M.K.MUKHERJEE - (1.) SPECIAL leave granted.
(2.) IN this appeal, preferred by Bharat Coking Coal Limited (hereinafter referred to as 'the appellant'), a Government Company within the meaning of Section 617 of the INdian Companies Act, 1956, and its General Manager, the only question that requires an answer is whether the appellant is entitled to realise service charges from its buyer while selling coke. Steel Abrasers and Allied Products Limited, the respondent herein, carries on business of foundry casting and for that purpose it has to buy hard coke from the appellant. The production and disposal of coal and coke are controlled and regulated by Colliery Control Order, 1945 ('Order for short"), initially framed by the Central Government under Rule 81(2) of the Defence of India Rules and being continued in force by Section 16(2) of the Essential Commodities Act, 1955. In exercise of the powers conferred by the Order, the Central Government issued a notification on 27/12/1991 fixing the prices at which different types of coal and coke, including hard coke, would be sold. Alleging that despite such fixation of price of hard coke by statutory notification the appellant was demanding and, for that matter, realising, besides the price, service charges the respondent filed a writ petition in the Patna High Court wherein it contended that such action on the part of the appellant, which was a State within the meaning of Article 12 of the Constitution of India, was wholly arbitrary and illegal and, accordingly, prayed for appropriate relief. In contesting the petition the appellant submitted that coal and coke were different commodities and in view of the fact that the respondent was required to be supplied foundry hardcoke, which had a specified size, it had to put in some extra work and effort like shifting and sizing after production of the coke in the plant, and that necessarily meant extra expenditure. According to the appellant recovery of such expenditure was not barred by the notification and, on the contrary, the notification permitted such recovery. The High Court accepted the contention of the respondent and issued a writ of mandamus directing the appellant not to charge from the respondent any amount other than fixed in terms of the notification dated 27/12/1991. Hence this appeal. To answer the question raised in this appeal it is imperative to first refer to the relevant provisions of the Order and the notification issued thereunder. Clause 2(1) of the Order defines coal to include anthracite, bituminous coal, lignite, peat and any other form of carbonaceous matter sold or marketed as coal and also coke. It is pertinent to point out here that though the definition clubs coke and coal in fact, the two products are distinct and different. Whereas coal is a stone like product excavated from the earth, coke is the processed product of coal obtained by indirect heating in Beehive ovens and bye Product ovens which are commonly known as 'coke oven plants'. Clause 2(2) defines 'colliery to mean any mine or open working where the getting of coal is the principal object and includes a plant for the production of coke. (emphasis supplied). According to Clause 2(5) 'size' when used in relation to coal shall have the same meaning as given in the specification laid down by the Indian Standards Institution (ISI) from time to time. (Emphasis supplied). Clause 3 empowers the Central Government to prescribe the classes, grades and size into which coal may be categorised and the specification for each such class, grade or size of coal. Clause 3A(4) entitles the Coal Controller appointed under the Order to lay down the standards and methods of sampling and analysis of coal which alone shall be used in declaration of grades or sizes of coal. Clause 4 of the Order which empowers the Central Government to fix the price of coal reads as under : "The Central Government may by notification in the Official Gazette, fix the sale price at which, or the maximum or the minimum sale price or both, subject to which coal may be sold by colliery owners and any such notification may fix different prices - (i) for different grades and sizes of coal and (ii) for different collieries."
(3.) CLAUSE 4A which deals with retention price of coal and coke is extracted below: "The Central Government may having regard to all the relevant factors, including the geological and mining conditions of and the mining technology employed in the collieries by the colliery owner, as well as the estimated cost of production of coal and coke produced by such colliery owner, fix, by notification in the Official Gazette, the retention price in respect of each class, grade or size of coal and coke produced and sold by such colliery owner." Clause 5(1), so far as it is relevant for our purposes, provides that no colliery owner or his agent shall sell, agree to sell or offer to sell coal in excess of the price or the maximum price fixed under clause 4. The only other clause of the Order which requires mentioning here is Clause 12A. It provides that the Central Government may, through Gazette notification, specify the authorities competent to allot quota of coal to any person or class of persons and every such authority shall allot such quota subject to such instructions as the Central Government may issue from time to time. In exercise of the above power, the Central Government has specified its Coal Controller to be the authority competent to allot quota of coal.;