1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR Civil Application No. 1167/2008 in WRIT PETITION No. 395/2005 (Atul Limited Vs. U.O.I. & 2 ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mrs. M.G. Bhangde, Sr. Counsel, for petitioner. Mr. S.K. Mishra, A.S.G.I. For R-1. Mr. S.C. Mehadia, Adv. for R- 2 & 3. CORAM :D.D. SINHA & SMT. VASANTI A. NAIK, JJ. DATED : MARCH 4, 2008. Heard Mr. Bhangde, the learned Senior Counsel, for the petitioner, Mr. Mishra, the learned Assistant Solicitor General of India, for respondent no.1, and Mr. Mehadia, the learned counsel, for respondent nos. 2 and 3. Civil Application No. 1167/2008 is moved by the petitioner for refund of the amount. Mr. Bhangde, the learned Senior Counsel, has submitted that the petitioner- Company manufactures dyes and heavy chemicals and, therefore, needs coal as fuel 2 for its industry. The petitioner runs three units and each of the units is linked with the respondent no.3 for requirement of coal. The respondent no.3, which is one of the subsidiary of the respondent no.2, used to supply coal to the petitioner at Notified Price. It is further contended that some time in the month of April, 2005, the respondent no.2 decided to sell coal by “E-Auction” and charge average E-auction price to the linked consumers. Mr. Bhangde further contended that the petitioner had challenged the said decision by filing Writ Petition No. 3267/2005 and this Court, after hearing both the sides, has admitted the petition and also passed the interim order dated 4/7/2005 which reads thus: “The respondent Nos. 2 and 3 are directed to supply coal to the petitioner at notified price subject to the petitioner depositing with Western Coalfields Limited the difference between average E-Auction price and Notified price. The amount so deposited will be kept in the separate account by Western Coalfields Ltd. in the nationalised bank in fixed deposit and that would be subject to the final orders that 3 would be passed by this Court. The other contentions raised would be subject, as set out earlier, to final order in the writ petition. This order will apply to all transactions from today.” It is further contended by the learned counsel for the petitioner that in view of the interim order, the respondent no. 3 continued to supply coal to the petitioner and the petitioner regularly deposited difference between the Notified Price and E- Auction price with the respondent no.3. Mr. Bhangde, the learned Senior Counsel further contended that the Apex Court, by its judgment dated 1/12/2003 reported in 2006(13) SCALE 102 (M/s Ashok Smokeless Coal India P. Ltd. and Ors. Vs. Union of India and ors.) struck down the E-Auction policy framed by the respondent nos. 2 and 3. On 18/12/2006, the petitioner submitted his claim for refund of excess price of coal paid by the petitioner to respondent no.3. Since the respondent nos. 2 and 3 did not make any refund of deposit despite the decision of the Apex Court, the petitioner was constrained to move the Civil Application No. 747/2007, inter alia, praying for direction to the respondent nos. 2 and 3 4 to refund the excess amount collected from the petitioner. The said application was decided by this Court on 18/12/2007 and in the said order, statement of learned counsel for the respondent no.2 was recorded which shows that the respondent no.2 had undertaken to refund the excess payment made by the petitioner which was deposited by the respondent nos. 2 and 3 in fixed deposit in terms of order dated 4/7/2005 passed by this Court. The learned counsel for the petitioner further contended that vide order dated 27/12/2007, the petitioner again lodged a claim for refund of the said amount with the respondent no.3 along with the copy of the order dated 18/12/2007 passed by this Court. It is submitted that in response to this letter submitted by the petitioner, the respondent no.3 refunded some amount to the petitioner on 16/1/2008, which was less than the total claim made by the petitioner which the respondent no.3 was supposed to refund to the petitioner in view of the statement made by the learned counsel for the respondent no.3 before this Court which was reflected in order dated 18/12/2007. The counsel for the petitioner 5 further contended that in the backdrop of the above referred facts, particularly in view of the statement made by the counsel for the respondent no.3, the respondent no.3 was under an obligation to refund the entire excess amount i.e. difference between Notified Price and E-Auction Price deposited by the petitioner. However, since the respondent no.3 failed to refund the said amount, the petitioner has filed the present civil application seeking direction to refund the balance amount of the total amount which was claimed by the petitioner by way of refund. Mr. Mehadia, the learned counsel for the respondent nos. 2 and 3, has not disputed the factual aspect of the matter, however, has contended that the petitioner, in the petition, has not specified the names of other two units and only Non-Core Sector- linked consumers drawing coal on the basis of Maximum Permissible Quantity (M.P.Q.) have been all along considered because these units were charged weighted average E-Auction price. It is contended that pursuant to the interim order dated 4/7/2005, the difference paid by these units were kept by W.C.L. in the Fixed Deposit. At 6 the time of filing of petition, apart from 3 units drawing coal on the basis of M.P.Q. the petitioner was also drawing coal under Captive Power Plant (CPP) priority at Notified Price. It is further contended by the learned counsel for the respondent nos. 2 and 3 that in the Minutes of Standing Linkage Committee (S.T.) held on 23/6/2005, considering linkages in favour of Power Sector Consumers for the period July- September, 2005, the quantity hitherto allocated under C.P.P. priority only in case of Atul Ltd. was bifurcated into that for power generation and for process and not Atul Ltd. (East Side) as mentioned in the application filed by the petitioner. Mr. Mehadia, the learned counsel, therefore, contended that the petitioner is not entitled for refund of entire amount (i.e. difference of prices deposited by the petitioner). We have considered the contentions canvassed by the respective counsel. It is not in dispute that after the decision of the Apex Court dated 1/12/2006, the respondent nos. 2 and 3 refunded the difference of amount in Notified price and E- Auction Price deposited by the petitioner. Mr. Mehadia, the learned counsel for the 7 respondent nos. 2 and 3 submitted that only amount which was not refunded to the petitioner is in respect of 2007.33 M.T. of coal which was bifurcated from Core Sector since July, 2005, on the ground that this aspect was not connected with the cause of action involved in the writ petition. The contention canvassed by the learned counsel is misconceived. The petitioner, in the petition, has challenged the decision of respondents to introduce the scheme of sale of coal by E-Auction. It is also not in dispute that the petitioner has deposited the difference between Notified Price and E- Auction Price with the respondent no.3 and the said amount also was refunded to the petitioner by the respondent no.3. The issue of bifurcation as raised by the learned counsel for the respondent nos. 2 and 3, in our view, does not de-link the issue in question from the main cause of action involved in the petition and, therefore, we are of the view that the petitioner is entitled for the refund of the balance amount. We, therefore, direct the respondent no.3 to refund the said amount to the petitioner. However, the petitioner shall not be entitled to get interest thereon. 8 Civil application is, accordingly, allowed and disposed of. JUDGE JUDGE RMP