M/S. D.D. International (P) ... vs General Manager
2022 Latest Caselaw 2767 Jhar

                                    [1]


          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              L.P.A. No. 878 of 2019

         M/s. D.D. International (P) Limited, A Company registered under the
         provisions of the Indian Companies Act, having its regional office at
         Cold Storage Building, N-Road, Bistupur, P.O. and P.S. Bistupur,
         Town-Jamshedpur, District-Singhbhum East, through its Director
         Chittar Mal Dhoot, Aged 70 years, son of Late Ramanand Dhoot,
         resident of Basant Talkies Building, P.O. and P.S. Sakchi, Town-
         Jamshedpur, District-Singhbhum East.
                                                       ... ... Petitioner/Appellant
                                          Versus

      1. General Manager, South Eastern Railway, Garden Reach, P.O. and
        P.S. Garden Reach, District-Kolkata.

      2. Chief Commercial Manager (FM), South Eastern Railway, 14, Strand
        Road, 8th Floor, P.O. and P.S. Strand Road, Kolkata, District-Kolkata.

      3. Senior Commercial Manager, South Eastern Railway Chakradharpur
        Division, P.O. and P.S. Chakradharpur, District-Singhbhum West.

      4. Assistant Commercial Manager (F), South Eastern Railway,
        Chakradharpur Division, P.O. and P.S. Chakradharpur, District-
        Singhbhum West.
                                                   ... ... Respondents/Respondents
                                        -------

                CORAM:         HON'BLE THE CHIEF JUSTICE
               HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                                        -------

For the Appellant : Mr. Shankar Lal Agarwal, Advocate For the Respondents : Mr. Prashant Pallav, A.S.G.I.

----------------------------

ORAL JUDGMENT 06/Dated 20th July, 2022

1. With the consent of the parties, the matter has been heard through video

conferencing. They have no complaint about any audio and/or video

quality.

2. The instant intra-court appeal preferred under Clause 10 of the Letters

Patent is directed against the order/judgment dated 25.11.2019 passed [2]

by the learned Single Judge of this Court in W.P.(C) No. 2664 of 2013,

whereby and whereunder, the writ petition has been dismissed by giving

liberty to approach the Railway Rates Tribunal for adjudication of the

dispute.

3. Mr. Shankar Lal Agarwal, learned counsel for the appellant has

submitted that although the learned Single Judge has granted liberty to

the writ petitioner to approach the Railway Rates Tribunal but the

nature of dispute falling for consideration in this case is not such which

warrants adjudication by the Railway Rates Tribunal.

He has referred to the provision of Section 36 of the Railway

Act, 1989 read with the Railway Claims Tribunal Act, 1987 wherein

according to Mr. Agarwal, learned counsel, specific stipulation has been

made about the nature of complaint to be filed before the Railway

Claims Tribunal but the dispute involved in this case is not falling under

the fold thereof.

4. Mr. Prashant Pallav, learned A.S.G.I. appearing for the respondents has

seriously objected to such submission by making reference of the

provision of Section 36 (c) of the Act, 1989 wherein it has been

stipulated that the levy of any other charge which is unreasonable can

also be dealt with by the Tribunal.

According to him, the nature of allegation herein will come

under the fold of other charge since the dispute herein is action of the

authority of the Railway directing the petitioner to pay undercharge of

Rs.64,78,370/- directly to the station by issuing bank draft in favour of

the FA and CAO, as such, levy will come under the fold of 'other [3]

charge' as stipulated under Section 36(c) of the Act, 1989, therefore, the

order which has been passed by the learned Single Judge by giving

liberty to the writ petitioner to approach before the Tribunal does not

warrant any interference.

5. We have heard the learned counsel for the parties and appreciated the

argument advanced on their behalf as also gone across the material

available on record.

This Court, in order to assess as to whether the dispute which is

the issue of the writ petition is coming under the fold of Section 36(c)

of the Act, 1989 under any other charge for which the nature of the

charge which has been levied herein, requires to be considered, for

which, Section 36 of the Act, 1989 requires to be considered which

reads as under:

"36. Complaints against a railway administration.--Any complaint that a railway administration -

(a) is contravening the provisions of section 70; or

(b) is charging for the carriage of any commodity between two stations at a rate which is unreasonable; or

(c) is levying any other charge which is unreasonable,

may be made to the Tribunal, and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this Chapter."

6. It is evident from the provision of Section 36(c) wherein the complaint

against railway administration can be filed before the Railway Claims

Tribunal, if there is any contravention of the provision of Section 70; or

is is charging for the carriage of any commodity between two stations at

a rate which is unreasonable; or is levying any other charge which is

unreasonable.

[4]

It is evident from perusal of the ingredient as contained under

Section 36(c) of the Act, 1989 which warrants adjudication by the

Railway Claims Tribunal also includes levy of any other charge,

therefore, this Court is required to scrutinize as to whether the nature of

adjudication sought to be adjudicated falls under the category as

stipulated under Section 36(c) of the Act, 1989 or not?

This Court, for the aforesaid purpose has considered the

speaking order dated 17.09.2012, appended as Annexure-5, which

reflects under RC-36 of 2009 that the petitioner will utilize material

falling for domestic consumption and not for any other purpose/export,

then only he is entitled to get subsidized rate. If the party gets the

benefit of 180 class rate without submission of correct documents, the

Railway has the authority to collect the undercharge as per the rule,

therefore, raising of undercharge as per the provision of RC-36 of 2009

is not a penal measure but that is the statutory liability of the party since

he failed to submit proper documents at the time of offering goods to

Railway which is mandatory to pay the correct charge that means the

distance based charge as per rule and in consequence thereof, the

difference has been calculated which comes to Rs.64,78,370/- .

7. The aforesaid decision of the Railway authority does reflect the liability

of Rs.64,78,370/- casted upon the petitioner by way of a charge and not

by way of penalty and once it is by way of charge and not by way of

penalty, therefore, the writ petitioner is questioning the aforesaid

charge, which according to the considered view of this Court, will come

under the provision of Section 36(c) of the Act, 1989.

[5]

8. As such, the contention raised by the learned counsel for the petitioner

that the subject matter of the lis cannot be adjudicated by the Railway

Rates Tribunal, is not worth to be considered.

9. In view thereof, according to the considered view of this Court, the

view which has been taken by the learned Single Judge holding the writ

petition not maintainable on the ground of availability of remedy lying

before the Railway Rates Tribunal, requires no interference.

10. Accordingly, the instant appeal fails and stands dismissed.

11. Pending interlocutory application, if any, also stands disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Saurabh/

A.F.R.