Ltd. Vs. M/S Tetulia Coke Plant(P)Ltd.& Ors.
O R D E R
This appeal is
directed against the judgment and order dated 4.10.2010 passed by the Calcutta
High Court whereby the Division Bench of the High Court dismissed the appeal of
the Appellant herein and while doing so, affirmed the findings and conclusions
arrived at by the learned Single Judge. A writ petition was filed by the respondents
herein before the Calcutta High Court which was registered as Writ Petition No.
1279 of 2005. In the said writ petition the respondents challenged the legality
of the e-auction scheme introduced by the Union of India and adopted by the
In the said writ
petition, an interim order was also passed on 08.08.2005 with regard to the
liability for payment of price for purchasing coals under e-auction scheme and for
furnishing bank guarantee in connection thereof. During the pendency of the
said writ petition in the High Court, some other writ petitions involving similar
issues and also pending before the Calcutta High Court and also other High
Courts were transferred to this Court. This Court passed certain interim
orders. However, finally the said cases were taken up for final hearing and were
disposed of by a judgment and order rendered on 01.12.2006 in the matter of Ashoka
Smokeless Coal India (P) Ltd. & Ors. Vs. Union of India & Ors. reported
in (2007) 2 SCC 640.
By the said judgment and
order this Court upheld the challenge of the writ petitioners therein to the scheme
of e-auction. This Court in the said judgment further held that the said scheme
of e-auction was invalid. Consequently, this Court declared the same as ultra vires
of Article 14 of the Constitution of India and quashed the said e-auction
scheme. Contempt petitions were filed by some of the parties thereto in which
several orders came to be passed by this Court whereby this Court directed the
coal companies for refunding the excess amount paid by the purchasers who were
petitioners before this Court in those cases.
The writ petition
filed by the respondents, however, was pending consideration before the High
Court. After the disposal of the cases involving similar issues which were
raised and also disposed of by the aforesaid decision, which is now reported in
(2007) 2 SCC 640. The writ petition of the respondents herein also was taken up
for consideration and a judgment and order was passed by the learned Single Judge
disposing of the said writ petition on 25.03.2010. By the said order the High Court
followed the decision of this Court in Ashoka Smokeless Coal India (P) Ltd.
(supra) and passed orders and certain directions.
The respondents were directed
to furnish all documents to the counsel for Coal Company showing actual payments
made by the respective applicants during the period from May, 2005 to December,
2006 and the difference between the amount paid and the amount notified by
April 30, 2010. Another direction which was passed was that the documents
furnished shall be verified by the concerned coal companies and in case of any
difference, the parties to deliberate upon the matter so as to enable them to come
to an accepted solution. The legality of the aforesaid judgment and order came
to be challenged by filing an appeal before the Division Bench of the High Court
which was dismissed, as stated hereinbefore. Still aggrieved, the Appellants
have filed the present appeal on which we have heard the learned counsel appearing
for the parties.
Mr. P.P. Malhotra,
learned Additional Solicitor General has submitted before us that the respondents
herein were not parties when the matter was heard by this Court nor were they parties
when the interim orders were passed by this Court and, therefore, the
respondents cannot get the benefit which arises out of the interim orders
passed and the final orders passed by this Court in the case of Ashoka
Smokeless Coal India (P) Ltd. (supra). It is submitted that as their writ petition
was a separate writ petition, the same will have to be considered on its own facts
The learned Additional
Solicitor General also sought to submit that to the facts of the present case, the
principles of unjust enrichment would be applicable and on that ground also the
respondents cannot claim for any refund claiming payment of the same. We have also
heard the counsel appearing for the respondents on the issues raised. Having considered
the submissions and having gone through the records, we proceed to dispose of
this appeal by recording our reasons thereof.
There is no dispute with
regard to the fact that the legality of the scheme of e-auction was challenged by
filing writ petitions in various High Courts by the traders and companies dealing
with coal. Some of those petitions were transferred to this Court pursuant to
orders of this Court, the leading case being Ashoka Smokeless Coal India (P)
Ltd. (supra) which was taken up for consideration along with connected matters
and the same were disposed of by this Court and the said decision is now
reported in (2007) 2 SCC 640. By the aforesaid judgment, this Court has upheld the
challenge of the writ petitioners to the legality of the scheme of e-auction.
The aforesaid prayer
of the writ petitioners was accepted and this Court held that the scheme of e-auction
was invalid and violative of Article 14 of the Constitution of India and, therefore,
it was declared to be ultra vires to the Constitution and this Court quashed the
e-auction scheme. It must be indicated herein that the present respondent also
filed the writ petition in question in the Calcutta High Court before the aforesaid
decision was rendered and in his case also interim order was passed by the
Calcutta High Court. After the disposal of Ashoka Smokeless Coal India (P)
Ltd., the writ petition filed by the respondent herein which was pending was
also considered and the same was allowed following the decision of this Court
in Ashoka Smokeless Coal India (P) Ltd. (supra) as by that decision, this Court
has declared the entire scheme to be invalid and ultra vires to the Constitution.
Therefore, any action
taken pursuant to the said scheme is also illegal and null and void. Following
the ratio of the said decision this Court directed the coal companies to refund
the price of the coal paid in excess of the notified price under e-auction scheme.
Certain guidelines were also laid down as to how such payments are to be made. The
said decision of the learned Single Judge was upheld by the Division Bench of the
High Court by affirming the conclusions and analysing all the issues that were raised
before it. We are unable to accept the contention of the learned Additional
Solicitor General that whatever is challenged in the present petition is only
an interim order. It is not so because the respondents herein also challenged the
legality of the e- auction scheme in the writ petition. The High Court has not disposed
of only an interim prayer but has disposed of the entire writ petition by its
judgment and order dated 25.03.2010.
Consequently, it must
also be held that when the entire scheme is set at naught by this Court,
whatever action has been taken following the said e-auction by the coal company
has also been declared to be illegal and, therefore, the coal company has become
liable to refund the entire money which was collected in excess of the notified
price. That is the consequence of quashing of the scheme and the same came to be
reiterated by this Court while contempt petitions were filed and were disposed of.
Therefore, it cannot be said that the effect of the decision of Ashoka
Smokeless Coal India (P) Ltd. (supra) would be restricted only to those cases
which were before this Court and not for all cases which were pending in different
High Courts at that stage, at least to the issues which are common in nature. Learned
Additional Solicitor General has also submitted before us that the respondents
are not entitled to the benefit, if they are otherwise entitled to on the
principles of unjust enrichment.
We specifically asked
the learned Additional Solicitor General during the course of the arguments to
show us whether any such plea was taken in the writ petition which was filed before
the learned Single Judge. The learned Additional Solicitor General was unable
to show that any such defence or plea was taken about unjust enrichment in the pleadings
filed before the learned Single Judge. Such an issue was also not argued before
the learned Single Judge as no such reference is there in the order of learned Single
Judge. It is, however, stated by the learned Additional Solicitor General that
such an issue was raised before the Division Bench. But we could not find the
same raised in pleadings nor was it considered. But a mention is made in the judgment
that such a plea was argued.
However, on going through
the records, we find that no such ground has also been taken even in the Memorandum
of Appeal filed in the present appeal. Therefore, without taking a plea of
unjust enrichment either in the writ petition or before this Court, we are not
inclined to allow him to argue the plea at the time of argument and entertain such
a plea, particularly, in view of the fact that the respondents did not have any
notice of such a plea taken for the first time at argument stage.
In the present case,
it is a case of refund of price recovered by the appellant in excess and not of
any kind of payment of tax or duty. Besides, the appellant has already refunded
such excess amount realised to many other parties without raising any such plea.
If anything is done by a party in violation of the law, consequence has to
follow and they are bound to return the money to the parties from whom excess
amount has been realised. There is also no document placed on record in support
of any such plea. Bald allegation of this nature cannot be accepted particularly
when no such plea has been raised in this Court.
In that view of the
matter, we find no reason to take a different view than what is taken by the
learned Single Judge of the High Court of Calcutta as also by the Division
Bench of the same Court. Pursuant to the orders passed by this Court, the accounts
in terms of the orders of the learned Single Judge has been verified and the said
accounts have been settled. Therefore, appropriate steps shall be taken now to
give effect to the judgment and order passed by the learned Single Judge.
The amount in terms of
the settled accounts shall be paid by the respondents in accordance with law
within a period of two months, failing which the amount will carry an interest @9%
In terms of the
aforesaid order, this appeal is disposed of, leaving the parties to bear their
(Dr. MUKUNDAKAM SHARMA)
(ANIL R. DAVE)
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