Judgment:
Prasun Kumar Deb, J.
1. The petitioner is a partnership firm and owns a Hard Coke Plant. It takes basic raw material for manufacture of hard coke in its plant from the Respondent No. 3, M/s. Bharat Coking Coal Limited which is a subsidiary of the Coal India Limited (Respondent No. 2). The marketing and sales policy of the subsidiaries of Respondent No. 2 including that of Respondent No. 3 are controlled by Respondent No. 2 at its Calcutta Office and is guided by its policy decision taken time to time. The Colliery Control Order, 1945, conferred power to Respondent No. 1, Coal Controller, regarding controlling of gradation and fixing of sale price of coal in different collieries under Respondent No. 2. The relevant provisions of the Colliery Control Order, 1945, enumerates that the Central Government may prescribe the classes, grades, process into which coal may be categorised and the specification for each such class, grade or size of coal. It also provides that the Owner Agent or Manager of the Colliery may from time to time on the basis of analysis of wagon samples may alter the gradation fixed time to time.
2. In the present case, we are practically concerned regarding fixation of price of coal for despatch either from the pit heads or from the stock wherefrom the coal is to be lifted by the different purchasers. Under the Colliery Control Order, 1945, the Government fixes by notification in the official Gazette the sale price to its maximum or minimum regarding different sizes and grades for different collieries. Pursuant to the provision of 1945 Orders, the Central Government has from time to time prescribed the classes and grades into which the coal is to be categorised and also fixed the sale price at which such coal may be sold, the Hard Coke Plant of the petitioner, as already stated, is admittedly linked for supply of coal from M/s, Bharat Coking Coal Limited (Respondent No. 3) and also from the other subsidiaries of Coal India Limited (Respondent No. 2). By notification dated 16.6.1994 (Annexure-1) in supersession of the earlier notification of February. 1993, prescribed the classes and grades into which the coal and coke or coke at the colliery pit heads. Again on 23rd March, 1995, the Respondent No. 3 issued its grade Notification for the year 1995-96 with effect from 1 4.1995 and such notification has been annexed as Annexure-2 in relation to the notification of the Central Government dated 16th June, 1994 which is contained in Annexure-1. By notification dated 29th December, 1995, the Central Government made certain amendments in the earlier June, 1994 notification which is contained in Annexure-3. In pursuance of December, 1995s notification, the Respondent No. 3 published its price list on 30.12.1995 which is contained in Annexure-4. Then suddenly the Respondent No. 3 issued a wireless message purporting to impose service/handling charge of Rs. 80/- per metric tonnes from Hard Coke Manufacturing Units for despatch of coal by road with effect from 1st February, 1996, and, in this connection, a circular has been issued by the Industries and Commerce Association on 1st February, 1996, which is contained in Anncxure-5. Such wireless message demanding/imposing of extra handling/service charge, as mentioned above on that wireless massage, the petitioner's Association made a representation to withdraw the same and two decisions of this Court and affirmation of the Supreme Court had also been annexed with such representation. Annexure-6 is a copy of such representation dated 12.2.1996 but the Respondent No. 3 published its price list on 31.3.1996 (Annexure 7). Subsequently also, the grade and price list has been amended and published on 20.10.1996 by Respondent No. 3.
3. The grievance of the petitioner is with regard to levy of service/handling charges to the extent of Rs. 80/- per matric tonnes as it has been urged that the same is in violation of the Colliery Control Order and, as such, without jurisdiction, ultra vires and void. For better appreciation in the subsequent discussion, the wordings of the wireless message as contained in Annexure-5 may be enumerated in verbatim:
REFERRED TO;
WIRELESS MESSAGE:
FOR : ALL AREA/GMS
RPT : ALL AREA SALES MANAGERS
FROM COM (S & M), BCCL, KOYLA BHAWAN, DHANBAD
IT HAS BEEN DECIDED BY THE COMPETENT AUTHORITY THAT THE MINIMUM SERVICE/HANDLING CHARGES i.e. Rs. 80/- (RUPPES EIGHTY) PER TONNE BEING CHARGED IN THE COMPANY ELSEWHERE SHOULD ALSO BE CHARGED FROM HARD COKE MANUFACTURING UNITS FOR DESPATCH OF COAL/SLURRY BY ROAD TO BE EFFECTIVE FROM 1.2.199 (.)
IT IS REQUESTED THAT Rs. 80/- PER TONNE BE CHARGED ON ALL ROAD DESPATCHES OF COAL/SLURRY A/C, PRIVATE COLLIERIES W.E.F. 1.2.1996:
As there was no other alternative when the representation of the petitioner's Association has not been considered, the levied handling charges had to be paid by the petitioner while lifting coal from the collieries of M/s. BCCL although such handling charges are never being demanded by the other subsidiaries of the Respondent No. 2 with whom also the petitioner's hard coke plant is linked with.
4. Prayer has been made in this writ application for quashing the notification (Annexure-5) dated 1st February, 1996 by which the handling/service charges had been imposed as being without jurisdiction and ultra vires and also for refund of the amount which had already been illegally realised from the petitioner. Reliance of the petitioner is on a Bench decision of this Court in Birendra Kumar Singh v. Bharat Coking Coal Ltd. and Ors. C.W.J.C. No. 1336 of 1987 (R), disposed of on 8th August, 1988] wherein also Rs. 20/- was imposed as service charges on the buyers of coal on the ground that M/s. BCCL was transporting coal from the various pit heads stock yards wherefrom the coal is being lifted by the linked buyers. It was held by this Court that when the coal was being lifted by the buyers from the pit heads, there was no scope of imposing any service/handling charges as the service charge could only be entitled for the collieries when the coal is to be taken from the pit heads to stock yards for the purpose of lifting by the buyers but when the buyers were taking or lifting coal from the pit heads, there was no scope of any service or handling charges by the colliery and hence such imposition of handling charge was held to be illegal and unauthorised. That judgment of the Single Bench was challenged in the Special Leave Petition before the Apex Court by M/s. B.C.C.L. but the same has been dismissed thus upholding the decision of this Court. Similarly, in C.W.J.C. No. 1170 of 1995 (R), M/s. Pawan Solvents & Chemicals Ltd. had also challenged before this Court regarding handling charges when it could be found that for some Kilometers when the coal was being taken from the pit heads to the stock yards had already been included in the price list, there cannot be imposition of further handling charges by the subsidiaries of Respondent No. 2. That writ petition was also allowed vide order dated 22.2.1996, by Hon'ble Mr. Justice S.K. Chattopadhyaya.
5. In the counter-affidavit filed by the Respondent Mo. 3, all averments made has been challenged and they were relying on the judgment of the Apex Court in Bharat Coking Coal Ltd. v. Steel Abrasers and Allied Products Ltd. 1994 Supp (3) SCC 361, wherein the imposition of handling charges of delivery of hard coke had been found to be proper and justified and on the basis of that judgment in Civil Appeal No. 3972 of 1995 arising out of S.LP. (Civil) No. 593 of 1995 between
Bharat Coking Coal Ltd. and Ors. v. Marooti (Special Smokeless Fuel) Industries and
Ors. JT 1994 (6) SC 282, has upheld the imposition of handling charges on delivery of hard coke. It has also been stated that in contempt petition i.e., M.J.C. No. 253 of 1993 (R) between Vijay Kumar Khetan v. G.C Mrig, has also distinguished the case of Birendra Kumar Sinha (supra) inasmuch as in Birendra Kumar Sinha's case, it was factually held that lifting was made from the pit-heads whereas in Vijay Kumar Khetan (supra), the Coal was being delivered from the stock yards within 1 Kms. from the pit heads of the colliery and, as such, in contempt petition, no contemptuous action was taken against Bharat Coking Coal Limited. From such submissions being made in the counter-affidavit, it is the clear contention that in view of the Steel Abrasers and Allied Products Ltd. (supra), the case of Birendra Kumar Sinha has never remained a good law end, as such, imposition of handling charge is within the permissive jurisdiction of M/s. Bharat Coking Coal Limited. On the factual aspect, it has been stated that such service charges were necessary for imposition as the coal were being taken from the pit heads upto the stock yards at the cost of collieries and such cost can definitely be reimbursed from the customers/consumers. Moreover, it was also stated that such handling/service charges realised were being utilised in the social and development works in the hereby areas of the collieries and whatever charge has been imposed and realised by Respondent No. 3 had definitely been included by the petitioner while selling their hard coke to the intending customers, so the question of refund does not arise as it would amount to illegal enrichment of the petitioner.
6. In rejoinder to the counter-affidavit filed, it was asserted by the petitioner that the writ petition filed before the Calcutta High Court had no nexus with the petitioner although some of the partners of the petitioner might be a party to that writ petition, but the said writ petition had already been withdrawn from the Calcutta High Court as there was no jurisdiction of the Calcutta High Court to entertain the matter territorially. It has now been asserted by annexing a copy of the sale order that the B.C.C.L. was selling coal from the pit heads and not from any stock yards or a common place away from the pit heads and that too beyond three kilometers and as such the question of handling/service charge has got no basis as the B.C.C.L. was not doing anything on the coal to be supplied to the petitioner from the pit-heads. It has further been asserted that when service charge was imposed without doing any service then such imposition is contrary to the Colliery Control Order and the subsequent notifications made therefrom. From the version of the counter-affidavit, it has been stated from the side of the petitioner that the charges which had been realised in the name of the service charges or handling charges had been utilised by M/s. Bharat Coking Coal Limited for communicity development programme reveals that such charges were imposed arbitrarily and on whims only for the enrichment of the B.C.C.L. itself.
7. From the contentions of the parties, the following points emerged for decision:
(i) Whether the coal to the petitioner is being supplied from the pit-heads or from the different common places several kilometers away from the pit-heads and in that connection if it is not supplied from the pit-heads then there is no question of application of Birendra Kumar Sinha's case (supra). In the present circumstances Steel Abrasser's case and Marooti (Special Smokeless Fuel) Industries' case would be applicable only.
(ii) The factual dispute regarding supply of coal from the pit heads or not or a distance beyond three Kilometers is a disputed point of fact which cannot be entertained within the writ jurisdiction of this Court.
(iii) Even if the imposition of service/handling charges are held to be inoperative in the eye of law then also the amount which had already been realised from the side of M/s. B.C.C.L. cannot be asked to be refunded as that would only give the benefit of illegal enrichment to the petitioner. In this connection reference may be made in the case of Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. : 1997(89)ELT247(SC) .
8. Mr. Hirak Mitra, Senior Advocate, appearing for and on behalf of the petitioner, has submitted that the supply was all along from the pit heads, the question of law and order as has been claimed from the side of M/s. B.C.C.L. was already discussed and borne out in Birendra Kumar Sinha's case (supra) and as the matter was in admitted position, the petitioner had not specifically mentioned in the original writ petition but when in the counter-affidavit, the same has been raised, the petitioner had to substantiate it by filing supplementary affidavit annexing the sale order which goes to reveal that M/s. B.C.C.L. is only to defeat/defend the legitimate claim of the petitioner has taken unnecessary plea that the coal is not being supplied from the pit heads.. According to Mr. Mitra, even if it is not supplied from the pit heads then also 1994 notification if it has been supplied within the area of three kilometers then already the sale price had been included regarding the carriage of coal from the pit heads to the stock yards and the extra imposition of service/handling charges can be there. He has also referred to the concluding portion of the Steel Abrasers' case where the service charges were being upheld but enumeration of conditions of such imposition of service charges as made by the Apex Court is not applicable in the present case. In Steel Abrasers' case, in paragraph-10 it was specifically mentioned as to what circumstances and the conditions imposed on service charges can be there. For proper appreciation, the whole paragraph 10 is hereby
reiterated:
10. Having carefully considered the respective contentions of the learned Counsel in the light of the material on record we are inclined to accept the contentions of Mr. Salve in preference to those of Mr. Sanyal. From a combined reading of the relevant clauses of the Order and the notes appended to the notification referred to earlier, we may draw the following
conclusion:
(i) The Central Government may, by Gazette notification, fix the sale price for different grades and sizes of coal and coke and for different collieries, including plants for the production of coke,
(ii) The prices so fixed are applicable to sale of coal at pit-heads and of coke at coke even plants,
(iii) Prices given in Table V of the notification for hard coke shall not apply to small sized hard coke and other types of cokes as mentioned,
(iv) No colliery owner shall call and no person shall purchases coal or coke at a price which is in excess of the notified price.
(v) However, besides the price so fixed, the colliery owner is entitled to realise (a) costs for transportation beyond a distance of 3 Kms. to the loading point at the specific rates, (b) excise duty, royalty, cess, sales tax and other taxes/levies, if any, and (c) additional charges as may be negotiated between the producer and the purchaser for undertaking special sizing or beneficiation.
9. The conditions mentioned therein never include carrying of coal from pitheads to the stock yards as the same had already been included in 1994 notification. Steel Abresers' case was in relation to the hard coke but the present case is not raw coal. For manufacturing of hard coke, some sorficing is required to make size of the hard coke blocks for accommodating at the time of loading and for that, in the Steel Abresers' case, service/handling charges have been upheld. The condition No. (v) as mentioned above regarding special size etc., is of no applicability in the case of raw material. Hence, according to Mr. Mitra, even if the Steel Abrasers' case which had been strongly relied on by M/s. B.C.C. is taken into consideration then also that decision cannot be binding in the present case. The question of negotiating that special charges between the producer and the purchaser cannot be there as there was no service being rendered by M/s. B.C.C.L. in respect of raw coke. So according to Mr. Mitra Steel Abrasers' case which was in relation to hard coke has got no applicability in the present case rather the present case- is totally covered by the decisions of Birendra Kumar Sinha's case which had been upheld by the Supreme Court and further even if the principles laid down in Steel Abrasers' case are taken into consideration, as mentioned above, then also, as M/s. B.C.C.L. could not reveal as to what services they have rendered after taking coal from the mines before supplied to the petitioner, the question of negotiation of additional charges does not at all arise. In the present case, there was no negotiation rather it was imposed by M/s. B.C.C.L. illegally, arbitrarily and without jurisdiction.
10. As regard Marooti (Special Smokeless Fuel) Industries in Civil Appeal No. 3972 of 1995, the Apex Court did not at all discuss any matter and only set aside the judgment of this Court basing on Steel Abrasers' case. The applicability or non-applicability of the case of Steel Abrasers' had not been analysed in that order and such order without any discussion cannot be said binding on this Court when Birendra Kumar Sinha's case has been upheld by the Supreme Court wherein total analysis of the matter in issue was made and discussed.
11. Regarding M.J.C. case, it was an order passed by a Single Bench of this Court and on factual aspect only, that question of carrying of coal by the purchaser either from the pit-head or from a common place had not been clarified and hence the M.J.C. case was dismissed.
12. Mr. Debi Prasad, Senior Advocate, appearing for and on behalf of the B.CC.L. has strenuously argued that he is ready to give concession to the petitioner if it could be shown that the coal was being carried from the pit heads and not from any place. Relying on Birendra Kumar Sinha's case leaving aside Steel Abrasers' case, according to him. that point whether the petitioner was taking or loading raw coal from the pit-head or from the stockyard or from a place beyond 3 Kms. from the pit-heads is only a matter of factual dispute and, according to Mr.Debi Prasad, this Court has no jurisdiction to enter into such disputed fact. Reply to that had already been made by Mr. Mitra which I have already discussed above. So, when the concession had been made by Mr. Debi Prasad and rightly was done so, the position remains that if the petitioner lifts coal from the pit-heads or from the stock yards within 3 kms. then the imposition of service/handling charges is definitely illegal. 1 have already stated that by a supplementary affidavit sale order had been annexed wherein it could be shown that the coal were being lifted from the pit-heads. On the other hand, in the counter-affidavit, although the same has been denied but no specification has been made as to wherefrom the coal were being lifted by the petitioner and the other purchasers. When the assertion is there and the sale order has been produced although belatedly and the same has been denied only because specific mention was not therein the original writ petition, it cannot be said that the petitioner's case should be thrown out on the ground that the writ jurisdiction could not be applicable as the factual aspect is disputed, rather the factual aspect has been established from the side of the petitioner. Then again, Mr. Mitra's case is that even if the Steel Abresers' (supra) is applicable on the principle enunciated then the burden lies on the B.C.C.L. to show that the coal was being lifted by the petitioner from the place beyond 3 Kms. When that has not been clone then the imposition of service/handling charges is definitely bad, arbitrary and without jurisdiction relaying both Birendra Kumar Sinha's case and that of Steel Abrasers' (supra). There was no service being rendered by M/s. B.C.C.L. can also be very well inferred when in the supplementary counter-affidavit, M/s. B.C.C.L. in paragraph 9 has asserted that the service charges which are being realised arc being utilised for the purpose of community development. If there was really a service rendered then the cost should be utilised for the service rendered rather the cost now realised in the name of service/handling charges are admittedly being utilised for community development which can clearly reveal that no service was being rendered and the charges imposed have been utilised for the welfare of the nearby villages only. Thus, point Nos. (i) and (ii) as formulated earlier candidly goes in favour of the petitioner. Moreover the assertion made from the side of the petitioner that it has also linkage with the other subsidiaries of Respondent No. 2 namely, Eastern Coalfields Limited etc., and there no handling/service charges had been imposed. If on principle it was to be imposed then it should have been by all the subsidiaries and not by M/s. Bharat Coking Coal Limited alone. In that view also, such imposition of service charges without rendering service is definitely bad.
13. Regarding refund, it has been strenuously argued from the side of the petitioner that when imposition of service charge is illegal, arbitrary and without jurisdiction, then the amount which had been realised illegally must be refunded with interest which was accordingly done in Birendra Kumar Sinha's case and, as such, the petitioner is entitled to get refund of the amount which had been illegally realised from the side of M/s. Bharat Cooking Coal Limited On the other hand, it is the contention of M/s. Bharat Coking Coal Limited that the charges which had been realised by the petitioner had definitely been recovered by the hard coke plaints of the petitioner while selling it to customers. It cannot be imagined that the petitioner would be selling hard coke by giving loss for the purpose of imposition of handling charges. It is the submission of Mr. Debi Prasad that there cannot be any double benefit to the petitioner. He must have realised the amount from the customers while selling hard coke and no where it has been asserted about it by the petitioner what they had to suffer loss in selling hard coke by less price then once the same amount had already been realised by the petitioner from its customers by selling hard coke, the cannot get double benefit by getting refund from M/s. Bharat Coking Coal Limited. On this contention, Mr. Mitra has submitted that coal was being taken from different links not only from M/s. Bharat Coking Coal Limited but from other subsidiaries also and other hard coke plant owners who had taken from the other subsidiaries and not from M/s. Bharat Coking Coal Limited were selling hard coke at less price then in the competition the petitioner must have been losing the price of hard coke at per with other hard coke plants and as such it cannot be said that by getting the refund there would be an illegal enrichment in favour of the petitioner. No where in the writ petition or the supplementary affidavit filed on behalf of the petitioner, it has given any date or strata showing how they have incurred loss because of imposition of handling charges and it can be inferred in that circumstances that the petitioner must have realised those from the customers while selling hard coke. It was observed in Mafatlal Industries Limited (supra) by the Apex Court in the following
manner:
While examining the claim of refund, the financial chaos which would result in the administration of the State by allowing such claims is not an irrelevant consideration. Where the petitioner-plaintiff has suffered no real loss or prejudice, having passed on the burden of tax or duty to another person, it would be unjust to allow ore decree his claim since it is bound to prejudicially affect the public exchequer. In case of large claims, it may well result in financial chaos in the administration of the affairs of the State.
14. In the present case, it has been specifically averred by M/s. Bharat Coking Coal Limited that whatever amount has been realised in the name of service charges had already been utilised for community development in nearby village by constructing roads, Schools, drinking water facilities and also several welfare schemes such as construction of children parks. Status and beautification programme are carried out from time to time and a such averment has not been controverted from the side of the petitioner. On one hand the petitioner had not given date or strata as to how it had suffered loss and on the other hand he being a middle man inference can be made of including such charges within the price while selling hard coke to the intending customers and when the amount realised by M/s. Bharat Coking Coal Limited had been utilised for welfare purposes then on the principles being enunciated by the Apex Court, as mentioned above, I am not inclined to allow the claim of refund to the petitioner.
15. In view of the discussions made above, this writ petition is allowed in part by holding that the Annexure-5's notification dated 1.2.1996 is arbitrary, illegal, without jurisdiction including the wireless message imposing handling charges at the rate of Rs. 80/- per mertic tonne on the raw coal but the prayer of refund regarding whatever amount which had already been realised by Respondent No. 3 (B.C.C.L.) on the basis of such illegal notification is hereby disallowed on compassionate and humanitarian consideration. However, there will be no order as to costs.