Jharkhand High Court
Union Of India Through The General ... vs M/S Steel Authority Of India Limited on 11 May, 2018
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.117 of 2017
1. Union of India through the General Manager, East Central
Railway, Hajipur, P.O. & P.S- Hajipur, Distt-Vaishali (Bihar)
844101
2. Union of India through the General Manager, South Eastern
Railway, Garden Reach, Kolkata, P.O. & P.S.-Garden Reach,
Distt-Kolkata (WB) 700043 ...... Appellants
Versus
M/s Steel Authority of India Limited, at Bokaro Steel Plant, Post
Office-Sector 1D, Ram Mandir, District-Bokaro (Jharkhand)
...... Respondent
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellants : Mr.V.K.Sinha, Advocate For the Respondent : Mr. Rajiv Ranjan, Sr. Advocate Mr. Rajesh Kumar, Advocate
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C.A.V. on 25.04.2018 Pronounced on 11/05/2018 I.A No. 2599 of 2017 The instant interlocutory application has been filed under Section 5 of the Limitation Act for condoning the delay of 55 days in filing the present appeal.
Learned counsel for the appellant has submitted that official procedure, obtaining required permission and movement of the file are reasons for delayed filing of the present appeal.
Learned counsel for the respondent (SAIL) has no objection. Having regard to the facts and circumstances of the case and the reason assigned in the present interlocutory application, this Court finds sufficient ground for condoning delay. Accordingly, I.A No. 2599 of 2017 is allowed. Delay of 55 days in preferring present appeal is hereby condoned.
M.A. No.117 of 2017With the consent of both the parties, the matter is being heard finally.
The claim petition has been filed by the respondent-applicant M/s Sail Authority of India Ltd. (Bokaro Steel City Plant) before the Railway Claim Tribunal, Ranchi Bench, Ranchi. Applicant-M/s Sail Authority of India Ltd. booked several consignment of limestone and dolomite from Bhawanthpur Mines of SAIL served by Meralgram Booking Railway Station, East Central Railway to Bokaro Steel Plant, Bokaro Steel City in different railway receipts totaling 25 railway -2- receipts dated 07.09.2004 to 01.12.2004 and freight was charged on the basis of rationalized route via Garhwa Road, Sonanagar, Gaya, Gomoh which covers a distance of 432 Kms. But the actual movement of rakes by the concerned railway took place from Meralgram Railway Station through Garhwa Road, Barwadih, Patratu, Chandrapura shortest route of 380 Kms only.
Thus, the freight has been charged for 432 Kms but actual distance of transportation is 380 only and thus excess amount has been charged for 52 Kms and this amounts to unjust enrichment of the railway authority.
It has been further stated in claim petition that claimant had paid an amount of Rs.2,89,90,487/- (Rupees two crore eighty nine lacs ninety thousand and four hundred eighty seven) as freight for 432 Kms to respondent railway. The actual charge should be Rs.2,54,52,686/- (Rupees two crore fifty four lacs fifty two thousand and six hundred eighty six) for 380 Km. As such difference amount for Rs.35,37,801/-(Rupees thirty five lacs thirty seven thousand eight hundred and one) should be refunded by the East Central Railway.
Notice has been served under Section 106 of the Railway Act for refund of the aforesaid amount on 08.02.2005. On notice, the railway refused the claim vide letter no. ECR/ CRM/ RG/ DHN/ SAIL/ 004, dated 04.07.2005 and 21.02.2005 thereafter, claim petition has been filed.
The railway authority has appeared and filed written statement denying the claim mainly on the ground that the freight has been charged on the basis of rationalized route and the railway has power under Section 71 (1) (b) of the Railway Act, 1989. In terms of above Section, general order for Rationalization Scheme (General Order No.1/ 2000) effective from 01.12.2000 to 30.06.2006 has been issued and accordingly freight has been fixed and charged by the appellant. Further ground has been taken that respondent-railway is protected under Section 69 of the Railway Act, 1989 wherein a route can be deviated if any contingency arises. It has been further stated that no proper notice under Section 106 of the Railway Act has been given, therefore, the claim petition is not maintainable.
The Tribunal has framed 7 issues which are as follows:-
1. Whether the claim is maintainable so far as East Central -3- Railway is concerned?
2. Whether the claimant has title to claim refund?
3. Whether the goods were booked by and freight paid by the applicant?
4. Whether there was entrustment of goods by the applicant to respondent?
5. Whether the freight has been correctly charged as per rule, Rationalization Scheme?
6. Whether there was a valid/proper notice by the applicant to the respondent?
7. Whether the claimant is entitled for the relief sought for?
All the issues have been decided in favour of respondent-SAIL and accordingly, it has been directed to the appellant to refund the amount of Rs.35,37,801/-(Rupees thirty five lacs thirty seven thousand eight hundred and one) to the applicant-SAIL within a period of 90 days from the date of judgment and if the amount is not paid within 90 days, interest will be paid @ 7.5% per annum simple from this date i.e. 27.09.2016 till the date of actual payment.
In present appeal, appellant-railway has mainly assailed the order on three grounds i The freight is fixed on the basis of rationalization route as mandated under Section 71(1)(b) of the Railway Act, 1989 and the railway has right to receive the same even if the movement of goods has taken place through a shorter route.
ii Deviation of route is permitted in certain condition under Section 69 of the Railway Act, 1989 and on that score also, respondent-SAIL is not entitled to claim refund. iii No proper notice has been given under Section 106 of the Railway Act, 1989.
So far as, factual matrix is concerned, the same are well documented and no dispute has been raised. It is admitted position that freight charge has to be paid in advance on the basis of rationalized route which is in present case, cover a distance of 432 Kms.
Section 71(1)(b) reads as follows:-
71. Power to give direction in regard to carriage of certain goods.-
(1)...............................
(a) ..............................
(b) to carry any goods or class of goods by such route or routes and at such rates;-4-
On the basis of above Section, freight Rationalization scheme (General Order No.1/2000) has been issued which is effective from 01.12.2000 to 30.06.2006.
From mere perusal of rationalization scheme, it is evident that the rate has been fixed on the basis of per kilometer. For the purpose of taking advance payment, a route has to be rationalized as various factors has to be taken into account by the railway authority. Normally, the rationalized route is used for the purpose of transportation. But there may be various reasons where route has to be diverted. If shorter route is adopted by the railway authority, as done in the present case, it is incumbent upon the railway authority to return the excess freight amount, as the basis of charge is per kilometer. In the present case, length of rationalized route is 432 Kms but actual route through which transportation has been made is 380 Kms and as such the freight has been charged for extra 52 Kms.
As the basis of fixing the freight is the distance only and as such the contention of the railway is not tenable and accordingly this issue is decided in favour of the respondent-SAIL.
So far, issue regarding Section 69 of the Railway Act, 1989 is concerned, it is evident that the same contemplates a situation where for certain reasons, railway adopts a different route instead of rationalized route, this will not be treated as breach of contract. Thus, this Section has protected the railway from any litigation, which may be initiated for damages for breach of contract.
Section 69 is quoted hereinbelow:-
69. Deviation of route- Where due to any cause beyond the control of a railway administration or due to congestion in the yard or any other operational reasons, goods are carried over a route other than the route by which such goods are booked, the railway administration shall not be deemed to have committed a breach of the contract of carriage by reason only of the deviation of the route.
Learned counsel for the respondent has relied upon the judgment in the case of Union of India Vs. Steel Authority of India and Ors. reported in AIR 1997 Orissa 77 wherein Hon'ble Orissa High Court in similar case between the same parties has opined that Section 69 of Railway Act, 1989 cannot be taken as a -5- shield by the railway authorities and they have to refund the excess freight charge to the SAIL.
In view of the above discussion, this issue is also settled in favour of respondent-SAIL.
Section 106 of Railway Act, 1989 is quoted hereinbelow:-
106. Notice of claim for compensation and refund of overcharge-
(1) A person shall not be entitled to claim compensation against a railway administration for the loss, destruction damage, deterioration or non-delivery of goods carried by railway, unless a notice thereof is served by him or on his behalf
(a) to the railway administration to which the goods are entrusted for carriage; or
(b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurs, within a period of six months from the date of entrustment of the goods.
(2) Any informant demanded or enquiry made in writing from, or any complaint made in writing to, any of the railway administrations mentioned in sub-section (1) by or on behalf of the person within the said period of six months regarding the non-delivery or delayed delivery of the goods with particulars sufficient to identify the goods shall, for the purpose of this section, be deemed to be a notice of claim for compensation. (3) A person shall not be entitled to a refund of an overcharge in respect of goods carried by railway unless a notice therefore has been served by him or on his behalf to the railway administration to which the overcharge has been paid within six months from the date of such payment or the date of delivery of such goods at the destination station, whichever is later.
The notice under Section 106 of Railway Act, 1989 has to be given by the claimant to the railway for compensation for the loss, destruction, damage, deterioration or non-delivery of goods carried by the railway. In present case, none of the grounds has been taken by the claimant-SAIL, rather claim has been made on the basis of excess freight and it has been charged or resulted in extra charge due to the change of route.
By plain reading of Section 106, it makes clear that no notice under Section 106 was required under the present set of facts. However, it has been stated by the claimant that they have served a notice under Section 106 of the Railway Act, 1989 on 08.02.2005 -6- which has been rejected by the railway authority vide letter dated 04.07.2005 and 21.02.2005. There is no substance in the contention raised by the appellant, accordingly, this issue is also settled in favour of respondent.
In view of the above discussion, this Court finds no infirmity in the order passed by the Railway Claim Tribunal and accordingly, the same is hereby confirmed.
Appellant-East Central Railway is directed to pay Rs.35,37,801/-(Rupees thirty five lacs thirty seven thousand eight hundred and one) to the respondent-applicant M/s Sail Authority of India Ltd. within a period of 90 days from the date of this order. If the amount is not paid within 90 days, it shall carry simple interest @ 7.5% from the date of judgment passed in the present appeal.
With above observation, the present appeal is dismissed. Since, the final order has been passed in this misc appeal, I.A. No. 2604 of 2017 is also dismissed.
( Rajesh Kumar, J.) Shahid