ORDER
1. Issue notice in SLP (C) ..... ..... CC Nos. 1911and 2228/2002. Mr. P.S. Narasimha, Advocate, on behalf of Ms. AniiKatiyar, Advocate, accepts notice for the Union of India.
2. Delay is condoned.
3. Leave is granted in all the SLPs.
4. These five appeals arise out of the orders of the High Court ofMadhya Pradesh at Jabalpur passed in different Misc. Appeals onOctober 30, 2000. The claimant before the Railway Claims Tribunal(for short 'the Tribunal') is the appellant.
5. The common question to be considered by us relates tomaintainability of a review petition before the Tribunal against anappealable order passed by it.
6. To appreciate the issue involved it would suffice to refer to thefacts in appeal arising out of SLP (C) No. 4413/2001. The appellanttransported bamboo chips through Indian Railways to different millsin India. It is alleged that higher freight was paid by it to the Railwayson the basis of rationalisation of the fares on the ground thattransportation would be by a longer route than the direct route. In factfor the transportation of goods a direct shorter route was adopted bythe Railways. Accordingly, it made a claim for refund of Rs. 54,123/-,being the excess amount paid to the railways, by filing O.A. No. 391 of1995 in the Tribunal under Section 16 of the Railway Claims TribunalAct, 1987 (hereinafter referred to as 'the Act'). The Tribunaldismissed the refund claim on December 10, 1997. The appellantfiled a review petition against that order before the Tribunal. Thereview petition was dismissed on October 27, 1998. Dissatisfied withthe order passed on the review petition, the appellant filedMisc. Appeal No. 160/99 in the High Court of Madhya Pradesh atJabalpur under Section 23 of the Act. On October 30, 2000, thelearned Single Judge of the High Court, who decided the appeal, tookthe view that the review petition itself was not maintainable in view ofRule 32 of the Railway Claims Tribunal (Procedure) Rules, 1989(hereinafter referred to as 'the Rules') so no relief could be granted tothe appellant against the order of the Tribunal passed on the reviewpetition.
7. Mr. Vibhu Bakhru, the learned counsel for the appellant in allthe appeals, contends that Section 18(3)(f) of the Act specificallyprovides that the Tribunal shall have the same power as are vested in aCivil Court under the Code of Civil Procedure in regard to reviewingof its decision, therefore, Rule 32 is contrary to the Act as such thelearned Judge ought not to have dismissed the appeal on the groundthat the review petition was not maintainable. Mr. P.S. Narasimha, thelearned counsel for the Union of India, contends that though Rule 32of the Rules appears to be in conflict with the statutory provision itwas intended to confine the power of review to orders against whichno appeal is provided under Section 23 of the Act.
8. To examine the rival contentions and to ascertain the scope ofthe power of the Claims Tribunal to entertain a review petition, it willbe useful to refer to the relevant provisions of the Act and the Rules.the provision of the Act dealing with power of review of the Tribunalis Clause (f) of Sub-section (3) of Section 18 which reads as follows:-
'18. Procedure and powers of Claims Tribunal-
(1) The Claims Tribunal shall not be bound bythe procedure laid down by the Code of CivilProcedure, 1908 (5 of 1908), but shall beguided by the principles of natural justice and,subject to the other provisions of this Act andof any rules, the Claims Tribunal shall havepowers to regulate its own procedure includingthe fixing of places and times of its enquiry.
(2) *** *** *** ***
(3) The Claims Tribunal shall have, for thepurposes of discharging its functions under thisAct, the same powers as are vested in a civilcourt under the Code of Civil Procedure, 1908(5 of 1908), while trying a suit, in respect ofthe following matters, namely.:-
(a) to (e) *** *** ***
(f) reviewing its decisions:
(g) to (i) *** *** ***'
9. From the perusal of Sub-section (1) of Section 18 it is evidentthat in deciding the claims, the Tribunal is not bound by the procedurelaid down in Code of civil Procedure (for short 'CPC'), but it shall beguided by the principles of natural justice and subject to otherprovisions of the Act and the rules it may regulate its own procedureincluding the fixation of places and time of its enquiry. However, Sub-section(3) specifically provides that in respect of the matterenumerated in Clauses (a) to (i) the Tribunal shall have the samepowers as are vested in a civil court under the CPC, while trying thesuit, for the purposes of discharging its function under the Act. Clause(f), quoted above, refers to reviewing of its own decisions. It is,therefore, clear that in reviewing its decisions the Tribunal has thesame power as are vested in the civil court under the CPC. Here, itwould be apt to refer to the provisions of the CPC dealing with thereview - Section 114 and Order XLVII, Rule 1 of the Civil ProcedureCode.
10. Section 114 is in the following terms:-
'114. Review -- Subject as aforesaid, any personconsidering himself aggrieved--
(a) by a decree or order from which an appealis allowed by this Code, but from which noappeal has been preferred.
(b) by a decree or order from which no appealis allowed by this Court, or
(c) by a decision on a reference from a courtof Small Causes, may apply for a review ofjudgment to the Court which passed thedecree or made the order, and the Court maymake such order thereon as it thinks fit.'
11. Rule 1, Order XLVII which specifies the types of the ordersand the conditions under which they may be reviewed, reads thus:
'1. Application for review of judgment - (1) Anyperson considering himself aggrieved -
(a) by a decree or order from which an appealis allowed, but from which no appeal has beenpreferred.
(b) by a decree or order from which no appealis allowed, or(c) by a decision on a reference from a Courtof Small Causes.
and who, from the discovery of new andimportant matter or evidence which, after theexercise of due diligence was not within hisknowledge or could not be produced by him atthe time when the decree was passed or ordermade, or on account of some mistake or errorapparent on the face of the record or for anyother sufficient reason, desires to obtain areview of the decree passed or order madeagainst him, may apply for a review ofjudgment to the Court which passed the decreeor made the order.
(20 *** *** ***
Explanation -- xxxxxxx'
12. From a combined reading of Section 114 and Rule 1 of OrderXLVII, it is clear that the decree or order from which an appeal isallowed but from which no appeal has been filed, can be reviewed. Itfollows that against the appealable orders of the Tribunal from whichan appeal lies but no appeal is filed, the review petition ismaintainable before the Tribunal. In the instant cases, admittedly, noappeal was filed against the order in question though under Section 23it is appealable, consequently the review petition is maintainablebefore the Tribunal.
13. It would be necessary to refer Rule 32 of the Rules on whichthe High Court has placed reliance. It is in the following terms:-
'32. Review of decision - (1) Any personconsidering himself aggrieved by any order of theTribunal from which no appeal is allowed and whoon account of some mistake or error apparent onthe face of the record, or for any other sufficientreason, desires to obtain a review of the ordermade against him, may apply for review of a finalorder not being an interlocutory order, to theTribunal.'
14. This rule says that any person considering himself aggrieved byany order of the Tribunal from which no appeal is allowed and whoon account of some mistake or error apparent on the face of therecord, or for any other sufficient reason, desires to obtain a review ofthe order made against him, may apply for review of a final order notbeing an interlocutory order, to the Tribunal.
15. It is thus apparent that Rule 32 restricts the scope of power ofreview vested under Section 18(3)(f) of the Act to non-appealableorders and leaves out from its ambit orders which are appealableunder Section 23 of the Act though such orders could be reviewed inview of Section 114 and Rule 1 of Order XLVII of CPC. To theextent indicated above Rule 32 runs counter to Section 18(3)(f) of theAct. As Rule 32 is repugnant to the statutory provision of Clause (f)of Sub-section (3) of Section 18, it is certainly bad and in no case canit be allowed to override the specific provision of the Act. In thisview of the matter, the High Court erred in not considering the appealof the appellant on merits on the ground that the review petition wasnot maintainable under Rule 32.
16. For these reasons, we set aside the orders under challenge inthese appeals, restore the appeals to the file of the High Court andremit the cases to the High Court to decide them on merits inaccordance with law.
17. The appeals are allowed in the above terms. No costs.