Himachal Pradesh High Court
Rajeev Chauhan vs State Of Himachal Pradesh & Others on 19 September, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 2748 of 2014-E
.
Judgment reserved on : 2.09.2016.
Date of Decision : September 19 , 2016
Rajeev Chauhan ... Petitioner
of
Versus
State of Himachal Pradesh & others ...Respondents
Coram:
rt
The Hon'ble Mr. Justice Sanjay Karol, Judge
Whether approved for reporting? Yes. 1
For the petitioner : Mr. Bipin C. Negi, Sr. Advocate with Mr.
Narender Thakur, Advocate, for the petitioner.
For the respondent : Mr. Ram Murti Bisht and Mr. R. S. Verma, Addl.
Advocate Generals for respondent No. 1/State.
Mr. Bhupinder Pathania, Advocate, for
respondents No. 2 and 3.
Sanjay Karol, J.
In exercise of powers vested under Section 7 of the Himachal Pradesh Forest Produce (Regulation of Trade), Act, 1982 (hereinafter referred to as the 'Act') the Government of Himachal Pradesh issued notification dated Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 23.4.1991 (Annexure P-1), regulating the manner in which payments were required to be made to the owners of .
private forests, whose forest produce was purchased by the H.P. State Forest Corporation. The notification itself provides for complete mechanism of payment on economic basis/system.
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2. Validity of such notification came up for consideration before a Division Bench of this Court in CWP rt No. 629 of 1991, titled as Ishwar Dutt & others vs. State of Himachal Pradesh & others, which was disposed of vide judgment dated 18.12.1996, wherein the Court not only held it to be valid, but also clarified as under:
"5. As regards the notification, which is found in Annexure P-11, we do not find any merit in the contention urged by learned counsel for the petitioners. We are not able to find out anything, which is contrary to the provisions of the Act or Rules or any provisions of the Constitution and the principles of natural justice. The economic system, which has been invoked and adopted by the Forest Corporation has been found by the Government to be enforceable and acceptable and on that basis, the notification has been issued. Section 7 of the Act contains two provisos. Under the first proviso, if the Committee fails to tender advice by the 15th of ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 3 February proceeding the financial year, the State Government may proceed to fix the price without .
consultation of the Committee. That will arise only if there is a Committee and it fails to tender advice for fixing the price in different forest Divisions. The second proviso reads that the State Government through its authorized officer or agent may purchase the forest produce till the constitution of the of Committees at a price mutually agreed upon between the parties to the sale. Under the second proviso, it is open to the State Government to fix the rt price even if there is no Advisory Committee, under Sections 6 and 7 of the Act. It is only the said provision, under which the notification dated
3.4.1991 has been issued by the Government fixing the price for different forest produce. We do not find any illegality whatever in the said notification.
6. The said provision referred to the price mutually agreed upon between the parties to the sale. In this case, there is an agreement between the power agent of the parties and the Forest Corporation. Under the agreement, the party had agreed to the fixation of the price, as per the economic system, which was in vogue previously. The Government notification fixing the price at a particular rate says that if the price obtained under the economic system is higher that has to be paid. The Government notification says that whichever is the higher price it is to be adopted and paid for the trees in question. In such a situation, we do not find ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 4 any illegality whatever in the notification dated 3.4.1991. Consequently, that contention fails."
.
[Emphasis supplied]
3. It is a matter of record that not only the respondent/Corporation accepted the aforesaid findings but moved an application, seeking implementation thereof, in of letter and spirit.
4. One Sh. Ashok Pal Sen, who perforce had to sell his produce to the State Forest Corporation, filed a petition rt before this Court, being CWP No. 900 of 2000, titled as Ashok Pal Sen vs. The H.P. State Forest Corporation, seeking benefits under the very same notification dated 3.4.1991, for the reason that the State Government had not issued any other notification under Section 7 of the Act, for the Financial Year 1994 - 1995. Learned Single Judge vide judgment dated 5.1.2004, by relying upon the decision rendered in Ishwar Dutt (supra) allowed the petition by according benefits under the very same notification. In effect, petitioner was held entitled to the price of forest produce at a rate which was higher than the agreed rates, on the basis of royalty. Criterion adopted was that of ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 5 economic basis. Eventually petition came to be allowed in the following terms:
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"25. In view of the aforesaid discussion, this writ petition is allowed and as a result of it, petitioner is held entitled for a sum of Rs. 6,31,604/- and the respondent-Corporation is directed to pay the same as per Annexure P-8 having been worked out on of economic basis, by or before 1.3.2004 by remitting the same through the banker's cheque or demand draft to the petitioner at its own expense. In case rt needful is not done by or before respondent shall also be liable for payment of this date, interest on this amount at the rate of 6% per annum with effect from 1.7.1996 till the date of its payment. No costs."
5. It is not in dispute that the said decision came to be affirmed by the Division Bench of this Court in terms of judgment dated 22.3.2004, rendered in LPA No. 6 of 2004, titled as The H.P. State Forest Corporation vs. Ashok Pal Sen.
6. Still aggrieved, the Corporation unsuccessfully agitated the issue before the apex Court, but however, on 2.12.2010, Civil Appeal No. 531 of 2005, titled as H.P. State Forest Corporation Ltd. vs. Ashok Pal Sen, came to be dismissed on merits in the following terms:
::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 6"We have heard learned counsel for the parties.
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We find no merit whatsoever in this appeal preferred by the Corporation against the impugned judgment. The impugned judgment merely followed the decision of another Division Bench in Ishwar Dutt and others vs. State of Himachal Pradesh and others made in Civil Writ Petition No. 629 of 1991 dated of 18.12.1996. The said judgment squarely applies to the facts on hand.
This appeal is accordingly dismissed."
7. rt Even a Review Petition [Rev. Pet. (C) No. 1279 of 2011 in Civil Appeal No. 531 of 2005] came to be dismissed by the apex Court on 25.8.2011.
8. It is a matter of record that even the present petitioner, vide agreement dated 8.2.1995 (Annexure P-6) had sold the forest produce grown over his private land, to the respondent-Corporation. In terms of the agreement, petitioner was entitled to 50% of the basic rate on the basis of royalty. It is not in dispute that case of the present petitioner is identical to that of the petitioner(s) in Ishwar Dutt (supra) and Ashok Pal Sen (supra). Undisputedly no other notification under Section 6/7 of the Act came to be issued by the respondent-Corporation, and the only ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 7 notification governing the field was dated 3.4.1991, subject matter of earlier cases. With the matter having come to rest .
in the case of Ashok Pal Sen (supra), present petitioner, vide communication dated 30.11.2011, seeking parity, requested the Corporation for release of payments, on the basis of very same notification and in terms of the aforesaid of decisions. But however, such claim came to be refuted by the Corporation for the reason that benefit accorded by the rt Court was specific to the petitioner(s) therein and that, in any event, petitioner's claim was barred by limitation.
9. Noticeably the Act itself postulates mutually binding reciprocal obligations upon the parties. (i) Owner of the forest produce grown over private land is under an obligation to sell the same only to the State Government or its agent; (ii) Equally the State/its agent is to compensate the owner by making payment of the produce. All such payments are regulated by and are required to be made in consonance with the statutory provisions. Significantly relationship between the parties is governed by and under the Statute and not the contract alone.
::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 810. The notification in question categorically provides for grant of benefit of higher price to the owner of .
the produce. And this is notwithstanding the agreement having entered into between the parties.
11. Deprivation of statutory claim is nothing but an infringement of a constitutional right. When the State of deprives the citizens of their properties, it is a clear violation of Article 21 of the Constitution of India.
rt In a Welfare State, the statutory authorities are bound to pay adequate compensation.
12. After observing that Article 300-A of the Constitution of India only limits the power of the State that no person shall be deprived of his property, save by authority of law, the apex Court in Tukaram Kana Joshi and others vs. Maharashtra Industrial Development Corporation and others, (2013) 1 SCC 353, clarified that even after cessation of right of property as a fundamental right, acquiring the property of a citizen most certainly tantamounts to deprivation and such deprivation can take place only in accordance with "law".
::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 913. The Court in Tukaram (supra) further observed that the right to property is now considered to be, not only a .
constitutional or a statutory right, but also a human right.
Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in the realm of individual rights, such as the right to health, the of right to livelihood, the right to shelter and employment.
14. Whether on the ground of laches and delay itself, rt such right can be defeated and petition thrown or not, more so after its admission, is an issue which requires consideration, in view of the stand taken by the respondent.
The answer to the same, in my considered view lies in the Statute and Part-III of the Constitution itself. Such right cannot be negated purely on account of delay and laches for the following reasons. (i) Relationship inter se the parties is governed by the Statute/Subordinate Legislation in the shape of notification; (ii) The Government/its agent is under an obligation to pay the amount to the owner of the forest produce. This has to be in terms of the Statute/notification issued there under. Failure to comply with the statutory notifications, cannot come in the way of the rightful ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 10 claimant, in having his produce sold at marketable rates.
Significantly acquisition of forest produce is by force of law, .
leaving the owner no choice but to perforce sell it to the State Government/its agent; (iii) There is a corresponding obligation cast upon the State/its agent to pay the amount in terms of the Statute. This has to be so done with of promptitude. Of its own, State is under an obligation to discharge its statutory obligations and make payments, rt more so in the absence of any disputed claim. In the year 1996 and 2004 itself, this Court had settled the issue of rights and obligation of the State. They ought to have come forward in releasing the payments with certain amount of speed and dispatch, rather than forcing the parties to litigate for adjudication of their claims; (iv) The matter attained finality with the dismissal of Civil Appeal on 2.12.2010 as also Review Petition by the Apex Court on 25.8.2011, whereafter petitioner promptly agitated the issue in terms of his communication dated 30.11.2011 (Annexure P-8).
15. An identical issue came up for consideration before the apex Court in K. Thimmappa & others vs. ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 11 Chairman, Central Board of Directors, State Bank of India & another, (2001) 2 SCC 259 wherein it was argued that if .
treatment meted out to the petitioners was found to be discriminatory and as such violative of Article 14 of the Constitution of India, the Court would not throw away the petitions merely on the ground of laches. Despite the issue of having been agitated after a period of one/ two decades, such contention came to be accepted by the Court.
rt Petitioner had sought reliance on the following observations made by the apex Court in Ramchandra Shankar Deodhar vs. State of Maharashtra, (1974) 1 SCC 317:
"Moreover, it may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned the role of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jujune ground of laches, delay or the like."
16. In Godavari Sugar Mills Limited v. State of Maharashtra and others, (2011) 2 SCC 439, the apex Court culled out the following principles:
::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 12"(i) Normally a petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability arising out of a breach of a .
contract or a tort to pay an amount of money due to the claimants. The aggrieved party will have to agitate the question in a civil suit. But an order for payment of money may be made in a writ proceeding, in enforcement of statutory functions of the State or its officers, [vide Burmah Construction Co. v. State of Orissa, 1962 Supp(1) SCR 242].
(ii) If a right has been infringed -whether a of fundamental right or a statutory right and - the aggrieved party comes to the court for enforcement of the right, it will not be giving complete relief if the court merely declares the existence of such right or the fact that existing right has been infringed. The rt High Court, while enforcing fundamental or statutory rights, has the power to give consequential relief by ordering payment of money realized by the government without the authority of law [vide State of M.P. v. Bhailal Bhai, AIR 1964 SC 1006].
(iii) A petition for issue of writ of mandamus will not normally be entertained for the purpose of merely ordering a refund of money, to the return of which the Petitioner claims a right. The aggrieved party seeking refund has to approach the civil court for claiming the amount, though the High Courts have the power to pass appropriate orders in the exercise of the power conferred under Article 226 for payment of money, [vide Suganmal v. State of M.P., AIR 1965 SC 1740].
(iv) There is a distinction between cases where a claimant approaches the High Court seeking the relief of obtaining only refund and those where refund is sought as a consequential relief after striking down the order of assessment etc. While a petition praying for mere issue of a writ of mandamus to the state to refund the money alleged to have been illegally collected is not ordinarily maintainable, if the allegation is that the assessment was without a jurisdiction and the taxes collected was without authority of law and therefore the Respondents had no authority to retain the money ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 13 collected without any authority of law, the High Court has the power to direct refund in a writ petition [vide Salonah Tea Co. Ltd. v. Superintendent of Taxes, .
(1988) 1 SCC 401].
(v) It is one thing to say that the High Court has no power under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, where the facts are not in dispute, where the of collection of money was without the authority of law and there was no case of undue enrichment, there is no good reason to deny a relief of refund to the citizens. But even in cases where collection of cess, levy or tax is held to be unconstitutional or invalid, rt refund is not an automatic consequence but may be refused on several grounds depending on facts and circumstances of a given case. [Vide U.P. Pollution Control Board v. Kanoria Industrial Ltd, (2001) 2 SCC 549].
(vi) Where the lis has a public law character, or involves a question arising out of public law functions on the part of the State or its authorities, access to justice by way of a public law remedy under Article 226 of the Constitution will not be denied. [Vide Sanjana M. Wig v. Hindustan Petroleum Corporation Ltd., (2005) 8 SCC 242.] [Emphasis supplied]
17. On the question of delay, the Court in Tukaram (supra) observed as under:
"12. The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 14 of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, .
continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.
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13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and rt when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. (Vide:
P.S. Sadasivaswamy v. State of T.N., 1974 AIR (SC) 2271; State of M.P. & Ors. v. Nandlal Jaiswal & Ors., 1987 AIR(SC) 251; and Tridip Kumar Dingal & Ors. v.
State of West Bengal & Ors., (2009) 1 SCC 768;)
14. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches.
Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 15 considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right .
in the injustice being done, because of a non-
deliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the Petitioners. (Vide: Durga Prasad v. Chief Controller of Imports and Exports & Ors., 1970 AIR(SC) 769; Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., 1987 AIR(SC) 1353; Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur & Ors., 1993 AIR(SC) 802; Dayal Singh & Ors.
of v. Union of India & Ors., 2003 AIR(SC) 1140; and Shankara Co-op Housing Society Ltd. v. M. Prabhakar & Ors., 2011 AIR(SC) 2161)
15. In the case of H. D. Vora v. State of Maharashtra rt & Ors., 1984 AIR(SC) 866, this Court condoned a 30 year delay in approaching the court where it found violation of substantive legal rights of the applicant. In that case, the requisition of premises made by the State was assailed."
18. It is a settled principle of law that with the leave to appeal having been granted and the appellate jurisdiction of the Supreme Court having been invoked, order passed in the appeal would attract the doctrine of merger which order may be of reversal, modification or mere affirmation. [See:
Kunha Yammed & others vs. State of Kerala & another, (2000) 6 SCC 359]
19. Hence there is no question of delay in the adjudication of petitioner's rights or invocation of equitable jurisdiction of this Court in seeking redressal of grievances emanating out of statutory obligation.
::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 1620. On a serious note, present petition is also opposed on the ground that the judgment rendered in .
Ishwar Dutt (supra) and Ashok Pal Sen (supra) is personam in nature and the ratio of law laid down therein, applicable and confined only to those writ petitioners, not extendable to the present petitioner who was not a party therein. Such of contention needs to be rejected in view of law laid down by the apex Court in U.P. Pollution Control Board & others vs. rt Kanoria Industrial Ltd. & another, (2001) 2 SCC 549 wherein it is observed that:-
"18. ... ... But in matters arising under public law when the validity of a particular provision of levy is under challenge, this Court has explained the legal position in M/s. Shenoy and Co. v. Commercial Tax Officer, Circle II, Bangalore, (1985) 2 SCC 512 : (AIR 1985 SC 621) that when the Supreme Court declares a law and holds either a particular levy as valid or invalid it is idle to contend that the law laid down by this Court in that judgment would bind only those parties who are before the Court and not others in respect of whom appeal had not been filed. To do so is to ignore the binding nature of a judgment of this Court under Article 141 of the Constitution. To contend that the conclusion reached in such a case as to the validity of a levy would apply only to the parties before the Court is to destroy the efficacy and ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 17 integrity of the judgment and to make the mandate of Article 141 illusory. When the main judgment of .
the High Court has been rendered ineffective, it would be applicable even in other cases, for exercise to bring those decisions in conformity with the decisions of the Supreme Court will be absolutely necessary. Viewed from that angle, we find this contention to be futile and deserves to be rejected."
of [Emphasis supplied]
21. Further the apex Court in Bharat Sanchar Nigam rt Limited vs. Ghanshyam Dass (2) & others, (2011) 4 SCC 374 has observed as under:
"25. The principle laid down in K.I. Shephard v. Union of India, (1987) 4 SCC 431, that it is not necessary for every person to approach the court for relief and it is the duty of the authority to extend the benefit of a concluded decision in all similar cases without driving every affected person to court to seek relief would apply only in the following circumstances:
a) where the order is made in a petition filed in a representative capacity on behalf of all similarly situated employees;
b) where the relief granted by the court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not;::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 18
c) where an order or rule of general application to employees is quashed without any condition .
or reservation that the relief is restricted to the petitioners before the court; and
d) where the court expressly directs that the relief granted should be extended to those who have not approached the court."
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22. In reference to the aforesaid decision Mr. Ram Murti Bisht, learned Addl. Advocate General invites attention of this Court to para - 26 of the said report. The rt fact situation being different, observation made by the Apex Court is not applicable in the instant case. No right whatsoever can be said to have accrued in favour of any third party.
23. To a similar effect is the decision rendered by the apex Court in State of Uttar Pradesh & others vs. Arvind Kumar Srivastava & others, (2015) 1 SCC 347 wherein the Court has held as under:
"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
22.1. Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 19 alike by extending that benefit. Not doing so would amount to discrimination and would be .
violative of Article 14 of the Constitution of India.
This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal of rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. rt 22.2. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 20 the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation .
can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like [see K.C. Sharma & Ors. v. Union of India, (1997) 6 SCC 721]. On the other hand, if the judgment of the Court was in personam holding that benefit of the said of judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from rt the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
[Emphasis supplied]
24. The apex Court in Prabhjot Singh Mand & others vs. Bhagwant Singh & others, (2009) 9 SCC 435 has held that "it is one thing to say that judgment delivered by this Court in Arvinder Singh Bains vs. State of Punjab, (2006) 6 SCC 673 is not a judgment in rem but prima facie this Court has interpreted the Rules, which would be a law declared in terms of Article 141 of the Constitution of India. The High Court before arriving at a finding that the first respondent would be entitled to be promoted to the cadre of Indian Administrative Service, in our considered opinion, should ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 21 have bestowed serious consideration in regard to the implementation of the said judgment and the effect thereof.
.
It was for the said purpose, the High Court should have assigned some reasons in support of its order".
25. To a similar effect is the decision rendered by the apex Court in Eastern Coalfields Limited vs. Tetulia coke of Plant Private Limited & others, (2011) 14 SCC 624 wherein the Court has held that "it must be indicated herein that the rt 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. vs. Union of India, (2007) 2 SCC 640, 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 ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 22 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 of were raised before it". The Court further held that "We are unable to accept the contention of the learned Additional rt 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 ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 23 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 of Courts at that stage, at least to the issues which are common in nature".
rt
26. It be only observed that neither this Court nor did the apex Court confine the decision to the parties before them.
27. In the instant case, petitioner cannot be said to be a fence-sitter. Immediately with the merger of the judgment of this Court, with that of the Apex Court, he approached the authorities, reminding them of complying with their statutory obligations.
28. The matter in support of the petitioner further stands fortified from the observations noticed by the apex Court in S. J. Coke Industries Private Limited & others vs. Central Coalfields Limited & others, (2015) 8 SCC 72 in the following terms:
::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 24"37. Before parting with the case, we consider it opposite to state that this case reminds us of the .
subtle observations made by Justice M.C. Chagla, Chief Justice of Bombay High Court in Firm Kaluram Sitaram Vs. The Dominion of India, 1953 SCC OnLine Bom 39 : 1954 AIR (Bom) 50. The learned Chief Justice in his distinctive style of writing held as under: (SCC OnLine Bom para 19) of "19 ....we have often had occasion to say that when the State deals with a citizen it should not ordinarily rely on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be rt open to it, it must act, as has been said by eminent judges, as an honest person."
38. Keeping in view the stand taken by the CCL and the manner in which they contested the cases at all stages in different High Courts and in this Court by raising same pleas despite their adjudication by this Court lead us to draw a conclusion that untenable pleas were being raised by CCL just to defeat the legitimate claim of the citizens determined in their favour by this Court in earlier litigations and which was known to CCL."
29. Relentlessly to drive home his point, Sh. Ram Murti Bisht, learned Addl. Advocate General draws attention of this Court to a decision rendered by the apex Court in Delhi Administration vs. Gurdip Singh Uban & others, (1999) 7 SCC 44. Bare reading of the judgment reveals that ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 25 the Court was dealing with such of those parties who had never chosen to file objections to the acquisition .
proceedings and it is in this backdrop, while construing the specific provisions of the Land Acquisition Act, 1894, the Court held the acquisition proceedings with respect to the parties before them not to have lapsed. Opposition to the of acquisition proceedings was sine qua non for assailing such action in Court.
rt
30. No other point urged.
31. Hence for all the aforesaid reasons, communications dated 20.12.2011 (Annexure P-9) and 21.3.2012 (Annexure P-12) rejecting the petitioner's claim are quashed and set aside with a further direction to the respondent-Corporation to calculate the value of the forest produce sold by the petitioner to the State Forest Corporation in terms of agreement dated 8.2.1995 (Annexure P-6) on economic basis i.e. in terms of notification dated 3.4.1991 (Annexure P-1) and pay the amount within a period of four weeks from today. Since obligation to pay the amount within time, in accordance with law, vested solely with the respondent-Corporation and ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP 26 for the reason that it was not so done, petitioner shall be entitled to interest @ 6% per annum, in terms of decision .
rendered in Ashok Pal Sen's case (supra).
Petition stands disposed of accordingly, so also pending applications, if any.
of (Sanjay Karol), Judge.
September 19 , 2016 (PK) rt ::: Downloaded on - 15/04/2017 21:14:52 :::HCHP