B. Kumar, J. - (1.) THE petitioner is a Company which carries on business of manufacturing of chemicals. In the course of its business the petitioner has to consume coal for running the factory. Coal is an essential commodity and its export, purchase, sale and storage etc. are governed by U. P. Coal Control Order, 1977 issued under Section 3 of the Essential Commodities Act. THE U. P. Coal Control Order, 1977 provides for issue of licence under clause 4 for import and for carrying on business as a coal agent or a coal depot holder. THE State of U. P. issued a G. O. on September 19, 1985, a true copy of which has been filed as Annexure-1 to the writ petition saying that industrial units will have to take licence under Coal Control Order, 1977 for the purpose of selling the surplus coal or for disposal of coal dust etc. A direction was issued to ensure compliance of the said G. O. the petitioner has challenged the said G. O. and has prayed for quashing of the same. THE Standing Counsel was required to obtain a copy of another G. O. dated June 6, 1985, a reference of which has been made in the G. O. dated 19-9-85, annexure-1, to the writ petition. He has produced the G. O. dated June 6, 1985 which has been placed on the record.
(2.) SINCE the question involved in the writ petition is short one and purely legal, with the consent of the learned counsels for the parties, we propose to dispose of the writ petition finally. An indication to this effect was made earlier when the standing counsel was given time to seek instructions that the petition shall be finally disposed of on the next date. The case of the petitioner is that it consumes coal for running its factory. The petitioner gets the coal on the recommendation of the General Manager, District Industries Centre, Muzaffarnagar. In paragraphs 4 and 5 of the writ petition it has been stated that sometimes different quality of coal is supplied to the petitioner instead of the quality of coal which is required by the petitioner for its factory. Such coal is of no use to the petitioner and it rejects the same. A huge quantity of coal dust is also collected during the storage, loading and unloading of coal and further while breaking the coal into pieces of the required size. The rejected coal and the coal dust is of no use to the petitioner, hence the petitioner disposes of the same. But the opposite parties according to the petitioner, are placing impediment in the way of the petitioner in selling rejected coal and the coaldust as, according to G.O. issued by opposite party no. 1, the licence under the U. P. Coal Control Order, 1977 is required to be taken for the purpose. The contention raised on behalf of the petitioner is that the petitioner does not deal in coal. It gets coal for industrial consumption which is exempted from different provisions of the U. P. Coal Control Order, 1977 under clause 3 (B) of the Order. The other contention is that the direction contained in Annexure-1 that before transferring such coal prior permission from the District Magistrate will have to be taken is invalid inasmuch as the District Magistrate has nothing to do with the coal meant for industrial consumption. The Controller of Coal for the purposes of coal for industrial consumption is Director of Industries. Direction, if any, could only be issued by the State Coal Controller. The State Government has no such power to issue direction under the Coal Control Order, 1977.
(3.) THE learned counsel for the petitioner has drawn our attention to the definition of word " Dealer " under clause 2 (d) of the Coal Control Order, 1977, which reads as follows :- " " Dealer " means a person carrying on as a principal or agent, whether separately or 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 From ' B ' and commonly known and herein referred to as Coal Agent or in retail and granted a licence in From ' 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 bis own use. " According to petitioner's counsel, a person must be carrying on business of import, purchase or storage for sale and sale of coal in order to be a 'Dealer'. THE petitioner does not carry on business of import, purchase or storage for sale and sale of coal. It is only the dust coal and rejected coal which is needed to be transferred. Transfer of rejected coal or coal dust cannot be said to be in pursuance of business of purchase and storage of coal for sale. It has been submitted that purchase and import of coal should be for its sale then alone it would be covered under the term ' Dealer ' but in case the coal is purchased for own industrial consumption and part of it is to be transferred as rejected coal or coal dust that will not amount to carrying on business of purchase and sale of coal. THE petitioner essentially purchases coal for its own use and therefore is not a ' Dealer ' in view of exception given in sub-clause (d) of Clause 2 of the U. P. Coal Control Order itself. THE learned counsel for the petitioner has also placed reliance upon a case reported in AIR 1964 SC 1533 Manipur Administration v. M. Nila Chandra Singh. In that case their Lordships of the Supreme Court interpreted similar clauses under Manipur Food Grains Dealers Licencing Order (1958). It was observed that it was not sufficient that a person merely sold the foodgrains, stored or purchased the same but he must be carrying on business of such purchase, sale or storage. THEir Lordships further observed that the concept of business in the context must necessarily postulate continuity of transaction. It was not a single casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It was further observed that it was only where it was shown that there was a sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied. If this element of the definition was ignored, it would be rendering the use of the word ' business ' redundant and meaningless. " In view of the above observations made by Hon'ble Supreme Court it is clear that to be a " business " there should be continuity in transactions of sale of the commodity concerned ; that is to say the stray transactions of sale of coal cannot be said to be in pursuance of business of purchase and sale of coal. Then we also find that a consumer, who imports and purchase coal tor own use, is not included in the definition of word ' dealer '. The petitioner gets coal for the use of his own factory on the recommendation of General Manager, District Industries Centre, Muzaffarnagar.;