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Judgment
This Letters Patent Appeal is directed against the judgment/order dated 28th September 2018, passed by the learned Single Judge, allowing the writ petition, being OWP No. 803/2005, quashing the order bearing No.BCCL/S&M/LGL/2016/235 dated 29.08.2016, and directing respondents to release the amount of interest in favour of writ petitioners @ 18% per annum that has accrued on the amount of Rs.1,13,20,524/- from the date the amount was deposited by them till final realization and also directing the respondents to supply the un-lifted quantity of steam coal to writ petitioners, booked by them, on the rates as were applicable in the year 2000, and for setting the same on the grounds made mention of therein.
Learned counsel for appellant has stated that the learned Writ Court has erred in allowing the interest @ 18% per annum on the amount of Rs.1,13,20,524/- from the date the amount was deposited by respondents nos.1 to 4 till final realization and also in directing the appellants to supply the un-lifted quantity of steam coal booked by respondent nos.1 to 4, applicable in the year 2000. He avers that the learned Writ Court has also erred in directing the appellant-Bharat Coking Coal Limited (BCCL) to supply un-lifted quantity of steam coal at the rates which were prevalent in the year 2000 and ignored the direction given by Principal Secretary to Government, Industries and Commerce Department, J&K Government, dated 01.04.2005, in which it was clearly instructed not to resume coal supply to the units of J&K. Learned counsel also contends that learned Writ Court has not appreciated the fact that CBI investigation was started in respect of M/s Naseer Lime Kilns and there was a serious doubt about the other remaining firms, which had purchased the coal from the BCCL and there was investigation recommended by the CBI. The learned Writ Court is said to have not appreciated the fact that writ petitioners had already filed a writ petition, being OWP No.3301/2004, before the Hon'ble High Court of Jharkhand, with a prayer to direct respondent-BCCL to resume the supply of Coal or refund the amount of the advances paid by respondent nos.1 to 4 and that the reply dated 27.02.2004 of BCCL addressed to M/s JK Coal Consumer Consortium informed these petitioners regarding seizure of all coal supply related documents in respect of all the 26 Units of Jammu and Kashmir by CBI, SPE Dhanbad in July 2002 and their inability to process refund has also not been appreciated. It is stated that the reason for delay in refund cannot be attributed to BCCL in view of the reasons explained in the writ petition. The learned Single Judge while directing to supply the un-lifted quantity of steam coal at the rates which was prevalent in the year 2000 has ignored the fact that from 2000 to 2018, the coal prices increased many folds and coal distribution policies have also undergone several changes. According to the appellants, the following questions of law are involved: -
(i) Whether order passed on 24.12.2004 in writ petition no.3301 of 2004 by the Hon'ble High Court of Jharkhand considering the material facts and circumstances prevalent at that relevant period of time can be declared as null and void to establish BCCL as a defaulter for delay in refund on the basis of letters issued by Govt. of J&K on 28.11.2017 and 07.12.2017?
(ii) Whether the self-contained note of SPE, CBI, Dhanbad dated 30.07.2004 and Government order no. 224-IND of 2004 dated 13.10.2004 does not show that writ petitioner's Units were also under investigation by Government of J&K along with the accused firm M/s Naseer Lime Kilns?
(iii) Whether the letters issued by Government of J&K on 28.11.2017 and 07.12.2017 are not in contradiction to self-contained note of CBI, SPE, Dhanbad dated 30.07.2004 and Govt. of J&K order No. 224-IND of 2004 dated 13.10.2004 giving clean chit to the writ petitioner's unit?
(iv) Whether the direction to supply un-lifted coal to the non-existing, non-operational and deregistered writ petitioner's Unit at rate prevalent in 2000 is not violative of Government norms to supply linked quantity of coal to only valid operational end use plant?
(v) Whether the direction to supply un-lifted coal pertaining to the year 2000 to the writ petitioner's non-existing, non-operational and deregistered Units can be supplied at the rates prevalent in 2000 when the prices of coal have increased many fold in 2018 and the coal distribution prices have undergone several changes?
We have heard learned counsel for the parties and have also gone through the record of the Letters Patent Appeal and the documents relied upon.
Respondent nos.1 to 4 - Small Scale Industries Units, registered with the Industrial Department filed a writ petition, bearing OWP No.803/2005, claiming the following relief: -
"..........the respondents may kindly be directed to supply full booked quantity of Steam Coal to the petitioners on the booked rates applicable in the year 1998-2002, the dates when the cost of the coal was received by respondent-company or in the alternative to release the whole amount withheld by respondent-company alongwith interest accrued thereon on the whole withheld amount from the date of depositing the said amount and till the final realization of the amount".
The relief was claimed on the ground that the respondents Industrial Units have been registered with Industries Department of the State of Jammu and Kashmir and steam/slack coal is one of the materials required for the industrial activities undertaken by the said units. It has been pleaded by writ petitioners that linkage of supply of steam coal was granted by the District Industries Centre, whenever the industrial units of the petitioners have been registered and installed. It has been pleaded that appellants 2&3 had been supplying the coal to the respondents' units against advance payment. They deposited the cost of steam coal with appellant nos.2&3 and on receipt of cost of coal, the supply permits were issued by coal-company. After part supply was made against the sale orders, the appellant-company issued instructions to stop the supply of coal, against which they had received the payment. It has also been stated by writ petitioners that respondent nos.1 to 4 approached appellants for inquiring about the reasons for stopping the supply of raw material. The appellants could not give any reason and respondent nos.1 to 4 approached the Hon'ble High Court of Jharkhand, with a writ petition. In that writ petition, they came to know that on some letter of DIC Udhampur, supply of all units of Jammu and Kashmir was stopped. The BCCL stopped the refund to all the installed units of Jammu and Kashmir, who had been approaching steam coal from the appellants. In stopping the supply and refund, the company had acted arbitrarily and because of the non-supply of steam coal by appellants 2 and 3, the respondents' installation units were closed and they sustained heavy losses. Some installed units were auctioned by the banking and financial institutions where from they have obtained loan for installation and working of the units. On the intervention of the industries department, the appellant-company made the refund to them in the month of September 2005, but did not pay the whole amount nor did them pay the interest which accrued on illegally withheld amount. They had obtained loan from the financial institutions for the purchase of steam coal and the amount so deposited with appellant nos. 2 and 3 was obtained by them on loan for which they had paid interest to the financial institutions and because of the illegally-withheld amount, heavy losses were incurred by them. It has also been averred that the action of appellant nos.2 and 3 in withholding the amount deposited and in stopping supply of steam coal despite the cost having been deposited with it in advance was illegal and arbitrary.
Appellants herein caused their appearance before the learned Writ Court and filed their objections, insisting that writ petitioners were not found entitled to any interest because non-refunding of the amount was not due to any fault on their part as the matter was being investigated by CBI as also by Industrial Depratment of J&K Government and the refund was made in favour of writ petitioners thereafter in the year 2005-06, which was accepted by writ petitioners without raising any objections. According to appellants, the supply was stopped only on the advice of Director of Industries, J&K Government.
The stand of appellants that they were under instructions of CBI and Government of J&K to withhold refund to writ petitioners, was directed to be proved on the basis of documentary proof. They, however, could not do so. In this regard, the learned Writ Court passed order dated 10th April 2017. The Government of J&K clarified that registration of enquiry, relied upon by appellant-BCCL, had nothing to do with writ petitioners and BCCL was not directed to stop refund to petitioners at any stage as no case was registered any of petitioners with regard to procurement or supply of coal from BCCL. Not only this, even CBI did not find involvement of writ petitioners in any case against them and no objection had come forward from them in opposition to the averments made in writ petition.
Pendency of matter before and passing of order by the Jharkhand High Court has rightly been said to be not a potent weapon in the hands of present appellants to dislodge the case of writ petitioners. Impugned judgement, when looked on all angels and in all facets of the matter, is comprehensive, lucid and luculent. The learned Writ Court has discussed all aspects of the matter while rendering impugned judgement. The learned Writ Court has rightly quashed order no.BCCL/S&ML/LGL/2016/235 dated 29th Auguts 2016, passed by Bharat Cooking Coal Limited and directed appellants to release the amount of interest in favour of petitioners @ 18% per annum accrued on the amount of Rs.1,13,524/- already deposed by writ petitioners/ respondents and illegally withheld by appellants from the day the amount was deposited by writ petitioners with appellants to the date of final realization and the direction to this extent passed by the learned Writ Court need not be interfered with. To this extent the appeal is dismissed.
However, insofar as a direction passed by the learned Writ Court, directing present appellants to supply the un-lifted quantity of steam coal to the petitioners, booked by them, on the rates as were applicable in the year 2000, is concerned, the same is hereby set-aside and to this extent the appeal is partly allowed. Ordered accordingly.