Disposed

Southern Phosphate and Minerals v. Union of India,Ministry of Railways&Ors.

Kerala HC28 Sept 2016WP(C)/35574/2008

Case brief

AI extract

What is this about?

A writ petition challenging the reduction of freight discount on rock phosphate from 35% to 20% under revised Railway incentive schemes. The Court held it could not mandate the scheme change and instead directed the Railway Ministry to reconsider the classification in consultation with the Agriculture Ministry.

What did the court decide?

The writ petition was disposed of with directions for the Ministry of Railways to consider a fresh representation from the petitioner regarding the discount classification, with final orders to be pas

Southern Phosphate and Minerals Vs Union of… — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2016/6TH ASWINA, 1938

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WP(C).No. 35574 of 2008 (I)

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PETITIONER(S) :

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SOUTHERN PHOSPHATE AND MINERAL,

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31/822-C, PONNURUNNI, OPP: TEMPLE, VYTTILA P.O., KOCHI - 682 019, A REGISTERED PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER, M.A.BHASHYAM, AGED 71 YEARS, S/O.LATE AYYAPPAN.

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BY ADV. SRI.K.S.BABU

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RESPONDENT(S) :

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1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF RAILWAYS, NEW DELHI.

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2. SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN, CHENNAI - 600 003, REPRESENTED BY IT'S GENERAL MANAGER.

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3. CHIEF COMMERCIAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, COMMERCIAL BRANCH, CHENNAI - 600 003.

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4. DIRECTOR, TRAFFIC COMMERCIAL (RATES), RAILWAY BOARD, RAIL BHAVAN, NEW DELHI.

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5. CHIEF CLAIMS OFFICER, HEAD QUARTER OFFICE, NORTH WESTERN RAILWAY, JAIPUR.

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BY ADV. SRI.C.S.DIAS, S.C

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 35574 of 2008 (I)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: TRUE PHOTOSTAT COPY OF THE PROCEEDINGS DATED 19.06.1992 ISSUED BY DESK OFFICE (FP), DEPARTMENT OF AGRICULTURE & CO OPERATION, MINISTRY OF AGRICULTURE, UNION OF INDIA.

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EXHIBIT P2: TRUE PHOTOSTAT COPY OF THE PROCEEDINGS DATED 08.04.1993 ISSUED BY THE DEPUTY COMMISSIONER (FERT), DEPARTMENT OF AGRICULTURE & CO OPERATION, MINISTRY OF AGRICULTURE GOVERNMENT OF INDIA.

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EXHIBIT P3: TRUE PHOTOSTAT COPY OF PAGE NO. 30 OF THE FERTILIZER (CONTROL) ORDER, 1985.

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EXHIBIT P4: TRUE PHOTOSTAT COPY OF THE LETTER DATED 14.05.1997 ISSUED BY THE DEPUTY COMMISSIONER (FERT), DEPARTMENT OF AGRICULTURE & CO OPERATION, MINISTRY OF AGRICULTURE, GOVERNMENT OF INDIA TO THE CHAIRMAN & MANAGING DIRECTOR, RAJASTHAN STATE MINERAL DEVELOPMENT CORPORATION LIMITED.

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EXHIBIT P5: TRUE PHOTOSTAT COPY OF THE LETTER DATED 14.08.1996 ISSUED BY THE DEPUTY DIRECTOR, (AGRONOMY/SOILS), THE RUBBER RESEARCH INSTITUTE OF INDIA.

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EXHIBIT P6: TRUE PHOTOSTAT COPY OF THE LETTER DATED 01.02.1994 ISSUED BY THE CAO-TRA& IN-CHARGE, SOIL & W/M DEPT, TOCKLAI EXPERIMENTAL STATION, JORHAT, ASSAM, RAILWAY BOARD, NEW DELHI.

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EXHIBIT P7: TRUE PHOTOSTAT COPY OF THE REPORT DATED 05.09.1996 ISSUED BY THE HEAD, DIVISION OF CHEMISTRY, CENTRAL COFEE RESEARCH STATION-577 117.

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EXHIBIT P8: TRUE PHOTOSTAT COPY OF THE LEAFLET TITLED “PACKAGE OF PRACTICES, RECOMMENDATIONS; CROPS” ISSUED BY KERALA AGRICULTURAL UNIVERSITY.

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EXHIBIT P9: TRUE PHOTOSTAT COPY OF THE CERTIFICATE DATED 21.10.1999 ISSUED BY THE DIRECTOR OF AGRICULTURE & CONTROLLER OF FERTILIZER, COMMISSIONERATE OF AGRICULTURE, SESHADRI ROAD, BANGALORE.

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EXHIBIT P10: TRUE PHOTOSTAT COPY OF THE CERTIFICATE DATED 11.11.1999 ISSUED BY THE DISTRICT AGRICULTURAL OFFICER, SONITPUR, P.O.TESPUR, ASSAM.

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EXHIBIT P11: TRUE PHOTOSTAT COPY OF THE LETTER DATED 22.06.2004 ISSUED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF AGRICULTURE, WEST BENGAL.

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WP(C).No. 35574 of 2008 (I)

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EXHIBIT P12: TRUE PHOTOSTAT COPY OF THE LETTER DATED 16.09.1999 ISSUED BY THE DEPUTY DIRECTOR, TRAFFIC TRANS (F), RAILWAY BOARD TO THE CHIEF MANAGER(MARKETING), RAJASTHAN STATE MINES AND MINERAL, UDAIPUR- 313 001.

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EXHIBIT P13: TRUE PHOTOSTAT COPY OF CIRCULAR NO.97/TT.III/1/2 DATED 16.09.1999 ISSUED BY THE EXECUTIVE DIRECTOR, TRAFFIC TRANS (F), RAILWAY BOARD.

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EXHIBIT P14: THE TRUE PHOTOSTAT COPY OF THE LETTER DATED 29.09.1999 SENT BY THE DIRECTOR OF AGRICULTURE, THIRUVANANTHAPURAM TO THE EXECUTIVE DIRECTOR, FERTILIZER TRAFFIC, RAILWAY BOARD, NEW DELHI.

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EXHIBIT P15: TRUE PHOTOSTAT COPY OF THE CIRCULAR DATED 10.10.2006 ISSUED BY THE DIRECTOR, TRAFFIC COMMERCIAL (RATES) RAILWAY BOARD, NEW DELHI.

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EXHIBIT P16: TRUE PHOTOSTAT COPY OF THE NOTIFICATION FOR RATE ADVICE NO. 3 OF 2007 ISSUED BY THE MINISTRY OF RAILWAYS, GOVERNMENT OF INDIA.

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EXHIBIT P17: TRUE PHOTOSTAT COPY OF THE LETTER DATED 08.02.2006 ISSUED BY THE DIRECTOR TRAFFIC COMMERCIAL (RATES), RAILWAY BOARD, NEW DELHI.

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EXHIBIT P18: TRUE PHOTOSTAT COPY OF PROCEEDING NO. C.493/1/FIS/VOL II DATED 19.02.2008 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P19: TRUE PHOTOSTAT COPY OF THE LETTER DATED 14.07.2008 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

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EXHIBIT P20: TRUE PHOTOSTAT COPY OF LETTER DATED 15.05.2008 SENT BY THE PETITIONER TO THE 3RD RESPONDENT.

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EXHIBIT P21: TRUE PHOTOSTAT COPY OF THE LETTER DATED 01.07.2008 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

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EXHIBIT P22: TRUE PHOTOSTAT COPY OF THE LETTER DATED 28.07.2008 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT.

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EXHIBIT P23: THE TRUE PHOTOSTAT COPY OF THE PROCEEDING DATED 2009 ISSUED BY THE CHIEF COMMERCIAL MANAGER, COMMERCIAL DEPARTMENT, WEST CENTRAL RAILWAY, JABALPUR TO THE 4TH RESPONDENT.

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EXHIBIT P24: THE TRUE PHOTOSTAT COPY OF THE CIRCULAR DATED 21.01.2009 ISSUED BY THE 4TH RESPONDENT.

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EXHIBIT P25: THE TRUE PHOTOSTAT COPY OF THE PROCEEDINGS NO. RSMM/CO/MKT/2008-09/1188 DATED 16.03.2009 ISSUED BY RAJASTAN STATE MINES AND MINERALS LIMITED, UDAIPUR.

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WP(C).No. 35574 of 2008 (I)

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EXHIBIT P26: THE TRUE PHOTOSTAT COPY OF THE RAILWAY RECEIPT NO. 004297 DATED 08.06.2007.

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RESPONDENT(S)' EXHIBITS :

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EXHIBIT R3(1): A COPY OF RATES CIRCULAR NO. 25 OF 2007 DATED 13.03.2007 PROMULGATED BY THE RAILWAY BOARD.

//TRUE COPY//

P.S.TO JUDGE.

Msd.

P.V.ASHA, J.

W.P(C) No.35574 of 2008-I

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Dated this the 28^th day of September, 2016

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JUDGMENT

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The petitioner is a dealer in raw fertilisers including Rock Phosphate (Rajphos). The grievance of the petitioner is against the action of the Indian Railways in reducing the discount in freight charges granted to Rock Phosphate, under the revised incentive scheme, from 35% to 20%. Rajphos (rock phosphate) was being treated as a fertiliser eligible for discount of 35% in freight charges. Consequent to Ext.P17 order issued on 8.2.2008, rajphos (rock phosphate) is included under the head “other commodities”, for which the discount is only 20%.

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The petitioner has produced Ext.P1 order issued by the Government of India, Agricultural Department on 19.06.1992 by which the rock phosphate mined at Udaipur was certified as one suitable for direct application as a source of phosphorous in

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acid soils. This office memorandum was issued with respect to the production of indigenous rock phosphate. Ext.P2 letter is issued by the Ministry of Agriculture on 3.4.1993 addressed to the Managing Director of Rajasthan State Mines and Minerals Ltd. informing that the Department had already communicated its recommendation to Department of Fertilisers regarding the suitability of RSMML rock phosphate for direct application as a source of phosphate in acid soils. The petitioner also relies on Ext.P3- the Fertiliser (Control) Order, 1985, as amended upto June, 2006, which contain rock phosphate at sl.no.6, claiming that it was covered by the Fertiliser (Control Order). It also relies on Ext.P4 letter of the Ministry of Agriculture, Department of Agriculture and Cooperation dated 14.5.1997 addressed to the Chairman and Managing Director, Rajasthan State Mineral Development Corporation Ltd. informing him that rock phosphate was already included in Fertilisers (Control) Order 1985 with the specification that a particle size-minimum 90 per cent of the material shall pass through the specification contained therein. Ext.P5 is a letter dated 14.8.1996 of the Rubber Research Institute of India by which it approved rajphos as a phosphate fertiliser for rubber plantations on the basis of

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the detailed studies undertaken by that institute. Ext.P6 is a letter dated 1.2.1994 in which the addressees were informed that the rajphos could be used in tea as a phosphatic fertiliser. This letter is issued by the Tocklal Experimental Station, Tea Research Association. Ext.P7 is a report dated 5.9.1996 of the Central Coffee Research Institute which also recommended that rajphos can be efficiently used as a phosphorous carrier rock phosphate in coffee fertilisation. Ext.P8 is a copy of a portion of the booklet issued by the Kerala Agricultural University titled “Package of practices, recommendations: Crops. Paragraph 3 thereof provides that rock phosphate can be used advantageously used in rice grown in acid soils during the virippu season. Paragraph 4 provides that it can be used successfully as a phosphatic source for leguminous crop since its root system can extract phosphorous from rock phosphate. The appendix provides for the details of the nutrient content in rajphos. Ext.P9 is a certificate issued by the Department of Agriculture, Government of Karnataka to the effect that rock phosphate is a naturally occurring mineral fertiliser, used as direct fertiliser in State of Karnataka and rajphos is one among the rock phosphates. Ext.P10 is a certificate issued on

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11.11.1999 by the District Agricultural Officer, Sonitpur, Assam to the effect that rock phosphate is a good source of phosphate for crops and its high calcium and magnesium content makes it suitable for use in acid soils. Ext.P11 is a letter dated 22.06.2004 of the Principal Secretary, Department of Agriculture, Government of West Bengal addressed to the Executive Director, Traffic Trains (F), Ministry of Railways informing that rock phosphate is essential for the farmers of North Bengal districts for tea plantation, horticulture and agricultural crop production and requesting to take necessary initiative to make arrangement regarding allotment of rakes for transporting of rock phosphate at Rana Pratap Nagar Station. Ext.P12 is a letter dated 16.09.1999 of the Ministry of Railways addressed to the Rajasthan State Mines & Minerals Ltd. informing that the Ministry of Railways had in consultation with the Ministry of Chemicals and Fertilisers have decided that rock phosphate for direct application as fertiliser will be booked and transported under priority `c' of the preferential traffic schedule by the Railways, provided a certificate to this effect was produced from the concerned State agricultural authority and that rock phosphate for industrial use will be moved under

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priority `D'. Ext.P13 is a letter dated 16.9.1999 of the Ministry of Railways informing the various officers under it in various divisions to the effect that the Central Govt has directed that AnnxA referred to in para 3.23 available in page 1 of P.T.Schedule GO No. 78, be amended to include item 101 and item 4 respectively as follows:

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Annex A-item 101:“Rock Phosphate for direct application as fertiliser, provided a certificate to this effect from the concerned State Agricultural Authority is produced”

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Annex.A1-Item 4- “Rock Phosphate for Industrial use”

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Ext.P14 dated 29.09.1999 is a letter of the Director of Agriculture, State of Kerala addressed to the Executive Director of Fertilizer Traffic, Railway Board, informing that rajphos produced by Rajasthan State Mines & Minerals Ltd., which is a Government of Rajasthan undertaking, is recommended as an ideal phosphate fertilizer for direct application and requesting that railway wagons under `c' category may be allotted for the same. The Ministry of Railways by Ext.P15 letter dated 10.10.2006 addressed the Chief Commercial Managers under it furnishing certain clarifications regarding classification of rock phosphate powder that it comes under commodity head “Chemical Manures”and it has to be charged in class - 120 for

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train load class rate. It was further informed that rock phosphate (in bag) is classified as “CC” and “P1” and rock phosphate (loose) is classified as “Enhanced CC” and “P2(a)”. That letter is stated to have been issued with concurrence of the Finance Directorate in the Ministry of Railways.

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While so, the Ministry of Railways issued Ext.P16, which is the relevant page of a circular, the full text of the same is produced as Ext.R3 by the respondents along with their counter affidavit. Ext.P16/R3 Circular No.25 of 2007 issued on 13.03.2007 is the policy guidelines with respect to the freight incentive schemes and transportation products. This was issued in supersession of the existing freight incentive schemes ordered in RC No. 25, 31, 44, etc., on concession on FCI food grains loaded in BOXN wagons, concession on chemical manures loaded in open wagons and concession on loading of timber waste in covered wagons, concession on cement loaded in open wagons and wagon load classification of commodities loaded on MG and NG system. Paragraph 1.2 states that customers already availing freight concessions under the existing freight incentive scheme such as long term special incentive scheme, will have the option of continuing with the existing arrangement till

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completion of the term as per the agreement entered into between the rail user and Railways under the purview of the existing freight incentive schemes or withdraw from these schemes and opt for any of the new incentive schemes being introduced. Paragraph 4.6 provides for incentive scheme for loading bagged consignments in BOXN with the following objective. “Normally bagged consignments take a longer time to load in BOXN wagons and also need to be covered with tarpaulins quite often. This scheme aims to facilitate such load. “ The incentive in the form of freight discounts at the prescribed rate would be granted at the time of issue of railway receipt at the terminals for loading bagged consignment in BOXN wagons. The percentage of discount is provided as follows:

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*Commodity*	*Discount Percentage*
Fertilizers	35
FCI Foodgrains	40
Salt	Nil
Other Commodities	20

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Thus as far as fertilisers were concerned, the discount continued to be at 35% and in the case of other commodities it was fixed as 20%. The petitioner's grievance is that even though

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the rock phosphate continues to be a fertiliser, the discount granted is only 20%. Since the petitioner was not granted discount @ 35%, he submitted a letter to the Chief Commercial Manager on 30.05.2008 and 12.06.2008 complaining denial of discount @ 35% towards the freight charges incurred by him as per invoice No.RB-1, RR No.884911 of 14/5/2008 to Kottayam from Ex.West Hill. But the Chief Commercial Manager by Ext.P19 letter dated 14.7.2008 informed him that rock phosphate was included under the head of `other commodities' by the Railway Board under letter No.TCR/1618/2007/26 dated 08.02.2008 for the purpose of granting concession under the incentive scheme for loading bagged consignments in BOXN wagons. It was therefore stated that the concession granted to him @ 20% was in order and he was not eligible for concession @ 35%. The petitioner thereafter submitted a representation to the Chief Commercial Manager as per Ext.P20 on 13.05.2008 and submitted Ext.P22 representation to the Chief Commercial Manager, Southern Railways requesting to reconsider the matter and sanction discount @ 35% producing various orders by which the rock phosphate/rajphos was treated as a fertiliser. Ext.P18 letter of the Chief Commercial Manager was issued in terms of

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Ext.P17 letter dated 8.2.2008 in which the Ministry of Railways has ordered to treat rock phosphate under the head `other commodities' for the purpose of granting concession under the incentive scheme for loading bagged consignment in BOXN. It was further stated that the cases already settled in variance to above need not be opened. The petitioner further asserts that in the case of another dealer, discount was granted @ 35% as evident from Ext.P26, rail receipt issued on 8.6.2007.

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Therefore, the case of the petitioner is that it is discriminated for the purpose of granting discount under the incentive scheme. It has also a claim that the policy guidelines Ext.R3 is issued without considering the relevant materials produced by the petitioner as Exts.P1 to P16 and there is no basis for denying the incentive which was being granted upto the year 2007.

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On the other hand, the respondents have filed a counter affidavit stating that there has been a change in the policy and it is consequent to Ext.R3 the discount has been reduced and thus rajphos is treated as one coming under `other commodities' since covered wagons are necessary for its transportation. It is stated that Ext.R3 policy decision has been

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taken by the Railway Board in order to provide freight incentives to transporters, with the objective to promote bagged consignments that can be loaded in BOXN wagon with a shorter duration of time without the need for covering the consignments with tarpaulin sheets. According to them, the commodities which can be loaded quickly and be transported without covering with tarpaulin sheets are granted a higher rate of discount in the freight charges. Since rajphos is not transported in bags and it is required to be covered with tarpaulin, it takes a longer time for loading and unloading of the said commodity to and from a BOXN wagon, which requires longer detention of BOXN wagons at the railway yards. Therefore, it is stated that such commodities are eligible for a discount of 20% in transportation charges and it is not because it is not a fertiliser that the discount is reduced to 20%. It is their further case that the petitioner if at all had any dispute regarding the rate, he should have approached the Railway Rates Tribunal as provided in Section 36 of the Railways Act, 1989.

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The petitioner has filed reply affidavit and additional affidavit further producing Exts.P23 to P25. Ext.P23 is a letter dated 5.1.2009 of the Chief Commercial Manager, Department of

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Commerce, Jalapur with respect to the reduction of discount in freight charges of rajphos in which the Chief Manager informed that rock phosphate marketed as rajphos is not a finished product like NPK and Urea and the bags used are not of standard size or quality ; it is only a mineral enriched form. It further stated: “This Railways is of the opinion that Rock Phosphate should not be given the benefit of freight concession when loaded in BOXN rakes. Moreover it is always loaded in other than the empty flow direction for BOXN wagons.” Ext.P24 is a letter dated 21.01.2009 of the Railway Board addressed to the various General Managers in various divisions under it whereby it was informed that the policy regarding the incentive scheme for loading consignment had been reviewed and Ministry of Railways have agreed to exclude rock phosphate from the discount under the incentive scheme for loading bagged consignment in BOXN wagons and it was instructed that steps should be taken to ensure that there is no reduction in loading due to these revised instructions.

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Heard the learned counsel appearing for the petitioner and the learned Standing Counsel for the Railways. According to the learned counsel for the petitioner, the Ministry

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of Railways does not have any authority to decide whether rock phosphate is a fertilizer or not since rock phosphate was treated as a fertilizer and incentives were given for its transportation for the purpose of assisting the farmers, on the basis of the recommendations made by the Ministry of Agriculture. On account of the exclusion of rajphos from among fertilizers under the incentive scheme and inclusion of it under the head 'other commodities', the ultimate sufferers will be the farmers and therefore, classification of rajphos under the head 'other commodities' is without any basis.

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On the other hand, the contention of the learned Standing Counsel is that the Railways has taken a policy decision considering the transportation facilities, time taken and the other requirements for its transportation. Rock phosphate, requires covered wagons and loading and unloading are time consuming, with longer detention in the yards. The petitioner's contention with reference to various orders and certificates issued by various authorities to the effect that rajphos is a fertilizer is not disputed. It is pointed out that the alteration is effected only on incentives.

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On consideration of the rival contentions on either

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side, it is seen that the revision in incentives is effected on the basis of revised policy decision of the Railways as evident from Ext.R3 whereby guidelines are issued. Railways has in its wisdom decided to classify the criteria for providing incentives on the basis of the time consumed for loading and the use of BOXN wagons, in order to facilitate loading. Paragraph 4.6 of Ext.R3 provides for the objectives for the incentive scheme as follows:”Normally bagged consignments take a longer time to load in BOXN wagons and also need to be covered in with tarpaulins quite often. This scheme aims to facilitate such loading. It further provides: Following freight discounts would be granted at the time of issue of railway receipts at the terminal for for loading bagged consignment in BOXN wagons. Discount admissible for fertilizers is 35% and for it is 20% for other commodities. The only condition is that it should be in BOXN wagons. It is true as contended by the petitioner that the percentage given therein is for loading bagged consignment in BOXN wagons and para 4.6 do not differentiate fertilizers further. However, further orders issued on 8.2.2008 by the Director of Traffic Commercial(Rates) as per Ext P17, clarified that Rock Phosphates (Raj Phos) is to be treated under the head

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“other commodities”. This order is stated to have been issued in concurrence with the Finance Directorate of Ministry of Railways. Once there is such a clarification in concurrence with the Ministry, and if it is applied uniformly the petitioner cannot have any valid objection as against the denial of incentive at 35% by the officials in Ext.P19 order dated 14.7.2008 or any other order with respect to the freight charges incurred by him after 8.2.2008. However the petitioner challenges Ext.P17 order also. It is seen that for the purpose of granting incentives the commodities transported are classified under 4 heads providing for the percentage of discount admissible under each head/class. It is stated that bagged consignments in BOXN wagons take long time for loading and unloading and it requires to be covered by tarpaulin. Ext.R3 is seen further clarified by the issuance of Ext.P24 dated 21.1.2009, according to which, Ext.R3 policy has been further reviewed and the Ministry of Railways have accorded sanction to exclude rock phosphate from the discount under the incentive schemes for loading bagged consignments in BOXN wagons, with effect from 27.1.2009. In this view of the matter, this court will not be in a position to direct the Railways to amend the incentive scheme or to declare that rock phosphate

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is a fertilizer and therefore entitled to incentive as admissible to fertilizer or to grant or enhance the discount under the incentive scheme.

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Even though the petitioner has alleged discrimination relying on Ext.P26 railway receipt in which 35% of discount is given to another dealer towards freight charges, it can be seen that the railway receipt was issued in June, 2007 within a period of 3 months of Ext.R3. Just because a railway receipt has been issued to another dealer granting discount of 35%, this court cannot direct the Railways to grant discount @ 35% to the petitioner as incentive for freight charges, irrespective of the rules in force.

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Yet another contention raised by the respondents was that the petitioner should have approached the Railways Rates Tribunal constituted under Section 33 of the Railways Act. Section 30 of the Railways Act provided that Central Government may from time to time fix the rates for the carriage of passengers and goods and specify in such order the conditions subject to which such rate shall apply. Section 30 reads as follows:

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“30. Power to fix rates:-(1) The Central Government may, from time to time, by general or special order fix, for the carriage of passengers and goods, rates for the whole or any part of the railway and

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different rates may be fixed for different classes of goods and specify in such order the conditions subject to which such rates shall apply.

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(2) The Central Government may, by a like order, fix the rates of any other charges incidental to or connected with such carriage including demurrage and wharfage for the whole or any part of the railway and specify in the order the conditions subject to which such rates shall apply.”

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Sub section 2 also provides that the Central Government can fix the rate of any other charges incidental to or connected with such fares including demurrage and wharfage for the whole or any part of the Railways and the condition subject to which such rates shall apply. Section 31 empowers the Central Government to classify or reclassify any commodity for the purpose of determining the rates to be charged for the carriage of such commodities and increase or reduce the class rates or other charges. Section 36 provides for the nature of complaints which can be submitted before the Railways Rates Tribunal, against Railways administration. Those are when it (a) contravenes the provisions of section 70; (b) charging for the carriage of any commodity between 2 stations at an rate which is unreasonable or (c) levying any other charge which is unreasonable. Section 70 provides for prohibition of undue preference or advantage to or in favour of, any particular person or any particular description of traffic in the carriage of goods.

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In this case, the grievance of the petitioner is as against the classification of the rock phosphate for the purpose of granting discount in freight charges. When the Central Government has already issued orders and the grievance of the petitioner is as against the action taken on the basis of the said order, the contention that the petitioner has to approach the Railways Rates Tribunal cannot be sustained.

¶112

At any rate, since the petitioner claims that the incentive @35% of freight charges was being given for a long time till the year 2007 on the basis of various recommendations by the Department of Agriculture as well as other institutions and that it was resulting as an incentive to the farmers also, it is a matter to be considered by the Ministry of Railways themselves in consultation with the Ministry of Agriculture. Ext.R3/Ext.P17 forms part of policy guidelines and it is in supersession of the earlier guidelines with respect to the incentive scheme that Ext.R3 has been issued. In the light of the certificates produced from various authorities to show that rock phosphate is a fertilizer and in the light of revised incentive scheme which continues to provide for discount to fertilizers at 35%, I am of the view that it is a matter which requires consideration by the

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Railways.

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In the above circumstances, the matter requires consideration by the Ministry of Railways in consultation with the Ministry of Agriculture or Department of Fertilisers. For the purpose of consideration of the same, the petitioner would be free to submit a representation before the 1^st respondent along with a copy of this judgment and on receipt of the same, the 1^st respondent shall consider the same and pass orders on it after affording an opportunity of hearing to the petitioner, with reference to the documents relied on by him and referred to in this writ petition and the representation to be submitted. Orders shall be passed and communicated to the petitioner within a period of three months from the date of receipt of a copy of this judgment.

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The writ petition is disposed of with the above directions.

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Sd/- (P.V.ASHA, JUDGE)

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rtr/

Southern Phosphate and Minerals v. Union of India,Ministry of Railways&Ors.

Case brief

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Southern Phosphate and Minerals v. Union of India,Ministry of Railways&Ors.

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