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Judgment
Re: RVW 205 of 2017
The review application has been filed against an order dated 19th July 2017 passed in WP 10579(W) of 2017, by which an interim order was passed
directing the petitioners to deposit half of the amount claimed by the Railways towards the extra freight charges.
The instant application is basically founded on the premise that the learned Judge did not notice the judgment/order of the Co-ordinate Bench and the
Division Bench in this regard and the impugned order runs counter to the aforesaid orders. In other words, it is contended by the petitioners that the
learned Judge did not notice the judgment of the other Co-ordinate Bench while passing the interim order in the other proceedings where the identical
issues were involved and, therefore, there is a patent error in the impugned order.
The dispute started when the different freight rates for transportation of the iron ore were charged by the Railways and various writ petitions were
filed before this Court and ultimately the matter reached to the Division Bench. The Division Bench held that the charging of freight rate for
transportation of iron ore depends upon the end use of the iron ore under consignment. If the said iron ore is utilized for domestic consumption by the
consignee then it attracts a freight rate under Class 180. On the other hand, if it is not utilized for domestic consumption then in addition to the freight
rate under Class 180, a distance based charge shall also be paid by the consignee. The Division Bench, thus, found that it all depends upon the
intention of the end user of the said iron ore and there was no mechanism formulated in the legislation to ascertain the ultimate end use of such iron
ore after its delivery. The Division Bench also held that the expression “at any stage†appearing in para 6 of the Rates Circular cannot be given
restrictive meaning that no enquiry can be made by the Railway Authorities to ascertain the end use of iron ore. The Division Bench ultimately held
that the moment the consignee gives declaration over the end use of the iron ore, the Railway Authorities may verify the documents submitted in
support thereof and if the excess amount, which has been charged by the Railways, appears to be so, an appropriate decision shall be taken in this
regard.
What was held by the Division Bench that unless a satisfaction is recorded, the Railways could not charge an excess freight from the consignee.
Subsequently, the orders passed by the Senior Divisional Manager demanding the freight charges were challenged as it was based upon a
consideration, which was negatived by the Division Bench. Interestingly, one of the writ petition being WP 13680(W) of 2017 was filed before the
same Hon’ble Judge and an interim order was passed on 21st June 2017 in holding that the Railway Authorities have no jurisdiction to adjudicate
the purpose of imposition of penalty and passed an interim order staying the portion of the impugned order for a limited period and directed the parties
to exchange affidavits.
The same Judge passed the impugned order, which is different and contrary to the earlier order passed in another writ petition and precisely for such
reason the present review application is filed. Mr. Saktinath Mukherjee, learned Senior Advocate appearing on behalf of the applicants submits that if
there is a patent error in the impugned order, there is no fetter on the part of the Court to review its own order. According to Mr. Mukherjee, the
earlier decision of the same Judge was unnoticed in the impugned judgment and, therefore, it is inconceivable that two conflicting decisions of the
same Judge should operate in the field.
It is apparent from the record that the order dated 21st June 2017 passed in WP 13680(W) of 2017 was annexed to the writ petition and was on
record. While passing the impugned order, the Court overlooked the said order, which forms part of the record and, therefore, there is no difficulty to
hold that the impugned order contains an error, which is apparent on the face of the record. I am not unoblivion of the proposition of law that the Court
exercising powers of review does not act as an appellate court where the entire issue is at large nor is supposed to rewrite and rehear the matter on
merit but should confine its scrutiny within the strict parameters of Order XLVII Rule 1 of the Code of Civil Procedure. A judgment, which was
operating in the field prior to the date of the impugned order having unnoticed, such order contains patent error and should be reviewed not only in
order to keep the uniformity in the decision but also to avoid conflicting decisions to operate in the field simultaneously.
The Apex Court in case of Board of Control for Cricket, India and another vs. Netaji Cricket Club and others, reported in AIR 2006 Supreme Court
592 held that if there is a mistake on the part of the Court and an application for review is filed, the expression “sufficient reason†is wide enough
to include not only the misconception of fact or law by the Court but also the omission of the Advocate in these words:
“Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order.
An application for reexists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the
case. The words ‘sufficient reason’ in O. 47, R. 1 of the Code is wide enough to include a misconception of fact or law by a Court or even an
Advocate. An application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabitâ€.â€
In view of the above, this Court finds that the impugned order contains a patent error and, therefore, could not have been passed ignoring the earlier
order by the same Judge. The order dated 19th July 2017 is hereby recalled. The application for review is, thus, disposed of. Let the matter be placed
before the appropriate Bench having determination in relation to the subject dispute.
Re: CAN 8143 of 2017
In view of the disposal of the review application, the instant application has become infructuous and the same is accordingly disposed of.