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1.RULE. Mr. B.M. Mangukia has appeared earlier on number of occasions on behalf of the opponents. Last time he sought adjournment and the same was granted till today. He has not filed any return. This application for review is filed by Union of India, General Manager, Western Railway and Others - original respondents against the original petitioner for getting the order of this Court dated 12th of December, 1991 reviewed. The said order was passed mainly on the concession made before this Court and rule was made absolute. It appears that under bona fide mistake, a statement was made before this Court to the effect that since freight has been adjusted, the petitioner will not have only right to claim for the refund of the freight paid on the Railway and that the Railway administration agreed that they will recoup the wagon within a period of one month against the original Special Wagon and Special R.R. The original petitioner also agreed to pay the freight and respondent agreed to accept the same freight and to supply substantially the same quantity and quality of Coal.
2.After the aforesaid order was passed, mainly based on the concession of the counsel appearing for the Railway Administration, on enquiry it was found that a Coal Wagon was booked afresh under a Supersessional Railway Receipt in favour of Fuel Supervisor, Ujjain and the Railway Administration have made the payment of the basis of the Supersessional Railway Receipt to Coal India Limited the price of the coal, and as such, the subject wagon had become the property of the Railways and as such, the opponent herein the original petitioner had no right to claim recoupment from the Railway authorities. Thus, the order of recoupment has been invited by the Railway Administration under a bona fide mistake on the part of the administration, in spite of the fact that the petitioner was not having any right whatsoever against the applicants for recoupment in as much as the consignor, that is, the Coal India Limited, has already sold the coal wagon to the applicants by accepting the price of the coal.
3.In view of the aforesaid stand taken in the Misc. Civil Application for review which is supported by Affidavit of Assistant Commercial Superintendent, there is no manner of doubt that the order was invited under a bona fide mistake and in fact the record was other wise. The order passed by this Court therefore in Special Civil Application No. 5804 of 1991 dated 12th December, 1991 is required to be reviewed and modified and is hereby modified so as to declare that the respondent original petitioner was not entitled to any recoupment or any refund of the amount nor was he required to pay the freight.
4.It is further disclosed to this Court that subsequently this very petitioner has filed another Special Civil Application based on the same cause of action for the very relief where no order is passed in favour of the petitioner and the petition is yet pending for final hearing. In view of the aforesaid, this Misc. Civil Application is granted. Rule is made absolute on this M.C.A. There shall be no order as to costs.
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