Santosh Kumar Singh v. Bharat Coking Coal Limited — 1998 DIGILAW 449 (PAT)

Judgment R.A.Sharma and A.K.Prasad JJ. 1. The learned Counsel for the petitioners and the respondents have stated that the controversy involved in these writ petitions is one and the same. They have, therefore, been heard together and are being disposed of by this common judgment. 2. The petitioners have filed these writ petitions seeking appropriate writ directing the respondents herein to rescind, recall and/or cancel the service charges imposed and realised in respect of sale and delivery of coal from the colliery pit heads and to declare that the realisation of service charge is illegal and without jurisdiction. Prayer for refund of all service charges recovered from the petitioners in respect of sale and delivery of coal from the colliery pitheads has also been made. 3. For sale of coal by the collieries the appropriate authority has fixed the price of coal under the Colliery Control Order. The petitioners purchased the coal from the respondents colliery. Their grievance is that the service charges have been realised by the coal companies from them over and above the price of the coal fixed by the authority, which is not permissible under law. 4. The controversy involved in these writ petitions is no more res Integra. It has already been decided by a Division Bench of this Court in Birendra Kumar Sinha V/s. Bharat Coking Coal Ltd. and Ors. C.W.J.C. No. 1336 of 1987 (R), wherein it was held that it is open to the coal company to realise service charges from the purchasers of coal if the coal is supplied from the stockyards and not from the pit heads. The relevant extract of the said judgment is reproduced below: From the pleadings of the parties it is apparent that the respondents have established stockyards at convenient points to supply coal to its purchasers who transport such coal by road. It appears that an account of limited capacity, it is not possible for the respondents to meet the great demand for coal in season. It is on account of the inability of the respondents to supply coal promptly that the purchasers make requests for making their own transport arrangements and getting supply of coal from the colliery. It appears that an account of limited capacity, it is not possible for the respondents to meet the great demand for coal in season. It is on account of the inability of the respondents to supply coal promptly that the purchasers make requests for making their own transport arrangements and getting supply of coal from the colliery. It has not been disputed by the petitioner that in the event of the respondents transporting coal from the collieries to the stockyards, they are justified in charging services charges, which really represents the costs incurred by the respondents in transporting coal to the stockyards and for the overhead expenses in connection with the maintenance of the stockyards. Their grievance is that service charges being in the nature of reimbursement for the costs incurred by the respondents they are not entitled to levy the service charges when they have not incurred any cost in respect of coal supplied to the petitioners. This submission has substances and must be upheld. It is admitted that the respondents are obliged to sell coal at the prices fixed under the Colliery Control Order, 1945. These prices are pit-head prices. If the coal is supplied to them from any other point, respondents are certainly entitled to charge an extra amount for the cost incurred by them in transporting the coal from the pit-head of the colliery to the stockyard. In the instant case, it is not disputed that on account of the limited capacity of such stockyards, the respondents permit the petitioners to receive their supply of coal from the colliery directly. For this purpose, the purchasers have to arrange their own transport and receive supply in the collieries or the pit-heads. The respondents, therefore, do not incur any expenditure in this regard. Such sales must, therefore, be considered to be sale of coal at the pithead, and consequently the price chargeable must be the one fixed under the Colliery Control Order. Any extra amount charged by way of service charges would be illegal because that would amount to charging a price higher than the one fixed under the Colliery Control Order. The Service charges in such a case would not be compensatory in nature, since the respondents do not incur any expenditure in the matter of transporting such coal from the collieries to the stockyard. The Service charges in such a case would not be compensatory in nature, since the respondents do not incur any expenditure in the matter of transporting such coal from the collieries to the stockyard. The said decision of this Court was upheld by the Apex Court in SLP No. 9887/98 on 31.8.1988 by speaking order, which is reproduced below: It appears that the respondent had collected coal from the pit heads and not from the stockyards. In the circumstances, the petitioners were not justified in charging service charges. Special Leave Petition is dismissed. The position is thus settled that the coal company cannot collect service charges from the purchasers if the coal is supplied from the pit heads and not From the stockyards. 5 Therefore, the only question involved in the present case is to find out as to whether the coal has been supplied to the petitioners from the pit heads or from the stockyards. In this connection the only relevant paragraph, which has been placed before us by the learned Counsel for the petitioners is paragraph No. 27 of the writ petitions, which is reproduced below: That the respondent No. 1 is regularly charging the service charge at the rate of 25 per tonne from the petitioner and the petitioner had paid the service charge at the rate of Rs. 25.00 on many occasions for lifting of coal from the colliery on the basis of delivery order and sale order. In support of their above mentioned averments the petitioners have filed bills, as Annexures-10 and 10/a [in C.W.J.C. No. 2271/90 (R)], Annexure-10 (in C.W.J.C. No. 2272/90R), Annexure-8 to 8/b ((in C.W.J.C. No. 2278/90 (R)], and Annexure-10 and 10/a [in C.W.J.C. 55/91/(R)], which disclose that on the dates of bills payment of service charges was made by the petitioners on the supply of coal from the colliery pit heads. 6 Paragraph No. 27 of the writ petition contains two statements, viz., (i) coal company is regularly charging the service charges at the rate of Rs. 25.00 per tonne from the petitioners and (ii) the petitioners had paid the service charges at the rate of Rs. 25.00 per tonne "on many occasions" for lifting the coal from the colliery. 7. Whether the petitioners have paid service charges at the rate of Rs. 25.00 per tonne from the petitioners and (ii) the petitioners had paid the service charges at the rate of Rs. 25.00 per tonne "on many occasions" for lifting the coal from the colliery. 7. Whether the petitioners have paid service charges at the rate of Rs. 25.00 per tone on the purchase of coal from the stockyards or from the colliery pit heads has not specifically been mentioned in the first part of paragraph No. 27 of the writ petition. However, in the second part of the said paragraph it has specifically been stated that the service charge has been paid on many occasions on purchase of coal from the colliery. Reading paragraph No. 27 as a whole it is clear that the petitioners have paid service charges on purchase of coal from the colliery only on some occasions. The occasions on which they paid the service charges are mentioned in the bills, copies of which have been filed as annexures to the writ petitions as mentioned hereinbefore. 8. Learned Counsel for the respondents has, however, submitted that even if the service charges has been realised from the petitioners illegally, direction for its refund cannot be made. In support of the said submission he has placed reliance on a decision of the Supreme Court in Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. -- , where it has been laid down that-(i) claim for refund of the tax and excise duty has to be made under and in accordance with the Act under which they were paid and it is not open to a person to seek refund by filing writ petition straightway and (ii) the doctrine of undue encrichment" is applicable in the case of refund of tax/excise duty and the person who seeks refund of the tax and excise duty must plead and prove that he has not passed on the burden of tax/duty to the consumer. But these principles cannot be applied to the present cases, because the service charges which the coal companies realised is neither a tax nor a duty imposed by or under any statute. It is a non-statutory levy realised for the service rendered. 9. In this connection the learned Counsel for the respondents further submitted that the service charges not being a tax/duty under any statute it is not open to this Court to issue direction for its refund. It is a non-statutory levy realised for the service rendered. 9. In this connection the learned Counsel for the respondents further submitted that the service charges not being a tax/duty under any statute it is not open to this Court to issue direction for its refund. This submission cannot be accepted. 10. The Service charges is not a statutory levy and it is merely a non-statutory charge for the service rendered by the coal company for bringing the coal from the pit heads to the stockyards, but if it sells the coal a the pit heads it does not incur any expenditure in transporation of the coal and, therefore, it is not open to realise any service charge. In such a case it would amount to charging the coal price over and above the statutory price in contravention of the Colliery Control Order. This Court under Article 226 of the Constitution can enforce the provisions of the Control Order which hate statutory force by directing the coal company to refund any amount realised by it over and above the statutory price. 11. The learned Counsel for the. petitioners has stated that after the decision of the Division Bench of this Court in Birendra Kumar Sinhas case (supra) no service charge has been realised from the petitioners and the only question involved is about the- refund of the service charges realised from them upto the date of the judgment of the Division Bench, i.e., 8.8.1988. 12. The petitioners themselves in paragraph No. 27 of the writ petitions have stated that on some occasions they have paid the service charge for the purchase of coal from the pit heads and in support of their statements they filed the bills as annexures to the writ petitions. There are no details/particulars in the writ petitions showing the other specific dates on which the service charge has been paid on purchase of coal from the colliery. In absence of any such detail this Court can only direct for refund of the amount which are supported by the bills filed as annexure to the writ petitions. This Court cannot issue a writ like a search warrant to search and find out the dates on which such payments have been made by the petitioners. It was the duty of the petitioners to give details about such payment, which they have failed to do so. 13. This Court cannot issue a writ like a search warrant to search and find out the dates on which such payments have been made by the petitioners. It was the duty of the petitioners to give details about such payment, which they have failed to do so. 13. These writ petitions are, accordingly, allowed with a direction to the respondents to refund the service charges mentioned in the bills, copies of which have bee n filed as Annexure-10 & 10/a in C.W.J.C. No. 2271/90 (R). Annexure-10 in C.W.J.C. No. 2272/90(R),Annexure-8 to 8/b in C.W.J.C. No. 2278/90(R) and Annexures-10 and 10/a in C.W.J.C. No. 55 of 1991 (R). within three months of production of the certified copy of this judgment. No cost.