Gauhati High Court
MFA/27/2016 on 10 February, 2025
GAHC010226322016
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
MFA No. 27 /2016
1. Union of India,
Represented by the General Manager,
Western Railway, Mumbai, Mumbai 20,
2. Union of India,
Represented by the General Manager,
North East Frontier Railway, Guwahati,
Maligaon Pin 78100
......Appellants.
-Versus-
1. M/S Manas Salt Iodisation Industries Ltd.
Cole Road, Post Office Dibrigarh (Assam)
......Respondent.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Appellant : Ms. U. Chakravarty,
Spl. Sr. Railway Counsel
......Advocate.
For the Respondents : Mrs. M. Sharma,
......Advocate.
Dates of Hearing : 21.11.2024
Date of Judgment : 10th February, 2025
JUDGMENT AND ORDER (CAV)
Heard Ms. Ms. U. Chakravarty, learned Special Sr. Railway Counsel
for the appellants and also Ms. M. Sharma, learned counsel for the
respondent.
2. This appeal, under Section 23 of the Railway Claims Tribunal Act,
1987, is directed against the judgment and order dated 06.08.2015,
passed in Claim Application No.OA-III-15/2009 (Old) and Claim
Application No. OA-III/GHY/2009/0015 (New) by the Railway Claims
Tribunal, Guwahati Bench. It is to be noted here that vide impugned
judgment and order dated 06.08.2015, the Railway Claims Tribunal,
Guwahati Bench, has directed the appellants herein to pay a sum of Rs.
1,92,622/, along with interest @ 6% per annum, from the date of filing
the original application, i.e. 03.08.2009, with costs.
3. For the sake of convenience and for avoiding confusion, title of the
parties, as referred to in the original Claim Application, No.OA-III-
15/2009 (Old) and Claim Application No. OA-III/GHY/2009/0015 (New)
before the Railway Claims Tribunal, will be adopted herein this appeal.
4. The background facts leading to filing of the present appeal, is
briefly stated as under:-
"The applicant as consignee had booked a consignment of
35597 bags of salt, on 09.02.2008 under Invoice No.1 to 4
and Railway Receipt No. 212000980 to 212000983 from
Halvad (HVD) to Dikom (DKM), paying all the freight money
at booking point vide M.R. No. 743789 dated 09.02.2008,
and also took delivery of the consignment at destination
point as per receipt. The respondent- Railway had collected
freight on distance of 3236 km, instead of correct freight
charging distance of 3181 km and the correct freight
charging rate @ Rs. 1609.10 per MT.
The pleaded case of the applicant is that as per Railway
Board's Circular No. TCR/1125/94/3, dated 06.10.1994, read
with N.F. Railway Circular No. C/374/RG/1/Pt. X, dated
21.11.1994 consignment should be booked by the shortest
route and at the cheapest rate of freight.
Further case of the applicant is that as per Railway
Board's Concession Circular No. TCR/1078/2003/1, dated
30.04.2003 and 29.05.2006, a consignment booked over
distance 3001 km are entitled to get freight concession @ Rs.
25% at the time of booking, but the respondent, at booking
point, made calculation mistake for which freight was
overcharged. Further case of the applicant is that HVD and
DKM stations are regular goods booking and delivery Stations
known as good shed and these stations are never statutorily
notified by Railway as Terminal Stations. And inspite of that,
the Railway had collected terminal charges despite the fact
that Railway Board's Circular No. TCR/1078/2007/06, dated
29.05.2007 and 17.07.2007 and 18.09.2007, terminal
charges were not leviable on commodities packed in bag, tin,
cartoon, bale or crate. The applicant then filed one
representation before the respondent authority claiming
refund. But the same failed to yield any result.
As the representation filed by the applicant had failed to
yield any result, the applicant had approached the Railway
Claims Tribunal claiming refund of the excess amount of
freight as well as terminal charges.
The respondent No.1 and 2 had filed their written
statement contesting the claim of the applicant. Besides
challenging the identity of the applicant, they had taken a
stand that the terminal charges have been collected
correctly. Further it is stated that according to CCM/ Rates'
letter dated 08.04.2010, the distance ex. HVD to DKM via
PNU, BKI, MGS, KIR is 3255 km, but the Railway had claimed
freight for 3236 km. Another stand taken by respondent No.2
is that as per Railway Board's Rate Circular No.47 of 2006,
25% concessional freight should not be less that the
concessional freight of 3000 kms. And that the freight for
3000 km was worked out to Rs. 1234.32 after granting 20%
concession. Freight for 3177 km with 25% concession comes
to Rs. 1206/- which is less than freight for 3000 Kms. And as
such only 20% concession was granted and that booking and
destination stations are Railway's own terminal and hence,
terminal charges were rightly collected.
The learned Tribunal then framed following 6(six) issues
for decision:-
1. Whether notice served under Section 106 of
the Railways Act, 1989 by the applicant to
the respondent is in time and maintainable?
2. Is the application bad for misjoinder of
parties?
3. Whether the respondent realized freight as
per correct distance?
4. Whether the applicant is entitled for the
concession as alleged in his application?
5. Whether the respondent is entitled for
terminal charges?
6. Relief and order?
Then hearing both sides the learned Claims Tribunal,
vide impugned judgment and order dated 06.08.2015, had
directed the appellants herein to pay a sum of Rs. 1,92,622/-,
along with interest @ 6% per annum from the date of filing
the original application, i.e. 03.08.2009, with costs.
5. Being aggrieved with the impugned award of the Railway Claims
Tribunal, the appellant preferred the present appeal on the following
grounds:-
(i) The learned Tribunal had erred in law as well as
on facts while passing the impugned judgment
and order.
(ii) That the learned Tribunal had wrongly held that
the appellant No.1 has made an admission vide
Exhibit-A-21, which is nothing but information
furnished under the RTI Act and thereafter,
came to a conclusion that the respondent is
entitled to refund of the claim amount. But the
fact remains that the said letter was issued
for estimate purpose only and has no relation
with the alleged claim and the learned Tribunal
had failed to consider the said aspect.
(iii) The learned Tribunal had wrongly interpreted
the provisions as laid down under various
circulars.
(iv) The learned Tribunal had wrongly placed
reliance on a clarification letter No.TCR/
1078/2007/6 dated 17.07.2007, while deciding
Issue No.5 of the impugned judgment, which was
superseded by another circular i.e. Rates
Circular No.92/2007 and for non-consideration
of the aforesaid circular, the impugned
judgment is liable to be set aside.
(v) The learned Tribunal had wrongly interpreted the
contents of Rates Circular No.92/2007, while
deciding Issue No.5 and the learned Tribunals
have failed to consider the contents of the
said circular in its proper perspective.
(vi) The learned Tribunal had wrongly calculated the
amount refundable to the respondent.
(vii) That the schemes (Rates Circulars) are
commercial in nature and as such, each and
every term appeared in the schemes should
strictly be followed. But, the learned Tribunal
had failed to consider the said aspect of the
matter.
(viii) It is well-settled principle of law that
while interpreting the statutory provision, no
word can be added to a statute or read a word
into it which are not part of it, especially
when a literal reading of the same produces an
intelligible result and the Courts have to
administer the law as they find it and it is
not permissible for the Court to twist the
clear language of the enactment, in order to
avoid any real or imaginary hardship which such
literal interpretation may cause and the
learned Tribunal had failed to consider the
aforesaid principle and under such
circumstances, it is contended to set it aside.
6. Having heard the submission of learned counsel for both the
parties, I have carefully gone through the memo of appeal and the
grounds mentioned therein and perused the impugned judgment passed
by the learned Member, Railway Claims Tribunal, Guwahati, dated
06.08.2015.
7. Mrs. Chakraborty, learned counsel for the appellants submits that
the letter dated 17.07.2007 is not a Rates Circular, but a letter and it
relates to the Rates Circular No.58/2007, dated 29.05.2007 and as soon
as the said Rates Circular No.58/2007 is superseded vide Circular
No.74/2007, dated 19.07.2007, the letter dated 17.07.2007 had lost its
relevancy and a coordinate Bench of this Court in MFA No.100/2011,
vide order dated 25.06.2015, held that the letter dated 17.07.2007, is
non-est as soon as the original Rates Circular No.58/2007 was
superseded, and therefore, the finding of the learned Tribunal is
erroneous.
7.1. Mrs. Chakravarty also submits that the learned Tribunal also
arrived at an erroneous finding as it had relied upon Exhibit-A-21 which
is nothing but information furnished under the RTI Act for estimate
purpose and it cannot be read as a Circular while already a Circular,
being Railway Board's Rate Circular No.47 of 2006, was holding the field
and that 25% concessional freight can be granted when the distance is
3001 km and above, and that the minimum freight should not be less
than the concessional freight applicable for 3000 km. And this aspect has
been overlooked by the learned Tribunal and on such count, Mrs.
Chakravarty has contended to allow the appeal by setting aside the
impugned judgment and order.
8. Per contra, Ms. Sharma, learned counsel for the respondent
submits that the letter dated 17.07.2007 is admittedly not superseded
and as such, the learned Tribunal had rightly place reliance on the same.
It is the further submission of Ms. Sharma that the distance between
Halvad and Dikom was wrongly calculated by the Railway at the time of
booking of the consignment and the said fact is apparent from the own
letter of the Railway i.e. Exhibit-A21, which is the reply given in RTI, and
relying upon the aforesaid document, the learned Tribunal had
calculated the amount, which the respondent herein is entitled to refund.
Ms. Sharma further submits that the appellants herein had charged the
fare for a distance of 3236 km, but in fact the distance from Halvad to
Dikom is 3177 km and further, in the Circular dated 05.06.2007, only 50
stations are notified wherein terminal charges can be levied and neither
the name of Halvad nor Dikom finds mention in the said Circular and as
such, no terminal charges can be levied. Therefore, it is contended to
dismiss the appeal.
9. In view of the issues, being canvassed during argument by learned
Advocates of both sides and also in view of the findings recorded by the
learned Tribunal, the points to be determined by this Court is formulated
as under:-
(i) Whether the learned Tribunal is justified in arriving
at a finding that the respondent is entitled to
terminal charges in view of the Railway Board's
letter dated 17.07.2007, while the same was issued
in connection with Rate Circular No. 58/2007, dated
29.05.2007 which was superseded by Rate Circular
No.74/2007, dated 19.07.2007?
(ii) Whether the respondent/applicant is entitled to
claim 25% rebate in view of Rates Circular
No.47/2006?
10. It appears from the impugned judgment of the Tribunal that the
learned Members, while arriving at the finding in Issue No.4, i.e. whether
the applicant is entitled to concession as alleged in his
application, held that the Deputy Chief Claims Officer & Public
Information Officer of Western Railway, under Right to Information Act
apprised the applicant/respondent vide Exhibit-A21, that the applicant is
entitled to concession @ 25% for the salt consignment as per Rates
Circular No.47/2006 and also 6% concession for N.E. States as per Rates
Circular No.7/2008 (Dikom Station being in the State of Assam) and
thereafter, decided the issue in favour of the applicant.
11. Further it appears that while deciding the Issue No.5, as to
whether the respondent is entitled for terminal charges, the
learned Tribunal had held that as per Railway Board's letter
No.TCR/1078/2007/6, dated 17.07.2007 'the terminal charges will
be levied on all bulk and loose commodities. Whenever the
commodity is packed in bag, tin, carton, drum, bale or crate,
such commodity should not be treated as bulk and loose
commodity. All other commodities may be treated as bulk and
loose commodities. However, terminal charges will be levied on
any consignment requiring crane handling. In addition, all
liquid consignments moving loose in wagons will also be levied
terminal charges. Moreover, if a wagon is loaded with both type
of commodities, the wagon should be treated as having loaded
with bulk and loose commodities.'
11.1. Thereafter, the learned Tribunal had arrived at the finding that in
the Railway Board's Circular dated 18.09.2007 it has been mentioned
about supersession of Circulars dated 29.05.2007 and 19.07.2007 only
and not of Railway Board's letter dated 17.07.2007. It has also been held
that in the Circular dated 18.09.2007, commodities have been
categorized into three heads as under:-
(i) Iron Ore traffic,
(ii) All other traffic and
(iii) Container traffic
11.2. But there is no mention about commodities which are packed in
bag, tin, carton, drum, bale or crate, which shows that Railway Board's
letter dated 17.07.2007 still holds good and the applicant had booked
salt packed in bags. As such, it should not fall under the category on
which terminal charges are levied and thereafter, decided the issue in
favour of the applicant.
11.3. Thereafter, the learned Tribunal proceeded to calculate the
refund as under:-
a) 2460 MT salt booked x Rs.1609.10 per MT : Rs.39,58,386/-
b) + 2% Development Charge + 7% Busy Season Charge : Rs. 3,56,255/-
Rs.43,14,641/-
c) - 25% Rebate on salt booked over 3001 km : (-) Rs.10,78,600/-
Rs.32,35,981/-
d) - 6% rebate for N.E. States : (-) Rs. 1,94,159/-
e) Freight should be : Rs.30,41,822/-
f) Freight paid : Rs.34,28,603/-
g) Freight should be : Rs.30,41,822/-
Freight overcharged : Rs. 3,86,781/-
12. It is also to be noted here that the appellant, in the memo of
appeal had taken a stand that the Railway Board has been issuing
various Circulars from time to time for levy of terminal charges and all
the Circulars so issued by the Railway Board are binding. The Rates
Circular No.92/2007, which is one of such Circulars, had superseded the
earlier Rates Circular Nos.58/2007, which is on the same subject matter,
and the learned Tribunal has allowed the claim on account of terminal
charges on the basis of a letter dated 17.07.2007, which was nothing but
a clarification of Rates Circular No.58/2007, and as the said Circular has
already been superseded by the Rates Circular No.92/2007, the letter
dated 17.07.2007 had lost its significance. Mrs. Chakravarty had also
pointed this out at the time of hearing that this aspect has already been
dealt with by a coordinate Bench of this Court in MFA No.100/2011,
wherein, vide order dated 25.06.2015, it was held that the letter dated
17.07.2007 is non-est as soon as the original Rates Circular No.58/2007,
was superseded and as such, the finding of the learned Tribunal is
erroneous on this point and therefore, it is contended to set it aside.
13. There appears to be substance in the submission of Mrs.
Chakravarty, the learned Counsel for the appellants. The stand, so taken
appears to be justified and reasonable. The letter dated 17.07.2007,
being a letter of clarification of the Rate Circular No.58/2007, had lost its
significance with supersession of the said Rate Circular by the Rate
Circular No.92/2007, which are on the same subject matter. Therefore,
this Court is inclined to record concurrence with the submission of Mrs.
Chakravarty, the learned counsel for the appellants and also with the
decision of the coordinate Bench of this Court in MFA No.100/2011.
14. Further, from a perusal of the Circular at Sl.No.97(G)/2006, dated
06.06.2006, reveals that for availing the benefit of 20% concession over
a distance of 3001 km and above, the minimum freight should not be
less than the concessional freight applicable for 3000 km and if the
minimum freight for 3000 km and above is worked out at Rs. 'X' after
granting 20% concession, the minimum freight for 3001 km and above
after granting 25% concession should not be less than the said Rs. 'X'
and only on fulfillment of the aforesaid condition, the respondent will be
entitled to the benefit of 25% concession on normal freight rate for the
distance which would be excess to 3000 km.
15. In the instant case, the freight for 3000 km is worked out to be
Rs.1234.32 after granting 20% concession. Freight for 3177 km with
25% concession comes to Rs.1206/-, which is less than freight for 3000
km and as such, the applicant/respondent having failed to satisfy the
said condition, to the considered opinion of this Court, is not entitled to
avail concession of 25% as claimed. However, this aspect eschewed
consideration of the learned Tribunal.
15.1. It also appears from the impugned judgment and order of the
Tribunal that the learned Tribunal had relied upon the Exhibit-A21, a
reply to an application filed under the RTI Act by the
applicant/respondent and thereafter worked out the sum which the
applicant/respondent is entitled to refund. The learned Tribunal had
never considered and discussed the Circular at Sl. No. 97(G)/2006, dated
06.06.2006. Instead, it had relied upon the Exhibit-A21, ignoring the
purpose for which it was issued. It is the stand of the appellant that the
said Exhibit-A21 was issued for estimate purpose only. That being so, it
cannot be read like a Circular, as hardly it had such a force.
16. It is well known that in a given case the Court can iron out the
fabric but it cannot change the texture of the fabric. It cannot enlarge
the scope of legislation or intention when the language of provision is
plain and unambiguous. It cannot add or subtract words to a statute or
read something into it which is not there. It cannot re-write or recast
legislation. It is also necessary to determine that there exists a
presumption that the legislature has not used any superfluous words. It
is well-settled that the real intention of the legislation must be gathered
from the language used. It may be true that use of the expression 'shall
or may' is not decisive for arriving at a finding as to whether statute is
directory or mandatory. But the intention of the legislature must be
found out from the scheme of the Act. It is also equally well-settled that
when negative words are used the courts will presume that the intention
of the legislature was that the provisions are mandatory in character.
(See- Nasiruddin And Ors vs. Sita Ram Agarwal, reported in 2003
(2) SCC 577,).
17. In the case in hand the learned Tribunal had ignored the Circular
at Sl.No.97(G)/2006, dated 06.06.2006, while granting the benefit of
25% concession to the applicant/respondent. Instead it had relied upon
Exhibit-A21 which has no legal force at all. And resultantly, there is
miscarriage of justice.
18. Thus, having heard the submission of learned Advocates of both
sides, and considering the facts and circumstances on the record, I find
sufficient merit in the appeal and accordingly, the same stands allowed.
The impugned judgment and order, so passed by the learned Tribunal
stands set aside and quashed.
19. The matter stands remanded to the learned Tribunal with a
direction to decide the entitlement of the applicant/respondent, a fresh,
as per Circular at Sl.No.97(G)/2006, dated 06.06.2006, and also taking
note of the distance between the two stations i.e. Halvad and Dikom as
mentioned in Exhibit-A21. This exercise has to be carried out within a
period of three months from the date of receipt of this judgment and
order and giving an opportunity of being heard to both the parties. Both
the parties are directed to appear before the learned Tribunal on
24.02.2025.
20. In terms of above, this appeal stands disposed of. The parties have
to bear their own cost.
21. Send down the record of the learned Tribunal forthwith.
JUDGE
Comparing Assistant
