their business they required Non-Linked Washery coking coal (NLW) of a certain grade as a raw material.
It is also not in dispute that the appellant is one of the subsidiaries of Coal India Limited.
In pursuance to the Coal Distribution Policy introduced in the year 2007, a Letter of Assurance (LOA) of supply of coal was to be followed by the Fuel Supply Agreements (FSA).The petitioners referring to Clauses 6.2 and 6.3 of the said Policy contend that they are also entitled to execution of such supply of NLW agreement for coal since the information obtained by them under Right to Information Act clearly indicates excess of coal available with the appellant for several months in the year 2008-09, 2009-10 and 2010-11.
According to them, the said balance shown in the chart at page 272 of the appeal papers is nothing but the available balance of coal which ought to have been distributed or allotted in terms of Clauses 6.2 and 6.3 of the new distribution policy.
The learned Judge after referring to the policy and so also stand of both the parties was of the opinion that there was clear positive balance of coal available for the respective years as disclosed in the statement at page 272 and therefore there is clear infraction on the part of the appellant authority in not complying with the terms of their own policy which they are expected to oblige to consider supply of coal to the appellant in terms thereof and proceeded to direct the appellants-respondents to consider the prayer in terms of prayer (b) of the writ petition.
Aggrieved by the same, the appellants are before us contending that in spite of clarification made before the learned Single Judge by way of affidavit and also the annexures as explained in the affidavit-in-opposition, the learned Single Judge did not take into account the factual situation of the matter and totally ignored the obligation of the appellants to supply coal in respect of existing contracts and then comply with the policy clauses in terms of Clause 6.1, that is, the priority sector envisaged under Clause 6.1 of the distribution policy and then if any excess coal of the required nature is available to consider the applications like that of the writ petitioner.
Therefore, according to them, the judgment does not reflect the factual situation but based on the information under RTI which does not explain anything else other than just giving the details of opening balance, production and closing balance, which includes the coal left with the appellant’s mines to be lifted by the allottees or the persons who already entered into Fuel Supply Agreements with the appellant.
In response to this contention, the respondents-writ petitioners categorically rely upon page 272 to substantiate their case that it was incumbent upon the appellants-respondents to supply the excess coal available as per the information which clearly indicates what is the availability of coal in the opening balance, production of coal during that month and closing balance.
According to the learned Counsel for the respondents-writ petitioners entire statement at page 272 is furnished by the appellant and now it is not open to them to explain away in order to escape from their obligation in terms of earlier direction of this Court in 2010.
We have gone through the affidavit-in-opposition filed on behalf of the appellant as respondent no.1 before the learned Single Judge.
Each and every averment especially with regard to the figures shown in the statement at page 272 pertaining to 2008-09 and 2009-10 are clearly explained.
According to them, non-compliance of their commitment under FSA would lead to imposition of penalty so far as the appellants are concerned.
As per opening balance, production and supply of coal, it envisages reduced coal supply in respect of already existing cokeries and coke oven plants compared to the figures shown for the year 2008-09.
The chart annexed to the affidavit-inopposition indicates sector-wise obligation of the appellants to supply and so also it reveals the despatched coal for the year 2008-09.
According to them, the appellants could achieve only 89.58% of the overall target and with reference to the hard coke and steel industries, they were able to satisfy only to the tune of 74.35%.
According to them, as on the date of filing of the affidavit-in-opposition for the last 5 yeaRs.the figures of despatch/delivery/off-take of coal remained almost static as the production of coal of the appellants in respect of the washery and other cokeries remained the same without any enhancement.
Therefore, according to them, the statement relied upon by the respondents-writ petitioners at pages 272 and 277 of appeal papers do not indicate complete picture of the balance of coal except indicating the balance available excess coal for that month when compared to the opening balance.
According to them, such closing stocks shown in the statement could be due to non-lifting of coal by the parties to whom already supplies are committed under existing arrangements.
They have clearly indicated the entire factual situation and details at paragraph 6 of the affidavit-in-opposition.
Then again in the affidavit-in-opposition of the 6th respondent before the learned Single Judge, they explained how the information given under Right to Information Act is incomplete since it does not explain the obligation and shortage of production overall for a particular year.
According to them, the total sale for the year 2008-09 was 700.3000 Tonnes as against a demand of 4.03 Million Tonnes and so far as 2009-10, the total sale was 2.22 Million Tonnes as against the total demand of 4.10 Million Tonnes.
The chart annexed to this affidavit-in-opposition clearly indicates, which is at R/1, the total plan rate from the years 2006-07 to 202627 which includes the target, actual production, shortage of supply or excess available with them.
The total figure for the year 2008-09 shows the actual dues as 0.91 and then for the year 2009-10 it is minus (-) 5.05 and so far 2026-27, it is minus (-) 1.85.
This is based on the estimated production of coal as against the existing obligations/off take of coal obliged to be supplied by them.
This chart clearly indicates a net loss and on a comparison of the statement at pages 272 and 277 it clearly establishes the fact that the information at pages 272 and 277 is not complete picture so far as the balance of coal available with the appellants/respondents at the end of the year in question but it was only with reference to the month-wise which was outstanding due to non-lifting of the coal already sold to different contracts under different Fuel Supply Agreements.
It is also pertinent to mention that on reading of pages 270 and 271 of the appeal papeRs.it is very clear what was the demand/off take of coal for the years 2008-09, 2009-10 as explained above and what exactly was the shortage of available coal with the appellants.
This information at page 271 was furnished along with the information under the RTI application.
Therefore, the information, that is actual balance of coal availability at the end of the year cannot be considered as an after-thought at the time of filing the affidavit-in-opposition since such information was furnished to the writ petitioners much prior to the filing of the writ petition.
In that view of the matter, we are of the opinion that taking into consideration the figures shown at page 271 and compared it with the statement at pages 272 and 277 there would be no doubt as to the real picture and the defence raised by the appellants/respondents to substantiate their contention before the Learned Single Judge appears to be justified and no order is merited on the writ petition.
In that view of the matter, we are of the opinion the impugned judgment dated 11th February, 2014 deserves to be set aside and is, accordingly, set aside.
(MANJULA CHELLUR, CJ.) (JOYMALYA BAGCHI, J.) SNAKGoswami