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5.14 Aggrieved by the debit note by respondent No.2 and the communication dated 23.5.2012 the petitioners have taken out present group of petitions.

6. Mr. S.N. Soparkar, learner Senior Counsel with Mr. Joshi learned Senior Advocate with Mr. Desai, learned advocate and Mr. Bhatt, learned advocate have appeared for the petitioners. Mr. P.S. Champaneri, learned Assistant Solicitor General has appeared for respondent No.1 and Mr. Shah, learned advocate has appeared for respondent No.2 GAIL.

6.1 Learned Senior Counsel for the petitioners has submitted that as per the terms of the contract between the petitioners and the respondent No.2, the petitioners are governed by APM rates and that therefore, the impugned directions by respondent No.1 and / or impugned demand by respondent No. 2 tantamount to variation in terms of the contract. Learned Senior Counsel for petitioners have submitted that impugned demand raised by respondent No.2 is not only time barred but is contrary to the terms and conditions of the contract entered into by the respondent No.1 with present petitioners. It is also contended that variation in terms of the contract and amendment in contract are sought to be made unilaterally and that too without any opportunity of hearing to the petitioners. It is submitted that contracts are sought to be retrospectively amended which is not permissible more so when the contacts are sought to be amended at the direction of the government (respondent No.1) which also is not permissible in view of the terms and condition of the contract. The impugned communication and actions are also challenged on the ground that such retrospective recovery is impermissible in law. It is also claimed that retrospective recovery is sought to be made by wrong interpretation of the circular / letter of respondent No.1 and incorrect interpretation of the pricing order dated 20.6.2005. Learned Senior Counsel for the petitioners have also submitted that the demand for retrospective recovery of differential price is opposed to public policy and is contrary to the contract executed between the petitioners and the respondents. The learned Senior Counsel appearing for the petitioners have further contended that the respondents are not justified in demanding and enforcing market driven price i.e. non-APM price for the additional gas supplied during the period in question i.e. July, 2005 to March, 2010. It is also submitted that the market driven price can be demanded only in respect of future protection of gas from new fields. The main demand notice as well as the letter / circular dated 9.2.2012 and letter / circular dated 4.4.2012 are also challenged on the ground that they are arbitrary, opposed to the public policy, contrary to the terms of contact and based on the wrong interpretation of the terms of contract as well as pricing order. In support of the submission that the writ petitions are maintainable the learned Senior Counsel for the petitioners have claimed that even according to the respondents, the supply of the commodity under the contract is governed and controlled by the government and it affects public interest. Learned Senior Counsel for the petitioners have also submitted that it has now become impossible for the petitioners to recover the said additional burden from consumers or to pass over the said burden to the consumers or to incorporate the effect of the additional burden in the price of their final product and that, therefore, it is not possible for the petitioners to bear the burden which is sought to be imposed by the respondent for due from July 2005 to March 2010, vide debit notes issued in 2012. Learned Senior Counsel for the petitioners have submitted that the claim raised by respondent No.2 is, even otherwise also, time barred and even the contract has expired and new contract has been entered into and executed. Therefore, any claim particularly, time barred claim arising from and on account of the old contract which has expired cannot be enforced. It is also claimed that before issuing the impugned circular / letter dated 9.2.2010, any opportunity of hearing has not been afforded to the petitioners though by said circular / letter retrospective recovery is sought to be made against the petitioners. It is also contended that if the additional gas had not been supplied to the petitioners, the respondent would have been compelled to flare-up said quantity of gas and that therefore also the retrospective demand of non-APM price from the petitioners in respect of such additional supply of gas is unjustified. It is submitted that what is inter alia, challenged by the petitioners is the direction given by the respondent No.1 government and the grievance raised by the petitioners involve public law element. The petitioners have also relied on communication dated 30.3.2006 by respondent No.2 whereby respondent No.2 had, according to the petitioners, stipulated that additional supply of gas would be under Demand Management Scheme and that the terms and conditions of the gas supply contract shall remain unchanged. The petitioners have also relied on letters dated 5.6.2006, 5.7.2006, 29.9.2007 and 8.11.2007 issued by respondent No.2. It is also claimed that the demand and action of retrospective charing of non-APM price is beyond the scope of contract and in violation of article 19(1)(g) of the Constitution of India.

10.4 In the facts of the case, the submission cannot be accepted.

10.5 On this count, it is relevant and appropriate to note that merely because the impugned action is initiated by a limb or instrumentality of State or by the State itself, the said fact does not, automatically, inject public law element in such action. Like any private body or a person, State or its limb or statutory corporation are competent to enter into contract with private bodies, companies or individuals and such contract may be purely commercial or business contract without having any flavour or colour of statutory contract. All disputes which arise between the parties to such contract, which are not statutory contract or which do not give any rise to rights or obligation prescribed under statute, may not necessarily involve public law element merely on account of or in view of the fact that one of the parties to the contract is State or its instrumentality. Unless public law element is inherently involved in the dispute or in the case, public law remedy would not be available to the parties at the dispute and for adjudication or resolution of such dispute the parties at dispute should take recourse of ordinary civil remedy. Any strait jacket formula cannot be prescribed to determine as to whether public law element is inherently involved in the dispute on hand or not. It has to be decided on case to case basis and in context of the dispute, the parties at dispute and the effect of or involvement of public interest in such dispute and such other factors. Merely because relatively more number of persons are involved in or affected by the dispute or merely because one of the parties to the dispute is State or its limb, the dispute will not automatically be treated as dispute with public law element.

10.8 Dispute between such sub-class of consumers i.e. buyers and the supplier / seller of commodity product (viz. gas) which arise from application of and / or on account of the terms of contract for sale / supply of gas at agreed price cannot be categorized or treated as dispute affecting public interest or dispute involving or attracting public law elements. It is, therefore not possible to hold that the contract between the parties or the nature of dispute between the parties has any element or ingredient of public law.

10.9 The disputes raised in present group of petitions fall within the realm of private commercial contract between the parties and in light of the above mentioned characteristics of the contracts and the nature and scope of dispute, the contracts or the dispute do not involve public law element and merely because number of consumers affected by respondent No.2 are more or merely because the respondents are "state" and / or "instrumentality of state" and / or "instrumentality of State", the disputes between the parties, which are in private law domain and arise from purely commercial contracts are not capable of being categorised as disputes in realm of public law or involving public law element.