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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