Full Text
JUDGMENT
M/S SARDA ENERGY & MINERALS LTD. & ANR. ... Petitioners
For the Petitioners : Mr Ratan K. Singh, Mr J.K. Chaudhary, Mr Vikas and Mr Vipul Agrawal, Advocates.
For the Respondents : Mr Sanjay Jain, ASG with Mr Rakesh
Kumar, CGSC and Mr Shreshth Jain, Advocates for respondent Nos.1 & 2.
Mr Rishi Agrawala with Mr Karan Luthra and Mr Anuj Malhotra, Advocates for respondent No.3.
HON’BLE MR JUSTICE SANJEEV SACHDEVA
CM No.15159/2015 (exemption)
Exemption is allowed subject to all just exceptions.
1. Section 10(5) of the Coal Mines (Special Provisions) Act, 2015, 2015:DHC:6824-DB provides as under:- “10(5) If a prior allottee or such third party which has contracted with the prior allottee for its movable property, fails to remove the movable property which the successful bidder or allottee has elected not to purchase or use in accordance with sub-section (4), then, after the period of seventy-five days from the vesting order or the allotment order, as the case maybe, a successful bidder or allottee shall be entitled to dispose of such movable property which may be physically located within Schedule I coal mine, the successful bidder or the allottee, shall in such event be entitled to appropriate the sale proceeds of such movable property disposed of to pay for any cost incurred by the successful bidder or allottee, for the removal, storage, sale and disposal of such movable property, as a first charge over the sale proceeds of such movable property: Provided that the remaining sale proceeds after appropriation of costs, shall be paid by the successful bidder or allottee to the Central Government towards any compensation that may be payable to the owner of such movable property sold, upon establishment of title to such movable property in accordance with such rules as may be prescribed: Provided further that if a third party contractor to the prior allottee owns such movable property, then, such third party shall be entitled to prove its right to receive compensation from the sale proceeds of the movable property sold as per this sub-section, in accordance with such rules as may be prescribed.”
2. It is, therefore, clear that as per the said Act, the prior allottee is required to remove the movable property, which includes the coal extracted up to 31.03.2015, within the stipulated period of time. In case the prior allottee (the petitioner herein) is unable to do so, the successful bidder (the respondent No.3) is entitled to dispose of such movable property which may be physically located within the coal mine. The respondent No.3, the successful bidder, in any event, is entitled to appropriate the sale proceeds thereof to pay for any cost incurred by the successful bidder for the removal, storage, sale and disposal of the said property, as a first charge, over the sale proceeds thereof. It is further provided that the remaining sale proceeds, after appropriation of the aforesaid costs, shall be paid by the successful bidder to the Central Government towards any compensation that may be payable to the owner of such moveable property sold, upon establishment of title to such movable property in accordance with the Rules that may be prescribed, which may include the prior allottee.
3. The coal that was lying excavated and extracted as on 31.03.2015 at Gare Palma IV/7 was to be sold and removed by the petitioner. Earlier a writ petition was filed, being WP(C) 3337/2015, by the very same petitioner in which a consent order was passed by a learned Single Judge of this Court with regard to the manner of disposal of the said coal on 07.04.2015. The said order reads as under:- “1. Parties are represented before me by counsels. Upon hearing counsels for the parties, following has emerged qua which, counsels for all parties are agreed to.
(i) The petitioner will remove the excavated coal lying at the site in issue, not later than four weeks from today. The period of four weeks will come to an end on 07.05.2015.
(ii) In case the petitioner fails to remove the coal lying at the site in issue on or before 07.05.2015, the provisions of clause (e) of order dated 26.03.2015, shall get triggered.
(iii) The petitioner will not impede or cause any hindrance in the functioning of respondent no.3, at the site in issue.
2. The writ petition and the application are disposed of in the aforesaid terms. Needless to say, respondent no.1, i.e., the Ministry of Coal, will facilitate removal/ disposal of the coal, by issuance of necessary permissions, albeit in accordance with law. In case there is any legal impediment in according permission(s) for disposal of the coal, the petitioner will make alternative arrangements for storing the coal removed from the site in issue.
3. Dasti.”
4. From the above consent terms, it is evident that the petitioner was to remove the excavated coal lying at the site on or before 07.05.2015. It was also agreed to by the parties that in the event the petitioner failed to remove the coal lying at the site on or before 07.05.2015, the provisions of Clause (e) of order dated 26.03.2015, would get triggered. Clause (e) of the order dated 26.03.2015, which was issued by the Government of India, Ministry of Coal is as under:- “e) In the event of failure of prior allottee to remove the coal stock within the specified timeframe, the successful bidder or allottee shall be entitled to dispose of such stock of coal which may be located within the mine and appropriate the sale proceeds to the extent to recover any cost incurred by the successful bidder or allottee, for the removal, storage, sale and disposal of such coal stock. The remaining sale proceeds after appropriation of costs as prescribed above shall be paid by the successful bidder or allottee to the Nominated Authority by way of demand draft payable to Pay and Accounts Officer, Ministry of Coal, New Delhi.
5. We may also point out that the period ending on 07.05.2015 was further extended on an application moved by the petitioner by an order dated 28.05.2015 to 30.06.2015. Even then, the petitioner was not able to remove the entire stock of coal lying at the site.
6. The petitioner, in fact, moved yet another application for extension, which was dismissed by the learned Single Judge, on 27.07.2015. The order dated 27.07.2015 reads as under:- “CM No. 12602/2015 (Exemption)
1. Allowed subject to just exceptions. CM No. 12601/2015 (for extension of time)
2. This is an application whereby the petitioner has approached this court for the third time for extension of time for disposal of coal stock lying at the subject site. Admittedly, time for this purpose was given twice vide order dated 07.04.2015 and 28.05.2015.
3. By virtue of the last order, time was extended till 30.06.2015. The reason at that particular point in time, which was put forth by the applicant/petitioner for extension of time, was that the stock at the subject site had caught fire; a factor which it could not be dovetailed into the timeframe indicated by it on 07.04.2015. Having regard to the overall circumstances, I had deemed it fit to extend the time till 30.06.2015.
4. This time around, the learned counsel for the applicant/ petitioner, says that time needs to be extended as rains intervened and consequently hampered removal of coal stock.
5. According to me the applicant/ petitioner should have factored in this aspect keeping in mind the location of the subject site and the weather which generally obtains in the months of May and June. The applicant/ petitioner, it appears, is putting forth excuses to hide its own tardiness in the removal of the stock. I am told, at the moment, 97734 metric tons of stock remains to be removed from the subject site.
6. To be noted, in paragraph 6.[2] of my order dated 28.05.2015, I had indicated that in case the applicant/ petitioner failed to clear the subject site on or before 30.06.2015, respondent no.3 will be entitled to trigger the provisions of clause (e) of Government of India order dated 26.03.2015. The applicant's/petitioner’s alternate prayer is also substantially the same. The only caveat that the learned counsel for the applicant/petitioner seeks to introduce, is as to the minimum rate at which the approved buyer should be allowed to buy the stock.
7. Mr Sambhav Jain, DM(Legal), who represents the Ministry of Coal, has informed me that while there is, in place, an approved list of buyers available to non-applicant/ respondent no.3, the rate for sale of coal is fixed only after negotiations.
8. In these circumstances, the captioned application does not merit any intercession by the court. The same is accordingly, dismissed.”
7. Now, the present petition has been filed challenging, inter alia, the provisions of Section 10(5) of the said Act. The petitioner cannot be permitted to take recourse to this manner of challenging the provisions after having been a party to a consent order. Secondly, we do not see as to how the provisions of Section 10(5), in the context of the factual matrix of this case, would be open to challenge on the ground of arbitrariness.
8. As a last-ditch effort, the learned counsel for the petitioner submitted that his only limited prayer is that disposal of the remaining stock of coal be done through a transparent method by way of a public auction or some other similar method. We do not see as to how the petitioner can claim such a relief. The petitioner had agreed to the modalities, as indicated above, and the provisions of Section 10(5) are very clear as to how the coal, which is not removed by the prior allottee, has to be disposed of. The same has to be done in terms of Section 10(5) and clause (e) of the order dated 26.03.2015.
9. We, however, direct that the sale proceeds derived from the said disposal of the stock of coal lying at the site, after adjustments permitted to the successful bidder, should be transmitted at the earliest to the nominated authority for further disbursement to the owner in terms of the said Act.
10. The writ petition is dismissed with the aforesaid observations.
BADAR DURREZ AHMED, J SANJEEV SACHDEVA, J AUGUST 21, 2015