1994 (9) TMI 348

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....orce by Section 16(2) of the Essential Commodities Act, 1955. In exercise of the powers conferred by the Order, the Central Government issued a notification on December 27, 1991 fixing the prices at which different types of coal and coke, including hard coke, would be sold. Alleging that despite such fixation of price of hard coke by statutory notification the appellant was demanding and, for that matter, realising, besides the price, service charges the respondent filed a writ petition in the Patna High Court wherein it contended that such action on the part of the appellant, which was a 'State within the meaning of Article 12 of the Constitution of India, was wholly arbitrary and illegal and, accordingly, prayed for appropriate relief. In contesting the petition the appellant submitted that coal and coke were different commodities and in view of the fact that the respondent was required to be supplied foundry hard coke, which had a specified sized, it had to put in some extra work and effort like shifting and sizing after production of the coke in the plant, and that necessarily meant extra expenditure. According to the appellant recovery of such expenditure was not barred by....

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....e relevant factors, including the geological and milling conditions of the mining technology employed in the collieries by the colliery owner, as well as the estimated cost of production of coal and coke produced by such colliery owner, fix, by notification in the Official Gazette, the retention price of respect of each class, grade or size of coal and coke produced and sold by such colliery owner." Clause 5(1), so far as it is relevant for our purposes, provides that no colliery owner or his agent shall sell, agree to sell or offer to sell coal in excess of the price or the maximum price fixed under clause 4. The only other clause of the Order which requires mentioning here in Clause 12A. It provides that the Central Government may, through Gazette notification, specify the authorities competent to allot quota of coal to any 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. In exercise of the above power, the Central Government has specified its Coal Controller to be the authority competent to allot quota of coal. In pursuance of Clause 3 and 4 of the Order the Centra....

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....9;. It has to be graded by screening or crushing and screening on the basis of size ranges. Similarly, coke as produced in various plants has an unspecified size distribution and has to be suitably size graded. For a rational and economic use of these important materials it is necessary to grade them and assist suitable nomenclature linked with popular trade names and based on size fractions so that it may be possible to market them with maximum advantage both to the producers and the consumers." (emphasis supplied) The report then prescribes the standard nomenclature and size ranges of coal and coke for marketing and the methods of sampling and test for their size grading. The size analysis of hard coke and its correspond-ing size ranges for marketing are given in Table 2 of the report, which is reproduced below: TABLE 2 SIZE ANALYSIS OF HARD COKE FOR MARKETING (Clauses 3.1 and 5.1.1) SI. Tolerance No. Percent By Nomenclature (Trade Name) Size Range (IS Steev) (PS) Mass, Max On Over-size On Unders Size (1) (2) (3) (4) (5) (i) Coke, extra large Foundry coke      -100 - 10 (ii) Coke, large BFcoke - ....

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....100). This constitutes about 80 per cent of the total product. It is stated that loading is not possible at Pithead. Therefore shifting, sizing either by manual or by fork lifting and storing in different loading points is undertaken either manually or by vehicles. The colliery owners are spending substantial money to carry out despatch of coke according to specification as improper handing of coke may result in breaking. The operations required before despatch to suit Indian Standard Specification generates substantial rejection. The expenditures incurred in screening, stacking, loading and transportation into despatchable container is termed as handling charges." While dealing with the contentions of Mr. Salve, Mr. Sanyal, appearing for the respondent, did not dispute that as regards coke pit heads as referred to in Note 10(1) would mean coke oven plants. He, however, contended that besides the prices as notified, the appellant could claim only transportation charge if the coke was transported beyond a distance of 3 KMS to the loading point under Note 10(2) and the duties and levies referred to in Note 12. According to Mr. Sanyal Mr. Salve's reliance on Note 14 to justi....