Madhya Pradesh High Court
M/S Diamond Cements vs Union Of India on 9 March, 2015
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Misc. Appeal No : 2069 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2070 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2072 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2073 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2074 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2075 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2076 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2077 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No:: 2069 / 2014
2
M/s Diamond Cements Vs. Union of India.
Misc. Appeal No : 2078 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2079 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2080 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2081 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2082 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2084 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2085 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2087 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No:: 2069 / 2014
3
M/s Diamond Cements Vs. Union of India.
Misc. Appeal No : 2088 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2089 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Misc. Appeal No : 2091 of 2014
M/s Diamond Cements
- V/s -
Union of India.
Present : Hon'ble Shri Justice Rajendra Menon.
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In all the cases:
Shri Rajesh Chand, counsel for the appellants.
Shri Atul Choudhary, counsel for the respondent.
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Whether approved for reporting: Yes / No.
ORDER
09/03/2015 As common questions are involved in these nineteen appeals, they are being heard analogously and decided by this common order. For the sake of convenience, pleadings and documents available in the record of M.A. No. 2069/2014 are being referred to in this order. 2- These appeals are filed by the appellants under section 23 of the Railway Claims Tribunal Act, 1987 challenging a common order, identical in nature, passed in 19 cases, on 14.7.2014, rejecting the claim filed by the appellants before the Railway Claims Tribunal, Bhopal. Misc. Appeal No:: 2069 / 2014 4 M/s Diamond Cements Vs. Union of India.
3- Facts in brief go to show that appellants, who are engaged in the business of manufacturing of cement in their manufacturing unit situated in Narsingarh, District Damoh dispatched 19 racks of Cement Clinker from the siding known as DDSG to Asansol on various dates between November 2004 to January, 2005. All these racks were booked and freight charges were collected for a route, distance of which was calculated as 1033 Kms, and the route was via Katni-Bilaspur. Having charged the freight for this route, the racks were not carried through this route but they were carried on a different and shorter route measuring 995 Kms via Manikpur-Cheoki-Mugalsarai. As the appellants had paid freight for a distance of 1033 Kms and as the racks were sent on a shorter route measuring 995 Kms, appellants claimed refund in the difference of charge paid for the 19 racks on different route. When the claim was not paid, it was raised before the Railways Claims Tribunal. Initially the Tribunal dismissed all the petitions on the ground that the claim pertains to refund of excess freight, it is a case where the appellants are claiming refund of „overcharge‟ and for the said purpose as six months statutory notice contemplated under section 106(3) of the Railways Act, 1989 has not been served, the claim is not maintainable and accordingly rejected all the 19 claim applications by an order passed on 18.8.2011.
4- Challenging the order passed on 18.8.2011, 19 appeals under section 23 of the Act were filed before this Court. They were numbered as M.A. No.4562/2011 and other cases and by a common order passed vide Annexure A/3 on 30.10.2012, all the 19 appeals were allowed. The impugned order passed on 18.8.2011 were quashed and the matter remanded back to the Tribunal. The Tribunal having rejected the claim again, these appeals have been filed.
5- Shri Rajesh Chand, learned counsel for the appellants, took me through the order passed in the earlier appeal filed under section 23 on 30.10.2012 vide Annexure A/3, and argued that in the aforesaid appeal the question involved was as to whether the claim in question comes within the purview of „overcharge‟ as mentioned in sub-section Misc. Appeal No:: 2069 / 2014 5 M/s Diamond Cements Vs. Union of India.
(3) of Section 106 of the Act or „differential charge‟. It was the contention of the appellants before this Court in the earlier round of appeal that the claim pertains to „differential charge‟ and, therefore, the requirement of notice under section 106 is not applicable. However, it was the case of the Railways that as the case comes within the purview of „overcharge‟, notice under section 106 of the Act was necessary. Learned counsel for the appellants invites my attention to the discussions made by this Court from paragraph 10 onwards, in its earlier order passed vide Annexure A/3 on 30.10.2012, and argues that it has been categorically held by this Court in the earlier appeal that the dispute in question pertains to „differential charge‟ and not „overcharge‟ and remanded the matter back to the Railway Tribunal for calculating the damages. It is argued by learned counsel for the appellants that instead of calculating the damages and awarding the same to the appellants, the Railway Tribunal again misdirected itself, went into the question as to whether the claim falls in the category of „overcharge‟ or „differential charge‟ and holding it again to be „overcharge‟ rejected the claim. This according to Shri Rajesh Chand is not permissible, once in an appeal adjudicated under section 23 of the Act, this Court has categorically held that the claim falls in the category of „differential charge‟ and this order of the High Court is upheld after SLPs filed by the respondent were dismissed by the Supreme Court. Learned counsel for the appellants also invites my attention to the orders passed by the Supreme Court in dismissing the SLPs filed by the respondent vide Annexure A/4 on 16.9.2013. Accordingly, Shri Rajesh Chand argues that now all these appeals should be allowed, and damages awarded alongwith interest. 6- Accordingly, Shri Chand submits that the Railway Claims Tribunal has committed an error in re-determining the question as to whether the claim falls within the category of „overcharge‟ or „differential charge‟. This was beyond the jurisdiction of the Tribunal after remand, once the question was already determined by this Court in an appeal under section 23 of the Act.
Misc. Appeal No:: 2069 / 2014 6 M/s Diamond Cements Vs. Union of India.
7- Shri Atul Choudhary, learned counsel appearing for the respondent, argued that as the appellants are claiming refund of the amount on account of difference in the route and difference of distance by which the racks were dispatched, it amounts to „over-charging‟ by the Railway Administration and as the claim pertained to refund of overcharge claimed by the Railway, the Tribunal has not committed any error in the matter. Accordingly, Shri Choudhary prays for dismissal of the appeals.
8- I have heard learned counsel for the parties and have gone through the records.
9- The only legal question involved in the matter of adjudicating the claim of the appellants was as to whether the claim in question falls within the category of „overcharge‟ or „differential charge‟ and further as to whether this question can be again reconsidered by the Court in these appeals.
10- If the case comes with the purview of „overcharge‟ then the statutory notice under section 106 is required and the claim of the appellants was not tenable. However, if it was a case of „differential charge‟, then admittedly the appellants having paid more than the charge payable for the distance and route for which the racks were dispatched, appellants were entitled to refund of the difference and damages for the same.
11- In the impugned order passed by the Tribunal - Annexure A/1, the Tribunal after examining the matter has held that the claim pertains to refund of „overcharge‟ and as statutory notice under section 106 is not given, the claim is rejected.
12- In my considered view, the question as to whether the claim falls within the category of „overcharge‟ or „differential charge‟ was no more open for debate or adjudication by the Railway Claims Tribunal, Bhopal after the remand was made by this Court vide order - Annexure A/3 dated 30.10.2012, in an appeal decided under section 23 of the Act. 13- The learned Bench which decided the matter took note of the legal position and found that „overcharge‟ is not defined in the Misc. Appeal No:: 2069 / 2014 7 M/s Diamond Cements Vs. Union of India.
Railways Act, it is only stipulated by reference in sub-section (3) of Section 106. After analyzing various judgments on the question, dictionary meaning of the word „overcharge‟ and „differential charge‟, in paragraph 15, a categorical finding has been recorded by this Court to say that the claim in question does not fall in the category of „overcharge‟, but it is a case of „differential charge‟. In paragraph 15, the dispute has been so adjudicated by a Bench of this Court, in M.A. No.4562/2011 and other cases, decided vide Annexure A/3, on 30.10.2012, as under:-
"15. The fine distinction in the case is that the present case is not the case of „over charge‟ but „differential freight‟ because the consignment has been sent by the Railway Administration by adopting a shorter route, namely, via Manikpur-Cheoki-Mugalsarai covering a distance of 995 Kms while admittedly the consignment was booked by the appellant for a longer distance via Katni-Bilaspur and, therefore, according to me, the present case would come under the ambit and scope of differential freight and is not case of „over charge‟. The decision of Supreme Court Birla Cement Works (supra) placed reliance by the learned counsel for the respondent is not applicable in the present case because in that case the consignment was booked for a shorter distance while it was sent for a longer distance on account of establishment of the broad guage and thus, the Railway carried the consignment through a longer route of 34 Kms and in those facts and circumstances it was found that the case was of „over charge‟. However, in the present case, the consignment has been sent through a shorter route. Hence, according to me, learned Tribunal erred in law in dismissing the claim of the appellants. "
(Emphasis supplied) 14- From the aforesaid finding of this Court, it is crystal clear that this Court has held that present is not a case of „overcharge‟ but „differential charge‟ and the reason that follows thereafter. 15- Once the appellate Court exercising jurisdiction under section 23 has recorded a finding that it is a case of „differential charge‟ and remanded the matter back to the Tribunal only for calculating the damages, it was beyond the jurisdiction of the Tribunal to again go into Misc. Appeal No:: 2069 / 2014 8 M/s Diamond Cements Vs. Union of India.
the disputed question as to whether the claim was „overcharge‟ or „differential charge‟ and record a finding that it is claim of „overcharge‟. This act of the Tribunal amounts to error of jurisdiction; exceeding jurisdiction and recording finding contrary to the finding already recorded by an appellate Court. Once as indicated in paragraph 15 hereinabove, this Court in appeal decided under section 23 has recorded a finding that it is a case of „differential charge‟, the Tribunal had no authority to again re-determine this question. Accordingly, the Tribunal has committed an error in rejecting the claim of the appellants, once it is found by this Court that it is a case of „differential charge‟, the Tribunal had no authority to go into this question and record a finding which runs contrary and inconsistent to the decision rendered by this Court. 16- In view of the above, all these appeals are allowed. In the light of the finding already recorded in M.A. No. 4562/2011 and affirmed by the Supreme Court as is evident from the dismissal of SLPs filed by the respondent vide Annexure A/4, this Court has no option but to award damages to the appellants, as the case is found to be one falling in the category of „differential charge‟, as already determined in the earlier appeal.
17- During the course of hearing of this appeal Shri Atul Choudhary, learned counsel for the respondent, further invited my attention to a judgment pronounced by a Bench of this Court in Writ Petition No.472/2009 [M/s Maihar Cement Vs. Union of India and others], wherein about 14 writ petitions were decided by a Coordinate Bench of this Court on 25.4.2012, and argued that in these cases the learned Bench has held that the dispute of the nature involved in this appeal pertains to „overcharge‟ and not „differential charge‟. Therefore, it is submitted by Shri Atul Choudhary that the finding of the Tribunal is proper. Learned counsel further stated that in the SLP decided by the Supreme Court vide Annexure A/4, as the question of law has been kept open, this Court should reconsider the matter in the light of the judgment rendered in the case of M/s Maihar Cements (supra). Misc. Appeal No:: 2069 / 2014 9 M/s Diamond Cements Vs. Union of India.
18- I am unable to accept the aforesaid contention. The order passed by the Supreme Court in the SLP filed by the Railway Administration in the previous round of litigation between the parties in this appeal reads as under:
" Heard Mr. Rakesh Khanna, learned Additional
Solicitor General.
No reason to interfere.
The special leave Petitions are dismissed. However, the question of law is left open."
(Emphasis supplied) On a bare reading of the aforesaid judgment of the Hon‟ble Supreme Court, it is clear that the lis that was taken up for consideration between the parties in this appeal, in the previous round of litigation, stands dismissed and the order passed in M.A. No. 4562/2011 on 30.10.2012 is affirmed by the Supreme Court, that is the only meaning of the words „no reason to interfere‟ and the „SLPs are dismissed‟. Accordingly, it is a case where as far as these 19 appeals are concerned, the question as to whether the dispute is an „overcharge‟ or „differential charge‟ stands concluded, but for every other case to follow, the question is left open by the Supreme Court. That is why a learned Coordinate Bench of this Court in the case of M/s Maihar Cements (supra) re- determined the question in accordance with law.
19- But as far as the present 19 appeals are concerned, as the question is already decided in M.A. No. 4562/2011 and other cases is between the same parties who are before this Court in this appeal, and as this decision is affirmed by the Supreme Court, I am of the considered view that the Claims Tribunal could not go beyond the findings recorded in M.A. No. 4562/2011 and other cases as far as these appeals are concerned. On this count, the submissions made by Shri Atul Choudhary cannot be accepted.
20- Accordingly, all these appeals are allowed. Impugned orders passed by the Tribunal are quashed. Respondent Railway Administration is directed to pay to the appellants the difference in the Misc. Appeal No:: 2069 / 2014 10 M/s Diamond Cements Vs. Union of India.
charge to be calculated based on the difference in the distance travelled by the racks i.e... the difference of „differential charge‟ for the distance actually travelled i.e... 995 Kms; and, the actual payment made by the appellants for a longer route i.e... 1033 Kms. The difference in the freight rates alongwith interest at the rate of 7% per annum from the date the amount was paid till payment to be made, within a period of three months from the date of receipt of certified copy of this order. 21- With the aforesaid observations, all these appeals stand allowed and disposed of ( RAJENDRA MENON ) JUDGE Aks/-