Eastern Coalfields Ltd vs M/S Tetulia Coke Plant(P)Ltd.& Ors

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