EASTERN COALFIELDS LTD. Vs M/S TETULIA COKE PLANT(P)LTD..
Bench: MUKUNDAKAM SHARMA,ANIL R. DAVE, , ,
Case number: C.A. No.-006888-006888 / 2011
Diary number: 40573 / 2010
Advocates: ANIP SACHTHEY Vs
MEHARIA & COMPANY
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REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 6888 OF 2011 (Arising from SLP(C) No. 325 of 2011)
EASTERN COALFIELDS LTD. Appellant(s)
VERSUS
M/S TETULIA COKE PLANT(P)LTD.& ORS. Respondent(s)
O R D E R
Leave granted.
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 Appellant
herein. 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.
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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
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(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
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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 and merit. 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
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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 is 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.
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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
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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.
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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% per annum.
In terms of the aforesaid order, this appeal is disposed
of, leaving the parties to bear their own costs.
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...........................J (Dr. MUKUNDAKAM SHARMA)
...........................J (ANIL R. DAVE)
NEW DELHI, AUGUST 10, 2011