Patna High Court
Sheikh Aslam vs Union Of India (Uoi) And Ors. on 20 April, 2000
Equivalent citations: 2000(2)BLJR1470
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER Ravi S. Dhavan, C.J.
1. Normally when delay takes place in answering a cause or a writ petition, the Court on a good and sufficient cause may extend the time for filing a reply.
2 But. in the present case, the Court is recording its reasons on why special costs are being imposed on certain respondents who had notice of the writ petition, but chose not to file a reply to answer the submissions made in the present writ petition.
3. This writ petition was initially filed on 25th August, 1999. Notices on behalf of some of the State-respondent s had been accepted when the matter was listed on 31st August, 1999. Notices were accepted on behalf of Respondent Nos. 8, 9, 10, 11, 12, 15 and 16. These respondents represent the State of Bihar. Perhaps, by mistake, reference to respondent No. 22 had been left out. Insofar as these respondents are concerned, a counter-affidavit, has been filed on behalf of the Deputy Inspector-General of Police, North Chotanagpur Range. Hazaribagh and the Superintendent of Police. Dhanbad. These are respondent Nos. 10 and 22 respectively At present, the Court is not going into the question whether the counter-affidavit on behalf of these respondents has adequately answered the writ petition or avoided it.
4. The Union of India, Secretary, Ministry of Coal (Respondent No. 1) Ministry of Coal, Government of India, New Delhi (Respondent No. 2) Secretary, Home, Union of India, New Delhi (Respondent No. 6) have not tiled a counter-affidavit despite the fact that these respondents received notice on 25th August, 1999, as accepted by the Sr. Standing Counsel. Central Government, Sri A.K. Trivedi.
5. The Chief Secretary, Government of Bihar, Patna, (Respondent No. 16) is under notice but as of date has not answered the petition.
6 Then, allegations have been made against Income Tax Department. At present, the Court will leave this aspect out in reference to this particular Department as this Department deals with tax payable on incomes from whatever sources or incomes escaping assessment.
7. The issue in the present petition is not different than what is reported in the media practically every day, if not in the State of Bihar, but even beyond the State. It is a matter which relates to the illicit trade in coal. One too often reads of a coal mafia which runs a parallel economy and Government, both, from the place where coal is mined and right through its different modalities of transportation. Bihar is rich in deposits of coal and other national resources. The petitioner alleges that there is no straight trading in coal and every step of it from the time it is extracted from mines and its production, distribution and sale, it is controlled by a parallel power in a parallel market which generates a parallel economy. Everybody talks about this illicit trade in coal in whispers. The media reports on it everyday but nobody seems to have any solution on how this clandestine control over the mining and transport operations of coal will be divested from agencies who have ousted the State, whether central or provincial. The writ petition points to a Government of India report.
8. The writ petition is replete with instances of official records. The petitioner has placed the record of the Government of India, Ministry of Coal. This record relates to the issue why there is shortage of coal stocks in certain public sector undertakings when there is abundance of this product otherwise. Statements are attached to the writ petition as official information on the, record of Government of India about (1) officers whose services are recommended for termination; (2) Officers recommended for being debarred from holding field posting/sensitive post for five years; (3) Officers against whom departmental action is recommended; (4) Area-wise collieries in BCCL, showing shortages exceeding five percent as on 1.4.92; (5) Shortages for which no departmental action has so far been initiated ; and (6) Collieries in respect of which recommendation is made for C.I.L. Measurement teams.
9. From the official records against officers whose services have been recommended for termination, 17 officers have been named. Of officers who have been recommended from being debarred from holding field postings/substantive posts for five years, 45 officers have been named. On officers against whom departmental action is recommended, 51 officers have been named.
10. This gives an impression to the Court that the respondents who are directly related with mining operations of coal, and the departments of the Government of India not excluded, and the Departments of State administration included, the State (Central or provincial) whose obligation it is to clamp illicit trading operations is running away from the stark reality of disappearing mineral deposits in a State where they lie in abundance. If the mining operations are controlled, as the law obliges it to be from extraction, transport to export, the revenues perhaps would be half of the planned budget of the State of Bihar. The clandestine coal mining operations stand noticed in the official records, appended to this public interest litigation. At present, it is an record that the reply to the petition is being avoided. The presumption could be that those who control clandestine, trade in coal are powerful enough to arrange the avoidance of this petition. This is what being submitted on behalf of the petitioner.
11. The petitioner gives details from official Government of India records and reports to give instances of shortages of unaccounted coal. In 1992, the verification revealed shortage of more than 34 lakh tons valued at more than Rs. 130 crore. In the verification of 1991, it was more than 36 lakhs tons. On this, it is contended that if this be the average then in the last decade it may be possible that Rs. 1,000 crore of shortages are unaccounted for. Further, the petitioner draws the attention of the Court to what the Government of India, Ministry of Coal, has placed on record in its order dated 27th July, 1992. Annexure 1. It reads:
27 July, 1992 Order Sub: Shortage of Coal Stocks in BCCL The serious situation arising out of the reported huge coal stock shortages in Bharat Coking Coal Limited of the order of 3.64 million tonnes, has been engaging the attention of the Government for some time past. The Principal Director of Commercial Audit under the Comptroller & Auditor-General of India who had also gone into the matter had adversely commented on the prevailing situation. It is felt that an in-depth study into the matter is urgently called for. It has accordingly been decided a Committee may be constituted with the following to pinpoint the responsibility of the Executive/Management of the coal company in this regard:
1. Sri R.N. Mishra, CMD, HCL, Singrauli,
2. Sri Vinay Vasistha, Director, Ministry of Coal,
3. Sri S. Soni, Dy. Director, Ministry of Coal,
4. Sri P.K. Sengupta, Director (Fin) CIL, Calcutta.
5. Sri V.R. Poonalagu, under Secretary, Ministry of Coal.
The Committee shall carry out spot verification and fix the responsibility for the shortages in the stocks. The Committee shall complete the work and submit their report within three months.
Sd/-
B.K.Singh Addl. secretary Government of India, Ministry of Coal.
Eight years have passed and the circumstances narrated, it is submitted, are matter of public accountability and yet, the situation continues in these areas. The writ of the administration does not rule. In Hindustani, the petitioner's Counsel contended that the media has not been reporting without any basis that in these regions-power flows out of the barrel of a gun. Coal disappears from the mines, coal disappears from railway rakes, the allotment of railway rakes in itself an off-the record business, transport of coal is obstructed unless protection money is arranged and in all this with prima facie reports, it is on record that the racket includes all, big and small. But this Court cannot proceed further even as the petitioner seeks an inquiry by a special investigation team,, unless the official respondents reply to the petition. Ordinarily, no Court, in a civil action can coerce a defendant to reply to a plaint; an adverse presumption may at best be drawn. But, this is a petition under Article 226 of the Constitution of India. It complains of State inaction. It places on record State reports and records. It refers to an audit report of the principal Director of Commercial Audit under the Comptroller and Auditor-General of India who has already commented adversely on the prevailing situation. The State-respondents and such of those respondents who partake the nature of State officials of public sector undertakings, are obliged to answer the petition. The Court cannot pass any further order unless these respondents answer the petition. Each of the respondents have had notice of the petition for long. They entered appearance in Court. Not to reply to the petition would be against the grain of public justice in a public interest litigation
12. The law does not permit parallel trading operations, nor suffers the existence of a parallel economy. In general parlance known as black marketeering. Such a petition must not be delayed in its pendency, and yet it cannot proceed unless all those who have been made party respondents and are otherwise respondents within the meaning of the State answer the petition.
13. No respondent can say that there is lack of opportunity being denied. The record speaks in ample measure that the opportunity was always there, but these respondents are a simply, for whatever be the reason, are avoiding to answer the petition. For instance, Counsel appearing for the Union of India, Sri A.K. Trivedi acknowledges that notice on Union of India, Ministry of Coal, (Respondent No. 1); Ministry of Coal, Government of India, New Delhi (Respondent No. 2), and Secretary Home, Union of India (Respondent No. 6) was received on 25th August 1999 and he entered appearance on the same day and notices were despatched to them by the Standing Counsel on 27.8.1999.
14. Counsel appearing for following set of respondents-public sector undertakings in the business of coal, acknowledged that the Chairman-cum-Managing Director, Coal India Ltd., Calcutta (Respondent No. 3) had received the notice much before the date when he filed Vakalatnama on 17.1.2000. The Chairman-cum-Managing Director, Bharat Coking Coal Ltd., Dhanbad (Respondent No. 4) received notice of this petition on 12th November 1999. The Chairman, Central Coalfield Ltd., Ranchi (Respondent No. 5) got filed a Vakalatnama on his behalf on 17.1.2000; the notice was received earlier. The Chairman-cum-Managing Director, Eastern Coalfield Ltd., and CMD, Eastern Coalfield Ltd., Sanatoria, Disergarh, Burdwan (Respondent Nos. 13 and 22) received notice on the petition on 20th November, 1999.
15. Each, of these respondents, Government of India one set, Chief Secretary, Government of Bihar, Patna (Respondent No. 16) and Coal India Ltd., Bharat Coking Coal Ltd., Central Coalfield Ltd. and Eastern Coalfield Ltd., each shall deposit within two weeks costs of Rs. 25,000 (twenty-five thousand) for delaying the process of consideration of the present writ petition. This cost will be credited to the account of the Bihar State Legal Services Authority. The deposit is to be made first with the Registrar, High Court, Ranchi Bench and, thereafter transferred to the accounts of the said Bihar State Legal Services Authority.
16. Adjournment is being sought by all the State-respondents concerned, Counsel for Union of India Sri A.K. Trivedi seeks four weeks' time to reply to the petition. Counsel appearing for the four public sector undertakings, Sri M.M. Banerjee seeks two weeks' time to reply to the petition. Learned Government Advocate for the State of Bihar Sri A. Sahay also seeks two weeks time to file a counter-affidavit.
17. As nothing can proceed unless replies arrive for which adjournment is being sought, let this matter be adjourned and placed before this Court after one month on 19.5.2000.
18. Learned Counsel who has appeared for respondent No. 21, the General Manager. Collieries, TISCO, Jamadubha, Dhanbad, draws the attention of the Court that no allegation has been made against this respondent except for the fact that in the text of the petition in Paragraph 7, the abbreviation TISCO has been added. In the circumstances, the request is that this respondent be deleted from the array of parties. The proposition was put to Counsel for the petitioner. Counsel for the petitioner fairly accepts that there are no allegations against this respondent and, thus, it is only appropriate that the name of this respondent be deleted and struck off. This correction may be done by Counsel for the petitioner during the course of the day.
19. List as indicated.