B.P.JEEVAN REDDY, C.J. - (1.) This writ petition has been referred to Full Bench by a Division Bench of this Court since it was of the opinion that an earlier decision of a Division Bench reported in Gulshan Sugar and Chemicals Ltd. Muzaffarnagar v. State of U.P. (1988 (1) AWC 112) requires reconsideration.
(2.) . The petitioner, a manufacturer of cement, who purchases hard coke as one of his raw materials, is questioning the validity of a circular letter dated 19-9-1985 issued by the Government of U.P. prays for a direction restraining the respondents (State of U.P. and its officers) from interfering with its right to sell and transport rejected coal and coke.
(3.) . Coal is an essential commodity, governed by the Essential Commodities Act, 1955. In 1977, the Governor of Uttar Pradesh issued the Uttar Pradesh Coal Control Order, 1977 (hereinafter referred to as the Order) in exercise of the power conferred upon him by S. 3 of the Act. Cl.2 of this Order defines certain expressions occurring in the order. It would be appropriate to notice the definitions of "Coal', dealer and 'State Coal Controller' occurring in sub-cls. (c) (d) and (k) respectively. They read thus:- "(c) "Coal" means coal, coke and other derivatives and includes slack coal, steam coal, soft coke, hard coke or dust coal of various grade but does not include cinder and products and by products of coal; (d) "Dealer" means a person carrying on as a principal or agent, whether separately or in conjunction with some other business, the business of import purchase or storage for sale and sale of coal, in wholesale and. granted a licence in Form 'B' and commonly known and herein referred to as Coal Agent or in retail and granted a licence in Form 'C' and commonly called' and referred to herein as 'Coal Depot Holder' but does not include a consumer who imports, purchases or stores coal for his own use; "(k) State Coal Controller means - (a) the Commissioner, Food and Civil Supplies, Uttar Pradesh and includes the Additional Commissioner, Joint Commissioner and Deputy Commissioner Food and Civil Supplies, Uttar Pradesh or any other officer not below the rank of Assistant Commissioner, Food and Civil Supplies appointed by the State Government to administer this Order; respects coal dust (slack coal), soft coke and hard coke and steam coal for domestic consumption; and . (b) The Director of Industries, Uttar Pradesh including an Additional Director, Joint Director or Deputy Director Industries as respects steam coal and hard coke for industrial consumption." Clause 4 provides for licensing. It says :- "No person shall import coal and carry on business as a coal agent carry on business as a coal depot holder or run a brick kiln with coal except under and in accordance with the terms and conditions of a licence issued under this Order ....." Clause 5 provides the procedure relating to the grant of licenses and the fee chargeable therefor. Cl.7 provides the security which should be furnished by an applicant for licence, while clause 8 obliges the licensee to obey the directions that may be issued from time to time by the appropriate authorities, Cls.9,10 and 11 place certain other obligations on the licensee, like maintaining of accounts, display of stock position etc. Cl.12 deals with export of coal and bricks. It says :- "No person shall export, cause to be exported or offer for export coal or bricks produced with the aid of slack coal from the territory of Uttar Pradesh without obtaining prior written permission from the respective State Coal Controller; Provided that nothing in this clause shall apply to bona fide traveller carrying to any place, outside the State of Uttar Pradesh Coal, not exceeding ten quintals in weight, as a part of his household effects." Cls.13 and 14 empower the authorities under the order to enter and search coal held or being removed contrary to the provisions of the Order and call for relevant information from the licensees and other users of coal. Cl.15 provides for penalties, which may be imposed upon as person who imparts or sells, or removes coal in contravention of the provisions of the Order. Clause 3 provides for certain exceptions. Sub-cl. (A) says that movement of coal in certain situations shall not be governed by the provisions of the Order. Sub-cl. (B) exempts 'steam coal and hard coke for industrial consumption' from the operation of Cls. 4 to 10, 14 and 16. It would be appropriate to set out cl.3 in full, since it has a crucial relevance to the controversy arising here:- "3. Exceptions - (A) Nothing in this Order shall apply to - (a) movement of coal under the authority of the Coal Commissioner, Government of India or any other officer acting on his behalf; (b) Coal moved on Railway account; (c) Movement of coal under and in accordance with Military Credit Note on Defence Account; (d) Movement of Coal meant for the use of any Central Government Department or Corporation or under Central Government quota or under sponsoring by any authority not under the administrative control of the State Government; Provided that such coal is consumed entirely by the Industry, Railway, Military, Central Government Department or Corporation or any other person for whom it is moved, as the case may be, for its ows own use; Provided further that except insofar as transfer or sale of coal to any other consumer of the same category, effected with the permission of the sponsoring authority, or competent departmental authority is concerned if any, of the above consumers wishes to sell any part of the coal, surplus to his requirement, to other users thereof in Uttar Pradesh he shall do so only after obtaining the permission from the District Magistrate of the District where coal is stored and if the user or any user to whom this coal is proposed to be sold, is working in another District the District Magistrate of that District and further shall intimate full particulars of such sale to the (sic) or both the District Magistrates concerned immediately after, such sale. (b) The provisions of Cls. 4 to 10,14 and 16 hereof, shall not apply to steam coal and hard coke for industrial consumption.";