Hon'ble R. A. Singh, J.
(Delivered by Hon'ble P.C. Verma, J.) Since common question of facts and law are involved in all the writ petitions, therefore they are being heard and decided by common order.
By means of present bunch of writ petitions, the petitioners have challenged the action of the respondents, whereby abruptly the respondents without any communication or reasons have stopped the supply of coal to the petitioners, as per assertions made in the writ petitions.
The writ petition no.49950 of 2009 is being taken up as a leading case. The brief facts as emerged out from pleadings made in the writ petitions are that on 24.04.1996 Linkage Advice Letter issued to the petitioners by which the unit of the petitioners for supply of coal was linked to M/s. Bharat Coking Coal Limited, a subsidiary of M/s. Coal India Ltd. The Linkage Advice Letter contains certain conditions for the purpose of lifting the coal.
The aforesaid Linkage Advice Letter was issued after due verification from the representative of State Government who have verified the working status of the unit of the petitioners and their requirement for the purpose of coal. All petitioners in the writ petitions are having registration with the District Industries Centre of the respective districts, which works under the aegis of the Director of Industries U.P. All the petitioners have due registration with the Sales Tax Department and have been issued the clearance certificate from the U.P. Pollution Control Board.
On 24/25.02.2003 Coal India Ltd. issued a circular to the effect that whenever an adverse report is received and a decision to suspend the supplies seems imminent, a show cause notice is to be served to the unit concerned and suspension of coal supply shall be dependent upon explanation received from the unit concerned. It is further asserted that Bharat Coking Coal Ltd. adopts the said circular of Coal India Ltd., and issued direction on 03.03.2003 that the explanation from the consumers is mandatory and such circular of Coal India Ltd. must be followed strictly. The respondents come out with a general notice dated 30.11.2004, inter-alia, requiring the linked consumers to supply details on 19 point basis in order to ascertain the working status of the unit. The said notice was a general notice without being issued to the petitioners specifically.
The respondents come out with e-auction policy in March, 2005, whereby in a planned manner they abruptly without any reason stopped supply to most of the units. The latest reason for stopping the supply of coal to the unit was introduction of the e-auction policy and to pressurize all linked consumers to obtain coal under the e-auction policy. The policy was introduced on a trial basis.
Different High Courts in the country including this Court granted protection to the linked consumers on the basis of certain conditions laid down in the interim order and on the basis of the said interim order linked unit continued to run and were supplied coal on fulfillment of the conditions under the linkage system as well as fulfillment of conditions under the interim orders passed by the High Courts. Later on Gauhati High Court struck down the e-auction policy against which the respondents preferred Special Leave Petition and also filed transfer petitions before the Apex Court. The Apex Court got transferred the various matters pending in different High Courts challenging the e-auction policy to Supreme Court and thus the entire matter challenging the e-auction policy was placed before the Supreme Court.
Circular was again issued by the respondents to the effect that opportunity of hearing must be provided to all the linked consumers who have submitted documents on 19/13 point basis. No action was to be taken without grant of opportunity to the said linked consumers.
The Apex Court decided the controversy with respect to the e-auction policy and struck down the said policy of the respondents where, inter-alia, one of the issues involved was with regard to the alleged misuse of coal under the linkage policy. The Apex Court did not consider the e-auction policy to be fulfilling the requirement of Article 14 and Article 298 of the Constitution of India and accordingly struck down the same with a further direction to the respondents to evolve a viable policy for disposal of coal, copy of which is annexed as Annexure-6 to the writ petition. But thereafter the respondents again abruptly stopped the supply of coal to the non-core sector linked consumers without giving any reasons. It is evident that from the year 2005 to 2007 coal was supplied by the respondents under the interim orders operating in different writ petitions. However, before evolving a new viable policy as per the directives of the Apex Court, the respondents stopped the supply of coal once again to all the linked consumers. In the year 2007 various notifications of general nature were issued by the respondents for due submission of the document on 19/13 point basis and names of the units were mentioned who were required to comply with the said notice. These notices inter-alia, did not include the name of the petitioners' unit.
The Apex Court vide order dated 29.02.2008 affirmed the aforesaid judgment of the Division Bench of this Court by a speaking order and the Special Leave Petition filed by the respondent no. 2 came to be dismissed. The petitioners sent a representation to the respondents, inter-alia, praying for resumption of supply of coal to the petitioner. It is further submitted that supply having not been restored to the petitioners, the petitioners approached this Court by filing the instant writ petitions. During the pendency of the present writ petition, the Additional Director of Industries U.P. again got the inspection done and has certified the working status of the unit of the petitioners.
Sri Madhur Prakash, learned counsel appearing on behalf of the respondents 2 and 3 has filed a short counter affidavit, wherein it has been stated that Linkage, however, was never intended to be a commitment but only an arrangement to supply the coal, as is evident from the conditions of Linkage Advice Letter and further that Linkage did not enjoin any contractual obligation on Coal India Limited / its Subsidiary Companies to release coal, therefore Linkage did not confer any right commensurate with supply of coal to the Linked consumer. It is contended that as per directive of Ministry of Coal / Coal India Limited, the answering respondents asked all the non-core linked consumers to submit 19 point documents as per Clause-7 of the condition linkage for cross checking the genuineness of the working of the linked units and thereafter further opportunity was also given to submit documents but out of all the petitioners, only petitioners 1 and 2 submitted some documents and in the verification report, the working status of the units of petitioners 1 and 2 were found as not established.
It is further contended by learned counsel for the answering respondents that since petitioners 1 and 2 did not submit any documents, therefore it is established that coal down under erstwhile linkage system by the petitioners 1 and 2 were not actually used in their factories and thus they violated Clause-4 of terms and conditions of linkage system and the linkage of the petitioners stood snapped automatically. Further, linkage of the petitioners stood snapped, but they did not challenge the same, nor agitated the matter before any competent authority and kept silent for years together and without any reasonable explanation of delay, approached this Court.
Further contention of learned counsel for the answering respondents is that since petitioners 3, 4 and 5 did not submit any required documents for ascertaining working status of their unit as per notice, therefore due to non submission of the documents within stipulated time would result into discontinuation of supply of coal from 15th March, 2005 onward, which they have not challenged, nor agitated before any competent authority and kept silent for years together. Thus, it appears that the unit of the petitioners were not in working status/condition.
Learned counsel for the petitioners in rebuttal of the submissions advanced on behalf of learned counsel for the answering respondents contended that Linkage was a recognized system devised by the Central Government in exercise of the powers under Clause-12A of the Colliery Control Order, 1945. In support of his contention, he has annexed guidelines framed by the by the Coal India Ltd., for grant of linkages. A perusal of the said guidelines discloses that distribution of coal was classified in two class.
COAL Core Sector Non-core Sector Core Sector supply included Heavy Industries Like, Power, Almunium, Cement, etc. Non-core Sector supply included Small Scale Industries.
So far as petitioners are concerned they fall in the non-core sector. The requirement of a particular small-scale industry, which stands duly registered with the District Industries Centre, is determined by the Director of Industries upon physical verification of the unit by the Director of Industries. The Director of Industries, looking to the working status of the unit, determines the quota of that unit and send recommendation to the Central Government which thereafter links that small scale industrial unit to a particular coal field depending upon the proximity of the unit to the said coal field. The coalfields under the different area are monitored by the subsidiary companies of Coal India Ltd. The said subsidiary, inter-alia, includes M/s. Bharat Coking Coal Ltd. After the linkage is granted the said small scale industrial unit is classified as a linked consumer. On the basis of the quota determined, the unit becomes entitled to lift maximum permissible quota and for this purpose linkage advice letter is issued to the concerned unit. The linkage advice letter as issued, besides including the maximum permissible quota of the unit, prescribes certain terms and conditions that are to be complied with for linkage to remain alive.
It is further contended by petitioners' counsel the aforesaid Colliery Control Order has it source in Section 16 of the Essential Commodities Act, 1955. The said Colliery Control Order prior to the promulgation of Essential Commodities Act, 1955 was referable to Sub Rule-2 of Rule 81 of the Defence of India Rules. The Colliery Control Order, 1945 provided for control over the distribution of coal. Clause-12A of the Colliery Control Order, 1945 being relevant for the present purposes is quoted herein below:-
"12A.The Central Government may, by notification in the Official Gazette, specify the authorities competent to allot quota of coal to the 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.
Provided that where such allotments have not been made or received or the allotments made have been exhausted or coal cannot be supplied against the pending allotments, then, until such time as the allotments are received, the colliery owner or any officer authorized by him in writing in this behalf shall distribute coal on the basis of linkage or sponsorship on both, for the purposes contained in the said linkages or sponsorships, and the coal so distributed shall be:
(a) adjusted against subsequent allotments, if any, to the concerned persons or class of persons for the relevant period, and
(b) deemed to have been allotted, by the competent authority, for the specified purpose, under this order.
Provided further that no allotment of coal by the competent authority shall be necessary for the purpose of this order in respect of:
(i) coking coal, semi-coking coal and weakly coking coal, hard coke and soft-coke;
(ii) coal produced in private coal mines meant for captive consumption; and
(iii) such grades of non-coking coal as the Central Government may, by notification in the Official Gazette, specify."
A perusal of the aforesaid clause - 12A discloses that the power is vested in the Central Government to allot quota of coal to a person or class of persons and allotment was subject to the instructions issued by the Central Government from time to time. The proviso authorizes distribution of coal on the basis of linkage and under this provision the Linkage Advice Letter came to be issued to the petitioners.
Further contention of learned counsel for the petitioners is that the aforesaid Colliery Control Order came to be issued by the Central Government in exercise of the powers conferred by Section 3, read with Section 5 of the Essential Commodities Act, 1955. It superseded the Colliery Control Order 1945. However, it saved things done or omitted to be done before such supersession. The preamble of Colliery Control Order, 2000 read as follows:-
"S.O.1 (E)- In exercise of the powers conferred by section 3 read with section 5 of the Essential Commodities Act,1955 (1) of 1955 and in super-session of the Colliery Control Order,1945 except as respects things done or omitted to be done before such super-session".
A perusal of the aforesaid preamble discloses that so far as distribution through linkages were concerned, they were not disturbed and in fact it stood validated under Colliery Control Order, 2000. In such view of the matter the Colliery Control Order, 2000 did not disturb the process of distribution of coal through linkage policy of the Central Government. In this regard paragraph-6 of Colliery Control Order, 2000 being relevant is quoted herein below:-
"6. Directions to regulate the disposal of coal stock. The Central Government may from time to time issue such direction as it may deem fit to any owner of a colliery regulating the disposal of stocks of coal or of the expected output of coal in the colliery during any period."
Learned counsel for the petitioners has drawn our attention towards Colliery Control Rules, 2004 and submits that the aforesaid Colliery Control Rules are framed by the Central Government in exercise of the powers conferred by Sub-section (1) and (2) of Section 18 of the Mines and Minerals (Development and Regulations) Act, 1957. In the Colliery Control Rules, 2004 the term "disposal" has been defined as follows:-
"2. Definition. - In these rules, unless the context otherwise requires-
(v) "Disposal" includes agreeing or offering to dispose of, and the disposal or ownership or any proprietary interest, the right of the possession and possession whether or not accompanied by any disposal of ownership or any proprietary interest or of the right to possession."
Rule 6 of the Colliery Control Rules, 2004 are pari materia with paragraph 6 of the Colliery Control Order, 2000 and reads as follows:-
"6. Directions to regulate the disposal of coal stocks. - The Central Government may, from time to time, issue such directions as it may deem fit to any owner of a colliery regulating the disposal of stocks of coal or the expected output of coal in the colliery during any period."
The aforesaid Rules, therefore, do not prohibit the continuance of supply of coal through linkages and under such circumstances the disposal of coal to the linked consumers stand authorized and linkage system is still prevalent whereby coal can be supplied to non-core sector linked consumers through the policy of linkages. In support of his contention, learned counsel for the petitioners cited decision of the Apex Court reported in 2004 (4) SCC, 146.
Learned counsel for the petitioners has drawn the attention of this Court towards the scope of judicial review of the controversy involved in the present case and contended that the present case pertains to stand where supply of coal has been abruptly stopped by an entity, which is an instrumentality of State under Article 12 of the Constitution of India. It is an admitted position that coal is a monopoly item and all the coalmines are controlled by the Government or by its instrumentality. It is a scarce commodity and can be obtained only from the source of Government. In such view of the matter the action/inaction of the respondents are subjected to the test prescribed under Article 14 and Article 298 of the Constitution of India. The respondents have also not acted fairly and have abused its executive powers in doing business with small-scale industrial units and thus have hit Article 298 of the Constitution of India. In support of the aforementioned contention, learned counsel for the petitioners cited certain decisions, such as 2008 (5) JT, 457; AIR 1990 SC, 1031; 2007(11) JT, 01; 1995(4) JT, 366; 2006(10) JT, 424 and 2004(3) SCC, 553, and submits that the respondents failed to meet its standard laid down by judicial precedent and the impugned action of the respondents is, therefore, suffering from the infirmities as stated here-in-before.
Learned counsel for the answering respondents further submitted that petitioners approached this Court even after finalization of 13/19 point check list in the month of February, 2007, inasmuch as Ministry of Coal/CIL have introduced a new coal distribution policy in the month of October, 2007 pursuant to the direction given by the Apex Court in the case of Ashoka Smokeless Coal India (P) Ltd. Vs. Union of India and others, 2007 (2) SCC, 640 and in view of the guidelines given in the case of Ashoka Smokeless Coal India (supra), the petitioners do not have any right to get any relief under the present facts and circumstances of the case.
Learned counsel for the petitioners cited the decision of the Apex Court in the case of Ashoka Smokeless Coal India (P) Ltd. Vs. Union of India and others, 2007 (2) SCC, 640, and submits that this judgment relating to the policy of the respondents regarding distribution of coal. He relies upon certain paragraphs of this judgment, which read as under : -
"91. While fixing the price of an essential commodity like coal, the capacity to bid of small manufacturers may also be taken into account. The court exercising a power of judicial review in a given situation may determine the question on the basis of the material brought on records.
93. The State, however, while distributing its largesse at a price, if involved in distribution of a commodity, which would attract the provisions of Article 39(b) of the Constitution of India, would stand on a different footing.
94. ''Business' is a word of wide import, it, in the context of application of a statue governing a monopoly concern and also with an essential commodity, would indisputably stand on a different footing from the business concern or a private person. The Central Government as also the coal companies having regard to the provisions of the Nationalization Acts must be visualized not as profit earning concerns but as an extended arm of a welfare State. They are expected to harmonize the business potential of a country to benefit the common man. The power of the Central Government to carry on trade on business activities emanates from the constitutional provisions contained in Article 298 of the Constitution of India. The coal companies, therefore, were under a constitutional obligation to fix a reasonable price. They must differentiate themselves from the private sectors which thrive only on a profit motive. As public sector undertakings, the coal companies thus, would have a duty to fix the price of an essential commodity in such a manner so as to subserve the common good. Although the provisions of Section 3(2) (c) of the Essential Commodities Act are not attracted in relation to coal in view of the deregulation of price by the Central Government under the 2000 Order, the reasonable attributes for the purpose of fixing the price of coal should be borne in mind."
Learned counsel for the petitioners further invited our attention with regard to certain specific observation of the Apex Court in the case of Ashoka Smokeless Coal India (P) Ltd. (supra), which read as under : -
"118. Coal companies are monopolies within the meaning of the provisions of the Nationalization Act. They would be deemed to be monopolies within the provisions of clause (6) of Article 19 of the Constitution of India. Our attention has been drawn to two decisions of this Court in Akadasi Pradhan v. State of Orissa, and State of Rajasthan v. Mohan Lal Vyas.
156. We have noticed hereinbefore that when the coal companies themselves manufactured coke for domestic consumers, the same used to cause health hazards. They intended to outsource production of manufacturing soft coke; wherefor they had asked the Governments of Bihar and West Bengal to encourage setting up of smokeless coal units assuring supply of coal. Such linkage system has, therefore, been developed under which consumers are linked to specify mines from which they received specified qualities and specified grades of coal on a monthly basis.
157. Coke oven units, in particular are linked in W-II, W-III & W-IV of the non-core sector. The importance of the linkage system despite resort to E-Auction has since been recognized by the Government of India, as would appear from its letter dated 19.04.2005. Whereas manufacturers of hard coke would require coking coal, others would require only non-coking coal.
169. Good governance and good corporate governance are distinct and separate. Whereas good governance would mean protection of the weaker sections of the people; so far as good corporate governance is concerned, the same may not be of much relevance. Even the coal companies in taking recourse to E-Auction did not give effect to the concept of corporate social responsibility.
192. Coal being a scarce commodity, its utility for the purpose for which it is needed is essential. Although, technically, in view of the fact that no price is fixed for coal there may not be any black marketing in the technical sense of the terms; but this Court cannot also encourage black marketing in general sense. Nobody should be allowed to take undue advantage while dealing with a scarce commodity. The very fact that despite best efforts of the Central Government, the coal companies failed to curb the menace of a section of people and to deal in coal excluding other general people therefrom or the linked consumers misusing their position of obtaining allotment of a coal either wholly or in part, it is absolutely necessary that some mechanism should be found out for plugging the loopholes. The Union of India or the coal companies appear to have lost confidence in the State Governments. They had carried out inspection and in that process they must have arrived at a satisfaction about the genuineness of the claims of industrial units for which the linkage system was meant for.
193. Before us most of the consumers, with a view to obtain supply of coal had filed documents to prove their genuineness. The said documents must be scrutinized by the authorities of the coal companies. In the event, they have any suspicion, inspection should be carried out by officers appointed by the Chairman-cum-Managing Director of the concerned company within whose jurisdiction the unit is situated.
196. We, in a peculiar facts and circumstances of this case, are of the opinion that it may not be difficult to find out as to who the genuine consumers are. So far as owners of the hard coke ovens are concerned, they are member of the association and their identity can easily be verified.
197. However, discussions made hereinbefore should not be taken to lay down a law that the Central Government and for that matter the coal companies cannot change their policy decision. They evidently can; but therefor there should be a public interest as contra distinguished from a mere profit motive. Any change in the policy decision for cogent and valid reasons is acceptable in law; but such a change must take place only when it is necessary, and upon undertaking of an exercise of separating the genuine consumers of coal from the rest, if the coal companies intend to take any measure they may be free to do so. But the same must satisfy the requirements of constitutional as also the statutory schemes; even in relation to an existing scheme e.g. Open Sales Schemes, indisputably the coal companies would be at liberty to formulate the new policy which would meet the changed situation. E-advertisement of E-tender would be welcome but then therefor a greater transparency should be maintained."
Learned counsel for the petitioners relying upon the aforesaid judgment contended that the aforesaid observations of the Hon'ble Apex Court clearly hold that the respondents are bound by law and cannot be permitted to pick and choose and take situational advantage by exploiting the weak bargaining power of the end consumers. It is further contended that the respondents have not afforded any opportunity of hearing to the petitioners before suspending the supply of coal to the petitioner. In this regard the respondents have themselves issued three circulars, which are already on record of the writ petition, dated 25.02.2003, 03.03.2003 and 05.05.2006. These circulars are categorical to the effect that unless and until an explanation is called for and an opportunity of hearing is given to the linked consumer, no supply shall be suspended and no action shall be taken for cancellation of linkage. In view of the aforesaid circulars, it is evident that the respondents are bound to give opportunity to the petitioners firstly by calling for the explanation from the petitioners and secondly by giving an opportunity of personal hearing to the petitioners. In the present matter, it is evident and not denied in the counter affidavit that neither an explanation was called for nor an opportunity of hearing was given to the petitioners. In the short counter affidavit filed by the respondents, they have relied upon certain report decided on 19/13 Points basis and which according to them draw a conclusion that the consumption of coal having not been established there exists a doubt about existence of industrial activity of the petitioners. It is submitted that the said report is undated although in paragraph 7 of the short counter affidavit it has been mentioned that the report is dated 23.05.2006 and 31.05.2006. The said report also does not disclose the date on which physical inspection was carried out by the respondents of the unit of the petitioners. Thus the report is not based upon verifiable material and in the absence of any physical inspection the said report is a nullity. Moreover, the copy of the report was never supplied to the petitioner and the said report has been filed for the first time along with the counter affidavit. Adverse decision having been taken against the petitioners on the basis of ex-parte report is unsustainable and the petitioners were entitled for submitting due explanation to the ex-parte report so submitted and which formed the basis of the decision of the respondents to stop the supplies of coal to the petitioner.
Learned counsel for the petitioners submitted that in reply to the categorical case of the petitioners that notice was not served upon the petitioners, the respondents have relied upon certain notices that have been filed as Annexure-SCA-1 and SCA-3 to the short counter affidavit. A perusal of the alleged notice dated 30.11.2004, 03.03.2005, 08.03.2005, 03.06.2006 and 08.06.2006 discloses that it is not addressed to any person but is a general notice allegedly issued on the respective dates. In the short counter affidavit, it has also been stated by the respondents that the notices were displayed on the notice board. This clearly establishes that individual notices were not issued to the petitioners. In the absence of issuance of individual notice to the petitioners, the action of the respondents in stopping the supply of coal to the petitioners on the ground that the petitioners have not complied with the contents of notice is arbitrary and unreasonable. The decision therefore taken by the respondents is irrational, unfair and unreasonable, hence the entire decision making process of the respondents is invalid.
Learned counsel for the petitioners again submitted that petitioners were not given any opportunity to resubmit the document. There are cases, which have been reported by the respondents who were given opportunity to re-submit the documents by removing defects in the documents earlier submitted. However, in the case of the petitioners no such opportunity was given and the petitioners were not informed by the respondents, where documents were submitted, that they will be required to resubmit the documents by rectifying infirmities in the earlier submission of the documents by them. In certain cases the petitioners had submitted the documents but in the notice displayed by the respondents the said petitioners were not directed to re-submit the documents. Hence, the action of the respondents is violative of rights of the petitioner under Article 298 of the Constitution of India. Clause 7 of the linkage condition reads as follows :-
"7. Any representative of Coal India Ltd., or any of its subsidiary company (s) shall have the right to inspect the unit any time and call for information and documents/registration certificate or any other records as may be required for examination/verification and/or reassessment of quantity or quality and to witness any trial or operation of the plants."
The aforesaid clause discloses that the same can be invoked for the purpose of making an assessment of quantity and quality of product as well as to assess the operation of the plant. However, in the garb of such right, the respondents cannot be permitted to probe into the affairs of the industrial unit. A perusal of the 19/13 Points details discloses that the respondents have demanded information, which has the effect of probing into the internal affairs of the industrial unit, which is clearly impermissible, and beyond the power conferred upon the respondents under the linkages. The same has been demonstrated by the petitioner in paragraph 7 of the short rejoinder affidavit in a chart form, which demonstrates that non-supply of the said documents is not violation of the clause-7 of the linkage condition and no person of ordinary prudence could arrive at a decision that for non submission of such document clause-7 of the linkage condition stands violated and supplies can be stopped. As such demand of such document and consequent stoppage of supply to the unit of the petitioners on such basis violates Article 14, Article 19(1)(g) and Article 298 of the Constitution of India.
Clause-4 and 9 of the linkage conditions are quoted herein below:
"4. Coal allotted against this linkage is for actual consumption in the linked units and cannot be diverted or sold to others except with prior written consent or Govt. of India/Coal India Ltd."
9. "Linkage" is subject to cancellation in case of:-
Relying upon the aforesaid clause, learned counsel for the petitioners submitted that there is no material available with the respondents to hold that the coal was diverted or sold by the petitioners. Moreover, the respondents have stated in the counter affidavit that linkage of the petitioners has been cancelled for violation of Clause-4 and 9. However, there does not exist any material with the respondents to record a conclusion that the coal was not actually consumed by the petitioners in the linked unit and was either diverted or sold to others. On the contrary, the Director of Industries have certified that the unit of the petitioners are well established and they are ready to use coal and further from time to time the physical inspection of the unit done by the Director of Industries U.P., satisfied that the coal was actually consumed by the units. In such view of the matter Clause-4 of the linkage condition does not get attracted in the case of the petitioner.
So far as clause-9 is concerned the same can be applied only when one of the eventualities mentioned in clause-9 gets attracted. As already stated, the petitioners have not violated any terms and condition of the linkage. Moreover, there is no physical verification of the linkage of the petitioners that can establish any sort of discrepancy in the three items mentioned in clause-9. Further it is not the case of the respondents that the data furnished by the petitioners in the data sheet are found to be incorrect or suppressed.
It is further contended that the respondents have pleaded that the linkage of the petitioners has been terminated. However, there is no order placed by them on record to show that the linkage of the petitioners has been terminated. In the absence of an order terminating the linkage there can be no assumption that the linkage of the petitioners stands cancelled. Thus, the action of the respondents is unfair and unreasonable as well as improper and the respondents have abruptly stopped the supply of coal to the petitioners and in spite of the representation made by the petitioners, the respondents have failed to disclose any reason for stopping the supply of coal to the petitioner. In support of his contention, learned counsel for the petitioners cited decisions reported in 1947 (2) All.E.R., 680 and 2005(3) All.E.R., 435. Further, on the question of latches, learned counsel for the petitioners relied upon certain decisions reported in AIR 1986 SC, 1636; AIR 1974 SC, 1806 and 1987 (Suppl.) SCC, 57.
Having considered the arguments and the submissions advanced by learned counsel for the parties and going through the decisions cited, we are of the view that the plea of latches taken by the respondents is unfounded. The respondents themselves supplied the coal to the petitioners till the year 2007 and abruptly stopped the same after the judgment of the Apex Court in the matter of Ashoka Smokeless Fuel (Supra) and thereafter the matter remained in a state of uncertainty. Thus, the action of the respondents is unfair and unreasonable as well as improper and in spite of the representation made by the petitioners, the respondents have failed to disclose any reason for stopping the supply of coal to the petitioners. A perusal of the orders passed by this Court in the year 2007 and 2008 reveals that the issue regarding physical inspection of the unit to be done by the respondents and the petitioners having been continuously vigilant towards their rights and continuously approached the respondents for redressal of their grievances, but the respondents have turned to a deaf ear and have not decided representation of the petitioners either oral or written.
In the result, all the writ petitions succeed and are allowed. However, in view of the discussions made above, we direct the respondents to resume the supply of coal to the petitioners' unit immediately on the basis of linkage advise letter issued to them and further the respondents are directed to obtain work status of the petitioners' unit in accordance with law by holding physical inspection as per the directives of this Court as well as the observations made by the Apex Court in the case of Ashoka Smokeless Coal India (P) Ltd. (supra).
Dated: 09.09.2010.
Rks.