M/S Arya Coke Pvt.Ltd. v. The Central Coal Fields Ltd.&O

Patna High Court CWJC No.15903 of 2010 (6) dt.02-04-2012 - 2 - .... .... Respondent/s ====================================================== Civil Writ Jurisdiction Case No.14557 of 2010 ====================================================== M/S Swastika Smokeless Coke Co Versus .... .... Petitioner/s The Central Coal Fields Ltd.&A .... .... Respondent/s ====================================================== Appearance : (In CWJC No.15903 of 2010) For the Petitioner/s : Mr. Raj Kishore Prasad For the Respondent/s : Mr. V.M.K.Sinha (In CWJC No.16424 of 2010) For the Petitioner/s : Mr. Raj Kishore Pd. For the Respondent/s : Mr. V.M.K.Sinha (In CWJC No.16513 of 2010) For the Petitioner/s : Mr. Raj Kishore Pd. For the Respondent/s : Mr. V.M.K.Sinha (In CWJC No.17226 of 2010) For the Petitioner/s : Mr. Raj Kishore Pd. For the Respondent/s : Mr. V.M.K.Sinha (In CWJC No.5032 of 2011) For the Petitioner/s : Mr. Raj Kishore Prasad For the Respondent/s : Mr. Vishwa Mohan Kumar Sinha (In CWJC No.13165 of 2010) For the Petitioner/s : Mr. S.D.Sanjay For the Respondent/s : Mr. Vishwa Mohan Kumar Sinha (In CWJC No.14557 of 2010) For the Petitioner/s : Mr. S.D.Sanjay For the Respondent/s : Mr. V.M.K.Sinha ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 6 02-04-2012 Heard learned counsels for the petitioners and learned counsel for the respondent Coal Company. The petitioners seek a direction upon the respondents to refund the amount of difference between the notified price of coal on which it was supplied to the linked consumers like the petitioners and the E-Weighed/E-Auction price which was actually Patna High Court CWJC No.15903 of 2010 (6) dt.02-04-2012 - 3 - realized from the petitioners for different periods starting from April, 2005 till October, 2005, which has been illegally withheld by the respondent and has not been refunded even after the final judgment of the Apex Court in the case of Ashoka Smokeless Coal India Pvt. Ltd. & ors v. Union of India and others: (2007) 2 SCC

640. Learned counsels for the petitioners rely upon a decision dated 1.7.2009 of this Court in C.W.J.C. No.7753 of 2008: M/s. Bhagwati Coke Industries Pvt. Ltd. vs. Central Coal Field Ltd. and another in which this Court had directed the respondents to refund the excess amount collected by them from the petitioners and further directed to pay the interest on the amounts realized at the rate of 12% per annum from the date of realization of the amounts to the date of actual payment. The said order was modified by order dated 17.2.2010 in L.P.A. No.1094 of 2009 filed by the Central Coal Field Ltd. only to the extent that the rate of interest was reduced from 12% to 6% per annum. Learned counsels for the petitioners submit that the present matters are on the same footing as the earlier decision of M/s. Bhagwati Coke Industries Pvt. Ltd. (supra), and the petitioners are entitled to the same relief. Learned counsel for the respondent Coal Company, on the Patna High Court CWJC No.15903 of 2010 (6) dt.02-04-2012 - 4 - other hand, sought to argue on the basis of the fact that in some of the cases, the interim orders have been passed in June, 2005 and thus the petitioners would not be entitled to the benefit of the earlier two judgments. In the case of M/s. Bhagwati Coke Industries Pvt. Ltd. (supra), the claim of the petitioners was with respect to refund of the amount realized from the petitioners for the months of April May and October, 2005 and thus no distinction can be made out between the said cases and the present matters on that count. Moreover, this Court has clearly held in the said decision:- “In the said circumstances, it was only fair on the part of the respondents that on the basis of the interim orders of this Court they ought to have refunded the excess amounts charged from the petitioners. Further the charge of the average price on the basis of the scheme of e- auction price having been declared ultra vires under Article 14 of the Constitution by the Supreme Court, it is always open to the petitioners to approach respondent- authorities for refund of any amount charged Patna High Court CWJC No.15903 of 2010 (6) dt.02-04-2012 - 5 - on the basis of such illegal action on their part. The petitioners also have the right for refund of such excess amount in terms of the interim orders passed in their favour.” The main thrust of the aforesaid decision of this Court was on the unfairness on the part of the respondents in not refunding the excess amounts and the right of the petitioners for refund of any amount charged on the basis of illegal action on the part of the respondents in view of the fact that the scheme of e-auction price had been declared ultra vires under Article 14 of the Constitution of India by the Apex Court. Learned counsel for the respondents has further sought to point out in one of the cases, namely, C.W.J.C. No.16424/2010 M/s. Babul Smokeless Fuel Industries Pvt. Ltd. vs. The Central Coal Field Ltd. and others, an interim order had been obtained from the Jharkhand High Court and, hence, the writ petition should not be heard by this Court. It is not the submission of learned counsel for the respondents that the writ petition is not maintainable before this Court on the ground of any lack of territorial or other jurisdiction. In the said circumstances, the said plea is a highly technical plea Patna High Court CWJC No.15903 of 2010 (6) dt.02-04-2012 - 6 - and fit to be rejected. In view of the issue having been finally settled by this Court and the Apex Court, the respondent Coal Company having lost before all the Courts not once but thrice and after first losing before the Apex Court, they again filed a review application before the LPA Bench which was dismissed and the S.L.P. against the same was also dismissed in the said circumstances, nothing remains in the opposition to the present matter on practically the same grounds or any other technical grounds. In the above facts and circumstances, all the writ applications are allowed in terms of the order dated 1.7.2009 passed by this Court in C.W.J.C. No.7753/2008: M/s. Bhagwati Coke Industries Pvt. Ltd. vs. The Central Coal Field Ltd. as modified by the order dated 17.2.2010 in L.P.A. No.1094 of 2009. The respondents are directed to refund the amount within a period of two months from today along with interest at the rate of 6% per annum from the date of realization of the amount to the date of actual payment. V.P.Sinha/- (Ramesh Kumar Datta, J)