BAGADIYA BROTHERS PVT LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) FOUR writ petitions concerning identical issues are taken up together for hearing with the consent of the parties. For the purpose of appreciating the facts giving rise to the issues in the four writ petitions, the factual matrix of W.P. No. 336 of 2009 is dealt with. The facts in the other three writ petitions are similar to that of W.P. No. 336 of 2009.

(2.) THE writ petitioners contend that, the Rationalisation Scheme being General Order No. 1/2007 dated 22, 2007 and the Special Rates Circular dated March 27, 2007 and the amendments thereof are ultra vires the provisions of Section 71 of the Railways Act, 1989. It is contended on behalf of the writ petitioners that, the Rationalisation Scheme has been issued by the Railway Board. The Indian Railway Board Act, 1905 invests the Railway Board with certain powers of functioning under the Indian Railways Act, 1890. The Railways Act, 1989 has repealed the Indian Railways Act, 1890. The Indian Railway Board Act, 1905 has not been amended to empower the Railway Board to act in terms of the Railways Act, 1989. Consequently, the Railway Board has no jurisdiction to issue the Rationalisation Scheme being General Order No. 1/2007 dated March 22, 2007. Such Rationalisation Scheme could not be construed to be an exercise of power conferred by Section 71 of the Railways Act, 1989. It is also contended that Section 71 of the Railways Act, 1989 requires the Central Government to form an opinion. The Central Government could not delegate its power to form an opinion to the Railway Board assuming that the Railway Board is invested with the same powers under the Railways Act, 1989 as that of the Indian Railways Act, 1890. With regard to the Special Rates Circular dated March 27, 2007 it is submitted that, such Special Rates have been brought into vogue on the basis of the instructions embodied in the Rationalisation Scheme. Since the Rationalisation Scheme is bad, any step taken pursuant thereto including the Special Rates Circular dated March 27, 2007 would also be bad.

(3.) ADVERTING to the facts of the case it is submitted that the Railway Authorities have claimed diverse amounts from the writ petitioners on the ground of undercharging of the Railway Receipt in view of the Special Rates Circular dated March 27, 2007 issued in terms of the Rationalisation Scheme. It is contended that, such demand had been made subsequent to the delivery of the goods. Consequently, under Section 78 of the Railways Act, 1989 the Railway authorities could not have demanded any amount on account of undercharging of the Railway Receipt after delivery of the goods. Reliance is placed on the judgment and order dated February 25, 2015 of the Full Bench rendered in FMA 317 of 2001 (Union of India v. Biswanath Agarwal) in support of the contention that the freight charged by the Railways could not be revised after delivery of the goods to the consignee or its order.