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2010 DIGILAW 320 (CAL)

Tetulia Coke Plant (P) Ltd. v. Coal India Ltd.

2010-03-25

DEBASISH KAR GUPTA

body2010
JUDGMENT 1. THIS application bearing G.A. 1370 of 2008 is filed by the applicants/ writ petitioners for refund of their money paid to the respondent No. 4 towards the price of coal purchased under 'e' Auction Scheme. 2. ACCORDING to the applicants, the subject-matter of challenge in this writ application is the legality of the 'e' Auction Scheme introduced by the respondent No. 1 under Notification dated June 16, 2004. The above Scheme was also adopted by the respondent No. 4 amongst other Coal Companies. The following interim order was passed in this writ application on August 8, 2005 with regard to the payment of price for purchasing coal under 'e' Auction Scheme and for furnishing Bank Guarantee in connection therewith : "Let there be a further interim order to the effect that the writ petitioners herein will be at liberty to purchase coal required by them for the months of July, 2003 onwards subject to their eligibility according to the prevailing linkage system on payment of basic price, as determined by the respondents, for the month of January, 2005 and also subject to furnishing Bank Guarantee and/or depositing the cash amount to secure the difference between the 'e' auction price and the aforesaid basic price. Needless to mention that in the event the petitioners furnished the Bank Guarantee in terms of this order, then necessary steps should be taken to keep the same valid and operative till disposal of this writ petition." During the pendency of this writ application, a number of writ applications involving the selfsame issue were transferred before the Hon'ble Supreme Court and those writ applications were disposed of by a common judgment dated December 1, 2006 passed in the matter of Ashoka Smokeless Coal India (P) Ltd and others v. Union of India and Ors. reported in (2007)2 SCC 604 declaring the aforesaid 'e' Auction Scheme ultra vires the Constitution of India. reported in (2007)2 SCC 604 declaring the aforesaid 'e' Auction Scheme ultra vires the Constitution of India. By virtue of a subsequent order dated October 30, 2007, passed in connection with the contempt application arising out of the above judgment the Hon'ble Supreme Court directed the respondents/coal companies for refunding the amount paid by the purchasers, who were the petitioners before the Hon'ble Supreme Court, in excess of the notified price upon verification of the documents in the following manner : "(i) The petitioners shall furnish all documents to the learned Advocate- on-Record of the respondents showing the actual payments made to any of the subsidiaries of the Coal India Ltd. And the difference between the amount paid and the amount notified by 12th November, 2007. (ii) The documents furnished by the petitioners shall be verified by the officers of the concerned coal companies within 4 weeks thereafter. (iii) In case of any difference, the learned Counsel would deliberate upon the matter so as to enable them to come out with an accepted solution, (iv) The Bank Guarantee furnished by the petitioners shall stand discharged." 3. NOW, this general application is filed by the applicants for disposal of this writ application on the basis of the law laid down by the Hon'ble Supreme Court in the matter of Ashoka Smokeless Coal India (P) Ltd. (Supra) as also with a further direction for refund of the amount paid by them in excess of the notified price of the coal purchased by them during the pendency of this writ application. 4. THE above prayer of the applicants is vividly opposed by the respondent No. 4, According to the learned Counsel appearing for the respondent No. 4. none of the applicants/writ petitioners was a party before the Hon'ble Supreme Court in the matter of Ashoka Smokeless Coal India (P) Ltd. (Supra) It is submitted by him that by virtue of an interim order passed by the Hon'ble Supreme Court, the interests of the writ petitioners before the Hon'ble Supreme Court were protected. none of the applicants/writ petitioners was a party before the Hon'ble Supreme Court in the matter of Ashoka Smokeless Coal India (P) Ltd. (Supra) It is submitted by him that by virtue of an interim order passed by the Hon'ble Supreme Court, the interests of the writ petitioners before the Hon'ble Supreme Court were protected. It is also submitted by him that on the basis of the procedure laid down by the Hon'ble Supreme Court, the respondent No. 4, amongst other Coal Companies, deposited money for refund By virtue of orders dated February 24, 2006 and May 9, 2008 respectively, the Hon'ble Supreme Court directed formation of a Committee for scrutinising the claims of different petitioners, who were before the Hon'ble Supreme Court. According to him, some of the applicants were before the Hon'ble Supreme Court in connection with their claims against some coal companies other than the respondent No. 4. It is also submitted by him that a joint application for refund of money is not maintainable. It is further submitted by him that the claim of the applicants as appears from page 277 of the general application, is disputed. Therefore, an attempt is made by the applicants to realise their disputed money claims in the instant writ application which is not permissible in course of judicial review under Article 226 of the Constitution of India. I have given my anxious considerations to the submissions made by the learned Counsels appearing for the respective parties and I have taken into consideration the facts and circumstances of this case. It is an admitted fact that 'e' Auction Scheme introduced by the respondent No. 1 and adopted by the respondent No. 4, amongst other Coal Companies, is under challenge in this writ application. It is also not in dispute that nothing remains to be decided with regard to the above issue in view of the law laid down by the Hon'ble Supreme Court by its judgment dated December 1, 2006 delivered in the matter of Ashoka Smokeless Coal India (P) Ltd. and Ors. v. Union of India and Ors. (Supra). 5. It is also not in dispute that nothing remains to be decided with regard to the above issue in view of the law laid down by the Hon'ble Supreme Court by its judgment dated December 1, 2006 delivered in the matter of Ashoka Smokeless Coal India (P) Ltd. and Ors. v. Union of India and Ors. (Supra). 5. REGARDING the direction for refund of the money paid by the applicants towards the price for the coal in excess of the notified rate, I find that the applicants paid the excess amount as also furnished Bank Guarantees in terms of the order dated August 8, 2005 passed in this writ application. Therefore, once the Scheme, which is under challenge in this writ application, is declared ultra vires the Constitution of India by the Hon'ble Supreme Court, the amount realised by the respondent No. 4 under that Scheme in excess of the notified price is to be refunded back-to the applicants as a consequential relief. Needless to point out here that the Hon'ble Supreme Court granted similar relief to the purchasers of coal under the above 'e' Auction Scheme, who were before the Apex Court as writ petitioners, in connection with the writ applications. It is further necessary to point out that the Hon'ble Supreme Court adopted the measure of appointing a Committee in accordance with the order dated October 30, 2007 for examining the correctness of the respective claims of the writ petitioners before them. 6. IT may be pointed out that by virtue of the order dated August 8, 2005 passed in this writ application, the applicants/writ petitioners paid the price of the coal to the respondent No. 4 under the 'e' Auction Scheme in excess of the notified price of the same. Therefore, the applicants are entitled to get the consequential relief of getting refund of the aforesaid amounts. It is true that this Court in course of judicial review cannot settle any disputed claim but at the same time the consequential relief of refunding back the aforesaid amount may be granted to the applicants following measures adopted by the Hon'ble Supreme Court for granting consequential relief to the writ petitioners who were before the Hon'ble Supreme Court. 7. It is true that this Court in course of judicial review cannot settle any disputed claim but at the same time the consequential relief of refunding back the aforesaid amount may be granted to the applicants following measures adopted by the Hon'ble Supreme Court for granting consequential relief to the writ petitioners who were before the Hon'ble Supreme Court. 7. WITH the above discussions and observations, I direct the respondent No. 4 to refund the price of the coal paid in excess of the notified price under 'e' Auction Scheme in the following manner: 1) The petitioner shall furnish all documents to the learned Advocate- on-Record of the respondent No. 4 showing actual payments made by the respective applicants/petitioners to the respondent No. 4 during the period from May, 2005 to December, 2006 and the difference between the amount paid and the amount notified by April 30, 2010. 2) The documents furnished by the applicants/petitioners shall be verified by the concerned officers of the respondent No. 4 within 4 weeks thereafter. 3) In case of any difference, the learned Advocate-on-Record would deliberate upon the matter so as to enable them to come out with accepted solution. 8. WITH the above observations and directions, this writ application and the application beaming O.A. 1370 of 2008 are disposed of. There will, however, be no order as to costs. 9. AFTER delivery of this judgment, a prayer is made on behalf of the respondent No. 4 for staying operation of this judgment and the same is opposed by the learned Counsel appearing for the petitioners. The above prayer is rejected. Urgent photo-stat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.