High Court · 2012

4. The contention of the railway in the written statement filed before the Tribunal was that the freight for transportation of the aforesaid goods from New Bongaigaon to Amlai was charged under classification 145 @Rs.67.40 per quintal under the provision of ’station to station rate’, as empowered by Section 32(a) of the Railways Act, 1989 (in short the 1989 Act) and hence the appellants canno t claim refund of the freight, on the ground that though the freight was charged on the basis of the distance to be travelled between the two stations through a longer route, the goods were carried by a shorter route. The Tribunal has rejec ted the applications filed by the appellants claiming refund of the proportionat e rate by accepting the contention of the railway and hence the present appeals.

5. I have heard Mr. A.D. Choudhury, learned counsel appearing for the appel lants and Mr. U.K. Goswami, learned counsel appearing for the respondent railway . I have also perused the orders passed by the Tribunal apart from the materials made available by the parties in the appeals. It has been submitted by Mr. Choudhury, learned counsel for the appellan 6. ts that under Rule 125(1) of the Goods Tariff Rules, 1992 (in short the 1992 Rul es), the Railway Administration is obliged to carry the goods from one station t o another through the shortest route, in the absence of any specific instruction in writing from the sender or his authorized agent to the contrary and at the c harge by the cheapest route i.e. the route by which the freight charges are at t he lowest. In the instant cases, since the railway admittedly did not carry the goods from New Bongaigaon to Amlai through the available shortest route at the c harges by the cheapest route and instead carried the goods by a longer route by charging the freight accordingly, having regard to the distance to be covered in the longer route, there is infraction of Rule 125(1) of the 1992 Rules. The lea rned counsel submits that though the Railway Administration under Section 32 of the 1989 Act has the power to charge certain rates, for carriage of any commodit y including the ’station to station rate’, the Railway Administration cannot, in view of the provisions contained in Rule 125(1) of the 1992 Rules, charge the f reight for carriage of the goods, on the basis of the ’station to station rate’, if that rate is more than the rate for carriage of the goods by the shortest ro ute at the charges by the cheapest route i.e. the route by which the freight cha rges are at the lowest. The learned counsel submits that since admittedly the ap pellants were charged the freight for carrying the goods from New Bongaigaon to Amlai through a longer route, may be on the basis of the ’station to station rat e’, and the goods were carried by a shorter route after travelling a shorter dis tance, the appellants are entitled to the refund of the proportionate freight re alized from them for carrying the goods from New Bongaigaon to Amlai by a shorte r distance. The learned counsel submits that in the absence of any specific inst ruction for carrying the goods from New Bongaigaon to Amlai by other than the sh ortest route or the cheapest route, as required under Clause 125(1)(d) of the 19 92 Rules, and the goods having been carried to Amlai by a shorter route though t he freight was charged for carriage by a longer route, the appellants are entitl ed to the refund of the proportionate freight realized from them. Mr. Goswami, learned counsel appearing for the Railway Administration, o 7. n the other hand, referring to the RRs has submitted that it has specifically be en mentioned therein that the freight was charged on the basis of the concession al rate applied vide circular dated 02.09.1993 issued by the Railway Authority, which was in force at the relevant point of time and the Railway Administration having been empowered by Section 32(a) of 1989 Act to carry the goods from one s tation to another at ’station to station rate’, which is a concessional rate, th e appellants are not entitled to the refund of the proportionate freight charged , even if such ’station to station rate’ is equivalent to the distance to be cov ered between the two stations by a longer route and the goods were in fact carri ed by a shorter route covering lesser distance. I have considered the submissions advanced by the learned counsel for th 8. e parties and also perused the materials made available on the records of the MF As, apart from the common order passed by the Tribunal, which is under challenge in the present appeals. In the present appeals the following facts are not in dispute:- Booking of the bamboo cuts by the appellants for transportation by railw

9. (i) ays from New Bongaigaon to Amlai vide different RRs of different dates. (ii) Realization of the freight from the appellants by the Railway Administra tion for carriage of the said goods at ’station to station rate’ and on the basi s of the notification issued by the N.F. Railway dated 02.09.1993, which was in force at the relevant point of time of booking of the consignment for transporta tion. (iii) n rate’ and charge of the freight for carriage of the goods. (iv) n to Amlai via MLDT/DKAE. Approximate distance between New Bongaigaon to Amlai via MLDT/DKAE i.e. (v) 1769 km and the distance between the said two station via Andal-Anara-Chakradhar pur i.e. about 1510 km. Reflection in the RR about proposed carriage of goods from New Bongaigao Endorsement in the RRs relating to the application of ’station to statio The question which requires determination in the present appeals, in vie 10. w of the aforesaid undisputed facts is - whether the appellants are entitled to refund of the proportionate rate charged and realized from them under ’station t o station rate’, for carrying the goods from New Bongaigaon to Amlai by a shorte r route, namely, via Andal-Anara-Chakradharpur.

11. Section 2(38) of the 1989 Act defines ’station to station rate’ as a spe cial reduced rate applicable to a specific commodity booked between specified st ations. Sub-section (1) of Section 30 of the said Act empowers the Central Govt. to fix rates for carriage of passengers and goods for whole or any part of the railway. It also authorizes the Central Government to fix different rates for di fferent classes of goods apart from specifying the conditions subject to which s uch rate shall apply. Clause (a) of Section 32 of the said Act empowers the Rail way Administration to quote the ’station to station rate’, in respect of carriag e of any commodity and subject to such condition as may be specified, notwithsta nding anything contained in Chapter VI, which empowers the Central Government to fix the rates for carriage of passengers and goods by railway. Chapter IX of th e 1989 Act deals with the carriage of goods. Section 71(1)(b) empowers the Centr al Government to issue general or special order directing the Railway Administra tion to carry any goods or class of goods by such route or routes and at such ra te.

12. One of the objects of enactment of the 1989 Act was to empower the Centr al Government to fix the rates for carriage of passengers and goods over the rai lways, instead of the provisions existing prior to the said enactment to fix onl y the maximum and minimum rates for such carriage and leaving fixation of specif ic rates to the Railway Administration, apart from authorizing the Railway Admin istration to specify lump sum rates for carriage of goods. To carry out the prov isions of 1989 Act, the Goods Tariff Rules, 1992 has been framed. Rule 125(1)(b) of the said Rules provides that in the absence of specific instruction in writi ng from the sender or his authorized agent to the contrary, goods will be despat ched by the shortest route at the charges by the cheapest route, i.e., the rate by which the freight charges are at the lowest. The term (cid:28)shortest route (cid:29) is def ined in Clause (a) of sub-rule (1) of Rule 125 as the shortest route between the forwarding and receiving stations as determined on the basis of the distance no tified by the railways as being the distance for charge. Clause (d) provides tha t when a consignment is required to be charged and forwarded by other than the s hortest route or the cheapest route, the sender or his authorized agent must giv e written and signed instruction on forwarding note, as specified therein. Claus e (h) of Rule 125(1) of the said Rule provides that notwithstanding anything con tained in Rule 125(1)(b), on the Central Government issuing an order under Secti on 71(1)(b) of the 1989 Act that goods specified in the order can be carried and charged by a route specified therein or by any of the alternative routes specif ied therein, goods will be chargeable by the specified route or any of the speci fied alternative routes over which such goods are actually carried, even if it i s not the cheapest route.

13. It thus appears from the aforesaid provisions of the Act and the Rules f ramed that while the power to fix the routes for carriage of the passengers and goods vest on the Central Government under sub-section (1) of Section 30 of the 1989 Act, the Railway Administration has been given the power to charge the rate for carriage of any commodity by quoting a ’station to station rate’, under Cla use (a) of Section 32 of the said Act. The Central Government has also the power to issue the order, under Section 71(b) of the Act, to the Railway Administrati on to carry any goods or class of goods by any route or routes and at a rate to be fixed by the Central Government. As noticed above, Rule 125(1)(b) requires th e Railway Administration to carry the goods from one station to another by the s hortest route at the charges by the cheapest route provided there is no specific instructing in writing contrary thereto by the sender or his authorized agent o n the forwarding note. The obligation on the part of the Railway Administration to carry the goods by shortest route at the charges by the cheapest route is sub ject to the order that may be passed by the Central Government under Section 71( 1)(b) of the 1989 Act. When such an order is passed under the said provision, th e freight is chargeable for carrying the goods by the specified route or any of the specified alternative routes over which the goods are actually carried, even if it is not the cheapest route.

14. In the instant case, the goods were carried from New Bongaigaon to Amlai via Andal-Anara-Chakradharpur, though in the RR it has been mentioned that the goods would be carried from New Bongaigaon to Amlai via MLDT/DKAE, the distance of which is approximately 1769 km. There is also an endorsement in the said RR t hat the concessional rate pursuant to the notification dated 02.09.1993 is appli ed, meaning thereby that the concessional ’station to station rate’ as notified by the N.F. Railway vide notification dated 02.09.1993 has been applied. There i s no written instruction from the sender or his authorized representative to car ry the goods from New Bongaigaon to Amlai via MLDT/DKAE, which is a longer route in comparison to the distance between the New Bongaigaon to Amlai via Andal-Ana ra-Chakradharpur, through which route the goods were in fact carried. The note r elating to the charge of the freight on concessional ’station to station rate’ w as put by the Railway Administration in the RR and not by the sender. In the abs ence of any such endorsement in writing in the forwarding note for carrying the goods by other than the shortest route or the cheapest route, the Railway Admini stration is obliged to carry the goods by the shortest route at the charges by t he cheapest route as required under Rule 125(1)(b) of the 1992 Rules. In the ins tant case, it is not in dispute that though in the RR it has been shown that the goods would be carried from New Bongaigaon to Amlai via MLDT/DKAE, those were c arried to the destination station via Andal-Anara-Chakradharpur. The freight, ho wever, was charged on the basis of the ’station to station rate’ pursuant to the notification dated 02.09.1993. Nothing could be placed before the Tribunal or t his Court by the Railway administration to demonstrate that the Central Governme nt has issued any special or general order as required under Section 71(1)(b) of the 1989 Act specifying that the goods can be carried and charged by a route sp ecified therein, so as to deprive the sender from the benefit of the provisions contained in Rule 125(1)(b) of the 1992 Rules.

15. The plea taken by the Railway Administration that since it has the power under Section 32(a) to charge freight on ’station to station rate’ and as such charged, the appellants would not be entitled to refund of the freight even if t he goods are carried by a shorter route, cannot be accepted in the instant cases , as, such ’station to station rate’ cannot be more than the freight to be charg ed for carrying the goods by the shortest route, thereby compelling the senders to book the consignment at a much higher rate by the railway, more so when the r oute in which the goods were to be carried though has specifically been mentione d in the RR i.e. by the longer route, the goods were in fact carried by a shorte r route. It would have been different, had the railway carried the goods in the route mentioned in the RR. The Railway Administration cannot be allowed to make undue profit by charging the freight on the basis of a longer route, in the name of ’station to station rate’ and then carrying the goods by a shorter route.

16. In view of the aforesaid discussion, the Railway administration is direc ted to work out the freight chargeable at the relevant point of time for carryin g the goods from New Bongaigaon to Amlai via Andal-Anara-Chakradharpur, in which route the goods were carried, and to pay the appellant the difference, if any, of the freight charged on the basis of ’station to station rate’ and the freight payable for carrying the goods in the aforesaid route, with interest @6% per an num from the date of filing the claim petitions till the date of payment.

17. peals are allowed to the extent indicated above. No cost. The common order passed by the Tribunal is accordingly set aside. The ap