NEUTRAL CITATION
C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4752 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In
R/FIRST APPEAL NO. 4752 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI : Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may YES be allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a
substantial question of law as to the NO
interpretation of the Constitution of India or any order made thereunder ?
===================================================== UNION OF INDIA Versus GUJARAT STATE ELECTRICITY CORPORATION LIMITED ===================================================== Appearance:
MS ARCHANA U AMIN(2462) for the Appellant(s) No. 1,2 MR DIPAK R DAVE(1232) for the Defendant(s) No. 1 ===================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI and HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Date : 09/08/2023 CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI) Page 1 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined
1. The present First Appeal is filed by the appellants to assail the judgment and award passed by the Railway Claims Tribunal, Ahmedabad, on 26.2.2016 in Case No.OAIII/2013/2009 and the order of dismissal of the Review Application No.REV/2017/0012 in Case No.OAIII/2013/2009.
2. Appellant no.1, Union of India, owning and representing the South East Central Railway, is the original defendant no.1 and appellant no. 2, Union of India, owning and representing the Western Railway, is the original defendant no.2 in the Claim Application bearing Case No. OAIII/ 2013/0019 filed by the respondent herein seeking refund of excess freight of Rs.1,11,22,451/- paid by the respondent herein to the appellant no.1 for the consignment of wagon of coal entrusted to the railway administration from Gerva Project Junadih Colliery Siding (For short 'GPCK') to Gujarat Electricity Board at Pethapur Siding (For short 'GETS') under paid freight through different railway receipts from October 2010 to February 2011 before the Hon'ble Railway Claims Tribunal, Ahmedabad (For short 'the Tribunal').
3. The short facts leading to the present appeal are as under:
3.1 The Railway Board had, vide Circular dated Page 2 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined 21/10/1993, issued directives providing for Siding Charges on trainloads running through from and to private sidings/exchange yards. The said Circular clearly provided for Charging Freight on Through Distance basis for all train load traffic going into the siding directly or indirectly with the engine pulling or pushing provided, there is no detention to engines except for change of ends and no separate shunting staff are required exclusively for this purpose. The private siding of Gujarat State Electricity Board (GETS) is always notified for charging freight on Through Distance basis based on the criteria that the traffic is train load traffic which goes into the siding directly or indirectly with the engine pulling or pushing and there is no detention to engines except for change of ends and no separate shunting staff are required exclusively for the same.
3.2 All the wagons of coal of the respondent herein at GPCK to be carried through railways to Gujarat Electricity Board at Pethapur (GETS) were accordingly charged with 9 km inter-distance and cumulative- distance of 1475.9 i.e. 1476kms (rounded off). The Railway Board issued a Circular Page 3 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined No. 48 of 2009 dated 11/8/2009 advising the Zonal Railways to notify all sidings for charging on Through Distance basis which qualify for such notification in terms of various instructions issued on the subject but yet not notified on through distance basis and should notify the chargeable distance on actual distance basis latest by 31/10/2009.
3.3 The respondent had booked wagons of coal to be carried through the railway from GPCK to GETS under different Railway Receipts during October 2010 to February 2011. The destination siding of GETS is falling within the territorial jurisdiction of Western Railway, who had not issued any Notification providing new charging freight for actual chargeable distance from serving station to siding working on 'Through Distance basis' in terms of Board's letter dated 11/8/2009 till the time of booking of wagons of coal at GPCK to be carried to GETS i.e. till February 2011. Therefore, the freight was charged on 'Through distance basis' on actual chargeable distance, as was fed in the Rate Booking System (For short 'RBS') as 9 km inter distance having cumulative distance of 1476 (Rounding off of 1475.9kms.).
Page 4 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined 3.4 The computer system (RBS-Rates Booking System) automatically calculated freight at 9 km inter-distance having cumulative distance of 1476 kms at Rs.1363.20 per MT totalling to Rs.1,11,22,451/- and the Railway Receipts issued in favour of the respondent also mentioned the amount of freight as Rs.1,11,22,451/- and the respondent paid the amount of freight of Rs.1,11,22,451/- without any objection whatsoever.
3.5 The Western Railway issued an Advance Rates Notification No.21 (GOODS) of 2011 (For short 'ARN') on 28/2/2011 advising the rate of freight of actual chargeable distance from serving station to siding working on 'Through Distance basis' wherein the inter- distance rate from Pethapur to GETS from the month of March 2011 is reduced to 8.5 kms from 9 kms. In the said ARN, the inter- distance rate from Pethapur to GETS till the month of February 2011 is the same 9 kms. The distance between Pethapur to GETS siding was 9 kms. as the Western Railway published advance Rates notification no.9 dated 04.01.1998 which was still in existence at that time and the appellants have rightly recovered the freight from the respondent. The respondent was also fully Page 5 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined aware of the freight applicable and, therefore, did not raise any objection and after the delivery was made at the destination the claim for refund on various railway receipts which has specific limitation is not maintainable and bad in eyes of law.
3.6 Pursuant to the introduction of ARN dated 28/2/2011, the new rates were fed in the RBS for calculating the freight on the revised rates. Accordingly, for the wagons of coal entrusted to the railway by the respondent for carriage from GPCK to GETS from March 2011 onwards, the rate is charged at 8.5 kms. Inter-distance having cumulative distance of 1475kms. (rounding off of 1474.59kms.) at the rate of Rs.1341.30 per MT. The respondent herein had raised a claim of refund of excess paid freight before the appellants vide letter dated 28/4/2011 on the ground that though the inter-distance as notified vide ARN dated 28/2/2011 was 8.5 kms, the freight had been charged at 9 kms inter-distance for the period from October 2010 to February 2011. The said claim was repudiated on 17/6/2011 as the chargeable distance was revised w.e.f. 1/3/2011 as per the ARN dated 28/2/2011 of appellant No.2 Page 6 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined herein.
3.7 The respondent, therefore, filed OA(III)/ADI/2013/0019 before the Hon'ble Tribunal for refund of excess freight paid by it, on the basis of the ARN dated 28/2/2011. The Hon'ble Tribunal after hearing both the sides and wrongly appreciating the evidences produced on record was pleased to allow the claim application directing the appellants herein to pay Rs.1,11,22,451/- as compensation to the respondent with interest @ 6% per annum from the date of filing the claim application till the date of the award within 60 days failing which the respondent herein would be entitled to get interest @ 9% from the date of default and further directing the appellants to pay application fee of Rs. 58,079/- to the respondent herein vide judgment dated 26/2/2016. 3.8 The judgment dated 26/2/2016 came to be challenged before this Hon'ble Court by way of filing First Appeal (Stamp Number) No.1627 of 2016 with Civil Application No.6951 of 2016 which came to be withdrawn on 3/8/2016 with a liberty to file Review Application before the Railway Claims Tribunal, Ahmedabad. Accordingly, REV/2017/0012 came to be filed before the Page 7 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined RCT, Ahmedabad, seeking review of the judgment dated 26/3/2016 on many grounds and clearly pointing out the fact that ARN dated 28/2/2011 is issued with immediate effect i.e. with prospective effect. The Review Application came to be dismissed on 4/7/2018 by the RCT, Ahmedabad, holding that there is no mistake or error apparent on the face of the record as stipulated under Rule 32 of the Railway Claims Tribunal (Procedure) Rule, 1989. 3.9 Being aggrieved by and dissatisfied with the judgment dated 26/2/2016 as well as the order dated 4/7/2018, the appellants herein have filed present appeal.
4. At the outset, learned advocate, Ms.Archana Amin has put reliance upon Office Memorandum issued on 31.3.2020 by the Ministry of Law and Justice, Department of Legal Affairs, Government of India, and has submitted that as per the directions given by Honourable Apex Court in Civil Appeal No.1400-1438 of 2017 decided on 1.2.2023, in the case of Rashtriya Ispat Nigam Limited v. Union of India, learned ASG has made written request to the Secretary, Ministry of Railways and, accordingly, above Office Memorandum is issued. Copy of the said Office Memorandum is taken on record. It is submitted that if there is any inter se dispute between Page 8 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined Ministries/Departments or between Ministries/Departments and other Government Ministries/ Departments/ Subordinate / Attached offices/ Autonomous and Statutory Bodies under their administrative supervision/ control, they have to use Administrative Mechanism for Resolution of Dispute, as provided in the aforesaid Office Memorandum. She has submitted that since the dispute in the present matter is between Public Sector Undertaking and the Railways, though it is required to be resolved as per aforesaid mechanism and this matter may be sent to aforesaid administrative mechanism for resolution of the dispute.
5. Learned advocate, Ms.Archana Amin, for the appellant has submitted that the impugned judgment is illegal, improper, unjust and contrary to the facts and circumstances and also contrary to the Advance Rate Notification dated 28.2.2.011 and, therefore, it is required to be quashed and set aside. She has submitted that learned Tribunal has failed to appreciate that freight was charged for the period between October 2010 to February 2011, at the prevalent rate for the chargeable distance of 9 kms. and, there is no fault in calculation of the charge, and Tribunal has passed order putting reliance on other documents, therefore, the view adopted by the Tribunal is required to be quashed and Page 9 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined set aside. She has submitted that the Tribunal has failed to appreciate that the Railway Board had advised all the Zonal Railways vide Circular dated 11/8/2009 to notify all sidings for charging on through distance which qualify to be notified on through distance basis but not notified on through distance basis latest by 31/10/2009. However, instruction laid down by Railway Boards Rates Circular No.48 of 2009 is not applicable to the GETS siding as this siding was already working on 'through distance basis' at the time of issuance of said Circular and this policy is applicable for such siding, which are not charged on 'through distance basis'. She has submitted that there was grave error on the part of the Tribunal in not appreciating the fact that new chargeable distance came into effect from March 2011 and the effect of Notification would commence from 1st March 2011 and, accordingly, the appellants have started collecting the charge on railway receipts. The language employed in the Circular is very plain and clear and, by no stretch of imagination, it can be construed that effect of said Circular would be retrospective. Therefore, it was not possible on the part of the appellant to consider the charge of wagons during the period between October 2010 to March 2011, by giving effect to the Circular retrospectively.
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6. Learned advocate, Ms.Amin has further submitted that railway receipt produced by the defendant clearly shows distance of 1476 kilometers and, accordingly, freight was demanded and charged. She has submitted that the defendants had already paid the freight charge, then the respondents are estopped from challenging said receipt, after new actual chargeable distance came into effect. She has submitted that this is not a case of over-charging of freight, because distance was correctly mentioned and, accordingly, charge was taken as per the prevailing policy of RBS system and wagons were agreed to be carried through railway on the actual chargeable distance as applicable at the time and wagons were also carried and delivered at GETS. Therefore, the defendant has not got any right to challenge it subsequently on the basis of the wrong charge. Learned advocate, Ms.Amin has submitted that during the period between October 2010 to February 2011, number of wagons have been carried between GPCK to GETS siding. On number of occasions Railway receipts of those transactions were placed and, the cause of action has a arisen on different dates, however, different railway receipts are challenged by filing one suit to recover the said amount, which is not maintainable. Learned advocate, Ms.Amin has further submitted that the Page 11 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined notification was issued on 28th February 2011, wherein it is clearly stated that it would be made applicable with immediate effect, meaning thereby the same was having prospective effect and this fact was not considered and properly appreciated by the railway Tribunal.
7. Learned advocate, Ms.Amin has submitted that the railway Tribunal has passed judgment and award dated 26.2.2016 and immediately the said order was challenged by preferring an appeal before this Court, however, as there was a delay in preparing such appeal, an application for condonation of delay was also preferred. At the time of arguments of said application, the same was withdrawn with a specific direction to approach the concerned Railway Tribunal once again by preferring review application, therefore, without considering the merits and de-merits of the First Appeal, at admission stage, it was withdrawn unconditionally with a permission to approach the Railway Tribunal by preferring Review Application. Accordingly, the appellants have preferred review application to reconsider the decision taken by the railway Tribunal. Said review application is rejected on 4.7.2018 by the Tribunal. Being aggrieved and dissatisfied with the said order, present First Appeal is preferred by the appellants raising manifold grounds.
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8. Learned advocate, Ms.Amin has submitted that the entire controversy involved in this case revolves around two Circulars, i.e. Circular dated 11th August 2009 and Circular dated 28th February 2011. Learned advocate, Ms.Amin has further submitted that a letter purportedly written by the Director, Traffic Commercial (Rates) Railway Board, issued to all the Chief Commercial Managers for the purpose of fixing the rate of chargeable distance of goods traffic. It has come to the notice of the Director that charging of goods traffic is not fixed as per Rule 125 of IRCA Goods Tariff No.41, Pt.1, Vol.1 by all the divisions and there are some aberrations in charging of goods traffic by some Zonal Railways, wherein charging of certain goods traffic is done for the distance, which is not in consonance with Rule No.125, therefore, just to maintain the uniformity in charging principles in respect of chargeable distance, charging of goods traffic should be done as per Rule No.125 of IRCA Goods Tariff No.41, Pt.1, Vol.1 without any exception, along with it many other conditions are stipulated. It is specifically stated that till the time siding is notified for charging on 'through distance basis' (latest by 31.10.2009) or siding charges are notified (latest by 31.12.2009) the existing practice may be Page 13 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined continued. It is fact on record that wagons of coal of respondent from GPCK to be carried through Gujarat electricity Board at Pethapur, were charged at 9 km. inter-distance having cumulative distance of 1474.59 kms. i.e. 1475 kms. rounded off. It is true that in the said Notification, specific direction was issued to notify the siding of goods on through distance basis latest by 31st October 2009, but said notification had been issued on 28th February 2011 and, as per conditions stipulated in the said notification rounded off chargeable distances were notified with immediate effect and, as per the notified area, mentioned in the said Notification at serial number 24, for GEB siding Pethapur to Gandhinagar (GNC), chargeable distance is 8.50 km. In the said Notification, it is clearly mentioned that effect of the Notification is to be given immediately and, therefore, at the time deciding the issue, learned Tribunal has committed a grave error by considering charging distance from GEB siding Pethapur to Gandhinagar as 8.5 kms. and, as a corresponding effect, freight from GPCK to GETS is charged at 1475 kilometers falling in the distance table slab of 1451 to 1475 kms at the rate of 1341.30 per metric tonne, instead of distance from GPCK to GETS at 1476 kms, falling in the distance table slab of 1476 to 1500 kms.
Page 14 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined at 1363.2 per metric tonne, by putting reliance upon the wordings mentioned in the Circular dated 28th February 2011. She has further submitted that, by doing this, the Tribunal has committed grave error because in Circular dated 11th August 2009, it is specifically stated by the Director that till the time siding is notified on 'through distance basis' or 'siding charges' are notified, the existing practice may be continued. Learned advocate, Ms.Amin has further submitted that at the time of appreciating these two Circulars learned Tribunal has committed grave mistake by mis- interpreting the actual provision of the Circular and, therefore, the order passed by the Tribunal is required to be quashed and set aside.
9. As against this, learned advocate, Mr.Dipak Dave, appearing for the Gujarat State Electricity Board has submitted that the impugned judgment and order passed by the Tribunal is just, reasonable and proper and does not require interference at the hands of this Honorable Court. Learned advocate, Mr.Dipak Dave has submitted that this is a second round of litigation, in the earlier point of time, First Appeal was preferred by the appellants, which was unconditionally withdrawn with a view to approach the learned Tribunal once again by Page 15 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined preferring review application. He has submitted that said review application was considered by the Tribunal and, ultimately, it was rejected after considering the merits of the case and, therefore, present First Appeal is preferred.
10. Learned advocate, Mr.Dipak Dave has submitted that Office Memorandum dated 31.3.2020, upon which reliance is placed by learned counsel for the appellant is, in fact, not applicable to the present case because such mechanism is to be utilized in the cases of pending dispute, whereas in the present case, situation is altogether different as the issue between the parties is already decided by the adjudicating authority i.e. Railway Claims Tribunal on 26.2.2016. Said order is challenged by the appellant by filing review application and said review application is also decided and at the time of deciding application, appropriate opportunity was also given by the Claims Tribunal to all the parties. When the dispute between two parties have been adjudicated and decided by the competent authority by exercising judicial power, thereafter, once again, the matter cannot be sent for deciding it afresh to administrative mechanism. Therefore, said argument advanced by learned advocate for the appellant is practically not viable and, hence, this matter may not be referred for resolution Page 16 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined as per aforesaid Circular. He has also submitted that had this Circular been issue as per the schedule given by the Director then situation would have been different and immediately on the date of issuance of the Circular, benefit would have been started to be extended in favour of the respondent GETS and in that event, the original applicant would not have to file suit for recovery of the additional / excess amount paid to the railway authorities. Learned advocate, Mr.Dipak Dave has submitted that delay caused in issuance of circular is not given, inspite of the fact that the case of the applicant hinges upon this Circular. Admittedly, after issuance of Circular in the year 2011, cumulative distance between two sidings is reduced and as a consequential effect, railway receipt is reduced. Therefore, from the year 2011 onwards benefit of that Circular is given to the defendant and the freight charge is reduced in the year 2011 and not in 2010.
11. Learned advocate, Mr.Dipak Dave has submitted that the issue involved in the present First Appeal is in a very narrow compass. He has submitted that entire case is based on two circulars issued by the Railway. He submitted that the language employed in Circulars is very simple in nature and explicitly clear and it is properly appreciated and interpreted by the Page 17 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined learned Tribunal. Learned advocate, Mr.Dipak Dave has invited the attention of this Court to these two Circulars and submitted that considering the prevailing anomaly in the charging of goods tariff between different zonal offices the Director, Traffic Commercial (Rates), Railway Board has issued circular on 11th August 2009 with a specific mandate that the charging of goods traffic should be done as per Rule No.125 of IRCA Goods Tariff No.41, Pt.1, Vol.1 for charging on 'through distance basis' and to notify the siding charges latest by 31 st December 2009 and despite the said fact the zonal railway of Western Railway has not swiftly acted upon it and did not issue any circular till 27th February 2011.
12. Learned advocate, Mr.Dipak Dave has submitted that by Advance Rate Notification issued on 28.2.2011 prescribing the rate of freight of actual chargeable distance from serving station to siding working on 'through distance basis', the inter-distance rate from Pethapur to GETS from the month of March 2011 is reduced to 8.5 kms. from 9 kms. Admittedly, Western Railway is conspicuously silent about the non-issuance of Circular during the mandatory time given by the Director in the circular dated 11th August 2009. It is specifically mentioned that Circular was required to be issued latest by 31st October Page 18 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined 2009. There is no whisper in the entire written statement and written arguments submitted by the defendants before the Tribunal about non- issuance of the Circular during the said period and as to why they have not issued this Circular within mandatory period of time. He has also submitted that if the circular would have been issued as per the scheduled time and as per the mandate, in that event original plaintiff would have got all the benefits of pricing of the latest Circular for the siding or immediately on the issuance of date of Circular i.e. 31.10.2009. It is a fact on record that if freight charges are compared then it is found out that rate is lesser in the year 2011 as compared to the year 2010. Learned advocate Mr.Dipak Dave has further submitted that in the said Circular, it is specifically stated that on or before 31st October 2009 siding was to be notified for charged on through distance basis and there is no semblance of effort of an explanation in this regard in written statement, evidence on record as well as in the written submission.
13. Learned advocate, Mr.Dipak Dave has submitted that instead of accepting their mistake the original defendants have raised preliminary objection about the maintainability of the claim petition by raising specific plea that Railway Page 19 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined receipts have been issued on different dates for different wagons and, therefore, the purpose of recovery of the amount, one suit cannot be filed. Said preliminary objection has not been considered by the learned Tribunal and, in the operative part of the order, said fact is very succinctly discussed by the Tribunal. The reasons assigned and the findings given by the Tribunal clearly goes on to say that the sole purpose to stretch the proceeding is to delay the payment of the amount and delatory tactics have been adopted by the appellants.
14. Learned advocate, Mr.Dipak Dave has further submitted that due to the delay in issuance of Circular by Ministry of Railways, Railway Board, the applicant has suffered loss of Rs.1,11,22,451/- for the period between October 2010 to February 2011. He has submitted that considering the totally of the facts, this is a fit case wherein judgment and order passed by the Tribunal is required to be confirmed by dismissing present First Appeal with an exemplary cost.
15. Having gone through the submissions canvassed by the learned advocates for the rival parties as well as the documents, and having gone through the judgment and award passed by learned Tribunal and the documents available on record, we find that the Gujarat Electricity Corporation Page 20 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined has filed case No.OAIII/2013/2009 for claiming refund of excess freight paid in respect of wagons of coal entrusted to the Railway administration from GPCK to GETS booked under different invoices and railway receipts for the period between October 2010 to February 2011. The GETS are regularly transporting coal for its different thermal power plants in Gujarat through the appellants and they had loaded number of wagons from GPCK to their power plants in GETS and paid freight charge worth Rs.68,12,57,886/- to the railways between October 2010 to February 2011.
16. It is found from record that Circular No.48 has been issued by the Ministry of Railways on 11.8.2009 stating that notified chargeable distance for goods traffic vide its letter No.TCR/2014/200/2004/1 and, as per the rate circular, railway board drew attention of all the Chief Commercial Managers of Indian Railways regarding charging of goods traffic in terms of Rule No.125 of IRCA Goods Tariff No.41. It is also observed by the Ministry of Railways that there are some aberrations in charging of goods traffic on some zonal railways, wherein charging of certain goods traffic is done for the distance, which is not in consonance with Rule No.125 of IRCA Goods Tariff. Consequently, the Ministry of Railways reviewed the matter and in Page 21 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined order to maintain uniformity in charging principle in respect of chargeable distance, Ministry of Railway decided to do away with such practice (aberrations) and issued certain directions. It is stated that the Railway shall notify all siding for charging on through distance basis, in terms of various instructions issued on the subject and shall notify the distance on actual distance basis latest by 31.10.2009 and as per the directives of the Railway Board, the Zonal Railways was to notify the chargeable distance on actual distance basis latest by 31.10.2009. It is a matter of fact on record that the defendant's destination station i.e. Gandhinagar Pethapur siding would fall under the territory of zonal railway of Western Railway, and, therefore, the Western Railway issued advance rate notification No.21 (Goods Tariff of 2009) on 28.2.2011 instead of 31.10.2009, as directed by the Ministry of Railways, Railway Board, vide Circular dated 11.8.2009 and notified the actual charge distance from GPCK siding Pethapur to Gandhinagar at 8.5 kms. on 'through distance basis', which was being charged at Rs.9 per km. prior to issuance of this advance rate notification and on the strength of the earlier advance rate notifications for the period between October 2010 to February 2011, the Page 22 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined appellant-Eastern Railway had charged the distance from GPCK to GETS at 1475.09 i.e. 1476 kms. which falls under the distance slab of 1476-1500 kms. and the corresponding rate for which is Rs.1363.20. After issuance of advance rate notification on 28.2.2011, the appellant had started to charge the distance from GPCK to GETS at 1474.54 i.e. 1475 kilometers falling under Table slab of 1451-1475 kms. and the corresponding rate for which is Rs.1341.30 per metric tonne. The plaintiff has successfully proved by leading cogent and convincing evidence that GPCK siding had been wrongly charged the distance from GPCK to GETS at 1476, which would fall in the distance table slab of 1476-1500 kilometers, at the corresponding rate of 1363 per metric tonne, instead of 1475 kilometers in the distance slab of 1451-1475 kms. at the corresponding rate slab of Rs.1330/- per metric tonne. It is found from record that despite clear instruction and direction issued by the Ministry of Railways, Railway Board, in the Rate Circular No.48 issued on 11.8.2009 to all the Zonal offices to notify the chargeable distance on actual distance basis latest by 31.10.2009, instead of that it was belatedly issued by the Western Railway, as per the advance rate Notification on 28.2.2011 and due to late issuance of Notification by them, during the Page 23 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined period between October 2010 to February 2011, RR Bills for excess amount of Rs.1,11,22,415/- were issued and collected by the appellants. The respondents have sent a letter to refund the said amount, however, said request was repudiated by the appellants.
17. It is the fact on record that at the time of issuing Rate Circular No.48 of 2009, Railway Board had categorically mentioned that the Zonal Railway shall notify all siding for charging on through distance basis, and shall also notify the chargeable distance on actual distance basis latest by 31.10.2009. We have gone through the written statement as well as written submissions produced by the appellants-original defendants before the Railway Claims Tribunal. The defendants have not given any plausible explanation of delay at the time of issuance of notification. In the written statement, written submissions as well as at the time of leading evidence, defendant has not tried to show any reason about late issuance of the advance rate notification. It is the duty on the head of the incumbent that he has to comply with the direction issued by the higher-ups in a scheduled time-frame scrupulously and if at all actions would not have been taken within specified time, in that event, extension is required to be sought. Admittedly, here in this Page 24 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined case, Western Railway/ zonal railway had not given any explanatory reasons, to satisfy the conscience of the Honourable Court. On the contrary, nowhere in the written statement and written submissions, they have assigned any justifiable reasons about issuance of Notification belatedly and in absence of any plausible explanation, it can safely be inferred that due to non-action and lackadaisical approach of the officers of Zonal Railway, Notification could not be issued as per the mandate issued by the Railway Board. The exercise of power by officers/ officials for providing kind of services and benefits to the people, always has an element of discretion, which is required to be used in larger public interest and for public good. It is an admitted position of fact that as per the mandate issued by the Ministry of Railways (Railway Board), the officials of Zonal Railway have to issue advance rate notification. It is the duty of the head of the incumbent to follow the command issued by the Ministry of Railways. Had the Notification been issued as per the mandate on or before 31.10.2009, as a consequential effect of the said Notification rates would be reduced and made applicablefrom 1.11.2009, in that event, present dispute would not have arisen. It prima facie appears that in utter disregard with the Page 25 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined direction issued by the Ministry of Railways, Zonal office has not issued Notification within schedule time and, due to said action, many persons, who are engaged in the activity of the business have suffered loss and record shows that the Zonal Railway has not tried to explain as to why they have not issued Notification within scheduled time.
18. In view of the directions issued by the Ministry of Railway, Zonal Railway, Western Railway, a notification is issued whereby a direction was issued to complete the work in a particular manner and same if not done, fault cannot be found with respondent and here, undisputedly, despite specific mandate to notify charges on actual distance basis latest by 31.10.2009, authorities failed to carry out and implement such mandate in a time scheduled manner and at a much belated stage completed on 28.2.2011 for which there appears to be no cogent explanation at all. Under the circumstances, respondent herein- original plaintiff was compelled for no reason to pay charges at a rate of Rs.9/- per kilometer instead of Rs.8.5 per kilometer, resultantly had to suffer a loss of such excess payment to the extent of Rs.1,11,22,415/- and as such refund claim of fright was lodged from October 2010 to February 2011.
19. It is the matter of fact on record that Gujarat Page 26 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined State Electricity Board has sent a notice to the appellants-original defendants for the purpose of refund of additional fare paid through railway receipts. Said claim was repudiated by the defendants. Therefore, Gujarat State Electricity Board was constrained to file petition before Railway Claims Tribunal for the purpose of getting refund of additional amount paid to the Railway. From the very beginning, stand taken by the defendants in the written statement, written arguments and the appeal memo is that the plaintiffs are not entitled to refund, as the Zonal Railway has issued Notification on 28.2.2011 and effect of Notification would be immediate come into operation after the issuance of notification. In short, the effect of Notification is prospective in nature and it cannot be made applicable retrospectively. Therefore, it is also an admitted position of fact that Director of Railway Board has issued specific direction to issue Notification on or before 31/12/2009 and the word "shall" was employed in the said letter. It reads as under:-
"(ii) Railway shall notify all sidings for charging on through distance basis, which qualify for such notification in terms of various instructions issued on the subject and shall notify the chargeable distance on actual distance basis latest by Page 27 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined 31.10.2009."
20. Therefore, it is clear that the Zonal Railway has not followed the directions of the higher- ups in stricto sensu. The direction of the appellate body is binding to the Zonal Railway. The Zonal Railway cannot ignore the order of the higher authority and sit tight over the issue for a longer period of time, by not deciding the same. Law on the subject is no longer res integra as the Honourable Apex Court as well as this Court has held time and again in numerous case laws that the direction given by the higher authority is binding upon the lower authority and, therefore, direction issued by the higher authority cannot be ignored on any count.
21. It is a settled position of law that if a Statute or any circular or notification having force of law is indicating a particular thing to be done in a particular manner, same has to be in the same manner and on the contrary, by sheer inaction by respondent authority, Electricity Board was required to pay undue excess payment. Issue has been examined by Railway Tribunal at length and having found that claim generated by Electricity Board is justified, an order was passed and said exercise undertaken was in consonance with material on record and as such in the absence of any distinguishable circumstance being pointed out, we are not in a Page 28 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined position to entertain the challenge of present appellants. On the contrary, it was also candidly submitted by learned advocate Ms. Archana Amin that point regarding consolidated claim is not maintainable, said issue is not being agitated in view of the peculiar background of facts. Hence, view taken by the authority below is not possible to be countenanced. Further, fact that scope of review is not such large which may even permit the authority to set at naught the original order. Hence, we are not in a position to find fault with the order under challenge. Accordingly, appeal lacks merit and same stands dismissed. 21.1 At this stage, it would be apposite to refer to the judgment in the case of Venkatesh Construction Company Vs. Karnataka Vidyuth Karkhane Ltd., reported in (2016) 4 SCC 119, wherein the Hon'ble Apex Court has observed in Paragraph No.20 as under, "20. The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the Page 29 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside."
21.2 At this stage, it would be apposite to refer to the judgment in the case of V. Prabhakara Vs. Basavaraj K. (Dead) by Legal Representatives & Ors., reported in (2022) 1 SCC 115, wherein the Hon'ble Supreme Court has observed in Paragraph Nos.21 and 22 has observed as under, "21. A relief can only be on the basis of the pleadings alone. Evidence is also to be based on such pleadings. The only exception would be when the parties know each other's case very well and such a pleading is implicit in an issue. Additionally, a court can take judicial note of a fact when it is so apparent on the face of the record. A useful reference can be made to the following passage in Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491:
"15. The relevant principle relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad Page 30 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined v. Chandramaul [AIR 1966 SC 735]: (AIR p. 738, para 10) "10. ... If a plea is not specifically made and yet it is cov- ered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence.
The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties Page 31 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
23. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of re- lief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non- joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court can- not grant a decree for rupees ten lakhs. In Page 32 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined a suit for recovery possession of property 'A', court cannot grant possession of property 'B'. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."
(emphasis in original) Section 96:
22. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its Page 33 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined findings, the appellate court is not expected to go on moral grounds alone."
22. The defendants have also tried to derail the proceedings before the Railway Tribunal by raising preliminary objection about maintainability of the suit. It is specifically stated that during the period between October 2010 to February 2011, number of wagons have passed through Gerva Project Junadih Colliery Siding to Gujarat Electricity Board at Pethapur Siding and, accordingly, railway receipts were issued. Therefore, the plaintiff has to file separate suit for recovery of the amount of each and every receipt, instead of that the plaintiffs have filed one suit, consolidating all the amounts of railway receipts and, therefore, such suit would not be maintainable. At the time of deciding the said issue raised by the defendants, Railway Tribunal has very succinctly and clearly opined that the claim petition filed by the claimants are maintainable and, during a particular period of time, if any excess amount is received by railway authority, in that event, principle of res judicata would not be made applicable. At the time of canvassing submissions, learned advocate, Ms.Archana Amin, has candidly submitted that, at this juncture, she is not putting emphasis upon the said submission and, therefore, we are not Page 34 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined commenting further upon the said issue.
23. We have gone through the record and proceedings as well as the evidence available on record. We have also gone through the contents of the judgment and we are of the opinion that findings given and reasoning assigned by the Railway Claims Tribunal are just, fair and reasonable and we do not find any infirmity and perversity in the order, as we are also conscious about the fact that in case of Associate Builders v. Delhi Development Authority reported in (2015) 3 SCC 49, certain guidelines and parameters of judicial review is laid down by the Honourable Apex Court. It is held that, "it is obvious that neither ground of fundamental policy of Indian Law nor the ground of patent illegality have been made out in the facts of this case, given the fact that majority award is certainly possible view, based on the oral and documentary evidence led in the case, which cannot be characterized as being either perverse or being based on no evidence." Therefore, we are of the opinion that while dealing with claim petition preferred by the plaintiff for the purpose of refund of additional railway receipt fare paid by them to the defendants, Railway Claims Tribunal has considered the matter at length and held that while interpreting the terms and conditions of contract, no reasonable person Page 35 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023 NEUTRAL CITATION C/FA/4752/2019 CAV JUDGMENT DATED: 09/08/2023 undefined could have arrived at different conclusion.
24. We have gone through the judgment of the Railway Claims Tribunal. The reasons assigned and the findings given by the Railway Tribunal are just, fair and reasonable. All the facts have been discussed and findings given and the conclusions arrived at, after appreciating and considering evidence available on record in great detail by the Tribunal and the points raised are exhaustively discussed in a threadbare manner. We do not find any perversity or illegality in the impugned order. Therefore, in our view, the appeal lacks merit and it is accordingly dismissed. Impugned judgment and award passed by the Railway Claims Tribunal, Ahmedabad, on 26.2.2016 in Case No.OAIII/2013/2009 and the order of dismissal of the Review Application No.REV/2017/0012 in Case No.OAIII/2013/ 2009 dated 4.7.2018 are hereby confirmed.
25. Record and Proceedings, if lying here, be sent back to the concerned Tribunal forthwith. No order as to costs.
26. In view of dismissal of main First Appeal, Civil Application filed thereon does not survive and stands disposed of accordingly.
(ASHUTOSH SHASTRI, J.) (DIVYESH A. JOSHI, J.) Malek/Gautam Page 36 of 36 Downloaded on : Sun Sep 17 00:46:22 IST 2023