Calcutta High Court (Appellete Side)
Maithan Alloys Limited & Anr vs Union Of India & Ors on 3 September, 2019
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W.P. No. 11160 (W) of 2019
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Maithan Alloys Limited & Anr.
Vs.
Union of India & Ors.
With
C.A.N. 8073 of 2019
For the Petitioners : Mr. A.K. Mitra, Sr. Advocate
Mr. Abhrajit Mitra, Sr. Advocate
Ms. Rajshree Kajaria, Advocate
Mr. Satadeep Bhattacharjee, Advocate
Mr. Uttam Sharma, Advocate
For Coal India Ltd. : Mr. Jayanta Kumar Mitra, Sr. Advocate
Mr. Anubhab Sinha, Advocate
Mr. Partha Basu, Advocate
Mr. Nikhil Kumar Roy, Advocate
For the B.C.C.L. : Mr. Arunavo Ghosh, Advocate
Hearing concluded on : August 21, 2019
Judgment on : September 3, 2019
DEBANGSU BASAK, J.:-
1. Petitioners have challenged the policy of the coal companies in
auctioning coal linkages and conducting exclusive e-auction
thereby depriving the first petitioner a right to participate in such
auction processes.
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2. Learned Senior Advocate appearing for the petitioners has
submitted that, the first petitioner is a manufacturer of
manganese alloy. The first petitioner requires coking coal for the
purpose of manufacture of manganese alloy. Coal is a natural
resource and a national asset. Coal should be distributed
equitably amongst the consumers for the benefit of the country.
According to him, coal is distributed amongst consumers by
allowing a linkage or through e- auction or spot auction. A
manufacturer of manganese alloy was initially included in the
steel sector and permitted to participate in an e-auction for coal
linkage and exclusive e-auction of coal. However, subsequently,
the coal companies are not permitting manganese alloy
manufacturers to participate in such e-auctions. By reason of the
coal companies not allowing a manufacturer of manganese alloy
to participate in the coal linkage and e-auction, the area from
which such manufacturers will procure coal stands reduced to
the prejudice of such manufacturers. There is no reasonable
basis for excluding a manufacturer of manganese alloy from
participating in an auction for linkage or an e-auction. A
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manufacturer of manganese alloy should not be left out in the
process for auction of linkage or e-auction of coal.
3. Learned Senior Advocate appearing for the petitioner has
submitted that, coking coal is used as a raw material by a
manganese alloy manufacturer. In support of his contentions, he
has relied upon an expert's opinion annexed to the affidavit in
reply. He has submitted that, there is no basis for the coal
companies or the Central government to exclude a manganese
alloy manufacturer from the e-auction process.
4. Learned Senior Advocate appearing for the petitioners has drawn
the attention of the court to Annexure R-2 of the affidavit in
opposition and submitted that, till May 2018, the first petitioner
was allowed to participate in the-auction. It is subsequently that
the first petitioner was prevented from participating. He has
submitted that, the coal companies has relied upon the opinion
of CIMFR. He has submitted that, such opinion is erroneous. In
support of his contention that, such opinion is erroneous, he has
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relied upon an opinion given by the Department of Metallurgy
and Materials Engineering. He has submitted that, the opinion
dated July 29, 2019 of the Department of Metallurgy and
Materials Engineering states that, coal is used as a reducing
agent in the process for manufacture of manganese alloys. He
has submitted that, coal is used directly by a manganese alloy
manufacturer in the sense that, a manganese alloy manufacturer
puts the coal directly into the furnace for the manufacture of the
alloy. In the case of steel industries, coal is not used directly in
the furnace. A steel industry uses coke. Therefore, if the policy of
the coal companies is allowed to continue, then, coal which is a
scarce natural resource and a national asset will be distributed
on a preferential and exclusive basis to a manufacturer of coke
rather than consumer of coal who requires coal as a direct input
to manufacture manganese alloy.
5. Learned Senior Advocate appearing for the petitioner has referred
to the list of relevant queries and answers in the pre-bid meeting
held on February 11, 2019 and submitted that, in answer to
query Nos. 2 and 3, as tabulated therein, the coal companies
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held out the promise that, ferro alloy plants are eligible to
participate under Other (Coking) subsector. After such pre-bid
meeting on February 11, 2019, and despite the promise
contained therein, the coal companies are acting in breach of
their promise. They are continuing to publish notice inviting e-
auction limited to the steel sector. The subsequent conduct of the
coal companies establish that, they are not adhering to the
promise held out on February 11, 2019. The first petitioner
cannot participate in the subsequent e-tender process
undertaken by the respondent no. 5 which is a subsidiary of the
respondent no. 2.
6. Learned Senior Advocate appearing for the petitioners has
submitted that, the scheme document for auction of coal
linkages of coking coal in the Other subsector published on June
2019 has no nexus with the object sought to be achieved.
According to him, the object is to distribute coal which is a
scarce natural resource and a national asset amongst competing
consumers equitably. The scheme document of June 2019
excludes a manufacturer of manganese ore from the zone of
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consideration. He has drawn the attention of the Court to clause
4 of the scheme document describing the bid criteria and
eligibility conditions particularly to clause 4 (a) (iv) thereof. He
has submitted that, such clause has no basis at all. There is no
rationale in prescribing such clause. Such clause is therefore
arbitrary. In any event, according to him, such clause is contrary
to the minutes dated February 11, 2019.
7. Learned Senior Advocate appearing for the petitioners has
submitted that, the Division Bench of the Calcutta High Court in
93 Calcutta Weekly Notes 673 (Sri Jagadamba Coke mfg.
Enterprises & Ors. v. Bharat Coking Coal Ltd. & Anr.)
directed equitable distribution of coal amongst competing
interest. He has relied upon 2007 Volume 2 Supreme Court
Cases page 640 (Ashoka Smokeless Coal India (P) Ltd. &
Ors. v. Union of India & Ors.) in support of his contention that,
linkage of coal is permissible. He has also relied upon 2012
Volume 3 Supreme Court Cases page 1 (Centre for Public
Interest Litigation & Ors. v. Union of India & Ors.) in support
of the contention that, coal been a scarce natural resource and a
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national asset must be equitably distributed amongst competing
consumers. He has submitted that, the so-called decision or
policy of the coal companies in not including a manganese alloy
manufacturer in the process for e-auction of a linkage or
exclusive e-auction of coal, should be quashed as being arbitrary.
8. Learned Senior Advocate appearing for the respondent Nos. 2, 3
and 4 has submitted that, the Ministry of Coal had taken a policy
decision in consultation with the Chairman and Managing
Directors of the Coal Companies and others on May 15, 2019
with regard to various issues. He has referred to a writing dated
May 24, 2019 where, the minutes of the meeting taken by the
Secretary (Coal) on May 15, 2019 was circulated amongst the
various authorities. He has referred to agenda 5 and 11 of the
minutes dated May 15, 2019 being the strategy for import
substitution for power and nonpower sector and augmentation of
coking coal production/supply to steel sector to reduce coking
coal imports. He has submitted that, the Central Government
wanted to reduce import of coking coal in synchronisation with
Steel Ministry. The meeting had noted that, the supply of coking
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coal to the steel sector can be complemented by two modes,
namely, by linkage and by auction of coal blocks. In terms of
linkage, strategy/clear plan of action was required to be worked
out by the respondent No. 2 for ensuring supply of coking coal to
the steel sector. It had also noted that, further diversion of coking
coal to power sector by the respondent No. 2/respondent No. 5
should be minimised and an action plan prepared. It was
emphasised that, the coal companies should sit together to chalk
out a clear plan/strategy on import substitution of coking coal.
Such strategy should be in place by June 15, 2019. The
nonpowered sector should be targeted thereafter, considering the
suitability of domestic coal in those sectors in consultation with
the concerned administrative ministry. The strategy for such
sector should be finalised within two months. According to him,
the scheme document for coking coal for other sector is a
product of such decision taken on May 15, 2019. Such scheme
came into being within the time period contemplated in the
minutes dated May 15, 2019. According to him, the scheme is
not under challenge in the present writ petition. In any event, the
scheme is the embodiment of a policy taken by the Government.
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A Court should be slow in interfering with such policy decision.
According to him, no ground exists for the Court to interfere with
such policy decision.
9. Referring to the opinions of the two experts available on record,
learned Senior Advocate appearing for the respondent Nos. 2, 3
and 4 has submitted that, there is no conflict between the two.
Both the experts are of the view that, coal is used as a reducing
agent in the manufacture of manganese alloy. However, the
Central Government has taken a policy decision to substitute
import of coking coal and for such purpose has concentrated
firstly on a particular sector and thereafter address the other
sector for import substitution. It cannot be said that, a
manufacturer of manganese alloy is been deprived of coal linkage
arbitrarily or without any basis.
10. Referring to the documents made available with the interim
application, learned Senior Advocate appearing for the
respondent Nos. 2, 3 and 4 has submitted that, the first
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petitioner has not been prejudiced as, the first petitioner
participated and obtained coal from the Coal Companies through
the-auction process. Therefore, according to him, the first
petitioner is not starved of coal.
11. In support of his contentions that, a policy decision need
not be interfered with by a Court, learned Senior Advocate
appearing for the respondent Nos. 2, 3 and 4 has relied upon
2004 Volume 4 Supreme Court Cases page 19 (Directorate of
Education & Ors. v. Educomp Datamatics Ltd. & Ors.), 2012
Volume 10 Supreme Court Cases page 1 (Natural Resources
Allocation, in re, Special Reference No. 1 of 2012), 2014
Volume 6 Supreme Court Cases 590 (Goa Foundation v.
Union of India & Ors.) and 2014 Volume 9 Supreme Court
Cases 516 (Manohar Lal Sharma v. Principal Secretary &
Ors.).
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12. Learned Advocate appearing for the respondent No. 5 has
adopted the submissions made on behalf of the respondent Nos.
2, 3 and 4.
13. Learned Senior Advocate appearing for the petitioners has
submitted in reply that, the authorities cited on behalf of the
respondent Nos. 2, 3 and 4 relate to a tender process. There is a
distinction between grant of Government largesse and
distribution of natural resources and national assets. The
petitioners are concerned with distribution of natural resources
and national assets rather than grant of Government largesse.
Therefore, the ratio laid down in the authorities cited on behalf of
the respondent Nos. 2, 3 and 4 are not attracted, in the facts
scenario of the present case. He has relied upon Natural
Resources Allocation, in re, Special Reference No. 1 of 2012
(supra) and submitted that, the Supreme Court has held that,
natural resources are public goods and that, principles of
equality and public trust are attracted while distributing natural
resources. In the present case, the Coal Companies are not
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acting equitably while seeking to prevent manganese alloy
manufacturers from participating in the tender process.
14. An aspect of the methodology deployed by the Coal
Companies in selling coking coal has been challenged by the
petitioners. Petitioners have not assailed the sale of coking coal
through public auction per se. The petitioners have complained
that, one of the clauses of the auction process, which prevents
the first petitioner as a manganese alloy manufacturer to
participate in the-auction process is arbitrary.
15. The issue as to whether the Government has the right to
alienate, transfer or distribute natural resources/national assets
otherwise than by an application and transparent method
consistent with the fundamentals of the equality clause
enshrined in the Constitution has been considered in the Centre
for Public Interest Litigation & Ors. (supra) as well as in the
Natural Resources Allocation, in re, Special Reference No. 1
of 2012 (supra). The Supreme Court in Natural Resources
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Allocation, in re, Special Reference No. 1 of 2012 (supra) has
noted the judgment of the Centre for Public Interest Litigation
& Ors. (supra). It has noted that, the issue of the right of the
Government to alienate, transfer and distribute natural
resources/national assets was considered in the Centre for
Public Interest Litigation & Ors. (supra). In Centre for Public
Interest Litigation & Ors. (supra), the Supreme Court while
answering such issue has held as follows:-
"75. The State is empowered to distribute natural
resources. However, as they constitute public
property/national asset, while distributing natural
resources, the State is bound to act in consonance with the
principles of equality and public trust and ensure that no
action is taken which may be detrimental to public
interest. Like any other State action,
constitutionalism must be reflected at every stage of the
distribution of natural resources. In Article 39(b) of the
Constitution it has been provided that the ownership and
control of the material resources of the community should
be so distributed so as to best sub-serve the common good,
but no comprehensive legislation has been enacted to
generally define natural resources and a framework for
their protection. Of course, environment laws enacted by
Parliament and State Legislatures deal with specific
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natural resources, i.e., Forest, Air, Water, Costal Zones,
etc."
16. In Centre for Public Interest Litigation & Ors. (supra)
the Supreme Court has considered the public trust doctrine and
held as follows:-
"85. As natural resources are public goods, the
doctrine of equality, which emerges from the concepts of
justice and fairness, must guide the State in determining
the actual mechanism for distribution
of natural resources. In this regard, the doctrine of equality
has two aspects: first, it regulates the rights and
obligations of the State vis-a-vis its people and demands
that the people be granted equitable access to natural
resources and/or its products and that they are
adequately compensated for the transfer of the resource to
the private domain; and second, it regulates the rights and
obligations of the State vis-a-vis private parties seeking to
acquire/use the resource and demands that the procedure
adopted for distribution is just, non-arbitrary and
transparent and that it does not discriminate between
similarly placed private parties.
....................
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89. In conclusion, we hold that the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good."
17. Paragraphs 85 and 89 of Centre for Public Interest Litigation & Ors. (supra) has been considered in Natural Resources Allocation, in re, Special Reference No. 1 of 2012 (supra). It has observed with regard to those paragraphs as follows:-
"79. Paras 85 and 89 of 2G case, while referring to the concept of "public trust doctrine", lay emphasis on the doctrine of equality, which has been segregated into two parts - one is the substantive part and the other is the regulatory part. In the regulatory facet, para 85 states that the procedure adopted for distribution should be just and non-arbitrary and must be guided by constitutional principles including the doctrine of equality and larger public good. Similarly, in para 89 stress has been laid on transparency and fair opportunity of competition. It is 16 further reiterated that the burden of the State is to ensure that a non-discriminatory method is adopted for distribution and alienation which would necessarily result in the protection of national and public interest."
18. An authority within the meaning of Article 12 of the Constitution while dealing with natural resources/national assets, has to apply the concept of public trust doctrine in its dealings. It is obliged to adopt a procedure for distribution which is just and non-arbitrary, guided by constitutional principles, including the doctrine of equality and larger public good. Its dealings must be transparent. It must give a fair opportunity of competition. Its non-discriminatory method for distribution and alienation should necessarily result in the protection of national and public interest. It is in this stand point that, the action of the Coal Companies as undertaken for the purpose of selling coking coal by public auction has to be considered.
19. Both Centre for Public Interest Litigation & Ors. (supra) and Natural Resources Allocation, in re, Special Reference 17 No. 1 of 2012 (supra) have held that, auction is not the only method of ensuring a transparent distribution of the natural resources/national assets. However, in the present case, the petitioners are not aggrieved by the method of public auction adopted by the Coal Companies in selling coking coal, per se. Their allegations revolve around granting exclusivity to a section of an industry and excluding others such as a manganese alloy manufacturer from the tender process. According to them, there is no declared policy to do so, and even if there be any, the same is not in public interest.
20. The indignation that the petitioners exhibit after being excluded from the exclusive e-auction undertaken by the Coal Companies, has an interesting facet. The first petitioner belonged to the exclusive club auction of coal linkages which were conducted by the Coal Companies till about May 2019. Coal Companies reworked the exclusivity of the club. It is on such reworking that, the petitioners find themselves no longer to be in the exclusive club leading to the outcry. The petitioners want the first petitioner to be reinstated in the exclusive club. 18
21. Importance of coal in the economy of a country cannot be emphasized enough. Such importance has been noted in Ashoka Smokeless Coal India (P) Ltd. & Ors. (supra). It has observed as follows:-
"Coal indisputably plays an important role in the development of economy of the country. It had been the subject-matter of regulatory measures even under the Defence of India Rules. Production, distribution, supply and price of coal were controlled and regulated under the Colliery Control Order, 1945 (1945 Order) framed under the said Rules. The said Order was continued under the Essential Commodities Act, 1955. Under the Colliery Control Order, the Coal Controller was even authorised to allot quotas of coal to the Central Government as well as the State Governments; although the said procedure is now not in vogue in view of decontrolling notifications issued thereunder by the Central Government from time to time. The quality as well as quantity of coal required by all consumers used to be regulated by the Coal Controller. Coal was the only mineral which was subjected to nationalisation, in terms of the Coking Coal Mines (Nationalisation) Act, 1972 and the Coal Mines (Nationalisation) Act, 1973. Even coal-mining leases 19 granted to the lessees stood terminated by reason of Section 4-A of the Mines and Minerals (Regulation and Development) Act, 1957 in the year 1976."
22. Manohar Lal Sharma (supra) has made the following observations with regard to the importance of coal:-
"Coal is king and paramount Lord of industry is an old saying in the industrial world. Industrial greatness has been built up on coal by many countries. In India, coal is the most important indigenous energy resource and remains the dominant fuel for power generation and many industrial applications. A number of major industrial sectors including iron and steel production depend on coal as a source of energy. The cement industry is also a major coal user. Coal's potential as a feedstock for producing liquid transport fuels is huge in India. Coal can help significant economic growth. India's energy future and prosperity are integrally dependant upon mining and using its most abundant, affordable and dependant energy supply - which is coal. Coal is extremely important element in the industrial life of developing India. In power, iron and steel, coal is used as an input and in cement, coal is used both as fuel and an input. It is no exaggeration that coal is regarded by many as the black diamond."20
23. The first petitioner as a manganese alloy manufacturer, requires coking coal. Coking coal is used as reductant by a manganese alloy manufacturer in the manufacturing process. The first petitioner requires coking coal of a range of a particular volatile matter content so as to achieve optimum production. On February 15, 2016, the first respondent introduced a policy guideline for auction of coal linkages in respect of the non- regulated sector. Ferro alloy manufacturers such as manganese alloy were included in the non-regulatory sector. The petitioners had participated in the e-auction for coal linkages conducted by the first respondent subsequent to February 15, 2016. In the pleadings, the petitioners have claimed that, e-auctions of coal linkages happened about four times a year and that, spot auctions happened more frequently. The first petitioner used to procure coking coal from exclusive e-auction as well as spot e- auction.
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24. In the pleadings, the petitioners have claimed that, the second respondent published a Tranche IV for scheme document for auction of coal linkages of coking coal in the steel sub-sector. The first petitioner had made enquiries as to the possibility of participating in the Tranche IV e-auction and attended a meeting of the fourth respondent on February 11, 2019. A minutes of the pre-bid meeting dated February 11, 2019 had been prepared. In such minutes, it had been specified that, manganese alloy manufacturers will stand outside the purview of the e-auction for the present moment.
25. In the affidavit in opposition the Coal Companies have taken the stand that, non-regulated sector linkage-auctions were being conducted subsequent to the policy dated February 15, 2016. Coal Companies had been conducting linkage auction sub- sector wise in terms of such policy. The Coal companies have taken the stand that, a review meeting took place between Secretary (Coal) with Senior Officers of the Ministry of Coal and Chairman and Managing Directors of the Coal Companies on May 15, 2019. In such meeting, Secretary (Coal) had impressed 22 that import substitution is a critical area of the Coal Sector. The meeting had considered an agenda relating to strategy for import substitution for power and non-power sector. The meeting had resolved on such agenda as follows:-
"Agenda-5-Strategy for Import substitution for Power and Non Power Sector & Agenda-12(Session- II): Augmentation of coking coal production/supply to Steel Sector to reduce coking coal imports Secretary (Coal) impressed import substitution is a critical area of the coal sector. At the initial stage focus would be to reduce imports of Coking Coal in synchornisation with Steel Ministry which has set a target of 10% reduction for 2019/20. It was noted that the quantum of linkage supply of coking coal to the steel sector is very low. The supply of coking coal to the steel sector can be complemented by two modes, i.e. by linkage and by auction of coal blocks. In terms of linkage, a strategy/clear plan of action has to be worked out by CIL for enhanced supply of coking coal to the steel sector.
Further diversion of Coking Coal to power sector by CCL/BCCL should be minimized and action plan prepared.
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Adviser (P) informed that the 9 coking coal washeries to be set up will be able to handle the new grade of W-V and W-VI notified for coking coal. Secretary (Coal) emphasized that CIL, CMPDIL, BCCL, CCL and Adviser (P) should sit together to work out a clear plan/strategy on import substitution of Coking Coal as noted above. The strategy should be put in place by 15th June, 2019. Subsequently, we should target the Non-Power Sector considering the substitutability of domestic coal in those Sectors in consultation with concerned Administrative Ministry. This should be finalized within 2 months."
26. The resolution, as noted above, has required the Coal Companies to sit together to work out a fair plan/strategy on import substitution of coking coal. The second respondent had published a scheme document for auction of coal linkages of coking coal in other sectors in June 2019. The scheme document is in tune with the decision arrived at and recorded in the minutes of the meeting dated May 15, 2019. The scheme document prescribes the bid criteria and eligibility conditions. The relevant eligibility condition does not bring into its ambit, a manganese alloy manufacturer. This decision of the Central 24 Government to strive for coal import substitution and the resultant scheme document to give effect to such decision of the Central Government, cannot be said to be arbitrary or violative of the principles of equality. The petitioners cannot be heard to question the decision to grant exclusivity to a particular sector of the industry for the purpose of conducting e-auction of coal linkages. The petitioners enjoyed the benefit of exclusivity in terms of coal linkage policy of 2016 for a considerable period of time. The authority of the executive to take a policy decision and implement it cannot be denied. However, a policy decision is justiciable. The nature and extent of the justiciability can be garnered from some of the authorities cited by the parties.
27. Natural Resources Allocation, in re, Special Reference No. 1 of 2012 (supra) has held that, a Court need not conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. The Court should respect the mandate and wisdom of the executive on such matters. It has gone on to say that :-
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"146.......... The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to make them. As has been repeatedly said, it cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of auction vis-à-vis other methods of disposal of natural resources.
The Court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When questioned, the Courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the 26 Constitution, the Court would not hesitate in striking it down."
28. Goa Foundation (supra) has noted paragraph 149 of Natural Resources Allocation, in re, Special Reference No. 1 of 2012 (supra). It has considered issues relating to mining in the State of Goa and issued few directions governing such leases to be followed by the parties.
29. Educomp Datamatics Ltd. & Ors. (supra) has considered the scope of judicial review with regard to a tender. It has held that, it was for the authority to set the terms of the tender. The courts would not interfere with the terms of the tender notice unless it was shown to be either arbitrary or discriminatory or actuated by malice. While exercising the power of judicial review of the terms of the tender notice the court cannot say that the terms of the earlier tender notice would serve the purpose sought to be achieved better than the terms of tender notice under consideration and order change in them, unless it is of the 27 opinion that the terms were either arbitrary or discriminatory or actuated by malice. It has held that, the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The Courts can scrutinize the award of the contracts by the individual or its agencies in exercise of their powers of judicial review to prevent arbitrariness or favourtism. The Courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical.
30. Sri Jagadamba Coke Manufacturing Enterprises & Ors. (supra) has in the facts of that case, and considering the Colliery Control Order governing the field with regard to allocation of coal, directed the Coal Companies to ensure equitable distribution of coal to all the coke oven plants situated in different belts. 28
31. Coal is a natural resource and given its nature and importance in the economy is to be considered as a national asset. Coal is available in the country. However its supply is scarce in comparison to its demand. Coal is required to be imported to meet the existing demand. Import of coal means strain on the foreign exchange reserve of the country. The minutes of the meeting dated May 15, 2019 discloses the intention of the Central Government to have substitution of import of coal to the extent possible. It is in such perspective that, the scheme document was prepared. In fact, prior to the scheme document, the Central Government regulated the supply of coal available in the market. The last of the policy is of February 15, 2016 by virtue of which, the petitioner was in the exclusive club, entitled to participate in an e-auction for coal linkages. Such policy has been reworked by the decision of May 15, 2019 and the scheme document of June 2019.
32. The tender documents published by the Coal Company subsequent to the scheme document of 2019, cannot be tested merely on the parameters of test of a tender document as in a 29 tender for grant of Government largesse. In addition to such parameters, the Court need to consider whether the State is acting in breach of the public trust doctrine and whether the State is distributing the national asset equitably. Discharge of duties under the public trust doctrine mandates the State to distribute coal in a fair and transparent manner amongst the stakeholders. As noted above, in undertaking an equitable distribution of coal amongst stakeholders, the Coal Companies were functioning under the policy of February 15, 2016. Such policy has undergone changes subsequent to May 15, 2019 and the scheme document of June 2019.
33. As noted above, the policy of February 15, 2016 contemplated and implemented the policy of holding an auction for grant of coal linkages exclusively amongst the category of industries in the country, as directed therein. The fulcrum of such policy decision was the need to prioritise the industries amongst whom the national asset would be distributed in a fair and transparent manner. A manganese ferroalloy manufacturer such as the first petitioner herein was included in the exclusive 30 industries that were entitled to participate in the e-auction for coal linkages. When the first petitioner participated in the auction for coal linkages as a member of the exclusive industries entitled thereto, the petitioners did not question the authority of the Government to formulate an exclusive club of industries amongst whom the e-auction for grant of coal linkages would be held. Therefore, the petitioners acknowledged that, the Government was entitled to formulate a policy which delineated the industries entitled to participate in the e-auction for coal linkages exclusively. The petitioners accepted such position and enjoyed the benefits thereunder all the time. There has been a change from such policy subsequent to May 15, 2019. On May 15, 2019 a meeting was held amongst the Secretary (Coal) and the Chairman and Managing Directors of the Coal Companies where it was decided that the country should work towards import substitution. In trying to achieve import substitution the scheme document of June 2019 was formulated. The authorities revoked the priority sector of industries entitled to participate in exclusive e-auction for coal linkages. The minutes of the meeting dated May 15, 2019 contains reasons for reaching its 31 conclusions and decisions. The scheme document of June 2019 is the implementation of such decision. Courts are not required to substitute its wisdom over that of the executive in such matters unless it is substantiated that the decision is in breach of a constitutional provision or arbitrary or actuated by malice. None of such grounds have been substantiated in the facts of the present case.
34. The petitioners have not substantiated that, the minutes of the meeting dated May 15, 2019 and the subsequent scheme document stands vitiated by breach of any law or constitutional provision. The petitioners have not substantiated that, the minutes of the meeting dated May 15, 2019 contains any material that is arbitrary or perverse. Similarly, the scheme document has not been substantiated to be arbitrary and discriminatory or perverse. The Coal Companies did not hold out any promise to the petitioners on February 11, 2019. In any event, the authorities are entitled to change their policy. The terms of the tender cannot be said to be contrary to the minutes of the meeting dated May 15, 2019 or the scheme document. 32
35. In view of the discussions above, I find no reason to interfere.
36. W.P. No. 11160 (W) of 2019 along with C.A.N. 8073 of 2019 are dismissed. No order as to costs.
37. Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.]