1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. MISCELLANEOUS CIVIL APPLICATION NO. 285 OF 2009 IN WRIT PETITION NO. 4203 OF 2007 (DECIDED) (M/s. Calcutta Industrial Suppliers Corporation and others .v. Coal India Limited and others) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri M.G. Bhangde, Senior Advocate for the applicants. Shri M. Anilkumar, Advocate for the respondent Nos.1 to 5. CORAM : A.P. LAVANDE AND PRASANNA B. VARALE, JJ. DATE OF RESERVING ORDER : 14TH AUGUST, 2009. DATE OF PRONOUNCING ORDER: 05TH MARCH, 2010. Heard Shri M.G. Bhangde, the learned Senior Counsel for the applicants and Shri M. Anilkumar, the learned Counsel for the respondent Nos.1 to 5. 2. By the present MCA, the applicants/original petitioners are seeking recall/review of the order passed by this Court on 17th November, 2008 in Writ Petition No. 4203 of 2007. Writ Petition No. 4203 of 2007 was filed by the petitioners seeking challenge to the communication/letter, dated 21.08.2007 by which the representation of the petitioners was rejected by the respondent No.3. The main prayers in the said writ petition were as follows :- (i) quash and set aside order/letter dated 21.8.2007 (Annexure-XXI) passed/ 2 issued by the respondent No.3, whereby the representation of the Petitioner dated 16.12.2004 (Annexure-XVII) is rejected and it is ordered that deductions will be made from the bills of petitioners on account of Overloading/Underloading of coal in Railway wagons; (ii) hold and declare that clause 6.2(c) does not permit the respondents to make deductions on account of alleged levy of penalty for overloading/underloading of coal in Railway wagons from the bills of the petitioners, as the petitioners are not responsible for the same; (iii) hold and declare that the clause 6.2(c) is unworkable, unreasonable & unconscionable as the respondents have failed to provide mechanism for weighment of coal at the Railway siding/ platform & thus eradicate the problem of overloading and underloading. 3. This Court, by order, dated 17th November, 2008, declined to show any indulgence for the reasons that the petition involved disputed question of facts as well as the petition revolved around the issue of refund of amount in a contractual matter. The claim of the petitioners was based on the submission that a particular practice was being followed by the respondent 3 No.3 in respect of terms of contract and the practice prevalent was not acted upon. The practice was prevalent for a long period. This Court was pleased to observe that the petitioners failed to prove the prevailing practice as alleged by them which required oral evidence. It was also observed by this Court that the basic claim of the petitioners was seeking a money decree and for such matter, civil suit was the proper remedy. 4. Shri M.G. Bhangde, the learned Senior Counsel for the applicants urged that the present review application is based upon three grounds, namely, (i) there is an apparent error of law on the face of record; (ii) the Court has not considered the challenge of the petitioners in the proper perspective i.e. to say that the petitioners have sought the correct interpretation of the clause (Clause 6.2(c)) of the tender and the refund of the amount was the consequences of an erroneous interpretation of the clause by the respondent/ Corporation; and (iii) the Court has erred in observing that there are disputed facts involved in the petition and as such the interference of the Court in such matters in exercise of the jurisdiction under Article 226 of the Constitution of India is not possible. 5. Learned Senior Counsel Shri M.G. Bhangde, further, submitted that though this Court considered the judgments relied upon by the petitioners i.e. Ghaziabad Development Authority .v. Union of India and another 4 (reported in 2000(6) SCC 113) as well as the Food Corporation of India and another .v. M/s. Seil Limited and others (reported in 2008(1) SCALE, 437), the petitioners have placed reliance on these cases so as to seek the correct interpretation of the clause of the contract and not for the challenge on the ground of arbitrariness as it was held by this Court. 6. Per contra, Shri M. Anolkumar, the learned Counsel for the respondents supported the order under review and submitted that as there is no error apparent on the fact of record and the order needs no interference at the hands of this Court. 7. In support of the submissions, the learned Senior Counsel Shri M.G. Bhangde placed reliance on the following authorities :- (i) Ghaziabad Development Authority .v. Union of India and another (2000(6) SCC 113); (ii) Indian Charge Chrome Ltd. and another .v. Union of India and others (2005(4) SCC 67); (iii) Food Corporation of India and another .v. M/s. Seil Limited and others (reported in 2008(1) SCALE, 437); (iv) Rajasthan State Electricity Board .v. Union of India and others (2008(5) SCC 632); and 5 (v) Salonah Tea Co. Ltd. and others .v. Superintendent of Taxes, Nowgong and others (1988(1) SCC 401). 8. Shri M. Anilkumar, the learned Counsel for the respondents placed reliance on the following judgments :- (i) Haridas Das .v. Usha Rani Banik and others (2006 DGLS (Soft), 160); (ii) Sanjana M. Wig .v. Hindustan Petro Corporation Ltd. (2006(1) Bom.C.R. 689); and (iii) K.A. Ansari and another .v. Indian Airlines Ltd. (2008 DGLS (Soft) 1370). 9. In view of the rival contentions of the parties, we proceed to consider their submissions on the basis of the contentions raised by the learned Counsel as well as the judgments relied upon by them. The few facts which are necessary to consider the controversy involved in the matter are as follows :- 10. The petitioners who are the contractors execute the work of loading of coal from Railway Platform to Railway Wagons to cater to the needs of bulk consumers like Electricity Boards for the purposes of their power generation units. The coal is brought from 6 the mines to the railway platform/siding and from the railway platform, the coal is loaded into the wagons. The tenders are being floated for such work and the petitioners are the successful tenderers. It is not necessary at this stage to give all the details of the petitioners tenders and their work orders etc. Suffice to say that they are the successful tenderers executing the work. The petitioners are executing the work ranging from years 2002-2003. The weight for loading of the wagons is specified. The wagon is loaded to its carrying capacity plus two tonnes. If the wagons are loaded more than the capacity, the railway imposes a penalty which may extend to double to six times the freight charges. The railway also charges in excess of underloading. The in-motion weighbridge is located at about two to three and half kilometers away from the loading platform/siding. The wagons are loaded on volumetric basis but the important fact is that there is no mechanism at the time of loading the coal so as to see whether the wagon is underloaded or overloaded. At the time of loading of coal, Siding Incharge of the respondent/Corporation WCL is present and under his supervision and in the presence of the agent of the customer/contractor, the coal is loaded in the wagon. One more important fact which is to be noted is that the contractor/customer has no control over the loading of the coal and the contract has to rely on the report issued by the personnel of the railway department. The correct weight and control of the overloading and underloading of the coal can be obtained if the loading is on a static weighbridge but as there is no static weighbridge and as 7 in-motion weighbridge is located which is away from the loading platform, the petitioners have to obtain the report of the railway authorities and there is nothing in the hands of the petitioners. The petitioners submit that without providing any proper mechanism to measure the weight of the wagon or weighing the wagon at in- motion weighbridge which is located two to three kilometers away from the platform or siding, imposition of the condition for penalty is unjust, unreasonable and arbitrary. The petitioners have given certain examples of the losses incurred by the petitioners in the form of the penalty and deduction. The basis challenge of the petitioners was to the above mentioned policy adopted by the respondent/Corporation for the penalty. The penalty was imposed under the condition of the contract which is the subject matter of challenge i.e. clause 6.2(c) of the tender document which is quoted below. “6.2(c) If the wagons are overloaded/under-loaded beyond the limit prescribed by the railways, the contractor will be responsible for the same and necessary deduction will be made from the contractor's bills for the overloading/under-loading charges incurred by the Department.” 11. The learned Senior Counsel for the applicants submitted that the applicants who were facing the difficulty in executing the contract for not having the infrastructure of correct weighing mechanism raised the issue with the Corporation. It was also submitted that to 8 consider the issue raised by the contractors, a Committee was constituted by the respondent/Corporation. It was also submitted by the petitioners that looking to the practical difficulty faced by the petitioners-contractors, clause 6.2(c) was not pressed into service for quite some time. It is further submitted that the Committee found substance in the difficulties raised by the contractors opined that “hence all the Committee Members unanimously felt that clause 6.2(c) incorporated in the NIT/WO shall be made operative after some sort of weighing arrangements are fitted in every pay loaders' buckets.” Quoted from page No.172 of the Writ Petition for ready reference. 12. We find that there is no reply filed by the Corporation to the contentions raised in writ petition. Perusal of record further shows that neither there is any denial to the opinion expressed by the committee constituted to consider the grievances which is mentioned above, nor the contentions in respect of the proper mechanism is evolved to weighing the load of the coal and weighment which is done at the in-motion weighbridge is purely under control of the officers of the corporation and opportunity to the contractor to verify the weight is denied. In view of the above mentioned facts, in our considered opinion, there is substance in the contentions raised by the applicants. The contentions raised by the petitioners in view of the practice which was being followed and the clause 6.2(c) which were not being insisted by the Corporation for quite some time and opinion expressed by the 9 Committee for not having efficient mechanism, we find considerable merit in the submissions of learned Senior Counsel Mr. Bhangde. We also find that as the respondent/Corporation is not armed with effective mechanism in a correct weighment, the fault is with the Corporation and in such a situation there is no justification for resisting the refund by the Corporation. We also find that the respondent/Corporation had admitted that the practice pleaded by the petitioners in not acting upon the clause 6.2(c). There is also substance in the submission that this Court has misdirected itself while observing that the petitioners in order to succeed the petitioners will have to prove the practice that they alleged in view of the admission by the respondent/WCL. We also find the merit in the submissions of the learned Senior Counsel Mr. Bhangde that the basic challenge of the petitioners was to interpretation of clause 6.2(c) and the refund of the amount was the consequences thereof. Mr. Bhangde, the learned Senior Counsel submitted that though this point was urged before this Hon'ble Court in writ petition at the stage of hearing, the Hon'ble Court has failed to consider the contentions and non consideration of the contentions of such a vital issue is a ground for review. The learned Senior Counsel, in support of his submission, placed reliance on the judgment of the Apex Court in the case of Indian Charge Chrome Ltd. and another .v. Union of India and others (cited supra) and particularly paras 12 to 14 of the said judgment. We find considerable merit in the submission of the learned Senior Counsel. The learned Senior 10 Counsel further invited our attention to the judgment of the Apex Court in the case of Salonah Tea Co. Ltd. and others .v. Superintendent of Taxes, Nowgong and others (cited supra). It was observed by the Apex Court that, in an application under Article 226 of the Constitution the Court has power to direct the refund. However, courts have made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc. Shri Bhangde further submitted that in view of the observation of the Apex Court, it was urged before this Court that the petitioners were seeking the interpretation of the clause 6.2(c) of the Tender Document and refund of money was a consequential relief. He further submitted that this Court while deciding the writ petition has not considered the contentions of the petitioners as it was tried to be submitted in view of the judgment of Salonah Tea Co. Ltd. and others .v. Superintendent of Taxes, Nowgong and others (cited supra). We find considerable merit in the submission of the learned Senior Counsel. 13. It is made clear that the observations made herein are for the limited purpose of deciding the review application only. 14. In the result, the order dated 17th November, 2008 in Writ Petition No. 4203 of 2007 is recalled. The issue involved in the petition will have to be considered afresh and as such the Writ Petition No. 4203 of 2007 be 11 placed before the appropriate bench for consideration. 14. Miscellaneous Civil Application is allowed in aforesaid terms. JUDGE JUDGE *rrg.