w.P.(c) No.376el2o' \l IN THE HIGH COURT OF DELHI AT NEIIII DELHI W.P. tC) No. 3769/2002 JAYASVIALS NECO UlD. . Pefifloner Through: i\[r. Neeral Kaul, Sr. Advocate with Mr. Prateek Jalan and I\[r. Nimimesh Dube, Advocates IrERSUS , UOI & OR,S. Respondents TLrough: i\[r. R{esh Tikku, Advocate DATE OF DECISION: AUGUST 06 . 2004 CORA]VI: I{on'ble RhJustice T.S. Thakur Whether reporters of local papers may be allowed to see the Judgment? To be rcferred to ttre Reporler or not? Whether the Judgment should be reported in ttre In this petition for a writ of certio rari, the petitioner \ company calls in question the legality of a demand raised by the rcspondents for the recovery of what is described ' as 'undercharye' in connection with certain consignments transported by the railways. The facts giving rise to the filing of this petition are few and may i.; / ,{ /? Digest? : T.S. TFIAKUR. J. Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified t( w.P.(C) No. 3?6912002 be summarised as undel': 2. The petitiotrer company is engaged in the manufactnre of Pig Iron at Raipur in the State of Chattisgarh. The stocks so manufactured are transported by rail and/or by road fiam Raipur to various distributors and customers all over the country. The respondents have provided a dedicated railway siding in the proximity of the petitionet's plants at Siltara known as 'Nackast railway siding' under the Mandhar. railway station. For the transport of goods by rail, the petitioner places an indent upon the Station Superintendent, Mandhar station for carriage to various destinatiotts. A railway receipt indicating the fieight charges is issued to fte petitioner which the petitiotter is required to pay before the goods are loaded in the wagons. The charges are determined on the basis of what is called 'wagon load facility' or 'train load facility'. In the case of wagon load facility, the charges are calculated on the number of wagons to be transported to a particular destination. In the case of hain load facility, the entire rake consisting of a much larger number of wagons is h'ansported at the request of the customer. This facility can, according to the petitioner, be availed for one destination or a combination of two destinations subject to the approval of the Railways Authodties. 3. Iit the month of August-September, 1998, the petitioner appears to have approached the station superintendent, Mandhar for 2 W }v.P(C) No. 3769/2002 fansport of goods to Delhi Kishan Ganj and Ghaziabad by 'Tlvo point n.ain toad facility' and to Ludhiana and Jalandhar separately also by a similar facility. A tetter dated 1 l'h September, 1998 tequesting respondent No. 6 to anange the supply of 58 N-boxes two point.rake with train load facility to transport 29 boxes to Delhi ishan Ganj and another 29 boxes to Ghaziabad was submitted to the Station Superintendent, South-Eastem Railway, Mandhar. In response to the said letter, the Station superintendent issued a comnrunication dated ll',h September, 1998 informing the petitioner that its request for 29 N-box to Dethi Kishan Ganj and29 N-box to Ghaziabad via KMZ,TKD had been arcepted and the rake placed in the petitionerrs raitway siding for loading puposes. The petitioner appea$ to have paid a sum of Rs.39,02,O251- as freight charges in terms of railway receipts issued in its favour' The cargo was accordingly toaded and transported by the railways to his destinatiott at Delhi Kishan Ganj and Ghaziabad and released at the said stations without any objectiotl 4. By another letter dated 23d September, 1998, a similar request, it appeals, w6 made by ttre petitioner for a similar' 'two poitlt rake' with 33 boxes for Dhandhari Kalan (Ludhiana) and 25 boxes for Kartarpur, Jalandhar with rain load facilig. The freight indicated on the RR was deposited and the consignment Eansported and detivered at the t/ 0 T W.P.(C) No. 3769/20@ destination without any objection. 5. A thid consignment was similarly t'ansported to Dhandhari Kalan and Kartarpur on payment of the fieight chatges indicated in the railway receipts issued by the respondents. 6. Tlree yeals after the transportation of the goods, the respondents raised a claim for furtlrcr payment on tlte ground that the 'two point hain load facility' availed of by the petitioner was not petmissible and that the petitioner company was tiable to pay fieiglrt chalges calculated on wagon load basis. The petitioner was accordingly directed to deposit the amount undercharged from it, failing which ttre railways threatened to exercise its lien over the petitioner's goods in terms of Section 83 and 84 of the Indian Railways Act. Aggrieved by the said demands, ttre petitioller company has filed the ptesent writ petition challenging the same as arbitrary, nnreasonable and contrary to the provisions of the Indian Railways Act, 1989. The petitiorrc/s case primarily is that the consignments in qnestion having boen transported after permission had been obtained and with the approval of the respondents and the goods transported having been released at tlte destination stations without any objection, a demand laised after three years of such transportation was wholly illegal and unenfot'ceable in law. A writ in the nature of certio rari quashing the demand apafi from a wdt \( \ w.P.(C) No. 3769/2002 of prohibition restraining the respondents from enforcing the same has' thereforc, been PraYed for. 7. In the counter affidavit filed on behalf of the rcspondents, it is inter alia stated that in the case of 'wagon load facility" chatges are calculated on the basis of the number of wagons to be tmnsported to a particllar station whereas in the case of 'h'ain load facility', the entire rake consisting of 30 to 58 wagons is transported at the rcquest of a particular customer. This facility may be for one destination or two destinatiotls combined together provided the combination is one provided for by the policy or is approved by the competent autl,orities. Ghaziabad and Delhi Kishan Ganj was not, arcording to ttre respondents, an approved combination arcording to the policy then prevalent' The respondents firther subrnit that no approval or pennission was taken by the petitioner or granted by the South-Eastem Railway for the two point movemetrt of gbods, nor was any permission given for taking the benefit of fain load facility for such movenrent. The underchatges demanded from tfue petitioner by treating the transportation as wagon load cottsignments was' therefore, justified. It is further pointed out ftrat the discrepancy regarding the undercharge had come to ligfut on account of an audit check and that the recovery of the excess amount of the undercharge was legally permissible under Section 83 of the Railways Act' I11 w.P.(C) No. 3?69/2002 I 8. Ap,pearing for the petitioner company, Mr. Neeraj Kaul, learned senior counsel stenuousty argued that the demand for nndercha.ge \ryas totally unjustified and arbitrary. It was contended that the railways having indicated the amount payabte by the petitioner towards freight, the petitioner had deposited the said amount and availed ' of the facility on the clear understatrding that the demand made was the only charge that the petitioner would be liable to bear. He submitted that the letter issued by the petitioner company clearly sought the 'two point train load facility', which facility was granted by the railways and that any demand raised 9n an audit objection would be unjustified, especially when tlrc same was being raised three years after ftre transaction was completed and contrary to the representation made to the petitioner that he was entitted to ttre 'train load facility' and that nothing in excess of what was demanded in the railway receipt would be recovered from it' 9. On behalf of the respondents railways, it was argued by Mr. Rakesh TikJ<u that the petitioner company having paid a sum of Rs.5,50,000/- in terms of the order passed by ttris court, any claim for refund of that payment ought to be made before the tribunal established under the Railway Claims Tribunal Act. The pnesent writ petition was not, according to Mr. Tikku, maintainable since an equally efficacious altemate remedy was available to tlre petitioner under the said Act. It was t 'lp { W.P.(C) No. 3769/2002 alternatively subrnitted that the milways had, at no stage, sanctioned the train load facility in favour of the petitioner company, nor was atty such facility admissible in terms of the policy then prevalent. The fact that fte railway receipt mentioned a lower freight on an assnmption that snch a facility had been sanctioned did not, according to Mr. Tikku, estop the railways from raising a claim for undercharges in terms of Section 83 of the Indian Railways Act, 1989. The chaltenge to the demand was, in that view of the matter, untenable and deserved to be rejected. I have given my anxious consideration to the submissions 10. made at the bar. Before I examine the merits of the contention raised by Mr. Kaul, I may deal with the objection raised by Mr. Tikku regarding the rnaintainability of this rvrit petition. The writ petition was admitted to hearing in March, 2003 after notice to the respondents. No objection to t1e maintainability of the petition on the ground of avaitability of an 'P alternate remedy under the Act was urged in the counter affidavit. That being so, it is neither fail nor prcper to dismiss the sarne at this stage only to relegate the parties to a remedy which the petitioner could have been directed to invoke even at the threshold. That apart, there is hardly any disputed question of fact which may call for production or appreciation of evidence before the tribunal. The availability of an altetnate remedy is, even othenvise, a self-imposed restriction attd not a bar to ftre exercise of .! W.P.(C) No. 3?69f2002' jurisdietion by a writ colr't. The matter having been argued at considerable length on the merits' I consider it unnecessaly to shut out the petitioner at this stage only on the ground that it could or ought to have approached the tribunal for an appropriate relief, evelt assuming that the tribunal was, in the facts. and circumstances of the case' competent to entertain any such claim. The objection to the maintainability of the writ petition, therefore, fails and is accordingty rejected' 11. on the merits of the case, two precise questions atise for consideration. The first is whether a train load facility was, in the light of the policy then prevalent, admissible to the petitioner for a two point tansportation. The second aspect is that even if ttre policy did not envisage such a facility, did the railways satrctiotr atry such facility as alleged by the petitioner. The railways have, on affidavit, stated ftat Ghaziabad and Delhi Kishan Ganj was not an apploved combination for .tt the grant of train toad facitity as per the policy prevalent at the relevattt time.Thatpositiontlrepetitionercompanyhasnotbeenableto cont'overt. There is nothing on record before me to prove that the stations for which the undercharge is being demanded was an app'roved combination of statiolls as per the prevailing policy' In the circumstauces' it is reasonable to hold that transportation which forms the basis of the charge did not admit of train toad facility en'oneously availed of by the ( W.P.(C) No. 3769/2002 petitioner. IZ. In so far as the grant of sanction for the said facility is concerned, the petitioner company has placed reliance upon the letter of the Station Superintendent of Mandhal Railway station dated 11'h September, 1998. A careful reading of the said letter also does not however show that the train load facility was sanctioned in favour of the petitioner. The letter issued by the Station Superintend may, at this stage, be exfacted. It runs as under : S.E. Railways To G.M. Marketing NACAST SDG MDH Please note that 58 N Box E+ 1 MT. Released Hard Coke Rake placed in your siding at 19145 hrs of 11.9.8 for loading P/Iron to ?9 N Box to DI{Z and 29 N Box to C:ZB via KMZ, TKD vide BSF 01 No. WC71979 of 11.9.98. sd/- 1V9t98 Station Supdt S.E. Railway Mandhar 13. There is no other materi.al on record to suggest that the railways had indeed sanctioned the train load facility in favour of the petitioner. In the absence of any documentary evidence to the contrary, I Dr. 11.9.98 t0 il> w.P.(C) No. 3?69/2002 have no hesitation in holding that the railways had not sanctioned any train load facitity in favoul of the petitioner for the ransportation of goods relevant to the demand mised against the company. That being so' it is difficult to see how merely because there was a delay of three years in raising a demand for undercharge, coutd ttre demand be said to be illega1 arbitrary or fanciful. so long as the demand was sound on the facts of a given case, the failure of the railways to recover ftte amount cha:geable by it at the appropriate stage would not prevent it from raising or enforcittg ilre same at a subsequent point of time. ln the instant case, neitlrcr the prevalent policy nor the sanctipn granted to the petitioner entitled the petitioner to the benefit of tmin load facility. It was, therefore' open to ftre railways to raise a demand for the amount recoverable from the company but not recovered whethel on account of a mistake or because of a deliberate omission on the part of the official concerned. That is precisely .r what had hap,pened in the instance case also. If the official charged with the duty of preparing the railway receipts had acted diligently, it would have p'evented the resnltant confusion arising from his chargittg atl amount lesser than what was payable. While it is true that the railways have not made any allegations of mala fide agaitrst the official charged with the duty of preparing railway receipts and calculating the fieight payable by ttre petitioner, yet the absence of any such allegation makes \ 3769n042 11 ' tinle difference. lt is precisely for this reason incorporated in the Railways Act a provision situations. Section 83 reads as under : W.P.(C) No. that the Partiament has which caters to such I' (1) If the consignor, the consignee 9r th9 endonee ioitt to pay on demand any fieight, or other charges due from him in respect of any consignment, the railway administration may detain such consignment or part thereof or, if such consignment is delivered, it may detain any other consignment of such person which is in, or thereafter comes into its possession' (2) The railway administration may, if the consignment detained under sub-section (1) is - (a) perishable in nature, sellat once; or (b) not perishable in nature, sell, by public anction, sueh consignment or pafi thereof, as may be necessary to rcalise a sum equal to the freigh! or other charges : hovided that, wherc a railway administration for reasons to be recorded in writing is of the opinion that it is not expedient to hold the auctiotr, such consignment or part thereof may be sold in such manner as may be Prescribed. (3) The railway administration shall give a uotice of not less than seven days of the public anction under clause (b) of sub-section A) in one or more local newspapers or where there are no such newspapers in such manner as maY be Prescribed' (4) The railway administration ffi&!, out of the sale proceeds reeived under sub-section (2), retain a sum Lqual to the freight and other charges including "ip"nr"* for the sale due to it and the surplus of such ,rrr{ L2 W.P.(C) No. 3 - proceeds and the part of the consignment, if any, shall be rendered to the person entitled thereto' 14. The object under'$ing the above provision is that even if the consignment regarding which therc is a demand for payment of fieight or other charges has been delivered, the railways call exercise its lien for r€covery of any sum payable to it by detaining any other consignment of such person which may thercafter come into its possession. The fact that goods were transported and released in favour of flre petitioner company without demur, therefore, loses significance. As and when a' charge is sought to be recovercd from the consignor under Sectiotr 83 of the Act, what is important is whether the charge was lawfully tecoverable. The railways have, in the instant case, satisfactorily established that the demand for the undercharge was justified in as much as the facility which the petitioner had availed of was not truly admissible to him. It was . L argued by Mr. Kaul ttrat if the petitioner had known that it was not entitled to the train load facility, it may not have transported the goods by rail and may have chosen to avait of the altemate mode of transport by hucks or lories. The petitioner had, arcording to the tearned counsel, changed its position to its detriment by acting upon the reprcsentation made to it that the train load facility was achrally available and admissible to it. The argument though attractive on its face value, does not bear V t3 ,v W.P.(C) No. 3?69/2002 closer scrutiny. Therc is no foundation in the pleadings for the plea sought to be urged. There is nothing even to suggest that transportatiotl by road was at all an option available to the petitioner for the kind of goods that were being transpofied or that the cost involved in such transaction would have been t"r, ihan what is being demanded from the (J-' petitioner on 'wagon toad' basis. In the absence of any pleading leave alone any cogent evidence to support the same, the argument needs to be noticed only to be rejected. That apart the very fact that ftre party has availed of the faciliry on payment of fieight demanded from it does not absolve it from the rigors of Section 83 of the Railways Aot. Plinciples of Estoppel do not apply in derogation of specific statutory provisions. The statue entitles the railways to r€cover the amount charged less which cannot be avoided on the ground that the railways wel€ estopped from '-: g/i,' going back on t}re representation. That may be implicit in the ,J ffarsformation of goods or issue of railway receipts showing a lesser amount chargeable towalds freight. In the totality of the above circumstances, thete is no merit in 15. this petition which fails and is dismissed but in the circumstances without anv order as to costs. Augustog,, 2004 pk. -f,/^ Tr:*'ft" 4 GF*'"|.^"/+n- ui'ILJ--'4 ,6 Ot*\s..t'h b I v.r.11," - S" uc*-"71a*