Chattisgarh High Court
Ultratech Cement Limited vs The Union Of India And Ors on 12 May, 2022
W.A.No.342/2021
Page 1 of 28
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Appeal No.342 of 2021
(Arising out of order dated 28-9-2021 passed by the learned Single Judge in
W.P.(C)No.2989/2021)
Order reserved on: 5-4-2022
Order delivered on: 12-5-2022
Ultratech Cement Limited, A Company registered under the provisions
of Companies Act, 1956 and having its registered office at 'B' Wing,
Ahura Centre, 2nd Floor, Mahakali Caves Road, Andheri (East),
Mumbai - 400 093 (Maharashtra) and its Cement Plant/Unit at Rawan
Cement Works, P.O. Grasim Vihar, Village Rawan, District Baloda
Bazar-Bhatapara (C.G.) and Hirmi Cement Works, Post Hirmi - 493
195, Village Hirmi, District Baloda Bazar-Bhatapara (C.G.) through its
authorized representative.
(Petitioner)
---- Appellant
Versus
1. Union of India, through the Secretary, Ministry of Railways,
Government of India, Rail Bhavan, New Delhi (India)
2. Chairman, Railway Board, Rail Bhawan, Raisina Road, New Delhi -
110 001
3. South East Central Railway, Zonal Office, Bilaspur, through its General
Manager, Bilaspur.
4. Senior Divisional Operational Manager, South East Central Railway.
Divisional Office, Raipur (C.G.)
5. Shree Cement Limited, Bangur Nagar, Post Box No.33, Beawar,
Rajasthan - 305 901
(Respondents)
---- Respondents
------------------------------------------------------------------------------------------------------
For Appellant: Dr. Abhishek Manu Singhvi and Mr. Ashish Shrivastava,
Senior Advocates with Mr. Ashish Prasad, Ms. Mukta
Dutta, Mr. Abhishek Shivpuri, Mr. Aman Pandey and
Mr. Aman Saxena, Advocates.
For Respondents No.1 to 4 / Railways: -
Mr. Ramakant Mishra, Assistant Solicitor General of India.
For Respondent No.5: -
Mr. C. Aryama Sundaram and Mr. Abhishek Sinha, Senior
Advocates with Mr. Ujjwal Rana, Mr. Himanshu Mehta and
Mr. Aditya Pandey, Advocates.
------------------------------------------------------------------------------------------------------
W.A.No.342/2021
Page 2 of 28
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Smt. Rajani Dubey, JJ.
C.A.V. Order
Sanjay K. Agrawal, J.
1. Invoking the jurisdiction of this Court under Section 2(1) of the
Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (for
short, 'the Act of 2006'), this writ appeal has been preferred
questioning legality, validity and correctness of order dated 28-9-2021
passed by the learned Single Judge in W.P.(C)No.2989/2021, by
which the learned Single Judge has declined to grant interim order in
favour of the appellant herein and allowed the official respondents
herein to finalize the project of putting up a freight terminal at the risk
and cost of respondent No.5.
Maintainability of Writ Appeal
2. When the writ appeal was taken-up for hearing on 29-10-2021,
preliminary objection was raised on behalf of respondent No.5 /
private respondent herein that the impugned order dated 28-9-2021 is
a pure and simple interlocutory order and writ appeal would be barred
and is not maintainable. This Court by its order dated 16-11-2021,
overruled the preliminary objection holding that the writ appeal as
framed and filed is maintainable. The order of this Court holding the
writ appeal to be maintainable, dated 16-11-2021 was assailed
unsuccessfully by respondent No.5 in Special Leave to Appeal (C)
No.19814/2021 (M/s Shree Cement Limited v. Ultratech Cement
Limited and others) before the Supreme Court of India, however, their
Lordships of the Supreme Court by order dated 28-2-2022 were
pleased to request the Chief Justice of this Court to post the writ
W.A.No.342/2021
appeal for hearing before the Division Bench and further pleased to
direct that the matter should be taken on priority basis to decide the
appeal within four weeks and this is how the matter came-up before
us for hearing.
Submissions of Parties
3. Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing on
behalf of the appellant, would submit as under: -
1. The learned Single Judge has patently erred in holding that the
purported Green Field Private Freight Terminal (PFT) project is
at a nascent stage as respondent No.5 has submitted the
Detailed Project Report (DPR) which has been approved by the
Railways and thereafter respondent No.5 has even submitted
the Engineering Scale Plan (ESP) to the Railways and timelines
for construction of the PFT.
2. The learned Single Judge failed to appreciate that the vested
rights of the appellant herein / writ petitioner under the Private
Siding Agreement could not have been taken away as the
single-line Hathband Private Siding has been constructed by the
appellant at its cost and expenses and is being operated and
maintained by the appellant at its own cost as per the Private
Siding Agreement entered into under the Private Siding Policy.
The Private Siding Agreements have been entered into on 1-2-
2008 and 10-8-2010 for Hirmi plant and Rawan plant,
respectively.
3. The 2020 PFT Policy does not take away its vested rights and in
fact explicitly saves such rights. The 2020 PFT Policy
introduced by way of circular cannot take away the vested right
W.A.No.342/2021
of the appellant accrued under the Private Siding Policy and the
Private Siding Agreement, such a right cannot even be taken
away by a statute. The appellant's right to exclusive use of its
private siding granted and earned by it under the Private Siding
Policy and the Private Siding Agreement has sought to be taken
away by grant of the impugned IPA under a subsequent policy
i.e. the 2020 PFT Policy.
4. The learned Single Judge failed to appreciate the challenge
made by the appellant to the arbitrary and illegal act of
respondents No.1 to 4 of granting In Principle Approval (IPA)
dated 8-4-2021 to respondent No.5 under the Private Freight
Terminal Policy, 2020 in the term mentioned in the IPA dated 8-
4-2021.
5. The 2016 Private Siding Policy and the 2020 PFT Policy
operate in completely different spheres and have different
objectives, both the policies cannot be intertwined. The 2020
PFT policy deals with construction of PFT, which is meant for
multiple users, whereas the 2016 Private Siding Policy deals
with construction of private siding, which is for exclusive use of
the owner of the siding. Therefore, the impugned IPA under the
2020 PFT Policy could not have been granted to respondent
No.5 on the basis of clause 19 of the Private Siding Agreement
which was entered into under the 2016 Private Siding Policy.
The decision of the Railways to grant In Principle Approval runs
contrary to the decision rendered by the Supreme Court in the
matter of Tata Cellular v. Union of India1 (paragraph 74).
1 (1994) 6 SCC 651
W.A.No.342/2021
6. Respondents No.1 to 4 have exceeded their power and
jurisdiction while granting the IPA allegedly under clause 19(c)
of the Private Siding Agreement between the appellant and
respondents No.1 to 4. Clause 19(c) of the Private Siding
Agreement was in fact not invoked while granting the IPA and
cannot be used to justify the same post issuance. In any case,
clause 19(c) cannot be invoked to grant IPA under the 2020 PFT
Policy. As such, respondents No.1 to 4 have committed an error
of law, as the impugned IPA taking away the appellant's
exclusive right to use its private siding could not have been
granted under the 2020 PFT Policy.
7. The Private Siding Policy does not give unbridled power to the
Indian Railways to create third party rights over the appellant's
private siding. Even otherwise, the Private Siding Policy
contemplates grant of co-user permission upon satisfaction of
certain conditions precedent laid down therein.
8. The impugned IPA was granted by respondents No.1 to 4 in
favour of respondent No.5 in breach of the principles of natural
justice, as the appellant was informed of the impugned IPA two
months after it was granted to respondent No.5. The IPA was
granted on 8-4-2021 and the appellant was informed of the
grant thereof on 17-6-2021 by which the appellant's exclusive
right to use of its private railway siding was issued without
notice to the appellant in violation of the principles of natural
justice. Even no notice has been issued to the appellant till date
notifying it of invocation of clause 19(c) of the Agreement which
is apparent from the fact that respondents No.1 to 4 and
W.A.No.342/2021
respondent No.5, for the first time, in their respective replies to
the writ petition, have taken the ground that clause 19(c) was
invoked by them. Even otherwise, power under clause 19 of the
Agreement cannot be exercised arbitrarily, irrationally and
whimsically by the Railways. Clause 19 has to be read in
harmony with other clauses in order to understand the contours
of the power of Railways under clause 19. Since cost and
expense of constructing the private siding, cost of obtaining the
land, cost of maintenance were to be incurred by the appellant
and were incurred by the appellant and in lieu thereof the
appellant has been given exclusive right to use the siding,
therefore, prior to sharing of the siding under clause 19, the
appellant had to be consulted for deciding the feasibility and
operability of the alleged PFT on the private side infrastructure
of the appellant.
9. The appellant has a strong prima facie case in its favour for
restraining the official respondents and the private respondent
as well from going ahead with the matter finalizing the project,
as the appellant has vested right under law. The respondents
herein have violated the appellant's right to notice and to be
consulted before allowing a third party to use its private siding.
Even otherwise, operational feasibility was not considered
before grant of the impugned IPA. Balance of convenience also
lies in favour of the appellant herein in continuing stay on the
impugned IPA and directing time bound disposal of the writ
proceedings. However, grave prejudice will be caused to the
appellant in case the impugned order is not set aside as the
W.A.No.342/2021
learned Single Judge had already allowed respondents No.1 to
4 to finalise the project.
10. The decision to allow respondent No.5 to use the appellant's
private siding without prior examination of operational feasibility
mandated under clause 19(c) is illegal, as disruption of the
appellant's traffic on account of the arbitrary action of
respondents No.1 to 4 will have immediate and severe effect on
its business as the Hathband Private Siding is the lifeline of its
business and no prejudice would be caused to respondent No.5
as it has no vested right whatsoever to use the appellant's
private siding and it can continue with the business as it has
been doing for years. As such, the impugned order be set aside
and interim order be granted in favour of the appellant as was
done by the learned Single Judge by order dated 26-7-2021.
4. Mr. Ramakant Mishra, learned Assistant Solicitor General of India
appearing for respondents No.1 to 4 / Railways, would submit that the
learned Single Judge has rightly rejected the application for interim
relief in favour of respondents No.1 to 4 / Railways, as the appellant
has no exclusive right to use the private siding and respondents No.1
to 4 / Railways have reserved its private siding agreement in clause
19 to use or permit the use of siding for the traffic in shape of clause
19(a), (b) & (c) of the agreement entered into in the year 2008 with the
appellant herein. He would further submit that construction of the
proposed Greenfield is permitted on the basis of policy guidelines
issued by the Ministry of Railways vide Master Circulars on Sidings
and PFTs 2020/0 issued on 23-6-2020 wherein clause 16 provides
construction and maintenance of PFT. He would also submit that as
W.A.No.342/2021
per clause 16.1, construction and maintenance of PFT will be as per
the provisions of the Private Siding Policy of the Indian Railways
issued by the Ministry of Railways vide Freight Marketing Circular
No.11 of 2016 and as revised / amended from time to time. He would
further contend that the Railways has been given right to grant
permission to third party to use the railway line laid for private siding
and multiple user of such rail track as laid by the appellant is the
normal feature all over the country and in Ultratech Cement
Bhogasamudram, Tadapatri (A.P.), private siding of the appellant itself
i.e. M/s. Prerana Cement Industries Ltd., Boyireddypalli, Kamalapadu
has been given right to use its railway track. Lastly, he would contend
that assigning priority to the right and interest of the appellant,
sufficiently addresses the concern of the appellant, if any, and as
such, the appeal deserves to be dismissed.
5. Mr. C. Aryama Sundaram, learned Senior Counsel appearing for
respondent No.5, would submit that no one can claim any right to lay
any railway line or track or siding and no such right can be asserted
under Article 19(1)(g) of the Constitution of India, as such, the
appellant has no any vested right as sought to be contended by it. He
would further submit that two agreements entered into by the
appellants on 1-2-2008 and 10-8-2010 with the Railways for private
siding for its Hirmi and Rawan plants from Hathband Station contain
specific clauses under the heading "Railway Administration Rights
regarding use of the siding". It is provided therein that in addition to
any other rights, powers and liberties provided for, the Railway
Administration shall have rights, powers and liberties, over and in
connection with the siding or any extension or part thereof in shape of
W.A.No.342/2021
sub-clauses (b) and (c) to use or to permit the use of siding or any
extension or part thereof for the traffic if any person or persons other
than the applicant and to work traffic over the siding or any extension
or part thereof. As such, the appellant has accepted the terms of
agreement without any protest or objection and has in fact set up the
siding subject to the terms. The appellant after taking advantage of
the agreement, cannot now question a part thereof and the appellant
having entered into agreements cannot challenge the same. The
appellant despite having entered into agreements whereunder specific
clauses inter alia to permit third party to use the siding are
incorporated and accepted, has now challenged the IPA by filing W.P.
(C)No.2989/2021 with a view to obstruct respondent No.5's
infrastructural project of a Private Freight Terminal. Since the
appellant has neither challenged the policy nor the conditions
incorporated in the agreements, the contentions now sought to be
urged are not only lacking in good faith but are misconceived and / or
untenable. Mr. Sundaram, learned Senior Counsel, would also submit
that the learned Single Judge by order dated 26-7-2021 while directing
the reply to be filed to the writ petition, directed that the respondents
may not precipitate things pending any interim order and passed some
interim order subject to supplying copy of the writ petition to counsel
for respondent No.5. Respondent No.5 has filed reply on 26-8-2021
and as an abundant caution, filed application for vacation of ad interim
order. On 28-9-2021, the matter was taken up by the learned Single
Judge and it was only for consideration of the application for vacating
the ad interim relief and on that day, the appellants also served
rejoinder on the date of hearing on the said application. As such, by
W.A.No.342/2021
order dated 28-9-2021, application for vacating the interim relief was
considered bi-parte and merely because, the application for vacating
stay was also taken-up for consideration, no prejudice has been
caused to the appellant. Therefore, there is no violation of the
principles of natural justice. Mr. Sundaram, would contend that
infrastructure projects should not be interfered by interim order and no
interim order should be granted by the court in respect of contract
which is related to infrastructure projects in line with the legislative
intent and legislative policy as provided in Section 20A read with
Section 41(ha) of the Specific Relief Act, 1963 introduced in the
Specific Relief Act with effect from 1-10-2018. He would rely upon the
decision of the Supreme Court in the matter of M/s. N.G. Projects
Limited v. M/s. Vinod Kumar Jain and others 2 to buttress his
submission. He would further contend that scope of interference
against the order of the Single Judge is extremely limited, as an
appeal against exercise of discretion is said to be an appeal on
principle and unless discretion has been exercised wrongly or
arbitrarily, or capriciously or perversely, discretionary order should not
be interfered with. He further relied upon the decision of the Supreme
Court in the matter of Wander Ltd. v. Antox India (P) Ltd.3 in support of
his contention. He would also contend that the Single Judge has
rightly modified the interim order / rejected the application for interim
relief finding no prima facie case, no balance of convenience and no
irreparable loss caused if no interim order is granted; it is a pure and
simple interlocutory order which is liable to be maintained and the writ
appeal deserves to be dismissed.
2 2022 SCC OnLine SC 336
3 1990 Supp SCC 727
W.A.No.342/2021
6. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
Proceedings before Writ Court: -
7. The appellant herein filed writ petition calling in question the In
Principle Approval (IPA) dated 8-4-2021 granted by respondent No.4
for the proposed construction of Private Freight Terminal (PFT) to
respondent No.5 under the Private Freight Terminal Policy dated 23-6-
2020 issued by respondent No.1 with take-off from the existing private
siding of the appellant herein connected from Hathband Railway
Station of India Railway Network falling under South East Central
Railway as non est and unsustainable in law. The writ petition came
up for hearing on 26-7-2021 and the writ court by order dated 26-7-
2021 passed following order: -
"Heard
Learned counsel for the respondents No. 2 to 4 prays for
and is granted some time to file reply.
Let a copy of the writ petition be served to the counsel for
the respondent No. 5.
Let the respondents may not precipitate further things by
any order so that this petition or any interim prayer become
infructuous to give rise to multiplicity of proceedings.
List the case in the week commencing 23rd August, 2021.
In the meanwhile, if reply is filed then learned counsel for
the petitioner may file the rejoinder."
Copy of the writ petition was directed to be served to counsel for
respondent No.5 therein and thereafter, it appears that copy of the writ
petition with annexures was served. Meanwhile, respondents No.1 to
4 filed return on 19-8-2021, whereas the matter was listed on 23-8-
W.A.No.342/2021
2021 and the writ court directed respondent No.5 to file its own reply
which was filed on 26-8-2021 with an application for vacating stay of
interim order dated 26-7-2021 and thereafter, the matter came-up for
hearing on 28-9-2021 and on that day, the impugned order was
passed. It is pertinent to notice that on 28-9-2021, when the matter
was listed, copy of rejoinder was served by the petitioner to learned
counsel for respondent No.5 and rejoinder was filed on next day i.e.
29-9-2021 and order dated 26-7-2021 was modified against which this
writ appeal has been filed.
Scope of Writ Appeal / Interference against Discretionary Order: -
8. In order to decide the plea raised at the Bar, it would be appropriate
firstly to consider the scope of writ appeal under sub-section (1) of
Section 2 of the Act of 2006. Section 2(1) of the Act of 2006 provides
as under:-
"2. Appeal to the Division Bench of the High Court from a
judgment or order of one judge of the High Court made in
exercise of original jurisdiction.-(1) An appeal shall lie from
a judgment or order passed by one Judge of the High Court
in exercise of original jurisdiction under Article 226 of the
Constitution of India, to a Division Bench comprising of two
Judges of the same High Court:
Provided that no such appeal shall lie against an
interlocutory order or against an order passed in exercise
of supervisory jurisdiction under Article 227 of the
Constitution of India."
9. A studied perusal of sub-section (1) of Section 2 of the Act of 2006
would show that it provides an intra court appeal before the Bench of
two or more judges of the High Court against the order of Single
Judge and intra court appeal is continuation of original proceeding and
appellate court sitting in appeal as court of correction can correct its
W.A.No.342/2021
own order in exercise of same jurisdiction which was vested in learned
Single Judge or writ court which is a court of judicial review.
10. The scope of intra court appeal by a Division Bench against the order
of a Single Judge has been considered from time to time by their
Lordships of the Supreme Court in umpteen number of judgments.
Few of them may be noticed herein profitably and gainfully:-
10.1) Way back in the year 1974, in the matter of Smt. Asha Devi v.
Dukhi Sao and Another4, the Supreme Court has held as under:-
"But there is no doubt that in an appropriate case a Letters
Patent Bench hearing an appeal from a learned Single
Judge of the High Court in a first appeal heard by him is
entitled to review even findings of fact."
10.2) Similarly in the matter of Baddula Lakshmaiah and others v. Sri
Anjaneya Swami Temple and others5, the Supreme Court has again
defined the nature and scope of power of a Letters Patent Bench
hearing an appeal against the decision of learned Single Judge and
held as under:-
"2. ... Against the orders of the trial court, first appeal
lay before the High Court, both on facts as well as law. It is
the internal working of the High Court which splits it into
different 'Benches' and yet the court remains one. A
Letters Patent appeal, as permitted under the Letters
Patent, is normally an intra-court appeal whereunder the
Letters Patent Bench, sitting as a Court of Correction,
corrects its own orders in exercise of the same jurisdiction
as was vested in the Single Bench. Such is not an appeal
against an order of a subordinate court. In such appellate
jurisdiction the High Court exercises the powers of a Court
of Error. So understood, the appellate power under the
Letters Patent is quite district, in contrast to what is
ordinarily understood is procedural language. ..."
4 (1974) 2 SCC 492
5 (1996) 3 SCC 52
W.A.No.342/2021
10.3) In the matter of B. Venkatamuni v. C.J. Ayodhya Ram Singh
and others6, the Supreme Court has held that entertainment of a
Letters Patent Appeal is discretionary and normally the Division
Bench would not, unless there exist cogent reasons, differ from a
finding of fact arrived at by the learned Single Judge. It was
observed as under:-
"11. In an intra-court appeal, the Division Bench
undoubtedly may be entitled to reapprise both questions of
fact and law, but the following dicta of this Court in Umabai
& Anr. vs. Nilkanth Dhondiba Chavan (Dead) By Lrs. & Anr.
(2005) 6 SCC 243, could not have been ignored by it,
whereupon the learned counsel for Respondents relied:
"52. It may be, as has been held in Asha Devi v. Dukhi
Sao (1974) 2 SCC 492 that the power of the appellate
court in intra-court appeal is not exactly the same as
contained in Section 100 of the Code of Civil Procedure
but it is also well known that entertainment of a letters
patent appeal is discretionary and normally the Division
Bench would not, unless there exist cogent reasons,
differ from a finding of fact arrived at by the learned
Single Judge. Even as noticed hereinbefore, a court of
first appeal which is the final court of appeal on fact
may have to exercise some amount of restraint."
10.4) The Supreme Court in the matter of Commissioner of Income
Tax and another v. Karnataka Planters Coffee Curing Work Private
Limited7 has held that jurisdiction of Division Bench in a writ appeal is
primarily one of adjudication of questions of law. Therefore, findings
of fact recorded concurrently by the authorities and upheld by learned
Single Bench are not to be lightly disturbed in intra-court appeal. It
was observed succinctly as under:-
"3. ... The jurisdiction of the Division Bench in a writ
appeal is primarily one of adjudication of questions of law.
Findings of fact recorded concurrently by the authorities
under the Act and also in the first round of the writ
6 (2006) 13 SCC 449
7 (2016) 9 SCC 538
W.A.No.342/2021
proceedings by the learned Single Judge are not to be
lightly disturbed."
10.5) In the matter of Mani w/o Komalchand Jain v. Sub-Divisional
Forest Officer-cum-Authorised Officer, Mdhow and another8, a Division
Bench of the High Court of Madhya Pradesh has held that in intra-
court appeal, the Division Bench should be slow in disturbing the order
of writ Court and held as under:-
"5. ... Letters Patent Appeal is normally an intra-court
appeal whereunder Letters Patent Bench corrects its own
orders in exercise of same jurisdiction as vested in Single
Judge - It is not an appeal against an order of a
subordinate court. In the matters of Ku. Varsha
Shrivastava vs. State of M.P. L.P.A.16/2000, (since
reported in 2000 (1) MPLJ 615) Madhur Agrawal vs. State
of M.P., L.P.A. 17/2000 and Saumi Chatterjee vs. State of
M.P., L.P.A. 20/2000, the Division Bench of this court has
also taken a view that the attitude of Division Bench while
deciding the LPA has to be strict keeping in view the
incoming flood of LPAs. The LPA is infra-court appeal.
Therefore, the Division Bench should not be scanning out
the order passed by the Single Bench from all corners. If
the order is good enough to deal with the averments made
in the matter of Writ Petition and if it is sound on legal
grounds, the Division Bench should be slow in disturbing it.
It is not to be dealt with as if it is first appeal. ..."
11. Thus, from the principle of law laid down in the above-noticed
judgment qua scope of writ appeal / intra-court appeal, it is well settled
that the appellate court will not reassess the material and seek to
reach a conclusion different from the one reached by the Single Judge
if the one reached by the Single Judge was reasonably possible on
the material and if the discretion has been exercised by the writ court
reasonably and in a judicial manner, the fact that the appellate court
would have taken a different view may not justify interference with the
writ court's exercise of discretion.
8 2000(2) MPLJ 586
W.A.No.342/2021
12. The Supreme Court in Wander Ltd. (supra) has held that any appeal
against the order granting or refusing temporary injunction is an
appeal against exercise of discretion by the trial court and the
appellate court should not interfere with the exercise of discretion of
the court of first instance and substitute its own discretion except
where the discretion has been shown to have been exercised
arbitrarily, or capriciously or perversely, and observed as under: -
"13. On a consideration of the matter, we are afraid, the
appellate bench fell into error on two important
propositions. The first is a misdirection in regard to the
very scope and nature of the appeals before it and the
limitations on the powers of the appellate court to substitute
its own discretion in an appeal preferred against a
discretionary order. The second pertains to the infirmities
in the ratiocination as to the quality of Antox's alleged user
of the trademark on which the passing-off action is
founded. We shall deal with these two separately.
14. The appeals before the Division Bench were against
the exercise of discretion by the Single Judge. In such
appeals, the appellate court will not interfere with the
exercise of discretion of the court of first instance and
substitute its own discretion except where the discretion
has been shown to have been exercised arbitrarily, or
capriciously or perversely or where the court had ignored
the settled principles of law regulating grant or refusal of
interlocutory injunctions. An appeal against exercise of
discretion is said to be an appeal on principle. Appellate
court will not reassess the material and seek to reach a
conclusion different from the one reached by the court
below if the one reached by that court was reasonably
possible on the material. The appellate court would
normally not be justified in interfering with the exercise of
discretion under appeal solely on the ground that if it had
considered the matter at the trial stage it would have come
to a contrary conclusion. If the discretion has been
exercised by the trial court reasonably and in a judicial
manner the fact that the appellate court would have taken a
different view may not justify interference with the trial
court's exercise of discretion. After referring to these
W.A.No.342/2021
principles Gajendragadkar, J. in Printers (Mysore) Private
Ltd. v. Pothan Joseph9 :
"... These principles are well established, but as has
been observed by Viscount Simon in Charles Osenton
& Co. v. Jhanaton10 '...the law as to the reversal by a
court of appeal of an order made by a judge below in
the exercise of his discretion is well established, and
any difficulty that arises is due only to the application of
well settled principles in an individual case'."
The appellate judgment does not seem to defer to this
principle."
13. The aforesaid view taken by the Supreme Court in Wander Ltd.
(supra) has been followed subsequently in the matter of Skyline
Education Institute (India) Private Limited v. S.L. Vaswani and
another11 and further followed in the matters of Purshottam
Vishandas Raheja and another v. Shrichand Vishandas Raheja
(Dead) Through LRs. and others12 and Mohd. Mehtab Khan and
others v. Khushnuma Ibrahim Khan and others13.
14. Very recently in M/s. N.G. Projects Limited (supra), their Lordships of
the Supreme Court taking note of the provisions contained in clause
(ha) inserted in Section 41 of the Specific Relief Act, 1963 with effect
from 1-10-2018 has held that infrastructural projects should not be
stayed in exercise of jurisdiction under Article 226 of the Constitution
of India and observed as under: -
"21. Since the construction of road is an infrastructure
project and keeping in view the intent of the legislature that
infrastructure projects should not be stayed, the High Court
would have been well advised to hold its hand to stay the
construction of the infrastructure project. Such provision
should be kept in view even by the Writ Court while
9 (1960) 3 SCR 713 : AIR 1960 SC 1156
10 1942 AC 130
11 (2010) 2 SCC 142
12 (2011) 6 SCC 73
13 (2013) 9 SCC 221
W.A.No.342/2021
exercising its jurisdiction under Article 226 of the
Constitution of India."
Discussion and analysis
15. The learned Single Judge while declining to grant interim order in
favour of the appellant relying upon clause 19(c) of the Agreement has
held as under: -
"Reading of the aforesaid clause prima facie would
show that the permission to use the siding or any extension
or part thereof to a third party can be allowed upon
payment by such person or persons to the petitioner of
either such portion of the cost originally paid by the
petitioner to the Railway Administration. The railway in its
reply had contended that the quantum of traffic mentioned
by the petitioner is exaggerated as the maximum number of
rakes loaded in a month of March, 2021 was 239 and with
the entire including of back loading it comes to 412 rakes. It
is also stated in the reply that the train operation would be
purely a technical subject and the railway administration
will accommodate the petitioner's traffic if the respondent
No.5 is allowed to use the line. Meaning thereby if at all
respondent No.5 is allowed to use the line then in such
case they will be able to handle the traffic and the traffic of
the petitioner shall be given preference.
After looking into the map of the railway line and the
siding, it shows that after 9.3 Km apart from one existing
diversion to the factory of the petitioner, Freight Terminal
which is to be set up by Shree Cement is towards the left
side and the existing line to the Ultratech Hirmi Plant and
Rawan Plant is on the right side. The fact cannot loose
sight in teeth of agreement that if with the passage of time
in future if number of plants increases and freight terminals
are intended to be set up from Hathband Station, it cannot
be presumed that for each Freight Terminal for different
plant there would be separate line. For example if 10-15
factories are established in those areas, then there cannot
be 10-15 separate railway line are required to be set up
and it sans all practical logic. The agreement prima facie
allows the sharing of the proportion of cost in case of use of
line by another which appears to be reasonable. Therefore,
the balance of convenience and irreparable loss would also
not cause to the petitioner when the traffic on the racks are
managed by the railways read with specific undertaking of
W.A.No.342/2021
railways that in movements of the racks the preference
would be given to the petitioner. The reply filed by the
railway wherein certain number of racks have been shown
for the month of March nearby 412 do not appear to be
exorbitant.
Under the circumstances, though the order dated
26.07.2021 has not put a bar to further proceed according
to the policy to put up a Freight Terminal, in view of this, it
is observed that the order dated 26.07.2021 would not be
deemed to be a stay for further consideration of project for
the putting up a freight terminal for which the offer is made
to respondent No.5. By stalling the process it would
amount to nip the process in bud as the finalization of the
policy is yet to travel a long journey. Therefore, the
respondents No.1 to 4 may proceed to finalize the project
of putting up a freight terminal which would be at the risk
and cost of respondent No.5 and subject to final
adjudication of this case."
16. Thus, the learned Single Judge while declining to grant stay in favour
of the writ petitioner / appellant herein recorded following findings: -
1. On the basis of clause 19(c) of the agreement entered into
between the writ petitioner and respondents No.1 to 4,
permission to use the siding or any extension or part thereof
can be granted to a third party upon payment by such person or
persons to the writ petitioner of either such portion of the cost
originally paid by the petitioner to the Railway Administration.
2. The entire project sought to be established by the appellant
herein is in initial / nascent stage.
3. By the impugned order, respondent No.5 would be allowed to
use the railway line which is a single line.
4. The agreement prima facie allows the sharing of the proportion
of cost in case of use of line by another which appears to be
reasonable.
W.A.No.342/2021
5. If respondent No.5 is allowed to use the line then in such case,
the Railways have to handle the traffic and traffic of the
appellant herein / writ petitioner shall be given preference in
view of the specific undertaking by the Railways.
17.Laying of railway lines/tracks, plying on the railway tracks, siding,
setting up of rail terminal etc. are within the exclusive domain and
jurisdiction of the Railways and any such activity can be carried out in
such lines / tracks / siding only with the express leave of the Railways
and that too subject to terms and conditions as the Railways may
deem fit to impose. Undisputedly, for that purpose, the Railways have
formulated policy / scheme which has already been brought on record
and entered into agreement with the appellant. The Railways have
entered into two agreements dated 1-2-2008 and 10-8-2010 with the
appellant for private siding for its Hirmi and Rawan plants from
Hathband Station. Admittedly and undisputedly, the agreements
contained terms and conditions wherein specific clauses inter alia
permit third party to use the siding which has been incorporated and
accepted by the appellant herein in shape of clause 19 of the
agreement Annexure P-3 i.e. Private Siding Agreement. Clause 19 of
the Private Siding Agreement deals with Railway Administration's
Rights regarding use of the siding. It states that in addition to any
other rights, powers and liberties provided for, the Railway
Administration shall have the rights, powers and liberties, over and in
connection with the siding or any extension or part thereof namely,
(b) To connect or allow to be connected with the siding or any
extension or part thereof any other siding or sidings branching or
extending therefrom which may have been constructed or which
W.A.No.342/2021
may hereinafter be constructed by or under the authority of the
Railway Administration for any other person or persons
whomsoever or for the purpose of the Railway Administration and
to make or allow such alterations as may be necessary to effect
such connection.
(c) To use or to permit the use of the siding or any extension or
part thereof for the traffic if any person or persons other than the
Applicant and to work traffic over the siding or any extension or
part thereof to and from any other siding or sidings or branches or
extensions therefrom which may be constructed as aforesaid
jointly with the traffic of the Applicant upon payment by such
person or persons to the Applicant of either such portion of the
cost originally paid by the Applicant to the Railway Administration,
in respect of the land and sub-grade work or such tollage for such
use as aforesaid as shall be decided by the General Manager for
the time being of the Railway Administration or such other Officer
as may be nominated by him whose decision shall be final,
conclusive and binding on the Applicant as to whether a portion of
the aforesaid cost shall be payable and if so, the amount thereof or
whether a tollage shall be payable and if so, the amount or rate
thereof.
The Railway Administration shall collect such
proportionate cost on behalf of the Applicant but shall not be
responsible for collection of tollage for and on behalf of the
Applicant, but the Applicant may enter into agreement with the
person or person who has / have permitted the use of Siding or
part thereof by the Railway Administration on the payment by the
W.A.No.342/2021
latter of tollage. The use of the Siding or any extension or thereof
by the Railway Administration or by other persons shall be so
conducted in such manner and to such extent as to interfere as
little as possible with the free use of the siding by the Applicant
whose traffic shall have precedence.
18. Clause 19(c) of the Private Siding Agreement clearly authorises the
Railways to use or to permit the use of the siding or any extension or
part thereof for the traffic if any person or persons other than the
appellant herein and to work traffic over the siding or any extension or
part thereof to and from any other siding or sidings or branches or
extensions therefrom which may be constructed as aforesaid jointly
with the traffic of the appellant herein upon payment by such person
or persons to the appellant. It is not in dispute that the appellant has
accepted the aforesaid clause contained in clause 19(b) & (c) of the
Private Siding Agreement without any demur or protest and has in fact
set up the railway siding subject to the aforesaid terms i.e. clause
19(b) & (c) of the agreement.
19. Similarly, on 23-8-2016, the Government of India issued a policy on
Private Sidings which contained identical clauses empowering
Railways in the shape of clause 19(c) which states as under: -
"19. Railway Administration's Rights Regarding Use of the
Siding:
(c) To use or to permit the use of the siding or any
extension or part thereof for the traffic if any person or
persons other than the Applicant and to work traffic over
the siding or any extension or part thereof to and from any
other siding or sidings or branches or extensions therefrom
which may be constructed as aforesaid jointly with the
traffic of the Applicant upon payment by such person or
persons to the Applicant of either such portion of the cost
originally paid by the Applicant to the Railway
W.A.No.342/2021
Administration, in respect of the land and sub-grade work
or such tollage for such use as aforesaid as shall be
decided by the General Manager for the time being of the
Railway Administration or such other Officer as may be
nominated by him whose decision shall be final, conclusive
and binding on the Applicant as to whether a portion of the
aforesaid cost shall be payable and if so the amount
thereof or whether a tollage shall be payable and if so the
amount or rate thereof.
The Railway Administration shall collect such proportionate
cost on behalf of the Applicant may enter into agreement
with the person or persons who has / have been permitted
the use of Sidings or part thereof by the Railway
Administration on the payment by the latter of tollage.
The use of the Siding or any extension or part thereof by
the Railway Administration or by other persons shall be so
conducted in such manner and to such extent as to
interfere as little as possible with the free use of the siding
by the Applicant whose traffic shall have precedence."
20. Coming to the facts of the case, it is quite apparent that the appellant
herein has neither challenged the policy dated 23-8-2016 nor the
terms and conditions of the agreement incorporated in shape of
clause 19(b) & (c) as noticed herein-above entered between it and the
Railways - respondents No.1 to 4 and only on the application of
respondent No.5 when respondents No.1 to 4 have granted In
Principle Approval (IPA) dated 8-4-2021 to respondent No.5 by which
respondent No.5 has been allowed to use the part of the appellant's
siding up to certain point for the proposed construction of Green Field
Private Freight Terminal (PFT) by respondent No.5 with take off from
existing private siding of the appellant connected from HN Station,
challenge has been made in the writ petition.
21. Reverting to the facts of the case in the light of the aforesaid
discussion and analysis, it is quite vivid that clause 19(c) of the
agreement entered into between the appellant and respondents No.1
W.A.No.342/2021
to 4 for private siding of its Hirmi and Rawan plants from Hathband
Station clearly permits use of siding or any extension or part thereof
for the traffic if any person or persons other than the writ petitioner /
appellant herein by a third party upon payment by such person or
persons to the writ petitioner which the writ petitioner / appellant
herein has accepted and acted upon, and the appellant has not
challenged it till this date rather acting upon the agreement without
demur or protest and furthermore, In Principle Approval (IPA) has
been granted as it is only the first stage of other permissions required
at different levels. In that view of the matter, the learned Single Judge
has recorded a finding that use of siding by third party i.e. respondent
No.5 is permissible under clause 19(c) of the agreement entered into
between the writ petitioner / appellant herein and respondent Nos.1 to
4 and the writ petitioner's traffic would be given preference as specific
undertaking has been given by the Railways, and further recorded a
finding that agreement between the parties prima facie allows sharing
of the proportion of cost in case of use of line by another.
Furthermore, the finding of the learned Single Judge is that it would be
difficult to establish various lines for different plants and thus, the
learned Single Judge has allowed respondents No.1 to 4 to finalise
the project of putting up a freight terminal at the risk and cost of
respondent No.5 and subject to final adjudication of the writ petition.
In our considered opinion, the learned Single Judge has reached to a
right conclusion and has exercised the discretion strictly in
accordance with law, it is neither arbitrary nor capricious or perverse
in the light of the principle of law laid down by their Lordships of the
Supreme Court in Wander Ltd. (supra) and considering the scope of
W.A.No.342/2021
writ / intra-court appeal held in the matter of Smt. Asha Devi (supra),
Baddula Lakshmaiah (supra) and B. Venkatamuni (supra) and
furthermore, following the recent decision of the Supreme Court in
M/s. N.G. Projects Limited (supra) in which their Lordships have
clearly held that the High Court should be slow in staying the
infrastructural project, as noticed herein-above.
22. It is also vehemently contended by Mr. Singhvi, learned senior counsel
for the appellant, that interim order granted on 26-7-2021 has been
vacated on 28-9-2021, but no opportunity to file reply has been
granted, whereas, however, while replying to this submission it has
been submitted by Mr. Sundaram, learned senior counsel for
respondent No.5, that on 26-7-2021 only notices of writ petition were
issued to respondents No.2 to 5 including respondent No.5 and copy
of the writ petition was directed to be served to respondent No.5 and
thereafter, only on 23-8-2021, the matter came-up for hearing, but
again, the matter could not be heard and time was granted to
respondent No.5 to file reply. Meanwhile, reply was filed by all the
parties then only, on 28-9-2021, the matter came-up for consideration
and on that day, in fact, the question of grant of stay was considered
bi-parte for the first time by the learned Single Judge and by abundant
precaution, application for vacating stay was filed which was noticed
for consideration while considering the question of grant of interim
relief to the writ petitioner, and it is not the case that no opportunity
was granted to the writ petitioner / appellant herein to file reply to the
application for vacating stay.
23. A careful perusal of order dated 26-7-2021 extracted herein-above
(para 7) would show that on that day, writ petition was entertained,
W.A.No.342/2021
copy of writ petition was directed to be served to counsel for
respondent No.5 and the learned Single Judge while passing the
order has clearly observed that "let the respondents may not
precipitate further things by any order so that this petition or any
interim prayer become infructuous to give rise to multiplicity of
proceedings". Thereafter, reply was filed by respondent No.5 on 26-8-
2021 and the matter was taken-up for hearing on 28-9-2021. As such,
for the first time, on 28-9-2021, the question of grant of interim relief
was considered bi-parte by the learned Single Judge after serving
copy of writ petition and filing of reply, though hearing on I.A.No.2,
application for vacating stay, was mentioned in the order sheet, but
the fact remains that the learned Single Judge has considered the
question of grant of stay in favour of the writ petitioner after hearing all
parties for the first time on 28-9-2021 and prior to that, order dated 26-
7-2021 was only an order issuing notice as at that time even copy of
the writ petition was not served to respondent No.5 and for the first
time, on 28-9-2021, the question of interim relief to the writ petitioner /
appellant herein was considered after hearing all parties to the writ
petition, as on 26-7-2021, the writ petition was heard only on the
question of admission and the respondents had no say on that day on
any issue / question of interim relief to the writ appellant, as
respondent No.5 did not have copy of writ petition. As such, the writ
petitioner / appellant herein has not suffered any prejudice on account
of not giving additional opportunity to file reply to the application for
vacating stay, in fact on 28-9-2021, all the parties were heard on the
question of grant of stay to the writ petitioner after filing reply / return,
etc.. Therefore, the writ petitioner / appellant herein has not suffered
W.A.No.342/2021
any prejudice on account of non-grant of further opportunity to file
reply to the application for vacating stay, and on hearing learned
counsel for the parties at length and on deeper consideration, we find
no force in the submission of learned counsel for the appellant herein
and we hereby reject the said submission.
24. In view of the aforesaid analysis, we are of the considered opinion that
the learned Single Judge is absolutely justified in passing the
impugned order declining to grant stay in favour of the writ petitioner /
appellant herein allowing respondents No.1 to 4 to proceed to finalise
the project of putting up a freight terminal that is at the risk and cost of
respondent No.5 and subject to final adjudication of the writ petition.
We do not find any merit in the writ appeal, it deserves to be and is
accordingly dismissed leaving the parties to bear their own cost(s).
25. At this stage, learned counsel for the parties have fairly submitted that
the learned Single Judge be directed to expedite the hearing of the
writ petition. The prayer appears to be just, fair and reasonable. The
learned Single Judge is requested to decide the writ petition
expeditiously, in view of the issue raised and urgency shown by
learned senior counsels of both the sides. Let the matter be listed for
consideration before the learned Single Judge on 13-6-2022 as this
Court shall remain closed for summer vacation from 16-5-2022 to 10-
6-2022.
26. It is also made clear that this Court has not expressed any opinion on
the merits of the matter and the observation made / finding arrived
herein-above is only for the purpose of adjudicating the validity and
correctness of the impugned order dated 28-9-2021 and it is open to
the writ court to adjudicate the issue involved in the writ petition on its
W.A.No.342/2021
merit and in accordance with law. All the rival contentions made on
the merits of the matter herein-above are left and kept open to be
urged before the writ court.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Soma
