Judgment : PINAKI CHANDRA GHOSE This appeal is directed against an order dated 25th March, 2010 passed by the Honble First Court in G.A. No. 1370 of 2008 in connection with W.P No. 1279 of 2005. The Honble First Court by the said order dated 25th March, 2010 was pleased to direct that the appellant shall refund the price of the coal paid in excess of the notified price under ‘e-auction Scheme’. Being aggrieved from the said order, the instant appeal has been filed and the appellant stated that the said impugned order is liable to be set aside on the following grounds: (a) The refusal order passed by the Apex Court was confined to only those petitioners who were present before the Supreme Court. In the instant case, the present writ petitioners admittedly were not before the Supreme Court and therefore the same direction is not applicable in their favour. Notwithstanding the direction for transfer of the writ petition before the Supreme Court, the present writ petition however, was not transferred and accordingly, the same cannot be treated in the same manner as the other writ petitioners were treated by the Apex Court who were present before it. (b) The present writ petition appears to have been filed by several purchasers of coal who had participated in the e-auction. However, there is any grievance of the writ petitioners, those are separate cause of action of each and the other writ petitioners independently against the appellant and therefore a joint writ petition was not maintainable. (c) The refund of excess price as directed is however, not maintainable for the following reasons: (i) It is not the case of the writ petitioners that they had not sold their end products manufactured out of the coal purchased through e-auction not on the basis of the actual price paid by them but at a lesser price. (ii) The writ petitioners had sold their end products at a price on the basis of the cost price of the coal paid by them through the e-auction and accordingly had realized the sale price from their customers. Therefore, the sale price of the end products also contained the component of the actual price paid by them. (iii) Therefore, the writ petitioners cannot ask for refund of the price as an excess payment inasmuch as the writ petitioners have already realized the same from their consumers. Therefore, the sale price of the end products also contained the component of the actual price paid by them. (iii) Therefore, the writ petitioners cannot ask for refund of the price as an excess payment inasmuch as the writ petitioners have already realized the same from their consumers. The claim for refund of such price by the writ petitioners amount to unjust enrichment. The subject mater of challenge in the writ petition was that the ‘e-auction’ Scheme was introduced by the appellant under a notification dated 16th June, 2004 for the sale of the coal. Several writ petitions were filed in the similar nature in different High Courts which were transferred before the Honble Supreme Court excepting the instant writ petition. The Honble Supreme Court by a common judgment dated 1st December, 2005 declared the said ‘e-auction’ ultra vires the Constitution of India (See Ashoka Smokeless Coal India (P) Ltd. & Ors. Vs. Union of India & Ors.), reported in 2007(2) SC 540. The contention of the appellant is that the present writ petitioners were not gone before the Honble Supreme Court therefore, the same direction is not applicable in their favour. It is further contended that the grievance of the writ petitioners are separate cause of action and it is evident against the appellant. Therefore, the joint writ petition was not maintainable. It is further contended that the doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the court is not meant to be exercised for unjustly enriching a person. (See Mafatlal Industries Ltd. vs. Union of India – reported in (1997) 5 SCC 536 para 108 (iii). The learned counsel also relied upon a decision reported in AIR 2000 SC 862 (Union of India & Ors. Vs. Solar Pesticide Private Ltd. & Anr.). The power of the court is not meant to be exercised for unjustly enriching a person. (See Mafatlal Industries Ltd. vs. Union of India – reported in (1997) 5 SCC 536 para 108 (iii). The learned counsel also relied upon a decision reported in AIR 2000 SC 862 (Union of India & Ors. Vs. Solar Pesticide Private Ltd. & Anr.). In the said decision the Honble Apex Court held as follows : “To claim refund of duty it is immaterial whether the goods imported are used by the importer himself and the duty thereon passed on the purchaser of the finished product or that the imported goods are sold as such when the incidence of tax being passed on to the buyer. In other case, the principle of unjust enrichment will apply and the person responsible for paying the import duty would not be entitled to get the refund because of the plain language of the Section 27 of the Act. Having passed on the burden of tax to any other person, directly or indirectly it would clearly be a case of unjust enrichment if the importer/seller is then able to get refund of the duty paid from the Government notwithstanding the incidence of tax having already been passed on to the purchaser. The principle of unjust enrichment incorporated in Section 27 of the Act would be applicable in respect of imported raw material captively consumer in the manufacture of a final produce”. The learned counsel also relied upon another decision in the case of MRF Ltd. Vs. Collector of Central Excise, Madras reported in 1997 (5) SCC 104 . In the said decision he contended that the writ petitioners cannot ask for refund of price of the coal which was paid by them in participating in ‘e-auction’. The above point was not considered by the Honble Apex Court while disposing of the matter of Ashoka Smokeless Coal India (supra). It is further contended that the case of Ashoka Smokeless Coal (supra) cannot be a basis for order of refund of the coal price of the writ petitioners in the present case. The writ petitioners cannot take the advantage of the declaration of an order obtained by another person on another ground and he relied upon a decision reported in (1969) 1 SCC 110 (Trilok Chand Moti Chand’s case). The writ petitioners cannot take the advantage of the declaration of an order obtained by another person on another ground and he relied upon a decision reported in (1969) 1 SCC 110 (Trilok Chand Moti Chand’s case). It is submitted that the refund of alleged excess price is also in any event a disputed question of fact which cannot be directed to be paid in writ jurisdiction. It is further contended that no prayer has been made for refund of such amount. Therefore, the general application for refund cannot be accepted in aid of main writ petition. Such order is without jurisdiction and should be set aside. He also relied upon the decision reported in (2009) 15 SCC 314 and submitted that in this case the Honble Supreme Court dealt with the case of Ashoka Smokeless Coal India (P) Ltd. in paragraph 10 and held that the e-auction was invalid, which is quoted below : “10. This Court by the judgment and final order in Ashoka Smokeless Coal India (P) Ltd. v. Union of India upheld the challenge of the applicants to the scheme of e-auction. While allowing the writ petitions this Court held that the aforesaid scheme of e-auction was invalid and declared the same as ultra vires of Article 14 of the Constitution of India and quashed the said e-auction scheme. The consequence of the said judgment and order is that the coal companies like the respondent were required to refund the entire price paid by the applicants over and above the notified price as per their undertaking before this Court and as recorded in the orders dated 12-12-2005 and 30-10-2007.” On the contrary, learned counsel appearing on behalf of the writ petitioners contended that they are entitled to refund of the excess price of coal being difference between e-auction price and notified price, that was collected by ECL, the appellant herein, from writ petitioners under the e-auction scheme between the period from May, 2005 to December, 2006. It is contended that the Honble Supreme Court has already declared the said ‘e-auction’ to be unconstitutional (in Ashoka Smokeless Coal (supra). Therefore, the writ petitioners are entitled to consequently relief of refund of excess price collected by ECL during the said period. It is contended that the Honble Supreme Court has already declared the said ‘e-auction’ to be unconstitutional (in Ashoka Smokeless Coal (supra). Therefore, the writ petitioners are entitled to consequently relief of refund of excess price collected by ECL during the said period. It is further pointed out that the Honble Apex Court has also granted refund of such excess price to several parties and ECL has refunded such excess price to some other purpose. At this stage ECL cannot refuse refund to the writ petitioners under such auction. On the part of ECL, it certainly tantamount to discrimination against the writ petitioners. The Honble First Court has specifically directed that the refund of the said claim of the writ petitioners should be subject to verification of ECL and further directed a mechanism for amicable solution in case of any difference between the parties. It is further contended that such manner of refund framed by the Honble Single Judge has been adopted from the order of refund directed by the Honble Apex Court on 30th October, 2007. It is further contended that in any event the writ Court can grant consequential relief of refund of monetary claim and he relied on a decision in the case of ABL International Ltd. Vs. Export Credit Guarantee Corpn. of India Ltd. reported in 2004 3 SCC 553 . It is further contended that the plea has been taken by the appellant that substantial writ petition is not maintainable which was filed by the 22 (twenty two) writ petitioners. It is contended that the said plea was not taken at the time of moving the writ petitioners and the interim order was passed. The plea has also not been taken in affidavit-in-opposition filed by the appellant before the learned Trial Court and it is submitted that in any event if the cause of action is similar and if any common question of law is involved, then joint petition can be filed by several writ petitioners which is permissible and he relied upon a decision in the case of Parul Debnath & Ors. Vs. Union of India & Ors., reported in (2006) 3 CHN 462 . It is further submitted that the principles of law regarding refund of indirect taxes cases (like service tax, sales tax, excise etc.) collected illegally are not applicable to the instant case. Vs. Union of India & Ors., reported in (2006) 3 CHN 462 . It is further submitted that the principles of law regarding refund of indirect taxes cases (like service tax, sales tax, excise etc.) collected illegally are not applicable to the instant case. It is further contended that in the case of Orissa Cement Ltd. Vs. State of Orissa & ors., reported in (1991) Supp (1) SCC 430 the Honble Apex Court held that refund was not an automatic consequence of declaration of illegality and could be refused for good reasons like laches undue delay and intervention of third party rights. But in the instant case no case has been made out by the ECL in respect of such grounds as made in the said decision. Accordingly it is submitted that in the facts of this case it cannot be a help to ECL. In any event the facts of this case are totally different than that of Mafatlal case (supra) and the other decisions which have been cited on behalf of the appellant and therefore, cannot be a help to the appellant. We have considered the decisions cited before us and after analyzing those we find that in Ashoka Smokeless Case it is required in terms of the constitutional scheme under Article 39 (b) and Article 14 of the Constitution of India is to make essential commodities available at a fair price. The State or its instrumentalities should not discharge their functions so as to aspire to earn a huge profit at the cost of those who are fully depended upon them for supply of a monopoly item. They could, however, be permitted to make a reasonable profit. In Ashoka Smokeless Case the Supreme Court considered the challenge under Articles 14 and 19 as to the validity of price fixation by the Coal companies in the public sector by the method of ‘e-auction’ through Internet. The Court referring to the constitutional and statutory obligations of the Central Government as well as the coal companies observed that they were exercising monopolistic power which was their duty to distribute coal equitably and at a fair price. The Court referring to the constitutional and statutory obligations of the Central Government as well as the coal companies observed that they were exercising monopolistic power which was their duty to distribute coal equitably and at a fair price. The Honble Supreme Court also considered the advantages as well as the disadvantages of ‘e-auction’ and indicated certain factors to be taken into consideration which are as follows : (i) The concept of price fixation is that of persons who are in requirement of the commodity should know the basis or criteria thereof. (ii) While adopting a policy decision as regards the mode of determining the price of coal, either fixed or valuable, the coal companies were bound to get in mind social and economic aspect of the matter. They could not take any step which would defeat the constitutional goal. (iii) Arbitrary fixation of price and arbitrary mode of fixation would be violative of Article 14 of the Constitution of India. (iv) A monopoly concerned is meant to cater to the needs of enormous of plea. (v) ‘e-auction’ is not a policy decision of the Central Government but a policy decision on the part of the cause of action of the Central Government and must be strictly constrmnued in terms of Article 77 of the Constitution. (vi) Since the price fixation of an essential commodity is to be determined on the touchstone of public interest, the State has to follow a rational and fair procedure and for that purpose may collect the data but shall obtain public opinion, and may appoint an expert committee. (vii) In the facts the coal companies proceeded only to safeguard their common interest as dealer and not as a State and primarily for a private motive. (viii) It was no defence for the coal companies to show that they were acting at the instance of the Central Government when there was no control over the price and had no say in the matter of fixation of price under the Colliery Control Year 2000. (ix) The Government or the coal company could change an existing policy subject to satisfaction of the constitutional requirements and adopt e-advertisement or e-tender if due and proper transparency is maintained. The Court further held that it would be proper to confine those tests to price fixation through e-auction only most of those decisions are applicable to price fixation generally. (ix) The Government or the coal company could change an existing policy subject to satisfaction of the constitutional requirements and adopt e-advertisement or e-tender if due and proper transparency is maintained. The Court further held that it would be proper to confine those tests to price fixation through e-auction only most of those decisions are applicable to price fixation generally. The fundamental rights have been embodied in the Constitution not merely for the benefit of a particular individual but also as a matter of constitutional policy and for public dealing and therefore, the doctrine of waiver or acquiescence cannot be applied in case of fundamental rights. The State could not have any right to commit breach of the fundamental rights of any person by resorting to principle of waiver or estoppel or other principles similar in nature. In Olgatelis case the Honble Supreme Court held that the high purposes of which the Constitution seek to achieve by conferment of fundamental right is not only to benefit the individual but to secure the larger interest of the community. In the said decision the pavement dwellers gave an undertaking before the High Court that they would not claim any fundamental right to put by hurts of pavement or public roads and they would not obstruct the demolition of the hurts after a certain time subsequent thereto when the hurts were said to be demolished. The said pavement dwellers urged that they are protected under Article 21 of the Constitution. The plea was taken before the Supreme Court that they are estopped from contending such plea but the Supreme Court overruled the same stating that the fundamental rights could not be waiver and there can be no estoppel against the Constitution which is the paramount law of the land. The Court observed, “no individual can barter away the averments conferred on him by the Constitution”. Therefore, in the instant case, writ petitioners participated in the ‘e-auction’ are entitled to raise the plea of ultra vires. After considering the facts of this case, we do not find that there is any illegality and irregularity in the order so passed by the Honble First Court. Accordingly, we do not find any reason to interfere with the order so passed by the Honble First Court. We also find that Mafatlal case cannot be a help to the appellants. After considering the facts of this case, we do not find that there is any illegality and irregularity in the order so passed by the Honble First Court. Accordingly, we do not find any reason to interfere with the order so passed by the Honble First Court. We also find that Mafatlal case cannot be a help to the appellants. On the contrary, we find that appellant has collected the excess amount from the writ petitioner and the said amounts were collected on the basis of the price held at eauction which has been set aside by the Honble Supreme Court. Hence, the grounds tried to be taken by the appellant can not be accepted by us. Accordingly, we find that arguments made by Ms. Vineetat Meharia, learned Advocate on behaf of the respondents has much force and accepted by us. Hence, we dismiss this appeal. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. (PINAKI CHANDRA GHOSE, J.) I agree. (ASIM KUMAR RAY, J.) LATER: Stay asked for is refused. (PINAKI CHANDRA GHOSE, J.) I agree.