1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Writ Petition No.3308 of 2005 (Ruchi Soya Industries Ltd., Mumbai and others v. The Union of India, through the Secretary to Government of India and others) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri Shriniwas Deshpande, Advocate for Petitioners. Shri S.K. Mishra, Assistant Solicitor General for R- 1. Shri S.C. Mehadia, Advocate for R- 2 and 3. CORAM : A.M. Khanwilkar & R.C. Chavan, JJ. DATE : 2nd May, 2008 Both the counsel agree that the issues involved in the present petition are identical to one raised in Writ Petition No.3267 of 2005, which has been decided on 18-12-2007. Accordingly, by consent, the present petition is disposed of in terms of the aforesaid order as under : Heard. Counsel for the petitioner has submitted that the petitioner- Companies are registered as Small Scale Industries and, therefore, need coal as a fuel for the said Industries. Western Coal Field Limited (WCL), respondent No.3, supplies coal to the petitioner-Industries under “Linkage” system at “Notified Price” which was initially fixed by the Union of India, respondent No.1. At a later point of time, the Coal India Limited (CIL), respondent No.1, was supplying the coal to the petitioner-Industries. Counsel for the petitioners further contended that in December, 2004, two subsidiaries of CIL namely, Bharat Cooking Coal 2 Limited and North Eastern Coal Limited introduced a scheme to sell coal by “E-Auction” and to charge average “E-Auction Price” instead of “Notified Price” to the linked consumers. It is further contended by the counsel for the petitioners that in April, 2005, the WCL, respondent No.3, also introduced the scheme to sell the coal by “E-Auction” and to charge “E-Auction Price” instead of “Notified Price” to the linked consumers like the petitioners. On 1-7-2005, the present petition was filed challenging the “E-Auction” scheme and the decision of CIL and WCL to charge average “E-Auction Price” to the linked consumers. On 5-7-2005, the petition was admitted and the interim order was passed, the operative part of which reads thus- “The Respondent Nos.2 and 3 are directed to supply coal to the petitioners at notified price subject to the petitioners' depositing with Western Coal Fields Ltd. the difference between the average E-Auction price and notifice price. The amount so deposited will be kept in the separate account by western Coal Fields Ltd. in the Nationalized Bank in fixed deposit and that would be subject to the final order that would be passed by this Court. The other contentions raised would be subject, as set out earlier, to final order in the writ petition.” Counsel for the petitioners further contended that on 12-12-2005, the Apex Court passed an interim order directing the linked consumers to pay in addition to the “notified price”, 33.1/3% of the enhanced price and furnish security for the balance 66.2/3% of the enhanced price and recorded an undertaking of the CIL and its subsidiaries that in case the challenge to the “E-Auction” scheme is upheld, the enhanced price paid by the petitioners will be refunded within six weeks from the date of judgment with interest @ 12% per annum from the date of payment till the date of repayment. Said order was applicable to the objections which 3 were filed and, at the relevant time, pending before the Apex Court. It is further contended by the counsel for the petitioners that on 1-12-2006, the Apex Court, by its judgment in the case of Ashoka Smokeless v. Union of India, reported at (2007) 2 SCC 640, upheld the judgment of Gauhati High Court and set aside the judgment of M.P. High Court and struck down the “E-Auction” scheme. It is submitted that in spite of the striking down of the “E-Auction” scheme by the Apex Court, the CIL and its subsidiaries did not refund the price charged in excess of “Notified Price”. Hence contempt petitions were filed before the Apex Court. On 30-10-2007, the Apex Court has passed an order in the contempt petitions in view of the statement of the learned Solicitor General of India, the relevant part of which reads thus- “The amount paid by the petitioners, in excess of the “Notified Price” shall be refunded to them upon production of the documents which may be submitted in that behalf.” Counsel for the petitioners, therefore, contended that in the circumstances, respondent Nos.2 and 3 are liable to refund the amount paid by the petitioners in excess of “Notified Price” including the amount kept in fixed deposits under the interim order passed by this Court and the interest thereon. Counsel for respondent Nos.2 and 3 does not dispute the factual and legal aspects of the matter referred to above. However, it is submitted that so far as the entitlement of the petitioners for grant of excess amount paid by the petitioners on and above the “Notified Price” to the WCL, respondent No.3, from the date of interim order i.e. 5-7-2005, is concerned, which is kept in fixed deposit, shall be refunded with interest which is accrued thereon, to the petitioners, within six weeks. However, so far as the excess amount on and above the “Notified Price” paid prior to the passing of 4 the interim order dated 5-7-2005, from the date of “E-Auction” Scheme came into existence,is concerned, since the issue in this regard is pending before the Apex Court. We have considered the contentions canvassed by the coounsel for the petitioners as well as respondent Nos.2 and 3. In view of the above referred undisputed facts as well as decision of the Apex Court and in view of the statement made by the counsel for respondent Nos.2 and 3, the cause of action in the present petition does not survive. The petition is accordingly disposed of. JUDGE JUDGE pdl