Madhya Pradesh High Court
Union Of India vs M/S Maihar Cement Judgement Given By: ... on 11 November, 2013
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WA No.811/12
11.11.2013.
Shri Sudhir K. Shrivastava, learned counsel for the
appellants.
Shri Aditya Adhikari, learned counsel for the
respondent.
IA No. 9708/12, an Interim application for
exemption from filing copy of the writ petition.
Considering the controversy involved in this case
and the fact that the controversy has already been
decided in Writ Appeal No. 645/12 and other connected
matters on 14.05.13, we exempt the appellant from filing
copy of the writ petition. Accordingly, this application is
allowed.
IA No. 10562/12 for amendment.
The amendment appears to be formal in nature,
therefore, for the reasons stated in the application, same
is allowed. Appellant is directed to amend the memo of
appeal as prayed in the application. Necessary
amendment be carried out during the course of the day.
Heard on admission.
Learned counsel appearing for the parties submitted
that the controversy involved in this case is squarely
covered by a decision of this Court in Writ Appeal No.
645/12 and other connected matters decided on
14/05/13, and with similar directions, this appeal may
also be disposed of finally.
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In WA No.645/12, a Division Bench of this Court,
considering the same controversy, held thus :-
"These appeals are arising out of the
common order dated 25.4.2012 passed by writ
Court in W.P. No.469/2009 and other, by
which all the connected matters were decided
by the order. Considering the aforesaid, we
propose to decide all the matters by this
common order. For the sake of convenience
the facts are taken from W. A. No.645/2012.
02. The controversy involved in all these
cases is short one, in respect of applicability of
a notification issued by the Railway Board
dated 11.1.1995, by which the Railway Board
had directed to delegate full powers to the
General Manager to settle time barred
compensation claims for refund of
overcharges. In these cases the question
involved is for consideration of the settlement
of time barred compensation claim of the
respondent for refund of the overcharges.
03. The sole contention raised by Shri N. S.
Ruprah, learned counsel for the
appellant/railways, is that the aforesaid circular
is contrary to the provisions as contained in
Section 106 of the Indian Railways Act, 1989
(hereinafter referred to as "the Act of 1989")
and no direction could not have been issued
by the Railway Board directing the appellant
herein to consider time barred compensation
claims for refund of overcharges. That Section
106 of the Act of 1989 bars for a claim for
compensation and refund of overcharges, if it
is not noticed within a period of six months
from the date of delivery of goods at the
destination station. That the writ Court has
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erred in directing the appellants for
consideration of claims of the respondent for
refund of time barred overcharges. He has
placed reliance upon two decisions of Apex
Court, one reported in (1991) 4 SCC 333 -
Vinod Gurudas Raikar Vs. National Insurance
Co. Ltd. and others and another judgment
reported in (2008) 3 SCC 73 - Commissioner
of Customs, Central Excise Noida Vs. Punjab
Fibres Ltd., Noida. It is submitted by him that
the order passed by the writ Court may be set
aside.
04. Shri Aditya Adhikari, learned counsel for
the respondent supported the order passed by
the writ Court. It is submitted by him that the
Circular dated 11.1.1995 was issued by the
Board, in exercise of its power vested under
the Indian Railway Board Act, 1905
(hereinafter referred to as "the Act of 1905"), to
delegate powers to the General Manager to
settle time barred compensation claims for
refund of overcharges. That this order was
issued by the Board in exercise of its powers
vested in it under Section 3 of the Act of 1905
and the respondent were entitled to lodge their
claims before the General Manager to consider
and decide time barred compensation claims
for refund of overcharges. That Section 106 of
the Act of 1989 is applicable to the railway
administration and under Section 2 (32) of the
Act of 1989, the Railway Board is not included
as railway administration. Shri Adhikari while
placing reliance on the definition as contained
in Section 2 (32) of the Act of 1989, submitted
that Section 106 is applicable to the railway
administration not to consider the time barred
claims, while the Board is not included in the
railway administration. The Railway Board has
issued the aforesaid directions in exercise of
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its power under Section 3 of the Act of 1905. It
is submitted by Shri Adhikari that learned
Single Judge has rightly considered the matter
and interpreted the Circular dated 11.1.1995
and has also rightly issued the directions to the
appellants herein to consider the claims of the
respondent. It is submitted by him that these
appeals are without merit and the same may
be dismissed.
05. To appreciate rival contentions of the
parties, it would be appropriate to see the
factual position. The dispute is in respect of
refund of overcharges which were claimed by
the respondent beyond the period of six
months from the date of delivery of goods at
the destination station. The Board had issued
a Circular on 11.1.1995, by which the General
Managers were delegated the full powers by
the Board to settle time barred compensation
claims, in consultation with the FA and CAO in
respect of the monitory limits, for refund of
overcharges. It is also not disputed that the
aforesaid order has been subsequently
withdrawn by the Board by another order dated
22.2.2010. In the light of the aforesaid factual
position, the case may be examined. Firstly,
the relevant provisions, which are necessary
for deciding these appeals may be referred.
Section 106 (3) of the Act of 1989 provides
thus :-
"106. Notice of claim for compensation
and refund of overcharge -
(1) .....................
(2) .....................
(3) A person shall not be entitled to a
refund of an overcharge in respect of goods
carried by railway unless a notice therefor,
has been served by him or on his behalf to
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the railway administration to which the
overcharge has been paid within six months
from the date of such payment or the date of
delivery of such goods at the destination
station, whichever is later."
Section 2 sub-section 32, which is referred reads
thus :-
"2. Definitions - In this Act, unless the
context otherwise requires -
(1) ...........
(2) ...........
...........
...........
(32) "railway administration", in relation to, -
(a) a Government railway, means the General Manager of a Zonal Railway; and
(b) a non-Government railway, means the person who is the owner or lessee of the railway or the person working the railway under an agreement;
Sections 1, 2 and 3 of the Act of 1905, which are referred read thus :-
"1 - Short Title and Construction - (1) This Act may be called THE INDIAN RAILWAY BOARD ACT, 1905; and (2) It shall be read with, and taken as part of, the Indian Railways Act, 1890.
2. Investment of Railway Board with powers under Indian Railways Act, 1890. -
The (Central Government) may, by notification in the (Official Gazette), invest the Railway Board, either absolutely or 6 subject to conditions, -
(a) with all or any of the powers or functions of the (Central Government) under the Indian Railways Act, 1890, with respect to all or any railways and
(b) with the power of the officer referred to in section 47 of the said Act to make general rules for railways administered by the Government.
3. Mode of signifying communications from the Railway Board. - Any notice, determination, direction, requisition, appointment, expression of opinion, approval or sanction, to be given or signified on the part of the Railway Board, for any of the purposes of, or in relation to, any powers or functions with which it may be invested by notification under section 2, shall be sufficient and binding if in writing signed by the Secretary to the Railway Board, or by any other person authorized by the said Railway Board to act in its behalf in respect of the matters to which such authorization may relate; and the said Railway Board shall not in any case be bound in respect of any of the matters aforesaid unless by some writing signed in manner aforesaid."
The Circular dated 11.1.1995 of which interpretation has been made by the writ Court reads thus :-
"Government of India Ministry of Railways Railway Board"7
No.TCIV/94/495C/PolicyMatters NewDelhi dt.11.1.1995 The General Manager/Refunds All Indian Railways Sub: Delegation of powers regarding Settlement of time barred refund cases.
Please refer to Board's letter No.94/TC/III/3/1 dt.12.10.1994 which is in supersession of Board's letter No.77/TC.III/94/4 dt.20.06.1977 under which Board have decided to delegate full powers to General Managers to settle time barred compensation claims in consultation with the FA & CAO irrespective of the monetary limit.
Since the instruction issued on 20th June 1977 were made applicable in settlement of time barred claim for refund of overcharge also vide Board's letter No.CIV/77/4950/22 dt.02.11.1977. It is clarified that the delegation of power referred to in Board's letter no.94/TC.III/3/1 dt.12.10.1994 extends not only to time barred claims for compensation but also to settlement of time barred claims for refund of overcharge.
The receipt of this letter may please be Acknowledged (It disposes of Eastern Railway's letter No.CC/RG/(Policy)/94 dt. 14.11.94).
- sd -
(H.C.Punia) Executive Director, (P.G.) Railway Board"
07. It is not in dispute before us that Section 106 creates a bar to claim compensation against the railway administration for refund of overcharges within six months from the date of delivery of such goods at the destination 8 station. The aforesaid bar is against the railway administration and Section 2 sub- Section 32 defines the railway administration. As defined in the aforesaid section a Government railway, means the General Manager of a Zonal Railway. In the definition of railway administration, Board has not been included.
08. The Act of 1905 was enacted with the aims and objects for investing the Railway Board with the power and functions of the Governor- General in Council (now Government of India), under the Indian Railways Act, which can, as that Act stands, be delegated the powers to make general rules as to Government railways, which can, as Section 47 of the Act stands be exercised only by an officer to be appointed by the Central Government. The Act provides for investing the Railway Board with certain powers or functions under Railways Act 1890. The pre- amble of the Act further provides that the Railway Board has been constituted for controlling the administration of railways in India and to provide for investing such Board with certain powers or functions under the Indian Railways Act and for this purpose the Act was enacted.
09. Section 1 (2) provides that it shall be read with, and taken as part of, the Indian Railways Act, 1890. Section 2 provides that the Central Government by notification in the Official Gazette invest the Railway Board, either absolutely or subject to conditions that with all or any of the powers or functions of the Central Government under the Indian Railways Act, 1890, with respect to all or any railways and with the powers of the officer referred to in Section 47 of the Act to make general rules for 9 railway administered by the Government. The notifications were issued in the Gazette of India, 1905, Part-I, page 232; 1906 Part-I, page 927; 1907, Part-I, page 273 and 1908, Part-I, page
169. Section three provides mode of signifying communications from the Railway Board. Any direction on the part of the Railway Board for any purpose of, or in relation to, any powers or functions with which it may be invested by notification under section 2, shall be sufficient and binding if in writing signed by the Secretary to the Railway Board. The aforesaid provisions are very specific and gives extraordinary powers to the Railway Board for administration of the railways and the Central Government has invested the Board with the extraordinary powers.
10. Now in the light of the aforesaid provisions the Board's Circular dated 11.1.1995 may be looked into. Section 106 of the Indian Railway Act creates a bar for claim, for refund of the overcharges, if it is not noticed within a period of six months from the date of such payment or the date of delivery of such goods at the destination station, whichever is later. To meet out any difficulty in respect of refund of the overcharge, the Railway Board had issued notification dated 11.1.1995 delegating the powers to the General Manager to settle time barred compensation claims in respect of refund of overcharges. This power was exercised by the Railway Board under the provisions of the Indian Railway Board Act, 1905 to meet out the exigency for refund of the overcharges. Though, it is contended by Shri Ruprah, learned counsel for the appellant/Railway, that in the light of Section 106 of the Act of 1989 no orders could have been issued by the Board, which were against the statute and any circular issued by 10 the Board contrary to the provisions of Section 106 of the Act of 1989 could have been ignored. But this argument appears to be without any substance. When the Railway Boards have been vested with extraordinary powers under the Indian Railway Board Act, 1905, and exercising such powers, to meet out such exigency if the Board had issued such a circular, no fault is found on its part. Apart from this, such order has now been withdrawn by the Board on 22.2.2010. But present matter relates to the period during which the circular was in force.
11. Learned Single Judge has considered all these aspects in the impugned order and has found that such claim could have been considered by the General Manager in the light of the powers vested by the Board in the matter and directed the appellants herein to consider the claim of refund of the overcharges by the appellants. In the said order no fault is found.
12. So far as the judgment relied upon by learned counsel for the appellant in the case of Vinod Gurudas Raikar (supra) is concerned, it was a case of condonation of delay. Claim was lodged under Section 166 (3) of Motor Vehicles Act, 1988 and the Apex Court held that there was no provision of condonation of delay, so delay could not have been condoned in absence of any specific powers in this regard. In the case of Commissioner of Customs, Central Excise Noida (supra) the question was in respect of condonation of delay in filing the reference application and Apex Court while considering the question held that in absence of any specific powers in this regard delay could not have been 11 condoned under Section 5 of the Limitation Act. The aforesaid cases are not applicable in the present case in the light of factual position of the present case.
13. From perusal of the provisions as contained in the Indian Railway Board Act, 1905, we find that the Railway Board was having power and jurisdiction to issue such circular and the circular which was issued by the Board was within its jurisdiction inspite of specific powers as contained in Section 106 of the Act of 1989. If any claim was lodged when the Circular dated 11.1.1995 was in existence, that claim could have been considered and decided for refund of overcharges by the appellant.
14. In view of the aforesaid, we do not find any error in the order passed by learned Single Judge.
15. At this stage, learned counsel for the appellants/railway submitted that as Circular Dated 11.1.1995 has been withdrawn by another Circular dated 22.2.2010 then any claim beyond the aforesaid period is not to be considered.
16. Shri Adhikari, learned counsel for the respondent has no dispute in this regard because the aforesaid Circular dated 11.1.1995 was withdrawn by another Circular dated 22.2.2010. Any claim filed after 22.2.2010 could not have been considered on the basis of the Circular dated 11.1.1995, which was already withdrawn, with this clarification the appeals are found without merit and are dismissed with no order as to costs."12
As learned counsel for the parties have submitted that the controversy is squarely covered by the aforesaid decision, we finally dispose of this appeal also in terms of the Order dated 14.05.2013 passed in WA No.645/12 and other connected writ appeals. No orders as to cost.
(Krishn Kumar Lahoti) (Subhash Kakade)
ACTING CHIEF JUSTICE JUDGE
Jk.