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2016 DIGILAW 513 (JHR)

Auroma Coke Limited v. Bharat Coking Coal Limited

2016-03-28

APARESH KUMAR SINGH

body2016
ORDER : 1. Heard counsel for the parties. 2. Petitioner has a claim for refund of the amounts along with interest collected in excess of notified price during the prevalence of e-auction scheme of Coal India Limited which was held to be illegal and constitutionally invalid in view of the judgment rendered by the Apex Court in the case of Ashoka Smokeless Coal India Pvt. Ltd. Vs. Union of India reported in (2007) 2 SCC 640 . Petitioner has therefore approached this Court for refund of the aforesaid amount along with interest. 3. Petitioner has earlier moved this Court in WP (C) No. 1031/2009 seeking direction for refund of the amounts paid in excess of notified price of the linked quantity of coal between January 2005 to December 2006. By a reasoned order dated 01.02.2014 (Annexure-20), representation of the petitioner has been rejected, stating that claim of refund of the present petitioner is not maintainable as he is not a party before the Apex Court in Transfer Petition (Civil) No. 100/2006 in relation to the question of refund of excess amount along with interest. Petitioner has also sought quashing of the reasoned order dated 01.02.2014 while placing the claim for refund of the excess amount along with interest collected by the respondent BCCL during prevalence of e-auction scheme. 4. Learned counsel for the petitioner submits that pursuant to quashing of e-auction scheme in view of the judgment rendered by the Apex Court in the case of Ashoka Smokeless Coal India Pvt. Ltd. (supra), several writ petitions were filed seeking refund of excess money collected by the respondents – Coal Companies, such as Central Coalfields Limited, Eastern Coalfields Limited. The Apex Court in the case of Eastern Coalfields Limited Vs. Tetulia Coke Plant Pvt. Ltd. reported in (2011) 14 SCC 624 held that consequent to the scheme itself being set at naught by the Apex Court, whatever action has been taken following e-auction scheme by the Coal Companies, has also been declared to be illegal and therefore, the Coal Companies become liable to refund the entire money which it has collected in excess of the notified price. This is consequent to the quashing of the scheme which was reiterated by the Hon'ble Apex Court wherein contempt petition was filed and disposed of also. This is consequent to the quashing of the scheme which was reiterated by the Hon'ble Apex Court wherein contempt petition was filed and disposed of also. It is submitted that the claim of refund was therefore not in the realm of doubt after the pronouncement of the judgment rendered by the Apex Court in the case of Tetulia Coke Plant Pvt. Ltd. (supra). However similar matters again came before the Apex Court arising out of judgment rendered by the Patna High Court in the case of S.J. Coke Industries Private Limited & others (supra). Learned counsel for the petitioner submits that now the issue involved is no longer res-integra as the Apex Court in the case of S.J. Coke Industries Private Limited & others (supra) has been pleased to hold that the issue of refund having been squarely adjudicated in the case of Tetulia Coke Plant Pvt. Ltd. (supra), there is no justification on the part of the Coal Companies to deny benefit of such law on the ground of parity. Learned counsel for the petitioner submits that the plea raised by the Coal Companies have been squarely negated after a comprehensive discussion and the Apex Court was of the view that after law has been declared on the subject, individual Coal Companies do not have justifiable basis to resist the claim of refund. This petitioner has therefore pressed for claim of refund relying upon the judgment rendered in the case of S.J. Coke Industries Private Limited & others (supra) 5. Respondent-BCCL have filed their counter affidavit in the matter. However, learned counsel for the respondent has referred to the pendency of Transfer Petition (Civil) No. 100 of 2006 before the Apex Court in relation to the question of refund of the petitioners therein. According to the Respondents, the issue so far as the respondent-Coal Company-BCCL is concerned, still remains open. Respondents however have not been able to overcome the specific declaration of law rendered by the Apex Court in the case of S.J. Coke Industries Private Limited & others (supra) after consideration of the judgment rendered earlier in the case of Ashoka Smokeless Coal India Pvt. Ltd. (supra) and Tetulia Coke Plant Pvt. Ltd. (supra) referred therein. 6. Respondents however have not been able to overcome the specific declaration of law rendered by the Apex Court in the case of S.J. Coke Industries Private Limited & others (supra) after consideration of the judgment rendered earlier in the case of Ashoka Smokeless Coal India Pvt. Ltd. (supra) and Tetulia Coke Plant Pvt. Ltd. (supra) referred therein. 6. The question of refund raised herein by the present petitioner are in the nature of those raised by other parties in the case which have been decided by the Apex Court in the case of S.J. Coke Industries Private Limited & others (supra), though in relation to other Coal Companies like Central Coalfields Ltd and Eastern Coalfields Limited, referred to herein above. Para 24 to 36 of the judgment rendered in the case S.J. Coke Industries Private Limited & others (supra) contain opinion of the Apex Court and the ratio rendered. 7. Having considered the relevant aspects of the pleadings on behalf of the parties as noticed herein above, it would only be proper that the respondent examine the case of the petitioner in respect of his claim for refund along with interest in the light of the judgment rendered by the Apex Court in the case of S.J. Coke Industries Private Limited & others (supra) and come to an informed decision on claim of the petitioner. Learned counsel for the respondents submits that in the light of what has been observed herein-above relying upon the judgment rendered by the Apex Court in the case of S.J. Coke Industries Private Limited & others (supra), reconsideration of the claim of refund of the instant petitioner can also be done in the light of the judgment rendered by the Apex Court in the case of S.J. Coke Industries Private Limited & others (supra). In that event, the order of rejection dated 01.02.2014 (Annexure-20) would not come in the way of respondents in taking a fresh decision in the matter upon examination of relevant attendant facts and in accordance with law keeping in view the judgment rendered in the case of S.J. Coke Industries Private Limited & others (supra). 8. Petitioner is therefore required to make his representation together with all necessary facts and documents before the competent authority under the respondent-BCCL the General Manager (S&M), Bharat Coking Coal Limited, Dhanbad. 8. Petitioner is therefore required to make his representation together with all necessary facts and documents before the competent authority under the respondent-BCCL the General Manager (S&M), Bharat Coking Coal Limited, Dhanbad. Let such consideration be made in accordance with law by the respondents within a reasonable time preferably 16 weeks from the date of receipt of the copy of this order along with representation filed on behalf of the petitioner. 9. Needless to say that upon such consideration, if claim of the petitioner is found admissible, the amount in question be refunded along with interest @ 6% as per the ratio laid down by the Apex Court in the case of S.J. Coke Industries Private Limited & others (supra). 10. Writ petition stands disposed of. Petition disposed of.