Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 203 (GAU)

P. P. ENTERPRISES v. UNION OF INDIA

2019-02-14

SUMAN SHYAM

body2019
JUDGMENT : SUMAN SHYAM, J. 1. Heard Ms. M. Sarma, learned counsel for the appellant. Also heard Mr. G. Goswami, learned standing counsel, N.F. Railways appearing for the respondent. 2. The judgment and order dated 19-04-2010 passed by the learned Railway Claims Tribunal (RCT), Guwahati Bench, in Claim Application No. 152/2002(Old) OAIII/GHY/20020152(New), has been assailed by filing the present appeal. 3. The facts of the case, in a nutshell, is that a consignment of rice was booked in 30 wagons from Pattabiram Military Siding (PTMS) to New Guwahati (NGC) complex. The present appellant was one of the consignees who was suppose to receive 05 wagons load of rice booked under R.R. No. 899408 dated 26/28-07-2000 which was delivered to it at the NGC station. After receiving the delivery of load, it appears that the appellant had raised certain claims regarding rebate or rate and also relaxation on account of excess distance, which claims were duly considered and allowed by the railway authorities. However, when its claim for "trainload basis rate" was not acceded to by the respondent, the appellant, as claimant, had filed the aforesaid O.A. which was rejected by the learned RCT by the impugned judgment and order dated 19-04-2010. Hence, this appeal. 4. Ms. Sarma, learned counsel for the appellant has invited the attention of this Court to the judgment and order dated 17-12-2012 passed by the RCT, Guwahati Bench in Claim Application No. OA-III/GHY/202/341 (Old) OA341/02 to contend that as many as 30 wagons were booked by the same consignor, on the same day, out of which, 25 wagons under R.R. No. 899409 to 899413 dated 26/28-07-2000 were endorsed to one M/s Babulal Ramswarup Bajaj where as the remaining 05 wagons under R.R. No. 899408 dated 29/28-07-2000 were endorsed to the present appellant. M/s Babulal Ramswarup Bajaj had raised a similar claim for "trainload rate" in respect of those 25 wagons and the same was allowed by the learned RCT by the judgment and order dated 17-12-2012. The said order was thereafter implemented by the N.F. Railway authorities and payment of a sum of Rs. 1,15,705/- was made to the said claimant. Urging that uniformity be maintained in judicial orders involving similar claims, Ms. The said order was thereafter implemented by the N.F. Railway authorities and payment of a sum of Rs. 1,15,705/- was made to the said claimant. Urging that uniformity be maintained in judicial orders involving similar claims, Ms. Sarma has prayed for passing a similar order in this case in the line of the order dated 17-12-2012 since the appellant herein is similarly situated as M/s Babulal Ramswarup Bajaj, the only difference being that the number of wagons endorsed to the appellant was 05 and the remaining 25 wagons carrying the same articles, were endorsed to the M/s Babulal Ramswarup Bajaj. 5. It is also the contention of Ms. Sarma that as per standing Railway Circulars, the minimum number of wagons required to be loaded for "Trainload rate" is 30. In the present case, since the number of wagons loaded in between the appellant and M/s Babulal Ramswarup Bajaj were 30 in total, hence, the consignment had qualified for trainload rate which, according to Mr. Sarma, was illegally denied to the appellant by the authorities and the claim of the appellant had also been erroneously rejected by the learned RCT. 6. Opposing the aforesaid arguments Mr. Goswami, learned standing counsel, N.F. Railways submits that the judgment and order dated 17-12-2012 has been passed in violation of the standing Railway Circular dated 11-09-1998. However, owing to an inadvertent error on the part of the some officials of the N.F. Railway, no appeal had been preferred against the said judgment and instead the amount was paid to the claimant , i.e. M/s Babulal Ramswarup Bajaj. It is the further contention of Mr. Goswami that since the prayer made by the appellant for train load rate is not maintainable under the standing railway circular, the mere fact that an erroneous judgment passed by the learned tribunal had been implemented out of mistake, cannot give rise to any enforceable right in favour of the appellant so as to seek a similar order from this Court. 7. I have considered the submission made by the learned counsel for the parties and have also meticulously gone through the materials available on record. 8. As noted above, the only dispute in the present proceeding is pertaining to the rejection of the claim of the appellant for "trainload rate". 7. I have considered the submission made by the learned counsel for the parties and have also meticulously gone through the materials available on record. 8. As noted above, the only dispute in the present proceeding is pertaining to the rejection of the claim of the appellant for "trainload rate". It is not in dispute that similar claim made by the other consignee, i.e. M/s Babulal Ramswarup Bajaj with regard to the 25 wagons had been allowed by the learned Tribunal and the said order has also been implemented by the Railway authorities. The appellant's counsel has also not claimed to be entitled to "trainload rate" based on any notification issued by the Railways. Therefore, it is apparent that the sole basis of the claim in this proceeding is the earlier order dated 17-12- 2012 passed by the learned RCT. 9. The circular dated 11-09-1998 bearing No. C/71/RCM/12/MISC/Pt.XI issued from the office of the Chief Commercial Manager (Rates), Maligaon, Guwahati goes to show that one of the essential conditions for availing the benefit of "trainload class rate" is that the consignor/ consignors would have to indent for "full number of wagons" on standard rake as indicated in Annexure-I of the said notification. According to "Annexure-I", the size of a standard rake is 35 BCX wagons. Therefore, going by the plain language of the circular dated 11-09-1998, it is clear that in order to avail the benefit of "trainload class rate", the consignor would have to make an indent for 35 BCX wagons. 10. In the present case, there is nothing on record to show that the consignor had ever made an indent for 35 BCX wagons. If that be so, it is apparent that the requirement of the circular dated 11-09-1998 was not fulfilled in this case so as to claim the benefit of "trainload class rate". It is no doubt correct that minimum 30 BCX wagons would have to be loaded for "trainload rate". But, as per the circular dated 11-09-1999, the condition of loading minimum of 30 BCX wagons will come into play only if an indent for full number of wagons, i.e. 35 BCX wagons is made by the consignor and the Railway Authorities have failed to provide the full 35 BCX wagon rake. But, as per the circular dated 11-09-1999, the condition of loading minimum of 30 BCX wagons will come into play only if an indent for full number of wagons, i.e. 35 BCX wagons is made by the consignor and the Railway Authorities have failed to provide the full 35 BCX wagon rake. The mere fact that 30 wagons were loaded by and between the two parties, in the opinion of this Court, would not be sufficient for the parties to claim the benefit of "Trainload Class Rate" under the standing Railway Circular. 11. The learned tribunal had considered the plea of the appellant and rejected the same by making the following observation: "Annexure-I indicates that type of wagon, standard rake size and minimum number of wagons required to be loaded for train load rate. In this case, the type of wagon is BCX, standard rake size is 35 and minimum number of wagons required to be loaded for train load rate is 30. Respondent has stated in their WS that the applicant has not placed the indent for a standard rake size of 35 BCX. This fact has been supported by a letter from Southern Railway, which states that the consignor has indented only 30 BCX, thus train load class rate is not admissible. In terms of Railway Board's condition 2.1(a), the indent has to be of standard rake size, the condition which has not been complied by the applicant. Condition 2.1(b) reads "When full rake has been supplied by the Railway, the consignor loads all the wagons; or, when the Railway Administration has failed in supply the full-size standard rake, the consignor loads atleast the minimum number of wagons required for trainload rate as mentioned in Annexure-I". The applicant has not furnished any document showing that they have placed the indent for standard rake size i.e. for 35 BCX as per Annexure-I. The applicant thus fails to satisfy the laid down conditions for benefit of train load. Therefore, the application filed by the applicant fails. Hence, dismissed. There is no order as to cost. Let this file be consigned to the record room after due compliance. Pronounced in open court." For the reasons indicated hereinabove, I do not find any illegality in the decision rendered by the learned RCT warranting interference with the judgment and order dated 19- 04-2010. Hence, dismissed. There is no order as to cost. Let this file be consigned to the record room after due compliance. Pronounced in open court." For the reasons indicated hereinabove, I do not find any illegality in the decision rendered by the learned RCT warranting interference with the judgment and order dated 19- 04-2010. This appeal is, therefore, held to be devoid of any merit and is accordingly dismissed. 12. Coming to the issue of payment having been made by the Railway authorities in case of M/s Babulal Ramswarup Bajaj, it would be pertinent to mention herein that by filing the affidavit dated 31-01-2019, the Deputy Chief Commercial Manager, N.F. Railway has categorically admitted that omission to file an appeal against the judgment and order of the Railway Claims Tribunal dated 17-12-2012 was a mistake. However, the affidavit does not disclose as to what action, if any, has been taken against the person(s) responsible for the mistake. The aforesaid aspect of the matter assumes great significance on account of the fact that a sum of Rs. 1,15,705/- was paid to M/s Babulal Ramswarup Bajaj based on an order of the Railway Claims Tribunal, which according to the N.F. Railway was an erroneous order. Therefore, substantial amount of public money has evidently been wasted by making payment to a party, which was not entitled to the same. This Court, therefore, hopes that the Railway Authorities at the highest level would take appropriate action in the matter not only to punish the guilty but also to ensure that such lapses do not occur in future. Send back the LCR. No order as to cost.