Gauhati High Court
MFA/70/2023 on 6 January, 2025
GAHC010182422023
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
MFA No. 70/2023
M/s Kundanmal Chaudhary,
M.S. Road, Chawal Patty,
Fancy Bazar, Guwahati-781001.
......Appellant.
-Versus-
1. Union of India,
Represented by the General Manager,
N.F. Railway, Maligaon, Guwahati,
Assam, Pin-781011.
2. Union of India,
Represented by the General Manager,
Central Railway, Mumbai-400001.
......Respondents.
BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN For the Appellant : Ms. M. Sharma. ......Advocate.
For the Respondents : Mr. B. Chakravarty, CGC.
......Advocate.
Dates of Hearing : 29.10.2024
Date of Judgment : 06.01.2025
MFA 70/2023 Page 1 of 8
JUDGMENT AND ORDER (CAV)
Heard Ms. M. Sharma, learned counsel for the appellant and also Mr. B. Chakravarty, learned CGC, appearing for the respondents.
2. This appeal, under Section 23 of the Railway Claims Tribunal Act, 1987, is directed against the common judgment and order dated 21.07.2023, passed in Original Application No.OAIII-148/2013 by the Railway Claims Tribunal, Guwahati Bench. It is to be noted here that vide impugned judgment and order dated 21.07.2023, the Railway Claims Tribunal, Guwahati Bench, has repudiated the claim of the appellant to direct the respondents to return a sum of Rs.8,34,363/- along with interest @12% per annum from the date of payment of overcharges and also other cost.
3. The background facts leading to filing of the present appeal, is briefly stated as under:-
"The present appellant, being the consignee, had booked a consignment of 49892 packets of sugar, comprising of 50 Kg each, was booked by the consignee and loaded the same in railway wagons from regular goods shed GULBARGA/Goods for destination New Guwahati goods shed paying all consideration amount as well as railway freight charges. The respondent authorities collected the freight on the distance of 3148 Km @Rs.1,807/- per ton. However, the shortest route and the actual route which has been taken by the railway to deliver the consignment was from WADI-BPQ-JSG- ASN-MLDT respectively, which is around 2618 Km and despite the chargeable shortest distance from Gulbarga to New Guwahati, the rate was charged @Rs.1,807/- per ton for a distance of 3148 Km instead of the rate @Rs.1,604.60 per ton plus other charges for a MFA 70/2023 Page 2 of 8 shortest distance from Gulbarga to New Guwahati i.e. 2618 Km and the respondent authorities erroneously charged @Rs.1,807/- per ton as freight for a distance of 3148 Km and it has also collected terminal charges amounting to Rs.2,48,484/- in contravention of the Circular No.2007/PL/25/1, dated 05.06.2007 and No.TCR/1078/ 2007/06, dated 29.05.2007, 17.07.2007 and 18.09.2007 and the said circulars expressly provides that terminal charges are not at all applicable in bagged consignments. The appellant then sent a notice through its counsel dated 15.12.2011, followed by another notice dated 23.01.2012, under Section 106 of the Railway Act, 1989 to the Chief Commercial Manager (Refund Goods), Central Railway, Mumbai, for the purpose of addressing the grievance, as the same relates to refund of freight and other charges. But the said claim was repudiated vide letter dated 13.02.2012 on the ground that lack of power of attorney to support the claim notice under Section 106 and also the claim notice served by the appellant's counsel was neither consignee nor consignor.
Then, being aggrieved the appellant approached the Railway Claims Tribunal for refund of Rs.8,34,363/-, being the freight overcharge, but the same was repudiated vide impugned judgment and order dated 21.07.2023 by the Railway Claims Tribunal."
4. Being aggrieved by the impugned judgment and order, dated 21.07.2023, of the Railway Claims Tribunal the appellant approached this Court by filing the present appeal on the ground that the impugned judgment and order is contrary to law and Railway Board's Notifications is unreasonable and the same was passed without consideration of the Notification of the Ministry of Railways, Railway Board, dated 01.04.2011, bearing Notification No.2011/TT-III/27/1 and without interpreting the MFA 70/2023 Page 3 of 8 circular passed by the Ministry of Railways, New Delhi, dated 27.02.1987, bearing No.TCR/1125/86 and in contravention of a decision of this Court in Kalpataru Agro Forest Enterprise v. Union of India, reported in MANU/GH/0409/2012 and also the decision of Jharkhand High Court in Union of India v. Steel Authority of India in MA No.112/2017 and that the impugned judgment and order dated 21.07.2023, is highly arbitrary and capricious and improper and not sustainable in law.
5. Ms. Sharma, learned counsel for the appellant submits that while assessing the freight, the respondent authorities relied upon the rate which is applicable in the case of fertilizers and that the distance between Gulbarga and New Guwahati, by shortest route, is 2618 Km and the same is confirmed by the respondent authorities in the letter dated 18.01.2012 issued by the respondent No.2 and that being so, the rate charged from the appellant ought to have been @Rs.1,604.60 per ton, but the railway had charged @Rs.1,807/- per ton for a distance covered by 3148 Km. Ms. Sharma, further submits that while there is shortest route available from Gulbarga to New Guwahati, the respondent authorities had carried the consignment through the shortest route, and instead of charging for shortest distance, it had charged the longest distance i.e. 3148 Km and also charged the rate at higher rate i.e. Rs.1,807/- per ton and as such, a sum of Rs.8,34,363/- has been overcharged from the present appellant. Further, Ms. Sharma submits that the railway authority had also taken terminal charges from the appellant, but Gulbarga is not the notified terminal and that only 50 specific stations are declared as notified terminals and Gulbarga is not in the list and the same issue has been decided by this Court in the case of Union of India & 2 Ors. vs. M/s Fuel Sources India Pvt. Ltd. & Anr., in MFA No.105/2017 MFA 70/2023 Page 4 of 8 and the said decision of this Court is upheld by the Hon'ble Supreme Court in SLP(Civil) Diary No(s).40703/2024.
5.1. Ms. Sharma, further submits that the appellant herein had issued notice to the respondent authorities under Section 106 of the Railway Act and thereafter, they ought to have conducted an inquiry as to which route the consignment was carried. But no such enquiry was made and the report was placed before the Court and as such, the impugned judgment and order passed by the Railway Claims Tribunal suffers from illegality and arbitrariness and therefore, it is contended to set aside the same.
5.2. Ms. Sharma has also referred to a decision of this Court in Kalpataru Agro Forest Enterprise (supra) and another decision of Hon'ble Supreme Court in Union of India v. Indian Oil Corporation Ltd., reported in MANU/SC/0235/2024.
6. On the other hand, Mr. Chakravarty, learned CGC appearing for the respondents, has supported the impugned judgment and order passed by the learned Tribunal. Mr. Chakravarty, submits that the Railway Claims Tribunal has taken into account all the aspects and it has held that the terminal charges are not entitled to and there is no proof that the respondent authorities carried the consignment by the shortest route. Mr. Chakravarty, further submits that the appellant had failed to produce any such proof/evidence except one affidavit sworn by him and in absence of such proof/evidence; the Railway Claims Tribunal has rightly repudiated the claim of the appellant. Mr. Chakravarty, also submits that under Section 106, the respondent authorities are bound to make any enquiry and therefore, it is contended to dismiss the appeal.
MFA 70/2023 Page 5 of 87. Having heard the submission of learned Advocates of both the parties, I have gone through the memo of appeal and the grounds mentioned therein and also perused the impugned judgment and order dated 21.07.2023 passed by the learned Railway Claims Tribunal, Guwahati Bench and also perused the decisions referred by Ms. Sharma, learned counsel for the appellant.
8. It is not in dispute that there exist two routes from Gulbarga to New Guwahati. One is the longest route, covering 3148 Km, and the other is the shortest route, covering 2618 Km and this fact stands established from the letter dated 18.01.2012 issued by the respondent No.2, which is part of the record in Annexure-II. It is also not in dispute that the appellant was charged @Rs.1,807/- per ton, being freight charges for the distance of 3148 Km instead of charging rate @Rs.1,604.60 per ton for covering the distance of 2618 Km and thus, the overcharge amount comes to Rs.8,34,363/-. It is also not in dispute that the respondent authorities had charged a sum of Rs.2,48,484/- as the terminal charge. These are undisputed facts.
9. It appears from the impugned judgment and order dated 21.07.2023, that while dealing with the issue of terminal charge, the Railway Claims Tribunal had held that the issue of terminal charge has already been dealt with in another case in Meghalaya Cement v. Union of India in OAIII-58/2013, and the said decision had covered the issue in present case also. It is to be noted here that the appellant had not laid much emphasis on this point, in fact this issue has not been pressed hard, on account of pendency of Special Leave petition concerning the issue before the Hon'ble Supreme Court and the learned Tribunal also kept the matter open till disposal of the said application.
MFA 70/2023 Page 6 of 810. Further, it appears that the Railway Claims Tribunal has repudiated the claim on the ground that the appellant herein has failed to prove that the consignment was moved by the shortest route covering a distance of 2617.34 Km and though in the notice under Section 106 of the Railway Act, the appellant had claimed that his consignment was moved via certain route and distance on the account came to be 2,617.34 Km and no documentary proof was attached with the said notice to substantiate the claim and the general order dated 01.04.2011, issued by the Railway Board is not applicable.
11. Thus, having examined the impugned judgment and order of the learned Railway Claims Tribunal, Guwahati Bench, this Court is of the view that the finding so arrived at by the Railway Claims Tribunal, appears to be a reasoned one.
12. Though the appellant has contended that it has given notice under Section 106 of the Railways Act claiming that the consignment was moved via shortest distance route, yet, it had not enclosed any documentary proof along with the claim to substantiate the same, and further, it appears that the appellant has not adduced any evidence to substantial that the consignment was moved via shortest route. In absence of any proof/evidence, only the notice given to the railway, under Section 106 of the Railways Act, and the affidavit submitted by the appellant, the learned Tribunal, to the considered opinion of this Court, had rightly repudiated the claim.
13. I have carefully gone through the decisions referred by Ms. Sharma, learned counsel for the appellant and I find that the same would not come into her assistance. In the case of Kalpataru Agro Forest Enterprise (supra) no order was placed before the Court specifying MFA 70/2023 Page 7 of 8 that that the goods can be carried and charged by a route specified therein. In the instant case, General Order No.01/2011, dated 01.04.2011, was produced before the learned Tribunal and the same was discussed and relied upon by the learned Tribunal.
14. In the result, I find no merit in this appeal and accordingly, the same stands dismissed. The parties have to bear their own cost.
Sd/- Robin Phukan JUDGE Comparing Assistant MFA 70/2023 Page 8 of 8