Arun Kumar Lath vs Food Corporation Of India And ...
2021 Latest Caselaw 1371 Chatt

                                    1

                                                                 NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR

                      First Appeal No.24 of 2002

                       Reserved on 20.07.2021
                      Pronounced on 24.07.2021
        Arun Kumar Lath, S/o Ram Narayan Lath, aged about 48
        years, Occupation Transport Business, Resident of Kharsiya,
        District Raigarh (CG)
                                                  ---- Appellant/Plaintiff
                                  Versus
     1. Food Corporation of India, through Regional Manager, Chetak
        Building, Maharana Pratap Nagar, Bhopal (MP)
     2. District Manager, Food Corporation of India, Link Road,
        Bilaspur.
     3. Assistant Manager, Food Corporation of India, Raigarh (CG)

                                           ---- Respondents/Defendants

For Appellant               :       Shri Sanjay Agrawal, Advocate.
For Respondents             :       Shri B.P.Gupta, Advocate

               Hon'ble Shri Justice Sanjay S. Agrawal

                        C.A.V. Judgment/Order

1.      This appeal has been preferred by the Plaintiff under Section

        96 of the Code of Civil Procedure, 1908 (hereinafter referred to

        as the CPC) questioning the legality and propriety of the

        judgment and decree dated 04.10.2001 passed in Civil Suit No.

        7-B/1999, whereby the claim has been dismissed. Parties to

        this appeal shall be referred hereinafter as per their description

        before the Court below.


2.      Facts

, which are essential to be stated for the adjudication of

this appeal, are that the Plaintiff instituted a suit claiming

recovery of Rs.1,77,137/- by submitting, inter alia, that he is a

transporter and used to be involved in transportation of food-

grains from the Defendants' Depot, i.e., Food Corporation of

India (hereinafter referred to as the FCI) to South Eastern

Railway Goods shed at Kharsiya. According to the Plaintiff, he

was authorized by the Defendants while accepting his tender

for the transportation of food-grains from its Depot to Railway

Goods Shed and payment has to be made as per the distance

of it. It is pleaded in the plaint that as per the conditions No.4 &

5 (page 115) of Tender of Handling and Transport Operations,

the distance will be reckoned as fixed by the Chief Engineer,

P.W.D. or any Officer nominated by him or by Senior Regional

Manager, Food Corporation of India or by any Officer acting on

his behalf. Further contention of the Plaintiff is that previously

the distance between these two points was 4.2 kilometers, but

at the time of the expansion of the Railway Goods Shed, new

approach road for loading and unloading facility of food-grains

was constructed in the month of March, 1988 and owing to

which, the distance was increased upto 4.4 kilometers. It is

pleaded further that since the payment has not been made as

per the said distance of 4.4 kilometers, therefore, he has been

constrained to institute the suit in the instant nature for recovery

of Rs.1,58,149/- withheld illegally on 17.08.1994 by the

defendants, along with its interest of Rs.18,978/- calculated at

the rate of Rs.6% per annum from the month of September,

1994 upto March, 1996 for the period of 19 months, total

amounting to Rs.1,77,137/-.

3. While contesting the claim, it was pleaded by the Defendants

that on 03.02.1994, a committee, constituted by the Regional

Office for the purpose of its measurements, visited the spot and

has measured the distance between the central operational

point of Railway Goods Shed to the Depot of F.C.I. and found

the actual distance between these points as 4.08 km. The

Plaintiff's suit claiming the alleged payment for the

transportation of food-grains from the Defendants' Depot to

Railway Goods Shed as per the said distance of 4.4 kms. is,

therefore, liable to be dismissed.

4. In order to substantiate his claim, the Plaintiff has placed his

reliance upon the measurement carried on 05.01.1992 (Ex.P.1)

by some of the Officers of the alleged distance from F.C.I.

Godown to Railway Goods Shed wherein the distance between

these two points was found to be 4.4 km. as well as the

measurement which was carried out by the committee on

07.09.1993 constituted by the District Manager, Raipur,

whereby the distance between F.C.I. Depot Kharsiya to Railway

Goods Shed was again found to be 4.4 kms. He placed his

reliance further upon the distance certificate (Ex.P.8) dated

11.08.1994 furnished by the Sub-Divisional Officer, P.W.D.

Kharsiya, wherein the distance between the said points was

shown to be 4.30 kms.

5. In order to disprove the aforesaid facts, the Defendants have

placed their reliance upon the report (Ex.D.1) which was

furnished by the committee constituted by the Senior Regional

Manager, F.C.I. Bhopal for the alleged purpose, i.e., for the

measurement of the distance from F.C.I. Depot to Railway

Goods Shed, Kharsiya, wherein the total distance between

these two points was found to be 4.08 kms.

6. The trial Court, after considering the evidence led by the

parties, arrived at a conclusion that the Plaintiff has failed to

establish the fact that the distance of F.C.I. Depot to Railway

Goods Shed is 4.4 kms. and accordingly dismissed the claim.

This is the order which has been impugned by way of this

appeal.

7. Learned counsel appearing for the Appellant/Plaintiff, while

placing his reliance upon the certificates/reports, marked as

Ex.P.1, Ex.P.5 and Ex.P.8, contended that the actual distance

from the F.C.I. Depot to Railway Goods Shed, Kharsiya was

4.4. kms. However, without considering this documentary

evidence in its proper perspective, the Court below has

committed an illegality in dismissing the Plaintiff's claim.

8. On the other hand, learned counsel appearing for the

Respondents/Defendants, while placing his reliance upon the

report (Ex.D.1) submitted by the committee duly constituted by

the Senior Regional Manager, F.C.I., Bhopal, submits that since

the distance between the alleged points was measured in

presence of the Plaintiff, and therefore, no interference is

required to be made in this appeal.

9. I have heard learned counsel appearing for the parties and

perused the entire record carefully.

10. Based upon the aforesaid contention of the parties, the only

question, which arises for determination in this appeal, is as to

whether the distance from the operational point at the F.C.I.

Depot to the operational point at Railway Goods Shed is 4.4

kms. entitling the Plaintiff for payment of transportation charges

as such?

11. From perusal of the record, it appears that the Plaintiff being a

transporter has transported the food-grains from the F.C.I.

Depot to South Eastern Railway Goods Shed at Kharsiya and

since the distance, as alleged by the Plaintiff, between the said

operational points is 4.4 km, therefore, he is entitled for the

payment of transportation charges as per the said distance.

However, instead the Defendants have made the payment

while taking into consideration the distance of 4.1 kms. and has

withheld illegally a sum of Rs.1,58,149/- on 17.08.1994. In

order to establish the alleged distance of 4.4 kms. between

these two operational points, the Plaintiff placed his reliance

mainly on three certificates/reports (Ex.P.1, Ex.P.5 and Ex.P.8).

12. According to the report (Ex.P.1), it appears that on the basis of

the representation made by the Plaintiff on 01.08.1991, the

measurement has been made as per the order of District

Officer, Bilaspur on 05.01.1992 wherein the distance from F.C.I.

Depot to Railway Goods Shed was found to be 4.4 kms. and

likewise, similar was the distance found by the committee

constituted by the District Manager, Raipur on 07.09.1993 vide

its report (Ex.P.5).

13. In so far as the document (Ex.P.1) is concerned, it, however,

appears that there is no reference of point of its measurement

so as to uphold its validity, while a report (Ex.P.5) would

suggest that the actual distance of 4.4 kms. as found by the

said committee was, however, subject to its approval. But,

there is no evidence placed on record so as to hold that the

said actual distance was approved by the competent authority.

It thus appears that it was an interim measurement, which has

been done only at the request of the Plaintiff. It is, however, to

be noted at this stage that according to conditions No. 4 & 5 of

Tender for Handling and Transport Operations, as pleaded by

the Plaintiff, the distance will be reckoned as fixed by the Chief

Engineer, P.W.D. or any Officer nominated by him or by the

Senior Regional Manager, F.C.I. or by any Officer acting on his

behalf. However, none of the Senior Regional Managers were

found to be present at the time when earlier measurements

were done vide Ex.P.1 and Ex.P.5 as evidenced from

paragraph 22 of the Plaintiff's testimony, who unequivocally

stated that at the time of measurement on both the occasions,

the Senior Regional Manager of F.C.I. was not present. In view

thereof, no reliance could be placed upon these

certificates/reports (Ex.P.1 and Ex.P.5). In so far as the

distance certificate (Ex.P.8) issued by the Sub-Divisional

Officer, P.W.D. Kharsiya is concerned, the same is, however,

not acceptable as the author of it, namely, M.L.Uraon has not

entered into the witness box in order to certify or prove the

same and, one D. Ram (P.W.2), who was called upon for its

proof is, however, unable to state that whether he (M.L.Uraon)

was authorized to issue such a certificate or not.

14. Now, in so far as the report (Ex.D.1) is concerned, it appears

that a committee, which was constituted by the Senior Regional

Manager of F.C.I., Bhopal for the purpose of measurement of

distance from F.C.I. Depot to Railway Goods Shed, has visited

the spot in presence of the Plaintiff on 03.02.1994 and vide its

said report, the total distance between the central operating

point in Railway Goods Shed to the F.C.I. Depot was found to

be 4.08 kms.

15. In view of the aforesaid background, it cannot be held that the

distance from operational point at the F.C.I. Depot to

operational point at the Railway Goods Shed is 4.4 kms., as

alleged by the Plaintiff.

16. Consequently, I do not find any substance in this appeal. The

appeal is accordingly dismissed. No order as to costs.

17. A decree be drawn accordingly.

Sd/-

(Sanjay S. Agrawal) Judge

Anjani