Kalawati Coal Private Ltd. Vs. Bharat Coking Coal Ltd. and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - on considering the grounds stated by the respondent-coal company, this court had observed that the grounds shown in support of the impugned orders fail to stand the test prescribed in the decision of the supreme court in the case of s. the respondents shall fix a date and communicate the petitioner in writing after having satisfied that there was sufficient service of notice to the petitioner, the respondents shall permit the petitioner to explain their documents in support of their claim.d.g.r. patnaik, j.1. prayer in this writ application has been made by the petitioner for quashing the order dated 16.10.2007 vide memo no. 2859 (annexure-3), issued under the signature of respondent no. 3, whereby supply of coal to the petitioner has been refused to be resumed. further prayer has also been made for an appropriate writ in the nature of mandamus commanding upon the respondents to forthwith resume supply of coal to the petitioner.2. the facts of the petitioner's case in brief are as follows:the petitioner is a registered private ltd. company.the coal india ltd. after examining all the relevant papers and project report of the petitioner had granted the coal linkage vide its letter/order dated 13.12.1999 to the petitioner's company, established at daltonganj in the district of medininagar. the maximum permissible coal, which the petitioner was allowed to lift was 2500 m.t. per month.since after the grant of coal linkage, the petitioner's factory was running satisfactorily. however, on 30.11.2004, the respondents issued notice (annexure-2) to all coal consumers to furnish information on the basis of 19 documents, in order to decide whether the units of the coal consumers is running or not. though the petitioner was not served with any such notice, yet on being informed, the petitioner submitted all the required documents referred to in the aforesaid notice, which were reduced to 13 from the originally required 19 documents.in spite of submission of the documents and the related information, the respondents stopped supply of coal to the petitioner with effect from july, 2007 without any prior notice.by the impugned order dated 16.10.2007, the respondents had rejected the claim of the petitioner for resumption of the coal supply.3. the grievance of the petitioner is that the impugned order has been passed without proper consideration of the documents and the informations given by the petitioner and without making proper verification as to the existence of the petitioner's unit.4. mr. a.k. sinha, learned senior counsel appearing for the petitioner would explain that the refusal of the respondents to resume coal supply to the petitioner was made on flimsy and arbitrary grounds. similar orders of refusal was passed by the respondents in respect of several coal consumers and earlier, when a similar issue was raised, the patna high court had quashed the order, whereby the respondents had rejected the claim of the petitioners therein for resumption of coal supply. learned counsel has referred to and filed a copy of the order of the patna high court, passed in the case of sushila chemicals pvt. ltd. v. bharat coking coal ltd. and ors. in c.w.j.c. no. 10653 of 2007 (annexure-4) and a copy of the judgment of the division bench of the patna high court in the l.p.a. filed by the b.c.c.l. against the judgment in sushila chemicals case (annexure-n).5. learned counsel submits further that earlier when the matter regarding stoppage of linkage of coal was agitated before the supreme court, the apex court in the case of ashoka smokeless coal india (p) ltd. and ors. v. union of india and ors. : (2007)2scc640 had given specific directions to the authorities of the coal companies to scrutinize the documents furnished by the coal consumers and in the event, they have any suspicion, they must carry out an inspection to ascertain whether the unit is functional. learned counsel submits that in the instant case, though the petitioner had submitted all the required documents but the petitioner's claim has been rejected on flimsy grounds namely, that the audited accounts and the balance sheet for the financial year 2001-02 does not contain the quantitative details of the raw materials consumed and the turn over made by the petitioner during that year; that the names of the customers have not been mentioned in the cash memos relating to purchase of diesel and though the record of machinery purchased and installed have been supplied but corresponding money receipts in discharge of payment of bill for purchase of plant & machinery has not been submitted. learned counsel explains that from the list of documents, which were required to be furnished by the consumers, as would appear from annexure-2, there was no requirement to furnish the quantitative details of raw-materials consumed during the relevant financial year nor was there any such requirement stipulated earlier, at the time when the coal linkage was granted to the petitioner, for maintaining the cash memos for purchase of diesel or for maintaining the money receipts in discharge of payment of bills for purchase of plants & machineries. learned counsel explains further that had a demand been made from the petitioner to furnish all the further informations, the petitioner would certainly have supplied all the required informations but no such opportunity was given to the petitioner. learned counsel explains further that even otherwise, the demand of such information is totally arbitrary and irrelevant in the context of the directions given by the supreme court in the ashoka smokeless coal india (p) ltd. and ors. case' (supra) for the purpose of ascertaining as to whether the consumers-unit is existing and is functional. it is further submitted that as per the directions of the supreme court in the ashoka smokeless coal india (p) ltd. and ors. case' (supra), it was incumbent upon the respondents not only to consider the documents and appreciate the same in proper perspective but also to conduct a spot inspection of the units in case of any suspicion regarding the existence of units, and to give adequate opportunity to the consumer to explain all relevant matters. this, according to the learned counsel having not been done by the respondents, the action of the respondents in rejecting the petitioner's prayer for resumption of coal supply is totally arbitrary.6. counter affidavit has been filed on behalf of the respondents. mr. a.k. mehta, learned counsel representing the respondents, would seek to justify the impugned order on the ground that the documents furnished by the petitioner, do not adequately satisfy the requirements on the basis of which, it could be ascertained as to whether the petitioner's unit is existing and is functional. learned counsel argues that since the documents furnished by the petitioner do not offer full information, the respondents are justified in holding that the petitioner had not furnished adequate proof in respect of its claim that its unit is functional.7. a similar issue was earlier raised before this court in the cases of vikram soft coke industries v. central coalfields ltd., ranchi and ors. and gwalior smokeless fuels (p) ltd. and anr. v. bharat coking coal ltd., dhanbad and ors. vide w.p. (c) no. 5522 of 2006 with w.p. (c) no. 3055 of 2007 respectively. on considering the grounds stated by the respondent-coal company, this court had observed that the grounds shown in support of the impugned orders fail to stand the test prescribed in the decision of the supreme court in the case of s.l. kapoor v. jagmohan and ors. reported in : [1981]1scr746 .8. the facts of the present case also indicate that the impugned order has been passed by the respondents without affording adequate opportunity to the petitioners to explain matters, which apparently relate to informations, which were not required originally to be supplied. it also appears that the impugned order has been passed without adhering to the directions and guidelines as prescribed by the supreme court in the case of ashoka smokeless coal india (p) ltd. and ors. (supra).9. in view of the above, this writ application is disposed of with a direction to the respondents to consider the petitioner's claim by affording the petitioner a reasonable opportunity to bring on record all the relevant documents in respect of the petitioner's claim and reply made against the points and record the finding on each point with cogent reasons. the respondents shall fix a date and communicate the petitioner in writing after having satisfied that there was sufficient service of notice to the petitioner, the respondents shall permit the petitioner to explain their documents in support of their claim. if, even after submission of all the documents and explanation offered by the petitioner, any doubt persists regarding the existence of the petitioner's unit, the respondents shall make spot verification by fixing a date with prior notice to the petitioner and after taking into consideration overall assessment of the explanation, documents and findings on spot inspection/verification, the respondents shall take a final decision on each point by recording speaking reasons. since the petitioner's unit is claimed to be based on linkage of coal, the entire exercise must be completed within three months from the date of receipt/production of a copy of this order. there is no order as to cost.