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2018 Supreme(Jhk) 635
IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAJESH KUMAR, J.
Union of India through the General Manager, East Central Railway & Anr. - Appellants
Versus
M/s Steel Authority of India Limited - Respondent
M.A. No. 133 of 2017
Decided On : 14-05-2018
Advocate Appeared:
For the Appellants : Mr. V.K. Sinha
For the Respondent: Mr. Rajiv Ranjan, Mr. Rajesh Kumar
Headnote:
RAILWAY - FREIGHT - EXCESS AMOUNT CHARGED - REFUND - LIMITATION ACT, 1963 - SECTION 5 - CONDONATION OF DELAY - WRIT PETITION - MAINTAINABILITY - CONTRACTUAL OBLIGATION - PUBLIC LAW ELEMENT - ARBITRATION CLAUSE - ALTERNATIVE REMEDY - WRIT JURISDICTION - JUDICIAL REVIEW - EQUITABLE PRINCIPLES - DISCRETION OF THE COURT - PUBLIC INTEREST - PUBLIC GOOD - UNJUST ENRICHMENT - MALICE IN LAW - PROMISSORY ESTOPPEL - NOTING IN THE FILE - OPINION OF AN OFFICER - FINAL DECISION - FORFEITURE OF EMD/BG/SECURITY DEPOSIT - MONTHLY SCHEDULED QUANTITY (MSQ) - VALIDITY PERIOD - RAILWAYS RULES - EXTENSION OF TIME - UNIFORM POLICY DECISION - DEMONEZATION.
Fact of the Case:
The petitioner, M/s Sail Authority of India Ltd. (Bokaro Steel City Plant), 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 16 railway receipts dated 05.10.2005 to 29.11.2005 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. The petitioner had paid an amount of Rs.2,18,07,366/- (Rupees two crore eighteen lacs seven thousand three hundred sixty six) as freight for 432 Kms to respondent railway. The actual charge should be Rs.1,90,31,046/- (Rupees one crore ninety lacs thirty one thousand and forty six) for 380 Kms. As such difference amount for Rs.27,76,320/- (Rupees twenty seven lacs seventy six thousand three hundred and twenty) should be refunded by the East Central Railway.
Finding of the Court:
The court held that the writ petitions being devoid of merit are, accordingly, dismissed.
Issues: 1. Whether the delay in filing the appeal should be condoned? 2. Whether the writ petition is maintainable? 3. Whether the petitioner is entitled to the refund of the excess amount charged as freight?
Ratio Decidendi: 1. The court held that the delay of 56 days in preferring the present appeal is hereby condoned. 2. The court held that a writ petition involving a consequential relief of monetary claim is also maintainable. 3. The court held that the petitioner has failed to deposit 100% value of the allotted coal. The Scheme nowhere provides that the payment of coal value would be dependent upon the extent of supply. The only obligation on the part of the respondent-CCL was to offer the MSQ within the validity period. If on deposit of coal value, the offer is made by the respondent-CCL and the rake is allotted by the Railways, the supply is to be governed by the Railways rules.
Final Decision: Both the writ petitions being devoid of merit are, accordingly, dismissed.
I.A. No. 2916 of 2017
The instant interlocutory application has been filed under Section 5 of the Limitation Act for condoning the delay of 56 days in filing the present appeal.
2. 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.
3. Learned counsel for the respondent (SAIL) has no objection.
4. 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. 2916 of 2017 is allowed. Delay of 56 days in preferring present appeal is hereby condoned.
M.A. No. 133 of 2017 :
5. With the consent of both the parties, the matter is being heard finally.
6. 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 Railwayto Bokaro Steel Plant, Bokaro Steel City in different railway receipts totaling 16 railway receipts dated 05.10.2005 to 29.11.2005 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.
7. 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.
8. It has been further stated in claim petition that claimant had paid an amount of Rs.2,18,07,366/- (Rupees two crore eighteen lacs seven thousand three hundred sixty six) as freight for 432 Kms to respondent railway. The actual charge should be Rs.1,90,31,046/- (Rupees one crore ninety lacs thirty one thousand and forty six) for 380 Kms. As such difference amount for Rs.27,76,320/- (Rupees twenty seven lacs seventy six thousand three hundred and twenty) should be refunded by the East Central Railway.
9. Notice has been served under Section 106 of the Railway Act for refund of the aforesaid amount on 28.12.2005. 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.
10. 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 ABL International Limited Vs. Export Credit Guarantee Corpn. of India Ltd., reported in (2004) 3 SCC 553, the Hon'ble Supreme Court has held as under :-
"27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition :
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable.
28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the Court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entert
