Brijesh Kumar, J.@mdashThe petitioner is a Company which carries on business of manufacturing of chemicals. In the course of its business the petitioner has to consume coal for running the factory. Coal is an essential commodity and its export, purchase, sale and storage etc. are governed by U.P. Coal Control Order, 1977 issued u/s 3 of the Essential Commodities Act. The U.P. Coal Control Order, 1977 provides for issue of licence under clause 4 for import and for carrying on business as a coal agent or a coal depot holder. The State of U.P. issued a G. O. on September 19, 1985, a true copy of which has been filed as Annexure-1 to the writ petition saying that industrial units will have to take licence under Coal Control Order, 1977 for the purpose of selling the surplus coal or for disposal of coal dust etc. A direction was issued to ensure compliance of the said G. O. the petitioner has challenged the said G. O. and has prayed for quashing of the same. The Standing Counsel was required to obtain a copy of another G. O. dated June 6, 1985, a reference of which has been made in the G. O. dated 19-9-85, annexure-1. to the writ petition. He has produced the G. O. dated June 6, 1985 which has been placed on the record.
2. Since the question involved in the writ petition is short one and purely legal, with the consent of the learned Counsels for the parties, we propose to dispose of the writ petition finally. An indication to this effect was made earlier when the standing counsel was given time to seek instructions that the petition shall be finally disposed of on the next date.
3. The case of the petitioner is that it consumes coal for running its factory. The petitioner gets the coal on the recommendation of the General Manager, District Industries Centre, Muzaffarnagar. In paragraphs 4 and 5 of the writ petition it has been stated that sometimes different quality of coal is supplied to the petitioner instead of the quality of coal which is required by the petitioner for its factory. Such coal is of no use to the petitioner and it rejects the same. A huge quantity of coal dust is also collected during the storage, loading and unloading of coal and further while breaking the coal into pieces of the required size, The rejected coal and the coal dust is of no use to the petitioner hence the petitioner disposes of the same. But the opposite parties according to the petitioner, are placing impediment in the way of the petitioner in selling rejected coal and the coal dust as, according to G.O. issued by opposite party No. 1, the licence under the U.P. Coal Control Order, 1977 is required to be taken for the purpose.
4. The contention raised on behalf of the petitioner is that the petitioner does not deal in coal. It gets coal for industrial consumption which is exempted from different provisions of the U.P. Coal Control Order, 1977 under Clause 3(B) of the Order. The other contention is that the direction contained in Annexure-1 that before transferring such coal prior permission from the District Magistrate will have to be taken is invalid inasmuch as the District Magistrate has nothing to do with the coal meant for industrial consumption. The Controller of Coal for the purposes of coal for industrial consumption is Director of Industries. Direction, if any, could only be issued by the State Coal Controller. The State Government has no such power to issue direction under the Coal Control Order, 1977.
5. The learned Counsel for the petitioner has drawn our attention to the definition of word " Dealer" under clause 2(d) of the Coal Control Order, 1977, which reads as follows:
"Dealer" means a person carrying on as a principal or agent, whether separately or conjunction with some other business, the business of import, purchase or storage for sale and sale of coal, in wholesale and granted a licence in From '' B '' and commonly known and herein referred to as Coal Agent or in retail and granted a licence in From '' C '' and commonly called and referred to herein as '' Coal Depot Holder '' but does not include a consumer who imports, purchases or stores coal for his own use.
According to petitioner''s counsel, a person must be carrying on business of import, purchase or storage for sale and sale of coal in order to be a ''Dealer''. The petitioner does not carry on business of import, purchase or storage for sale and sale of coal. It is only the dust coal and rejected coal which is needed to be transferred. Transfer of rejected coal or coal dust cannot be said to be in pursuance of business of purchase and storage of coal for sale. It has been submitted that purchase and import of coal should be for its sale then alone it would be covered under the term '' Dealer '' but in case the coal is purchased for own industrial consumption and part of it is to be transferred as rejected coal or coal dust that will not amount to carrying on business of purchase and sale of coal. The petitioner essentially purchases coal for its own use and therefore is not a '' Dealer '' in view of exception given in Sub-clause (d) of Clause 2 of the U.P. Coal Control Order itself. The learned Counsel for the petitioner has also placed reliance upon a case reported in AIR 1964 SC 1533 Manipur Administration v. M. Nila Chandra Singh. In that case their Lordships of the Supreme Court interpreted similar clauses under Manipur Food Grains Dealers Licencing Order (1958). It was observed that it was not sufficient that a person merely sold the foodgrains, stored or purchased the same but he must be carrying on business of such purchase, sale or storage. Their Lordships further observed that the concept of business in the context must necessarily postulate continuity of transaction. It was not a single casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It was further observed that it was only where it was shown that there was a sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied. If this element of the definition was ignored, it would be rendering the use of the word '' business '' redundant and meaningless.
6. In view of the above observations made by Hon''ble Supreme Court it is clear that to be a " business " there should be continuity in transactions of sale of the commodity concerned ; that is to say the stray transactions of sale of coal cannot be said to be in pursuance of business of purchase and sale of coal. Then we also find that a consumer, who imports and purchase coal for own use, is not included in the definition of word ''dealer''. The petitioner gets coal for the use of his own factory on the recommendation of General Manager, District Industries Centre, Muzaffarnagar.
7. Again we find that clause 3 of the order provides exceptions. Sub-clause (A) makes an exception in regard to movement of coal under the authority of the Coal Commissioner or Government of India; Coal moved on Railway account; movement of coal on a Military Credit Note on Defence Account ; movement of coal meant for the use of any Central Government Department or Corporation etc. Sub-clause (B) of Clause 3 of the Order provides that clauses 4 to 10, 14 and 16 of the order shall not apply to steam coal and hard coke for industrial consumption. The Coal purchased by the petitioner is no doubt for the industrial consumption and the petitioner is thus exempted from the operation of the clauses mentioned in Sub-clause (B) of Clause 3. In view of the provisions contained in Clause (d) of Section 2 of the Coal Control Order providing that '' dealer '' does not include a consumer who imports, purchases or stores coal for his own use and the provision contained in Sub-clause (B) of Clause 3 of the Coal Control Order, we find that the petitioner is neither a dealer nor the provisions of clauses as indicated in Sub-clause (B) of Clause 3 apply to the petitioner including clause 4 of the order which provides for taking licence.
8. We are not impressed by the argument advanced on behalf of the opposite parties stressing upon the use of word " conjunction " in sub Clause (d) of Clause 2 of the Order namely the provision defining the word '' dealer ''. He has submitted that it may not be necessary that a person must carry on business of purchase and sale of coal independently or separately but in case a consumer has to enter into a transaction of sale of coal in connection with some other business he would be covered under the definition of the word '' dealer''. Learned Counsel for the opposite parties has submitted that the petitioner admittedly has to sell coal dust which is included in the definition of word coal and the rejected coal in the course of his business namely the business of manufacturing of chemicals. In our view to be a business in conjunction with some other business there has to be continuity of transactions in the commodity in respect of which it could be held that it is a business in conjunction with some other business. The conjunctive activity must be carried on as a business activity. To take the view, as urged by the learned Counsel for the opposite parties, it would be wholly against the spirit of the provisions contained under Coal Control Order which, under clause 3(B) provides an exception in regard to steam coal and hard coal for industrial consumption. As indicated earlier a consumer purchasing coal for one''s own consumption is also not a '' dealer '' under the. Coal Control Order. According to the averments made in paragraphs 4 and 5 of the writ petition it is clear that the petitioner gets the dust coal accumulated in the process of loading and unloading of the coal or in breaking of bigger pieces of the coal into smaller pieces. Similarly if the quality of coal supplied is such which cannot be used in a particular industry that rejected coal will also have to be transferred. There are inevitable consequences which are bound to occur. If main thing is covered by an exception then the inevitable consequences cannot be subjected to the provisions applicability of which has been otherwise excepted. The exception for necessarily incidental things will automatically follow, unless specifically provided for to the contrary. Such casual transfer of coal cannot be said to be carrying on business of purchase or sale of coal. It may also be noted that the purchase of coal is not for the purpose of sale. To say that one must be taken to be carrying on business for such transfers and must obtain '' dealer licence '' is not what is made out from the provisions of the Coal Control Order.
9. Although it may not be required to obtain dealer''s licence under Clause 4 of the U.P. Control Order but some provisions could certainly be made regulating the disposal of rejected or surplus coal or coal dust. In this connection we may refer to sub Clause (A) of Clause 3 of the Order which provides for exceptions regarding movement and use of coal by Railway, Central Government Department or Corporation etc. There are two provisos to Sub Clause (A) of Clause 3 of the Order. First proviso says that the exception would be available if such coal is consumed entirely by the Industry, Railway, Military, Central Government Department or Corporation. The Second proviso provides that if there is some surplus coal, such coal can be transferred to any other consumer of same category after obtaining permission from the District Magistrate. From the above provisions we find that notice of the fact was taken regarding transfer of Coal in case it was surplus to the requirement of Industry mentioned in Sub Clause (A) of Clause 3 of the order. To regulate the transfer of such surplus coal a condition of prior approval of the District Magistrate was imposed under second proviso, In contrast to the above provisions we may peruse the exceptions provided under Sub Clause (B) of Clause 3 of the Order. There are no proviso added to Clause (B) nor it is provided that the exception is available only if the coal is consumed entirely by the industrial unit as appears to be a condition under first proviso to Clause (A) of clause 3. Again there is no proviso to Clause (B) requiring prior permission of any authority in case of transfer of coal which may be surplus or rejected coal. To us, it appears that this may be an omission to place regulatory restriction for transfer of surplus or rejected coal or dust coal. It was always open to put such regulatory condition but the same has not been provided for under clause 3(B) of the Coal Control Order, 1977.
10. We may now examine the two G. Os. referred to in the earlier part of this judgment G.O. dated June 6, 1985 says that if an industrial unit has surplus coal or has rejected coal or coal dust and sells the same in an improper manner, then under the provision of Section 3 of Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980 action can be taken against him and further that such units shall be punishable under Clause 15 of the U.P. Coal Control Order, 1977. In the G. O. dated September 19, 1985, reference of G. O. dated June 6, 1985 has been made and it has been said that for sale of such coal as mentioned above the industrial units will have to take licence under Uttar Pradesh Coal Control Order, 1977 and shall also have to take permission from the concerned District Magistrate for transfer of coal. We find that such direction could not be given by means of G. O. in the absence of any such requirement under the Coal Control Order. We also find that licence under U.P. Coal Control Order, 1977 is not required to be taken by the industrial units exempted under clause 3(B) for transfer of surplus or rejected coal or for coal dust. We are, therefore, of the view that the writ petition deserves to be allowed.
11. In the result the writ petition is allowed and the G. O. dated September 19, 1985, contained in Annexure 1 to the writ petition is quashed. So far the G. O. No. 580/29-Anu-9-12A-Koyla/84 dated June 6, 1985 is concerned, it is partly quashed to the extent it provides that proceeding for prosecuting the industrial units can be initiated under clause 15 of the U.P. Coal Control Order, 1977 for the reason that licence under clause 4 of Coal Control Order 1977 has not been taken.
12. There would, however, be no order as to costs.
