Gauhati High Court
M/S Kalpataru Agro Forest Enterprise & ... vs Union Of India on 17 August, 2012
Equivalent citations: AIR 2013 GAUHATI 30, (2012) 4 GAU LT 1074, (2013) 3 GAU LR 213, (2013) 2 ACC 384
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram &
Arunachal Pradesh)
MFA Nos. 54, 65, 66, 67, 69, 70 & 71 of 2002
A. MFA No. 54/2002
1. M/s Kalpataru Agro Forest Enterprise,
4, B.B.D. Bagh, Calcutta-1.
2. Shri Moloy Deb,
S/O Late A.K. Deb,
Manager of M/s Kalpataru Agro Forest Enterprise,
Bongaigaon, Dist.-Bongaigaon.
......Appellants.
-Versus-
Union of India,
represented by the General Manager,
North East Frontier Railway,
Maligaon, Guwahati,
Dist.-Kamrup.
......Respondent.
B. MFA No. 65/2002
1. M/s Kalpataru Agro Forest Enterprise, 4, B.B.D. Bagh, Calcutta-1.
2. Shri Moloy Deb, S/O Late A.K. Deb, Manager of M/s Kalpataru Agro Forest Enterprise, Bongaigaon, Dist.-Bongaigaon.
......Appellants.
-Versus-
Union of India, represented by the General Manager, North East Frontier Railway, Maligaon, Guwahati, Dist.-Kamrup.
......Respondent.
C. MFA No. 66/2002
1. M/s Kalpataru Agro Forest Enterprise, 4, B.B.D. Bagh, Calcutta-1.
MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 1 of 1
2. Shri Moloy Deb, S/O Late A.K. Deb, Manager of M/s Kalpataru Agro Forest Enterprise, Bongaigaon, Dist.-Bongaigaon.
......Appellants.
-Versus-
Union of India, represented by the General Manager, North East Frontier Railway, Maligaon, Guwahati, Dist.-Kamrup.
......Respondent.
D. MFA No. 67/2002
1. M/s Kalpataru Agro Forest Enterprise, 4, B.B.D. Bagh, Calcutta-1.
2. Shri Moloy Deb, S/O Late A.K. Deb, Manager of M/s Kalpataru Agro Forest Enterprise, Bongaigaon, Dist.-Bongaigaon.
......Appellants.
-Versus-
Union of India, represented by the General Manager, North East Frontier Railway, Maligaon, Guwahati, Dist.-Kamrup.
......Respondent.
E. MFA No. 69/2002
1. M/s Kalpataru Agro Forest Enterprise, 4, B.B.D. Bagh, Calcutta-1.
2. Shri Moloy Deb, S/O Late A.K. Deb, Manager of M/s Kalpataru Agro Forest Enterprise, Bongaigaon, Dist.-Bongaigaon.
......Appellants.
-Versus-
Union of India, represented by the General Manager, MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 2 of 2 North East Frontier Railway, Maligaon, Guwahati, Dist.-Kamrup.
......Respondent.
F. MFA No. 70/2002
1. M/s Kalpataru Agro Forest Enterprise, 4, B.B.D. Bagh, Calcutta-1.
2. Shri Moloy Deb, S/O Late A.K. Deb, Manager of M/s Kalpataru Agro Forest Enterprise, Bongaigaon, Dist.-Bongaigaon.
......Appellants.
-Versus-
Union of India, represented by the General Manager, North East Frontier Railway, Maligaon, Guwahati, Dist.-Kamrup.
......Respondent.
G. MFA No. 71/2002
1. M/s Kalpataru Agro Forest Enterprise, 4, B.B.D. Bagh, Calcutta-1.
2. Shri Moloy Deb, S/O Late A.K. Deb, Manager of M/s Kalpataru Agro Forest Enterprise, Bongaigaon, Dist.-Bongaigaon.
......Appellants.
-Versus-
Union of India, represented by the General Manager, North East Frontier Railway, Maligaon, Guwahati, Dist.-Kamrup.
......Respondent.
Advocate(s) for the Appellants :
Mr. A.D. Choudhury.
Advocate(s) for the Respondent :
Mr. U.K. Goswami.
MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 3 of 3
BEFORE
THE HON'BLE MR. JUSTICE B.P. KATAKEY
Dates of Hearing : 29.06.2012
Date of Judgment & Order : 17th August, 2012
JUDGMENT AND ORDER (CAV)
These appeals, under Section 23 of the Railway Claims Tribunal Act, 1987, are directed against the common order dated 10.08.2001 passed by the Railway Claims Tribunal, Guwahati, in Claim Application Nos.787/1994, 788/1994, 789/1994, 791/1994, 792/1994, 793/1994 and 794/1994, rejecting the claim for refund of the excess freight charged from the appellants by the respondent railway for carriage of the goods booked by the appellants. Since all the claim applications were rejected by the common order and the common question of law is involved, the appeals are taken up together for hearing and disposal as agreed to by the learned counsel for the appearing parties.
2. The appellants filed the aforesaid claim applications before the Tribunal claiming refund of the freight contending inter alia that certain goods were booked for transportation by railway from one station to another, for which the freight was charged for a distance between the booking station and the destination station through the longer route, though carried in a shorter route and as such they are entitled to refund of the proportionate freight.
MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 4 of 4
3. In CA Nos.787/1994, 788/1994, 789/1994, 791/1994, 792/1994, 793/1994, 794/1994 and 795/1994 the claim of the appellants before the Tribunal was for refund of the freight amounting to Rs.57,750/-, Rs.53,130/-, Rs.51,612/-, 59,145/-, Rs.48,576/-, Rs.48,576/-, Rs.48,576/- and Rs.48,576/-, respectively. The contention of the appellants was that the bamboo cuts were booked by different railway receipts on different dates for transportation by the railway from New Bongaigaon to Amlai, for which though the railway has charged the freight taking distance between the two stations as 1769 km via MLDT/ DKAE, which is a longer route, the goods were transported from New Bongaigaon to Amlai through a shorter route via Andal-Anara-
Chakradharpur covering the distance of 1510 km and as such they are entitled to refund of the excess freight charged by the railway for transportation of the aforesaid goods.
4. The contention of the railway in the written statement filed before the Tribunal was that the freight for transportation of the aforesaid goods from New Bongaigaon to Amlai was charged under classification 145 @Rs.67.40 per quintal under the provision of 'station to station rate', as empowered by Section 32(a) of the Railways Act, 1989 (in short the 1989 Act) and hence the appellants cannot claim refund of the freight, on the ground that though the freight was charged on the basis of the distance to be travelled between the two stations through a longer route, the goods were carried by a shorter route. The Tribunal has rejected the applications filed by the appellants claiming MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 5 of 5 refund of the proportionate rate by accepting the contention of the railway and hence the present appeals.
5. I have heard Mr. A.D. Choudhury, learned counsel appearing for the appellants and Mr. U.K. Goswami, learned counsel appearing for the respondent railway. I have also perused the orders passed by the Tribunal apart from the materials made available by the parties in the appeals.
6. It has been submitted by Mr. Choudhury, learned counsel for the appellants that under Rule 125(1) of the Goods Tariff Rules, 1992 (in short the 1992 Rules), the Railway Administration is obliged to carry the goods from one station to another through the shortest route, in the absence of any specific instruction in writing from the sender or his authorized agent to the contrary and at the charge by the cheapest route i.e. the route by which the freight charges are at the lowest. In the instant cases, since the railway admittedly did not carry the goods from New Bongaigaon to Amlai through the available shortest route at the charges by the cheapest route and instead carried the goods by a longer route by charging the freight accordingly, having regard to the distance to be covered in the longer route, there is infraction of Rule 125(1) of the 1992 Rules. The learned counsel submits that though the Railway Administration under Section 32 of the 1989 Act has the power to charge certain rates, for carriage of any commodity including the 'station to station rate', the Railway Administration cannot, in view of the provisions contained in Rule 125(1) of the 1992 Rules, charge the MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 6 of 6 freight for carriage of the goods, on the basis of the 'station to station rate', if that rate is more than the rate for carriage of the goods by the shortest route at the charges by the cheapest route i.e. the route by which the freight charges are at the lowest. The learned counsel submits that since admittedly the appellants were charged the freight for carrying the goods from New Bongaigaon to Amlai through a longer route, may be on the basis of the 'station to station rate', and the goods were carried by a shorter route after travelling a shorter distance, the appellants are entitled to the refund of the proportionate freight realized from them for carrying the goods from New Bongaigaon to Amlai by a shorter distance. The learned counsel submits that in the absence of any specific instruction for carrying the goods from New Bongaigaon to Amlai by other than the shortest route or the cheapest route, as required under Clause 125(1)(d) of the 1992 Rules, and the goods having been carried to Amlai by a shorter route though the freight was charged for carriage by a longer route, the appellants are entitled to the refund of the proportionate freight realized from them.
7. Mr. Goswami, learned counsel appearing for the Railway Administration, on the other hand, referring to the RRs has submitted that it has specifically been mentioned therein that the freight was charged on the basis of the concessional rate applied vide circular dated 02.09.1993 issued by the Railway Authority, which was in force at the relevant point of time and the Railway Administration having been empowered by Section 32(a) of 1989 Act to carry the goods from one station to another at 'station to station rate', which is a concessional MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 7 of 7 rate, the appellants are not entitled to the refund of the proportionate freight charged, even if such 'station to station rate' is equivalent to the distance to be covered between the two stations by a longer route and the goods were in fact carried by a shorter route covering lesser distance.
8. I have considered the submissions advanced by the learned counsel for the parties and also perused the materials made available on the records of the MFAs, apart from the common order passed by the Tribunal, which is under challenge in the present appeals.
9. In the present appeals the following facts are not in dispute:-
(i) Booking of the bamboo cuts by the appellants for transportation by railways from New Bongaigaon to Amlai vide different RRs of different dates.
(ii) Realization of the freight from the appellants by the Railway Administration for carriage of the said goods at 'station to station rate' and on the basis of the notification issued by the N.F. Railway dated 02.09.1993, which was in force at the relevant point of time of booking of the consignment for transportation.
(iii) Endorsement in the RRs relating to the application of 'station to station rate' and charge of the freight for carriage of the goods.
MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 8 of 8
(iv) Reflection in the RR about proposed carriage of goods from New Bongaigaon to Amlai via MLDT/DKAE.
(v) Approximate distance between New Bongaigaon to Amlai via MLDT/DKAE i.e. 1769 km and the distance between the said two station via Andal-Anara- Chakradharpur i.e. about 1510 km.
10. The question which requires determination in the present appeals, in view of the aforesaid undisputed facts is - whether the appellants are entitled to refund of the proportionate rate charged and realized from them under 'station to station rate', for carrying the goods from New Bongaigaon to Amlai by a shorter route, namely, via Andal- Anara-Chakradharpur.
11. Section 2(38) of the 1989 Act defines 'station to station rate' as a special reduced rate applicable to a specific commodity booked between specified stations. Sub-section (1) of Section 30 of the said Act empowers the Central Govt. to fix rates for carriage of passengers and goods for whole or any part of the railway. It also authorizes the Central Government to fix different rates for different classes of goods apart from specifying the conditions subject to which such rate shall apply. Clause (a) of Section 32 of the said Act empowers the Railway Administration to quote the 'station to station rate', in respect of carriage of any commodity and subject to such condition as may be specified, notwithstanding anything contained in Chapter VI, which empowers the Central Government to fix the rates for carriage of MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 9 of 9 passengers and goods by railway. Chapter IX of the 1989 Act deals with the carriage of goods. Section 71(1)(b) empowers the Central Government to issue general or special order directing the Railway Administration to carry any goods or class of goods by such route or routes and at such rate.
12. One of the objects of enactment of the 1989 Act was to empower the Central Government to fix the rates for carriage of passengers and goods over the railways, instead of the provisions existing prior to the said enactment to fix only the maximum and minimum rates for such carriage and leaving fixation of specific rates to the Railway Administration, apart from authorizing the Railway Administration to specify lump sum rates for carriage of goods. To carry out the provisions of 1989 Act, the Goods Tariff Rules, 1992 has been framed. Rule 125(1)(b) of the said Rules provides that in the absence of specific instruction in writing from the sender or his authorized agent to the contrary, goods will be despatched by the shortest route at the charges by the cheapest route, i.e., the rate by which the freight charges are at the lowest. The term "shortest route" is defined in Clause
(a) of sub-rule (1) of Rule 125 as the shortest route between the forwarding and receiving stations as determined on the basis of the distance notified by the railways as being the distance for charge. Clause (d) provides that when a consignment is required to be charged and forwarded by other than the shortest route or the cheapest route, the sender or his authorized agent must give written and signed instruction on forwarding note, as specified therein. Clause (h) of Rule MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 10 of 10 125(1) of the said Rule provides that notwithstanding anything contained in Rule 125(1)(b), on the Central Government issuing an order under Section 71(1)(b) of the 1989 Act that goods specified in the order can be carried and charged by a route specified therein or by any of the alternative routes specified therein, goods will be chargeable by the specified route or any of the specified alternative routes over which such goods are actually carried, even if it is not the cheapest route.
13. It thus appears from the aforesaid provisions of the Act and the Rules framed that while the power to fix the routes for carriage of the passengers and goods vest on the Central Government under sub- section (1) of Section 30 of the 1989 Act, the Railway Administration has been given the power to charge the rate for carriage of any commodity by quoting a 'station to station rate', under Clause (a) of Section 32 of the said Act. The Central Government has also the power to issue the order, under Section 71(b) of the Act, to the Railway Administration to carry any goods or class of goods by any route or routes and at a rate to be fixed by the Central Government. As noticed above, Rule 125(1)(b) requires the Railway Administration to carry the goods from one station to another by the shortest route at the charges by the cheapest route provided there is no specific instructing in writing contrary thereto by the sender or his authorized agent on the forwarding note. The obligation on the part of the Railway Administration to carry the goods by shortest route at the charges by the cheapest route is subject to the order that may be passed by the Central Government under Section 71(1)(b) of the 1989 Act. When such MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 11 of 11 an order is passed under the said provision, the freight is chargeable for carrying the goods by the specified route or any of the specified alternative routes over which the goods are actually carried, even if it is not the cheapest route.
14. In the instant case, the goods were carried from New Bongaigaon to Amlai via Andal-Anara-Chakradharpur, though in the RR it has been mentioned that the goods would be carried from New Bongaigaon to Amlai via MLDT/DKAE, the distance of which is approximately 1769 km. There is also an endorsement in the said RR that the concessional rate pursuant to the notification dated 02.09.1993 is applied, meaning thereby that the concessional 'station to station rate' as notified by the N.F. Railway vide notification dated 02.09.1993 has been applied. There is no written instruction from the sender or his authorized representative to carry the goods from New Bongaigaon to Amlai via MLDT/DKAE, which is a longer route in comparison to the distance between the New Bongaigaon to Amlai via Andal-Anara- Chakradharpur, through which route the goods were in fact carried. The note relating to the charge of the freight on concessional 'station to station rate' was put by the Railway Administration in the RR and not by the sender. In the absence of any such endorsement in writing in the forwarding note for carrying the goods by other than the shortest route or the cheapest route, the Railway Administration is obliged to carry the goods by the shortest route at the charges by the cheapest route as required under Rule 125(1)(b) of the 1992 Rules. In the instant case, it is not in dispute that though in the RR it has been shown that the goods MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 12 of 12 would be carried from New Bongaigaon to Amlai via MLDT/DKAE, those were carried to the destination station via Andal-Anara-Chakradharpur. The freight, however, was charged on the basis of the 'station to station rate' pursuant to the notification dated 02.09.1993. Nothing could be placed before the Tribunal or this Court by the Railway administration to demonstrate that the Central Government has issued any special or general order as required under Section 71(1)(b) of the 1989 Act specifying that the goods can be carried and charged by a route specified therein, so as to deprive the sender from the benefit of the provisions contained in Rule 125(1)(b) of the 1992 Rules.
15. The plea taken by the Railway Administration that since it has the power under Section 32(a) to charge freight on 'station to station rate' and as such charged, the appellants would not be entitled to refund of the freight even if the goods are carried by a shorter route, cannot be accepted in the instant cases, as, such 'station to station rate' cannot be more than the freight to be charged for carrying the goods by the shortest route, thereby compelling the senders to book the consignment at a much higher rate by the railway, more so when the route in which the goods were to be carried though has specifically been mentioned in the RR i.e. by the longer route, the goods were in fact carried by a shorter route. It would have been different, had the railway carried the goods in the route mentioned in the RR. The Railway Administration cannot be allowed to make undue profit by charging the freight on the basis of a longer route, in the name of 'station to station rate' and then carrying the goods by a shorter route. MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 13 of 13
16. In view of the aforesaid discussion, the Railway administration is directed to work out the freight chargeable at the relevant point of time for carrying the goods from New Bongaigaon to Amlai via Andal-Anara-Chakradharpur, in which route the goods were carried, and to pay the appellant the difference, if any, of the freight charged on the basis of 'station to station rate' and the freight payable for carrying the goods in the aforesaid route, with interest @6% per annum from the date of filing the claim petitions till the date of payment.
17. The common order passed by the Tribunal is accordingly set aside. The appeals are allowed to the extent indicated above. No cost.
JUDGE Roy MFA 54, 65, 66, 67, 69, 70 & 71/2002 Page 14 of 14