IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7753 of 2008 1. M/S BHAGWATI COKE INDUSTRIES Pvt.ltd., a company incorporated under the provisions of the Companies Act, 1956 having its place of business situated at Industrial Area, Aurangabad through one of its Directors, Shyam Kishor Prasad, S/o late Deo Nandan Prasad, resident of Urmila Villa, Mohalla Surya Mandir Road, P.O., P.S. and Town and District- Aurangabad. 2. M/s Bhawani Coke Industries Pvt. Ltd., a Company incorporated under the provisions of the Companies Act, 1956 having its place of business situated at Bhupatipur, P.S. Sirish, District- Aurangabad through its Managing Director, Sunil Kumar Singh, S/o late Ram Naresh Singh, resident of Bhupatipur, P.S. Sirish, District- Aurangabad. 3. M/s Maa Mundeshwari Carbon Pvt.Ltd., a Company incorporated under the provisions of the Companies Act, 1956 having its place of business situated at Bhairopur, P.O. Paharia, P.S. Bhagwanpur, District- Kaimur at Bhabhua through one of its Directors, Manoj Kumar Singh, S/o Rajeshwar Prasad Singh, resident of Bhairopur, P.O. Paharia, P.S. Bhagwanpur, District- Kaimur. 4. M/s. Jai Mangala Fuels Pvt.Ltd., a Company incorporated under the provisions of the Companies Act, 1956 having its place of business situated at Lakhibagh, Manpur, P.S. Gaya, District- Gaya through its Managing Director, Ashok Kumar Singh, S/o Shri Babban Singh, resident of Lakhi Bagh, Manpur, P.S. Gaya, District- Gaya. 5. M/s. Pushpanjali Coal & Coke Pvt. Ltd., a Company incorporated under the provisions of the Companies Act, 1956 having its place of business situated at Bhupatipur, P.S. Sirish, District- Aurangabad through its Managing Director, Sunil Kumar Singh, S/o late Ram Naresh Singh, resident of Bhupatipur, P.S. Sirish, District- Aurangabad. 6. M/s. Gaya Coke Company Pvt.Ltd., a Company incorporated under the provisions of the Companies Act, 1956 having its place of business situated at Biniadganj,P.S. Maanpur, District- Gaya through its Managing Director, Ashok Kumar Singh, S/o Babban Singh, resident of Biniadganj, P.S. Maanpur, District- Gaya. Versus 1.THE CENTRAL COAL FIELD LTD., a subsidiary of Coal India Ltd. (Sales & Marketing Department) Darbhanga House, Ranchi through its Chairman-cum- Managing Director. 2.The General Manager ( Sales & Marketing )Central Coal Fields Ltd., Darbhanga House, Ranchi. ----------- For the petitioner: Mr. S.D. Sanjay,Advocate Mr. Akash Chaturvedi,Advocate Mr. Sanil Kumar,Advocate For the respondents:Mr. V.M.K.Sinha,Advocate --- 2 5. 1.7.2009 Heard learned counsel for the petitioners and learned counsel for the Central Coal Field Ltd. The petitioners seek a direction on the respondents to refund the amount of the difference between the notified price coal on which it was supplied to the linked consumers, like the petitioners and the e-weighted/e-auction price which was actually realized from the petitioners for the months of April, May and October, 2005, which has been illegally withheld by the respondents. The short facts of this case are that all the six petitioners are manufacturing units of special smokeless fuel, which had set up the same on the basis of the assurance and promises made by the State Government as also the Coal India Limited, of which the respondent Central Coal Field Limited is a subsidiary, since the CFRI Technology for manufacturing special smokeless fuel was totally dependent upon the adequate coal supply being the only raw material for the running of such industries. Accordingly, they are covered by the Coal India Limited policy for assured supply of coal to them at the notified price by the respondents. Subsequently, the respondent Central Coal Field decided to effect sale of raw coal, washery slurry and hard coke to non-core sector consumers/ non-consumers by way of e-auction Scheme and with respect to the linked consumers, like the petitioners, a decision was taken in 2005 that they have to pay the price on the basis of average of e-auction price obtained by the respondents. Several writ petitions were filed by such linked Companies in various parts of the country and certain interim orders 3 were passed by the various High Courts, against which Special Leave Petitions were filed by the Central Coal Field Limited in the Supreme Court and by the interim order dated 3.3.2005, the Apex Court considered the submission of the respondents that the Appellant-Coal Field would supply coal to the respondent linked Units at the rate prevailing in the month of December,2004, subject to the condition that they would be filing an indemnity bond before the High Court undertaking to pay the difference in value in the event of their claim falling before the High Court and, accordingly, the interim order was passed that the respondents in the S.L.P. if they so desired to collect such quantity of coal which they last purchased from Northern Coalfields to approach the authorities of North Eastern Coalfields and collect the said quantity of coal at the rate mentioned above after furnishing the undertaking. Relying upon the aforesaid interim order, several writ petitions were filed by the petitioners and others in which this Court was pleased to direct that the interim order passed by the Supreme Court on 3.3.2005 shall cover the petitioners and the respondent should release the pending quota to the petitioners, if not already released, subject to the deposit of the indemnity bond. Subsequently all the writ petitions pending before the different High Courts of the country with respect to the said matter, including the writ petitions filed by the present petitioners were transferred to the Supreme Court by its order dated 12.12.2005 at the instance of the Coal India Limited and the interim order dated 3.3.2005 was modified with effect from that date to the extent that 33 1/3 % of 4 the difference in price in addition to the notified price was to be paid in cash by the linked Coal Units and the indemnity bond was to be furnished as security for the balance 66 2/3% of the enhanced price. Ultimately by order dated 1.12.2006 in the case of Ashoka Smokeless Coal India (P) Ltd. and others vs. Union of India and others: (2007) 2 SCC 640, the Scheme of E-Auction was declared as ultra vires under Articles 14 of the Constitution of India in paragraph No.161 of the judgment, which is quoted below:- ”161. The effect is that today, while the core sector (92%) on its own and non-core non-linked SSI/tiny units (through NCCF/other agencies) (1%) are being supplied coal at a fixed price, on the other hand, the non-core linked SSI/tiny (4%) are being subjected to differential treatment, without any rational classification, by supplying the coal to the latter on the price to be ascertained by the trader- controlled process of e-auction and thereby putting the petitioner units on a par with the trader. The scheme of e-auction is, therefore, ultra vires Article 14 of the Constitution of India.” In the meantime while the petitioners had submitted their indemnity bonds before the respondents for supply of coal pertaining to the months of April, May and October, 2005, yet ignoring the interim order of this Court, the respondent-authorities realized the e- auction price for all those months instead of realizing the notified price. After the aforesaid judgment of the Supreme Court when the Coal Company did not return 33 1/3 % E- Auction price deposited after 12.12.2005 on the basis of the interim order dated 12.12.2005 various contempt petitions were filed in the Supreme Court for realization of the excess amounts. At that stage, the respondents refunded the entire amount for the period after 12.12.2005 with interest 5 at the rate of 12 per cent as directed by the said order. The petitioners filed representations before the respondents for refund of the excess amounts charged for the months of April, May and October, 2005, but on refusal of the respondents to refund the amount, they have approached this Court. Learned counsel for the petitioners submits that the action of the respondents is contrary to the interim direction of this Court contained in the various interim orders passed in the case of the petitioners. It is further submitted that in any view of the matter considering that the respondent is State under the meaning of Article 12 of the Constitution it is required to act fairly and not arbitrarily and whimsically in the matter and ought to have refunded the amount it has realized in excess, that too after the passing of the interim order of this Court. It is submitted by learned counsel for the petitioners that the matter having been finally set at rest by the Supreme Court and the action of the respondents of charging excess amount from the linked units on the basis of average weighted e-auction price having been declared as ultra vires under Article 14 of the Constitution of India it was not open to the respondents to retain the amounts they have illegally realized from the petitioners. Learned counsel for the respondents, on the other hand, submits that the interim order of the High Court stood merged with the final order of the Apex Court passed on 12.12.2005, by which it had directed for payment of 1/3rd of the enhanced price in cash along with the security for the balance amount and thus it is not open to the 6 petitioners to raise any claim on the basis of the said interim order. It is further submitted by learned counsel that after the disposal of the said S.L.Ps., the contempt applications were filed for the purpose of refund of the amounts in which the Coal Company deposited an amount of Rs. 1143/- crores before the Apex Court and the same was ultimately refunded to the parties concerned on verification of documents in terms of the direction of the Supreme Court. Accordingly, it is submitted that if the petitioners had grievance with respect to refund of any amount, they ought to have agitated the matter before the Supreme Court but they have not done so and they have approached this Court after more than a year after receiving the refund on the order of the Supreme Court. On a consideration of the rival submissions of the parties, this Court does not find any force in the submission of learned counsel for the respondents. So far as the interim orders of this Court are concerned, they were never modified for the period they remained in operation and only the transfer application was allowed by the Supreme Court on 12.12.2005. There is nothing to show that any application was filed by the respondents for modification of the order for the period prior to 12.12.2005. So far as the order dated 12.12.2005 of the Supreme Court is concerned, the same was only prospective in operation for supply of coal to be made by the respondents after that date and it did not at all pertain to the previous transactions which would continue to be 7 governed by the interim orders of the Apex Court or of this Court. Hence, there is no question of merger of the interim orders of this Court in any order of the Supreme Court for the period prior to 12.12.2005. So far as the stand of the respondents that the petitioners ought to have raised their claim before the Apex Court is concerned, it is the stand of learned counsel for the petitioners that the contempt applications were filed and entertained only with respect to the refund of the cash amount in terms of the order dated 12.12.2005 of the Apex Court and it did not cover the previous interim orders either of the Supreme Court or of the different High Courts. It is submitted by learned counsel for the petitioners that in several cases interlocutory applications were filed before the Supreme Court for refund of amounts pertaining to the orders other than the order dated 12.12.2005 of the Apex Court but the same were not entertained and all such matters were permitted to be withdrawn to enable the parties to file applications involving the dispute which arose prior to pronouncing of the judgment and in respect of the cases the cause of action whereof arose whether before or after the pronouncing of the judgment, remedies before an appropriate forum were to be pursued. In this regard similar other applications were not entertained by the Supreme Court. This Court is of the view that it is most unfair on the part of the respondent Coal Company to refuse to refund the amount in the face of the interim orders of this Court that no additional amount will be charged from the petitioners after filing the indemnity bond but despite 8 furnishing of indemnity bound, the Coal Company has wrongly realized the entire price on the basis of average of e-auction price which was not permissible. 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 the respondent-authorities for refund of any amount charged 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. In the facts and circumstances of the case, this Court directs that the respondents shall refund the excess amounts collected by them from the petitioners within a period of eight weeks from the date of receipt/production of a copy of this order. Since the respondents have acted in violation of the interim orders of this Court and realized excess amounts, they are also liable to pay interest on the amount so realized at the rate of 12% per annum from the date of realization of the amounts to the date of actual payment. The writ application is, accordingly, allowed with cost quantified at Rs.10,000/-. VPS ( Ramesh Kumar Datta,J.)