Decided on February 03,1992

UNION OF INDIA Respondents


- (1.)THE instant appeal has been filed against the order of Susanta Chatterjee, J. dated 27-11 -1991 where by the writ petition filed by the appellant petitioner was summarily rejected inter alia on the ground that no part of cause of action had arisen within the jurisdiction of this Court and no prima facie case had been made out to challenge the orders in question. It is not necessary to go into the other questions which were taken note of by the learned trial Judge. Inasmuch as the preliminary question raised by the learned Advocate for the respondents that this court had no jurisdiction to entertain the writ application and as such this court need not go into the merits of this case.
(2.)IN order to decide this question it is necessary to set out certain facts which have been disclosed in the petition. The appellant petitioner's case is that, the appellant petitioner carries on business in the name and style of "bihar Coal Traders" at G. T. Road, Durgapiir-3 in the district of Burdwan for selling of Coal washeries and/or middlings/rejects coal having ash content of 35% and that the appellant petitioner has got its head office at Dhahbad in the state of Bihar. It is further stated that the principal place of business particularly selling of middlings; of rejects is being done at Durgapur in the district of Burdwan. It was further alleged, that the Steel Authority of India against whom relief was claimed is the holding company of all iron and steel companies in the public sector having its registered office in New Delhi. The principal office of the Steel Authority of India is situated in Calcutta. Besides the said office there is another office of the General Manager of the said authority also in Calcutta. It is stated that the holding company takes the policy decision as far as the appellant petitioner has been able to ascertain and the subsidiary companies execute the same. As the office of the Managing director of the Steel Authority of India and the office of the Managing Director of Bokaro Steel Plant. Durgapur Steel Plant are situated in Calcutta within the state of West Bengal this court has jurisdiction to entertain this petition. The subject matter of challenge is the notice dated 15-5-1991 issued by the Steel authority of India whereby all concerned were informed that sale of middlings/ rejetcts etc. cannot be made to any party who was not holder of valid coal licence under the Bihar Trade Articles (Licence Unification) Order, 1984. It is the case of the appellant petitioner that the provisions of the said Bihar Trade Articles (Licence Unification) Order 1984 (hereinafter called as 'bihar Trade Order')does not apply in case of the appellant petitioner and that the relief which has been sought before this court was to restrain the respondent from applying the provisions of the said Bihar Trade Order and also for applying the provisions of Section 7 of the Essential Commodities Act, 1985 in respect of appellant/petitioner's purchasing and/or sellihg and/or dealing in noncoking coal, particularly middlings/rejects having ash content more that 3 within india without obtaining any formal permission from the Opposite Parties. The appellant petitioner did not move against any particular order or notice that has been served but it is the case of the appellant petitioner that there is no restriction under the law on the right of the appellant petitioner to sell coal. There is also no restriction under the colliery control order. By the notification dated 1st April 1966 and 24th July, 1967 all control over acquisition and/or transfer of coal came to an end provided however the said coal to be consumed in India and that the appellant petitioner stated that inspite of the fact that there was no restriction in law to sell and purchase the coal, the Police authorities are harassing the appellant petitioner and the appellant petitioner apprehends that the trucks may be wrongfully detained and withheld by the police authorities in the State of Bihar. it is the further case of the appellant petitioner that the appellant petitioner was dealing with middlings/rejects having ash content of 35% or more and in this connection referred to the notice issued on Mahabir Traders by the Steel authority of India. Dhanbad wherein it was stated that as per Government of India Gazette Notification on pricing of various grades of coal effective from 1-1-1989, only such coals as contain ash content not exceeding 35% can qualify in the category of coking coal. Any coal containing more than about 53% ash does not quality to be called even non-coking coal. It was further pointed out that Durda-II middlings contain around 60% ash and Pathardih rejects contain about 56% ash. As such, dugda-H middlings qualify in the cateogity of non-coking coal while Patherdih rejects do not qualify in the category of coal at all. The restriction which has been sought to be made in this case is by operation of Bihar Trade Order, paragraph 3 of which provides that no dealer shall after the commencement of this order carry on business of purchase, sale or storage for sale of any of the trade articles mentioned in Schedule I except under and in accordance, with the terms and conditions of a licence issued in this behalf by the Licensing authority under the provisions of the said order inter alia includes coal.
(3.)THE preliminary point that calls for the determination by this Court at this stage is whether the appellant petitioner is required to take out any licence under the Bihar Trade Order in respect of the articles dealt with by the appellant petitioner. In the writ application Union of India has not been made a party. The State of Bihar, the Additional District Magistrate (Supply)Dhanbad and the General Manager (Coal) have also been made parties. The state of West Bengal has also been made a party but no allegation has been made and/or any relief has been claimed against the State of West Bengal. No relief has also been claimed against the Union of India.

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