Mahesh Enterprise Pvt. Ltd. vs Union Of India

Bench had disposed of thirty-nine (39) numbers of original applications pending before it including the OA No.III-268/2012 [OA(III)/GHY/2013/0041], in respect of which the present appeal has been preferred. In this appeal, this Court is concerned about the correctness of the impugned judgment so far as it pertains to OA No.III-268/2012 only.

Before this Court proceeds to consider the correctness of the impugned judgment, a procedural mistake committed by the Railway Claims Tribunal, Guwahati Bench, which has come to the notice of this Court, is required to be pointed out. Though, in paragraph No. 9 of the impugned judgment, the Railway Claims Tribunal has observed that since many cases, in which claim for over charges is filed by the consigners, where the consignees were different entities, are pending for hearing at the stage of argument before the Tribunal, the thirty-nine (39) numbers of cases are clubbed together and decided by a common judgment, which has been impugned in this appeal. This Court does not appreciate this approach of the Railway Claims Tribunal, Guwahati Bench, as same appears to be contrary to the procedure prescribed in Rule 24 of the Railway Claims Tribunal (Procedure) Rules, 1989. For the sake of convenience, the aforesaid rule is quoted herein below:

On a bare perusal of the aforesaid provision, it appears that for hearing two or more applications simultaneously by the Tribunal, two conditions must pre-exist, namely, (i) both the applications must have arisen out of same facts and (ii) any issue involved is common to two or more such applications. Both the conditions must exist together for a simultaneous hearing of two or more such applications. The requirement of the involvement of “same facts” is quite different from what is understood by the phrase

The facts relevant for consideration of the instant appeal, in brief, are that the appellant is a private limited company, having its registered office at Guwahati. It has booked the consignment of nine coal rake from Jogighopa to Hardoi. Though, it claimed that as consigner all railway freight money was paid at the booking point by the appellant, the railways collected punitive freight charges as well as terminal charges from the appellant to the tune of Rs. 9,63,838/- as terminal charges and Rs. 65,785/- as penal charges. As such, the present appellant approached the Railway Claims Tribunal, Guwahati Bench, by filing an application under Section 16 of the Railway Claims Tribunal Act, 1987, claiming refund of the terminal charges as well as the penal freight charges. The said application was registered as OA No.III-268/2012. However, by the judgment, which has been impugned in this appeal, the said original application was partly allowed. Though, the Tribunal directed the refund of penal freight charges of Rs. 65,758/- along with an interest at rate of 9% per annum to the appellant, however, the prayer for refund of terminal charges was rejected.

Mr. D. Rathi, the learned counsel for the appellant has submitted that in the instant case, both the originating station (Jogighopa) as well as destination station (Hardoi) were not included in the Circular issued by the Railway Board, Ministry of Railways, Government of India bearing No. 2007/PL/25/1 dated 05.06.2007 regarding development of freight terminals, wherein fifty (50) good sheds were identified for upgradation and development of freight terminals. He submits that in pursuant to the judgment of the Coordinate Bench of this Court in the case of “Union of India

(Judgment dated 09.04.2024 in MFA No. 42/2017) as well as in the case of “Union of India and Others Vs. M/s Fuel Sources India

No. 105/2017), wherein it was held that Railways can charge terminal charges only in those fifty (50) stations, which have infrastructure for loading and unloading of goods, the Tribunal ought to have directed refund of the terminal charges, which was imposed on the present Appellant.

He submits that in MFA No. 42/2017, the judgment and order dated 01.09.2016 passed by the Railway Claims Tribunal, Guwahati Bench, in OA-III No. 242/2012, was impugned. He submits that in paragraph No.5 of the said judgment dated 01.09.2016 passed in the OA-III No. 242/2012, the Circular dated 05.06.2007, wherein fifty (50) railway stations were referred to has been mentioned. He, therefore, submits that in MFA No. 42/2017, the Co-ordinate Bench of this Court, while referring to the fifty (50) stations where the Railways can levy terminal charges, was in fact referring to the Circular dated 05.06.2007 only.

He submits that the Union of India had preferred a Special Leave Petition before the Supreme Court of India against the judgment dated 09.04.2024 passed in MFA No. 42/2017, however, the Apex Court, after condoning the delay in preferring the said SLP, by its order dated 21.10.2024 passed in SLP (Civil) Diary No. 40703/2024 had dismissed the SLP preferred by the Union of India. As such, he submits that the correctness of the decision of the Co-ordinate Bench of this Court in MFA No. 42/2017 also got approval from the Apex Court and same is binding on the Railway Claims Tribunal as well as on this Court.

The learned counsel for the appellant submits that the same view was taken by the Co-ordinate Bench of this Court in MFA No. 105/2017. He further submits that the Railway Claims Tribunal has erred in holding, in the impugned judgment, that the judgment passed by this Court in MFA No. 42/2017 as well as MFA No. 105/2017 are per in curium judgements in view of the judgment passed by another Coordinate Bench of this Court in the case of “Union of India Vs. M/s Meghalaya Cement Limited and Others” (Judgment dated 25.06.2015 in MFA No. 100/2011). He submits that the Tribunal erred in not realizing the fact that the destination station involved in that case, namely, “Changsari” is one out of the list of fifty (50) stations mentioned in Circular dated 05.06.2007. He submits that it also failed to take into consideration that the issue involved in that appeal was that whether terminal charges can be levied in connection with a station, which is not having facilities as indicated in the Circular dated 05.06.2007. He submits that the Coordinate Bench of this Court in MFA No. 100/2011, nowhere stated that the terminal charges can be imposed in other stations which are not mentioned in the list accompanying the Circular dated 05.06.2007. Hence, he submits that the Railway Claims Tribunal had erred in not complying with the legal proposition clarified by the two Co-ordinate Benches of this Court in MFA No. 42/2017 and MFA No. 105/2017.

The learned counsel for the appellant further submits that the Tribunal has erred in ignoring the fact that the imposition of terminal charges by way of issuance of circular without placing those circulars for approval, within the stipulated time, before the Parliament of India as provided under Section 199 of the Railways Act, is bad in law and as such, on strength of such circulars no charges may be levied. He therefore, submits that the impugned judgment, to the extent it has rejected the prayer for refund of terminal charges levied on the appellants is liable to be set aside.

On the other hand, Ms. R. Devi, the learned standing counsel, Railways has submitted that the Railway Claims Tribunal has correctly dismissed the claim for refund of terminal charges imposed on the appellants by the respondents and as such, the impugned judgment needs no interference from this Court in this appeal.

She submits that the Tribunal has rightly held that the Circular dated 05.06.2007 has nothing to do with imposition of terminal charges. She submits that the said Circular is only in connection with development and upgradation of fifty (50) goods sheds by providing for certain facilities as indicated in the aforesaid circular. She submits that nowhere in the said circular, it has been stated that terminal charges can be levied only in respect of those fifty (50) goods sheds as mentioned in the said circular.

She submits that even prior to the Circular dated 05.06.2007, the levy of terminal charges in respect of railway goods sheds was provided for in Rates Circular No. 58/2007 No. TCR/1078/2007/6 dated 29.05.2007. She submits that the said circular was superseded by the Rates Circular No. 92/2007 No. TCR/1078/2007/6 dated 18.09.2007. She submits that in the said Circular, it was clarified that the terminal charges will be levied only on Indian Railway owned terminal and sliding. She further submits that the Co-ordinate Benches of this Court in MFA No. 42/2017 as well as MFA No. 105/2017 have not clarified in the said judgment as to which fifty (50) stations, it was referring to in the judgments passed in those appeals. She submits that in both the judgments, there is no whisper about Circular dated 05.06.2007. She further submits that in both the appeals, the Co-ordinate Benches of this Court failed to take into consideration the earlier judgment of another Co-ordinate Bench in MFA No. 100/2011, wherein, it was held that the Circular dated 05.06.2007 does not require that the facilities indicated therein shall have to be mandatorily there before imposition of terminal charges. She further submits that in the judgment delivered in MFA No. 100/2011, the Co-ordinate Bench of this Court has observed that in terms of Circular No. 92/2007 dated 18.09.2007, the Railways may impose terminal charges in respect of terminal/shed owned by the Railways. She submits that in view of the categorical finding of the Court in MFA No. 100/2011, the finding of another Coordinate Bench of this Court in MFA No. 42/2017 and MFA No. 105/2017 cannot be regarded as laying down the correct proposition of law.

The learned standing counsel for the respondents further submits that mere dismissal of the SLP filed by the present respondents against the judgment passed by the Coordinate Bench of this Court in MFA No. 42/2017, without discussing the merits of the case of the present respondents, may not be construed as an indication of approval of the Apex Court regarding the correctness of the decision, against which the SLP was preferred. She submits that dismissal of a Special Leave Petition, in limine by a non-speaking order may not justify any inference that the contentions raised in the said SLP by the petitioner have been rejected by the Apex Court. In support of her submissions, the learned standing counsel for the respondents has cited the ruling of the Apex Court in the case of “Kunhayammed and Others Vs. State of Kerela and Others” reported in (2006) 6 SCC 359.

She has further submitted that the rate circulars governing the terminal charges are not the rules framed under Section 198 of Railways Act, 1989. She submits that the said circulars are executive orders issued by the Railway Board in exercise of powers conferred to the Central Government under Section 30 of the Railways Act, 1989. Hence, there is no requirement of placing the said Circulars before the Parliament for approval under Section 199 of the Railways Act, 1989. She submits that this aspect has been correctly appreciated by the Railway Claims Tribunal in the impugned judgment, as such, no interference is warranted with the impugned judgment. She, therefore, prays for dismissing the instant appeal.

I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.

On perusal of the impugned judgment, it appears that the Railway Claims Tribunal had partly allowed the claim of the present appellant filed before it under Section 16 of the Railway Claims Tribunal Act, 1987. Though, it allowed the refund of punitive charge/penal freight of Rs.65,785/- to the present appellant along with an interest at the rate of 9% per annum, however, it has rejected the prayer for refund of terminal charges imposed on the present appellant.

The point to be determined in this appeal is as to whether the Railway Claims Tribunal has erred in holding that the Circular issued by the Railway Board on 05.06.2007 has nothing to do with imposition of terminal charges. Further, whether it also erred in holding the judgments of the Co-ordinate Bench of this Court passed in MFA No. 42/2017 as well as in MFA No. 105/2017, as per in curium, in the light of the judgment passed by another Co-ordinate Bench of this Court in MFA No. 100/2011 and ultimately, holding that the present appellant is not entitled to get refund of the terminal charges imposed by the Railways on it.

It is not in dispute that, in the instant case, the originating station (Jogighopa) as well as destination station (Hardoi) do not find any mention in the list annexed along with the Circular dated 05.06.2007 issued by the Railway Board. However, in MFA No. 100/2011, the destination station (Changsari) is included in the list which has been annexed along with circular dated 05.06.2007. On perusal of the judgment dated 25.06.2015 passed in MFA No. 100/2011, it also appears that the main issue before the Court in MFA No. 100/2011 was as to whether terminal charges may be imposed in case of those terminals in which the facilities mentioned in the circular dated 05.06.2007 of the Railway Board are not provided for. It also appears that the Co-ordinate Bench, in MFA No. 100/2011 was of the opinion that it was not necessary that before imposing terminal charges, it is mandatory to have facilities, in those stations, as desired in the above-mentioned circular dated 05.06.2007. The issue as to whether the terminal charges may be imposed in respect of any station, which is not included in the circular dated 05.06.2007 was, in the considered opinion of this Court, not before the said Bench, in MFA No. 100/2011, though, ultimately it held that the Rates Circular No. 92/2007 No. TCR/1078/2007/6 dated 18.09.2007 provide that the terminal charges will be levied only on Indian Railway owned terminal and sliding.

On the other hand, it appears that in MFA No. 42/2017, a Coordinate Bench of this Court has specifically formulated a question to be answered that „whether the Railways can levy terminal charges for loading of goods in all stations?‟ and answer to the said question is reflected in paragraph No. 10 of the judgment and order dated 09.04.2024, passed in the said appeal, which is reproduced herein below: -

It also appears that against the aforesaid judgment dated 09.04.2024, passed in MFA No. 42/2017, the present respondents had preferred a Special Leave Petition [SLP (Civil) diary No. 40703/2024] before the Supreme Court of India, by order dated 21.10.2024, the said SLP was dismissed. In this regard, the observation of the Apex Court made in the case of

It appears that the Apex Court had dismissed the Special Leave Petition [SLP (Civil) diary No. 40703/2024] in limine by a non-speaking order, hence, the said dismissal could by itself may not be construed as the approval of the Apex Court on the correctness of the decision of the Co-ordinate Bench of this Court in MFA No. 42/2017. However, it may also be construed that the Apex Court was not convinced of the need for exercising its extra-ordinary appellate jurisdiction under Article 136 of the Constitution of India against the judgment of the Co-ordinate Bench of this Court in MFA No. 42/2017. The other way in which this can be looked upon is that in two appeals of the Co-ordinate Benches of this Court, namely, MFA No. 42/2017 and MFA No. 105/2017, it was held that there are 50 specific stations having all the infrastructures for loading and unloading of goods and if any of those 50 stations are used, then only the Railways can charge terminal charges. For other stations, Railways cannot levy terminal charges. The Railways has to refund the terminal charges. The said findings remain intact even after an attempt made by the present respondents to impugn the same before the Apex Court. Though, in limine dismissal of the aforementioned SLP, in itself, may not be a indication of approval of the correctness of the aforesaid findings, however, the said finding, in the considered opinion of this Court is binding upon this Court, unless it takes a contrary view, and in such circumstances the only option available to this Court is to refer the matter to a larger Bench.

As discussed herein above, that in MFA No. 100/2011, the coordinate bench of this Court Was considering only a limited question that whether it is mandatory to have facilities, in those stations, as desired in the above-mentioned circular dated 05.06.2007, before imposing terminal charges. However, since in the said case the destination station i.e., “Changsari” was included in the circular 5.6.2007, it was not considering the question as to whether such terminal charges maybe imposed in connection with a station which is not mentioned in the aforesaid circular. Whereas, in MFA No. 42/2017 and MFA No. 105/2017, the coordinate benches of this Court categorically held that if any of those 50 stations are used, then only the Railways can charge terminal charges. For other stations, the Railways cannot levy terminal charges and that it has to refund the terminal charges. Further, considering the fact, in the judgment of the Railway Claims Tribunal from which the appeal in MFA No. 42/2017 was preferred, there has been a clear reference to the circular dated 5.6.2007, hence, there is no doubt that while referring to the 50 stations in the judgment in MFA No. 105/2017, the coordinate bench of this Court was referring to the circular dated 5.6.2007.

In MFA No. 42/2017 and MFA No. 105/2017, the coordinate benches of this Court have categorically held that the terminal charges may be imposed only in those 50 stations where the infrastructures for loading and unloading of goods are there. For other stations, Railways cannot levy terminal charges and it has to refund the terminal charges. This Court does not find any flaw in the said reasoning of the Coordinate Benches in the above-mentioned cases, to take a contrary view. More so, when even the Supreme Court of India has refused to entertain the Special Leave Petition against the said judgment. Under such circumstances, the judicial discipline demands that the legal proposition laid down by the coordinate benches of this court, in MFA No. 42/2017 and MFA No. 105/2017, should be followed. This Court, is, therefore, of the considered opinion that the Railway Claims Tribunal has erred In holding the judgments of the coordinate benches of this Court in MFA No. 42/2017 and MFA No. 105/2017, as per incurium, and declining to direct the refunding of terminal charges to the present Appellant.

Since, in the instant case, neither the originating station nor the destination station are mentioned in the circular dated 5.6.2007, Hence by applying the ratio decidendi of the judgments in in MFA No. 42/2017 and MFA No. 105/2017, the respondents are directed to refund the terminal charges paid by the appellants, that is, Rs.9,56,248/- along with and interest at the rate of 9% per annum to it.

This appeal is, accordingly, allowed.

Send back the records of connected Original Application, along with a copy of this judgment, to the Railway Claims Tribunal, Guwahati Bench.

Amita Sharma 2026.08.17 16:34:27 +05'30'