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Madhya Pradesh High Court · body

2000 DIGILAW 1171 (MP)

M/S Kalpataru Agroforest v. Union Of India

2000-10-30

S.C.PANDEY

body2000
ORDER S.C. Pandey, J. 1. This appeal under Section 23 of Railway Claims Tribunal Act, 1987 is directed against the order dated 27-10-98, passed by Railway Claims Tribunal, Bench Bhopal, in Review Case No. 18/98, whereby the review application filed by the appellant against the order dated 10-12-97 was rejected. 2. This appeal involves common question of facts and law with connected Misc. Appeal Nos. 161/99, 163/99, 164/99, 166/99 and 167/99 between the same parties. For this reason the disposal of this appeal on merits shall govern the disposal of those appeals and it would be unnecessary to write a separate detailed order in each case. 3. The facts giving rise to this appeal may be shortly stated. The appellant filed a claim case before the Railway Claims Tribunal, Bhopal, registered as O.A. No. 391 of 1995 for refund of Rs. 55,450/-. The appellant claimed that the South Eastern Railway and the North Eastern Frontier Railway represented by the Union of India were not entitled to charge in excess the aforesaid amount by way of freight because the goods loaded by the appellant were carried by shorter route for which the freight charge would be less by aforesaid amount. It is alleged in Original Application No. 391 of 1995 that the appellant was the consignor of the goods which were booked in four consignments from BONGAIGON to AMLAI. Accordingly, four Railway Receipts were obtained by the appellant mentioning the appellant as the consignor of the goods and the consignee was the Orient Paper Mills, Amlai. It may be stated here at the out set that the four Railway Receipts issued by North East Frontier Railway at the starting station showed that consignee was required to pay the amount of freight chargeable for carrying the goods at the time of delivery of goods. This was indicated in the Railway Receipts by the use of the words "to pay". This aspect of the matter was not in dispute before the Railway Claims Tribunal, Bhopal (henceforth 'the Tribunal') and this Court too. The foundation for the claim of the appellant for the refund of Rs. 55,450/- was that the freight was charged in excess because it was represented to the appellant that goods shall be carried by a longer route called "Rationalized Route" on account of the paucity of the line capacity of the Railways during the rush season. The foundation for the claim of the appellant for the refund of Rs. 55,450/- was that the freight was charged in excess because it was represented to the appellant that goods shall be carried by a longer route called "Rationalized Route" on account of the paucity of the line capacity of the Railways during the rush season. According to the appellant the Rationalised Route was via Malda/Dankuni etc., for short, recognized as "MLDT/DAKE". It was 1769 Kilometers as compared to another shorter route via Andal-Anara-Chakradharpur, having a distance of 1530 Kilometers from the booking station. It was urged by the appellant that under the Rationalised Scheme prevalent at that time it was necessary for the Railways, for operational reasons, to carry the goods by a longer route. Therefore, at the booking station the charge for 1769 Kilometers was made but there was no operational constraint at the time of actual movement of goods. Therefore, the goods were, in fact, carried by a shorter route via Andal-Anara-Chakradharpur and the distance covered by Railway Wagons carrying the goods was only 1530 Kilometers. The appellant, therefore, claimed refund of the excess of freight charged by the respondent which came to Rs. 55,450/- filing Case No. O.A. 391 of 1995, against the respondent. 4. The respondent, inter alia, pleaded that it was incorrect to say that the goods were carried via shorter route. It was stated that wagons carrying goods travelled the entire route of 1769 Kilometers via MLDT/DAKE and consequently, the question of refund did not arise. It was asserted that the booking of the goods was from station to station and the respondent charged the freight accordingly and not on the foundation of the distance covered. It was further asserted that in this case, the consignee paid the freight as the contract of carriage of the consignments in question required the consignee "to pay" at the time of delivery of goods. The contention of the respondent was that the appellant lost its title to the goods after handing them over to Railways. The title in the goods passed to the consignee and, therefore, the appellant had no right to sue in respect of refund of freight of goods. There were certain other vague pleas but they are not of much consequence and do not appear to have been pressed or considered by the Tribunal. 5. The title in the goods passed to the consignee and, therefore, the appellant had no right to sue in respect of refund of freight of goods. There were certain other vague pleas but they are not of much consequence and do not appear to have been pressed or considered by the Tribunal. 5. The Vice Chairman of the Tribunal, speaking for the Division Bench, found against the appellant on the question of fact that goods were carried by shorter route. It was held that goods were carried by the route MLDT/DAKE to Amlai. Therefore, the question of refund did not arise. For coming to that conclusion the Vice Chairman of the Tribunal found that the assertion of the appellant that the goods were carried by shorter route was rebutted by the affidavit of Abhijeet Mukherjee, the concerned Railway official. 6. The Vice Chairman further concluded that the rationalised route was fixed by General Order of 1990 in this case. This order itself indicated that the Railways were entitled to change the route for operational reasons. He relied on the Rule 125 of Goods Tariff for holding that the Railway Administration was free to carry goods by a route other than that was fixed at the time of booking, owing to circumstances beyond its control. The Vice Chairman appears to have held that under these circumstances the appellant was not entitled to claim refund of excess of freight, as alleged. 7. The Vice Chairman also took the view that in any case, the freight was not paid by the appellant and title to goods had passed to the consignee under Section 74 of the Railways Act, 1989 (henceforth 'the Act') and, consequently, the appellant could not file the claim for refund of excess of freight. 8. Aggrieved by the aforesaid order dated 10-12-97 passed by the Division Bench of the Tribunal, the appellant filed a review application which was barred by time. The Division Bench entertained the review application after condoning the delay in filing that application. However, it rejected the application on merits upholding the conclusions of the earlier Division Bench. 9. The basic question, therefore, has to be decided if the Railway Claims Tribunal could entertain the review application against the order dated 10-12-97. The moot question is if there is power to review an appealable order. However, it rejected the application on merits upholding the conclusions of the earlier Division Bench. 9. The basic question, therefore, has to be decided if the Railway Claims Tribunal could entertain the review application against the order dated 10-12-97. The moot question is if there is power to review an appealable order. The learned counsel for the appellant during the course of arguments pointed out that Section 18(3)(f) of the Railway Claims Tribunal Act, 1987 (henceforth 'the Act of 1987') gave power to the Railway Claims Tribunal to review its own decisions. Therefore, the review application lay against the order dated 10-12-97 dismissing the application for refund of excess of freight. It would, therefore, be necessary to consider the powers of the Railway Claims Tribunal as per Section 18 of the Act of 1987, which reads as follows :-- "Section 18. Procedure and Powers of Claims Tribunal.-- (1) The Claims Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Claims Tribunal shall have powers to regulate its own procedure including the fixing of places and times of its enquiry. (2) The Claims Tribunal shall decide every application as ex-peditiously as possible and ordinarily every application shall be decided on a perusal of documents, written representations and affidavits and after hearing such oral arguments as may be advanced. (3) The Claims Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely :-- *** *** *** *** *** (f) reviewing its decisions; *** *** *** *** ***" From the reproduction of above sections it would be clear that for the procedural part, the Railway Claims Tribunal is not required to follow the Code of Civil Procedure in letter. However, the principles of natural justice which are the soul of the Code of Civil Procedure, have not been given a go by. The Railway Claims Tribunal is enjoined to observe them. However, the principles of natural justice which are the soul of the Code of Civil Procedure, have not been given a go by. The Railway Claims Tribunal is enjoined to observe them. It is free to evolve its own procedure in accordance with the principles of natural justice, the provisions of the Act of 1987 and the rules made thereunder. It would also be clear that the provisions of Section 18(3)(f) of the Act of 1987, inter alia, confer upon the Railway Claims Tribunal the power to review its own decisions and exercise the same powers as are vested in the Civil Court under the Code of Civil Procedure. In other words, the powers of Civil Court as provided in Order 47 Rules 1 and 2 of the Code of Civil Procedure got incorporated by reference in Section 18(3)(f) of the Act of 1987. Section 30 of this Act gives power to the Central Government to make rules in relation to procedure. Section 30(2)(f) of the Act of 1987 specifically confers power on the Central Government to frame rule subject to which the Railway Claims Tribunal shall have power to regulate its own procedure in accordance with Section 18(1) of the Act of 1987 and also on the additional matters in which the Railway Claims Tribunal may exercise the powers of Civil Court under clause (i) of sub-section (3) of Section 18. Section 30(2)(g) of the Act of 1987 is a residuary clause and gives power to make rules in respect of any other matter which may be prescribed. 10. It appears that the Central Government has made the Railway Claims Tribunal (Procedure) Rules, 1989 (henceforth 'the Rules') in exercise of its powers conferred upon it by clauses (c), (e), (f) and (g) of sub-section (2) of Section 30 of the Act of 1987. The Rules control the procedure to be followed by the Railway Claims Tribunal in its proceedings. It would not be out of place to mention here that Rule 20 of the aforesaid Rules is identical with Section 18(3) of the Act of 1987. It would be mere tautology to reproduce the relevant part of Rule 20. It is suffice to say that the Rule 20 also confers same power as are given by Section 18(3) of the Act of 1987. It would be mere tautology to reproduce the relevant part of Rule 20. It is suffice to say that the Rule 20 also confers same power as are given by Section 18(3) of the Act of 1987. However, the Rule 32 of the Rules reads as under :-- "Rule32, Review of decision.-- (1) Any person considering himself aggrieved by any order of the Tribunal from which no appeal is allowed and who on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the Order made against him, may apply for review of a final order not being an interlocutory order, to the Tribunal. (2) Where it appears to the Tribunal that there is no sufficient ground for a review, it shall reject the applications. (3) Whether the Tribunal is of the opinion that the application for review should be granted, it shall grant the same : Provided that no such application shall be granted without previous notice to the opposite party to enable him to appear and be heard in support of the order, a review of which is supplied for." It is thus apparent that the power of review is further limited by the inclusion of Rule 32. It is clear from sub-rule (1) of Rule 32 that Railway Claims Tribunal cannot review all and sundry orders passed by it on the application of an aggrieved party. It can review a final order which is not appealable. It cannot review an interlocutory order or an appealable final order. Under these circumstances, the question is if the appellant could file a review application despite the existence of Rule 32 of the Rules. In the opinion of this Court, the Rule 32 gives body and soul to the application for review to be filed under Section 18(3)(f) of the Act of 1987. It cannot be disputed that the order dated 10-12-97 passed by the Tribunal could be appealed against under Section 23 of the Act of 1987. An appeal lay against the order dated 10-12-97 dismissing the case No. as O.A. 391/95. It, therefore, follows that the rigour of Rule 32 wipes out the right of review application against a final order which is appealable under Section 23 of the Act of 1987. An appeal lay against the order dated 10-12-97 dismissing the case No. as O.A. 391/95. It, therefore, follows that the rigour of Rule 32 wipes out the right of review application against a final order which is appealable under Section 23 of the Act of 1987. Thus, this Court comes to the conclusion that the Tribunal should have dismissed the Review Application No. 18 of 1998 on the ground that it did not lie and it had no jurisdiction to entertain it. 11. As a result of the aforesaid discussion, this Court confirms the order dated 10-12-97 passed by the Tribunal as the Review Application No. 18 of 1998 was not maintainable. Consequently, this appeal and all the connected Misc. Appeals shown in Paragraph 2 of this order, fail as no review application lay in view of Rule 32 of the Rules. The impugned order dated 27-10-98 passed in Review Application No. 18 of 1998 is held to be without jurisdiction as the Tribunal could not entertain it. The appellant does not get any benefit in this appeal and in all the connected appeals because he filed these appeals against an order which did not exist in the eyes of law. It is made clear that the order of this Court is confined to appeal against the order dated 27-10-98 and nothing else. This appeal as well as all the connected appeals fail and are, hereby, dismissed accordingly. No costs. 12. Misc. Appeal dismissed.