SUJIT NARAYAN PRASAD,J. - (1.) This writ petition is under Article 226 of the Constitution of India, whereby and whereunder following prayers have been made:- (a) For a declaration that the new e-auction policy introduced by the Respondents for auctioning the coal linkage/LOAs through competitive bidding is arbitrary, illegal, null and void as the same is detrimental and shall severally affect the interest of the business of the members of the Petitioner Association resulting into closure of almost 90 % of the units. (b) For quashing and setting aside the Letter dated 19.01.2017 (Annexure-11) issued by the Respondent No. 2 to the Respondent no. 3 directing it to identify the source-wise/grade-wise quantity on the basis of market assessment for conducting the e-auction successfully including the proposal of the Respondent No. 1 contained in Letter dated 15.02.2016 (Annexure-10) regarding competitive bidding for auction of coal linkage/LOAs to non-regulated sector. (c) For issuance of direction upon the concerned Respondents to release coal to the petitioners under the existing Fuel Supply Agreement (FSA) and may further be pleased to extend the tenure of such Fuel Supply Agreements of the members of the Petitioner Association for further period after completion of tenure of the same, in order to save them from their extinction. (d) For restraining the Respondents from acting in pursuance of the said new e-auction policy during the pendency of this writ petition.
(2.) The brief facts of the case of the petitioner, as per the pleading made in the writ petition, is that the petitioner is an Association of Hard Coke Producers, registered under the provision of Societies Registration Act, 1860 having altogether 17 members, who own and possess their respective Hard Coke plants, which are colliery within the meaning of Colliery Control Order, 2000 promulgated by the Central Government vide Notification No. S.O. 1 (E), January, 2000 under Section 3 read with Section 5 of the Essential Commodities Act, 1955 (10 of 1955) and in supersession of the Colliery Control Order, 1945. The members of the Petitioner Association carrying out the business of operating hard coke manufacturing units, which are registered as small-scale industries and the basic and essential raw material for manufacturing of hard coke is coking coal. The members of the petitioner association were receiving coking coal from the respondent-authorities under Fuel Supply Agreement (FSA). Earlier, the linkage system was developed to ensure rational and co-ordinate development of coal production and to promote optimum utilization of coal resources by effecting equitable, fair and reasonable distribution of coal. In order to achieve the objective that the linkage of coal demand is primarily done with the objective of planning of coal supplies, keeping in view indigenous coal resources as well as the need to supply fuel of appropriate quality to the consumers at the same time making the most economic use of the available capacity of production and transport of coal. Under the system of linkage, certain consumers are linked to specified mines from which they use to receive specified quantities and specified grades of coal on a monthly basis from the respondents. The members of the petitioner association were linked as non-core sector consumers of coal and, therefore, linked by the respondent-Coal India Limited (in short CIL) to Respondents-Bharat Coking Coal Limited (in short BCCL) for release of specified quantities, qualities (grade) and sources (mines) of coal (coking coal) on a monthly basis. The Respondents-BCCL as also the Coal India Limited and other subsidiary coal Companies had issued notices proposing to effect sale of coal to the non-core sector consumers of respondent BCCL by e-auction and framed a scheme in relation thereto. In consequence thereof, several writ petitions were filed before the several High Courts against the said scheme of e-auction but all the writ petitions, pending in respective High Courts have been transferred before the Hon'ble Apex Court by passing appropriate orders on the Transfer petitions and the Hon'ble Apex Court has been pleased to pass an order in the case of Ashoka Smokeless Coal India Private Ltd. and others-Vs.-Union of India and others reported in (2007) 2 SCC 640, whereby and whereunder, the Hon'ble Apex Court has been pleased to observe that the Central Government and the coal Companies are not profit earning concerns, but, are an extended arm of welfare state. They are different from private sectors that thrive only on a profit motive and therefore, the coal companies are under a constitutional obligation to fix a reasonable price of coal. The consideration of implication of the provision of Article 39 (b) of the Constitution of India has also been dealt with, which provides provision for ensuring equitable distribution of resources and considering all these aspects of the matter, it has been laid down therein that the Coal India Limited and its subsidiaries are required to distribute coal equitably and at a fair and reasonable price and for fixation of reasonable and fair price of coal, it is essential that price of coal is actually fixed and not kept variable. The further observation has been made that the said scheme of e-auction did not lead to fixation of price of coal. It was not a mode to fix price, rather, it was only a mode to obtain maximum price. Its motive was to derive optimum benefit by sale of coal and while doing so coal companies did not have to follow the principles of fixation of price and as such, the conclusion has been arrived that the scheme of e-auction as submitted by Union of India and coal companies were not justified. It is the Central Government has come out with a memorandum on 18th October, 2007, purporting to be the 'New Coal Distribution Policy' in supersession of the existing coal distribution policy and under the said policy, the members of the petitioner-association were required to receive 75 per cent of their requirement of coal through Fuel Supply Agreement (FSA) at notified prices to be fixed/declared by the respondents-Coal India Limited and balance 25 per cent of their requirement through e-auction/import and under the said coal distribution policy, the members of the petitioner-association were required to enter into Fuel Supply Agreement (FSA) with the coal companies within a period of six months' from the date notified by the Respondents-Coal India Limited. The members of the petitioner-Association had entered into Fuel Supply Agreement (FSA) with the Respondent for supply of Coal and while doing so, the Respondents have again decided to adopt the method of e-auction. The petitioner-Association has filed a representation, inter alia, intimating the Respondent-Central Government that the said draft Policy does not clarify as to how linkage quantity will be auctioned and how quota will be fixed for each category and sub-category of consumers, but having not considered, rather come out with the decision to distribute through e-auction of linkage, therefore, the instant writ petition has been filed, questioning the aforesaid decision.
(3.) It is the contention of Mr. Biren Poddar, learned senior counsel appearing for the petitioner that there is no fault in the Fuel Supply Agreement (FSA), rather, if the decision of the Central Government to supply the coal through e-auction would be allowed to continue, the petitioner's requisite demand of coal will not be fulfilled and it is the settled position that if the Central Government would be allowed to go for bid, the same would be available for fetching the profit, which was contrary to the observation made by the Hon'ble Apex Court in the case of Ashoka Smokeless Coal India Private Ltd. (Supra) and therefore, the ground has been agitated that if the other big Companies will be allowed to participate in the process of e-auction, through their participation the amount of coke bid will go up, thereby the poor units holders, who are solely dependent on the coal to be supplied will ultimately have to suffer either by not getting the required quantum of coal or getting it in the higher cost. It will nothing, but will lead to monopolistic market and therefore, the policy of e-auction may not be allowed to grow. Learned counsel appearing for the Coal India Limited as also Bharat Coking Coal Limited, have submitted that the similar issue fell for consideration before this Court in W.P.(C). No.2267 of 2018 which has been disposed of vide order dated 25.06.2019, therefore, the instant writ petition may also disposed of in terms of the said order. ;