Dismissed

J.K.Lakshmi Cement Limited v. Union of India and Ors.

Rajasthan HC24 Nov 2023CW/112/2007

Case brief

AI extract

What is this about?

In this writ petition regarding freight concessions for cement transportation, the High Court dismissed the petitioner's claim for a refund and quashing of the rejection order, holding that the petitioner knew the applicable policy restrictions which barred overlapping concessions.

What did the court decide?

Nothing was granted as the writ petitions were dismissed. The petitioner is not entitled to any refund or concession.

J.K.Lakshmi Cement Limited Vs Union of India and Ors. — Service and Employment | Rajasthan HC (2023)

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(1 of 6) [CW-6083/2006]

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[2023:RJ-JD:40599]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 6083/2006

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Jk Lakshmi Cement Ltd.

----Petitioner

Versus

U.o.i. And Ors.

----Respondent

Connected With

S.B. Civil Writ Petition No. 112/2007

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J.k.lakshmi Cement Limited

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	----Petitioner Versus
Union Of India And Ors.	----Respondent
For Petitioner(s) :	Mr. Pankaj Kumar Bohra Mr. Rahul Sharma
For Respondent(s) :	Mr. B.P. Bohra Mr. Pooshan

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HON'BLE MR. JUSTICE ARUN MONGA

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Order

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24/11/2023

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Vide this common order and judgment, the above-mentioned two writ petitions are being disposed of since facts are analogous and issues raised therein are common. For brevity, recitals are taken from SBCWP No.112/2007.

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These writ petitions have been filed seeking following relief as per the prayer clause therein: -

(2 of 6)

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“(i) Learned counsel for the petitioner states that the orders dated 23.02.2006 and 27.09.2006 be quashed and set aside by issuing a writ of certiorari or any other appropriate writ, order or direction after summoning relevant records from the respondents.

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(ii) Learned counsel for the petitioner states that respondents be directed to refund a sum of Rs.1,35,71,681/- to the petitioner-company alongwith interest atleast @ 18% p.a.”

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Succinct facts first, as pleaded in the petition. In June 2002, the Railway Board issued guidelines regarding freight quotations for station-to-station (STS) concessional rates for specific commodities. Subsequent modifications were made in September 2002, and in January 2003, the Central Government approved a 10% concession in freight rates for cement and chemical manures. In December 2003, the North-Western Railways granted STS concession for 36 streams in favor of the petitioner for the transportation of cement, with a 10% concession on freight Normal Traffic Rate (NTR). However, in 2006, the petitioner's claim for STS concession for the Shakur Basti stream was rejected, citing non-fulfillment of targets.

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The petitioner communicated with the Railways, asserting that the rejection was unjust . It pointed out the inclusion of quantities loaded into open wagons for STS concessions. Despite the petitioner's efforts, the Railways maintained their decision, stating that the benefit of open wagons had already been availed, rejecting the refund request, citing the STS policy. Hence writ petitions challenging this rejection.

(3 of 6)

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A counter affidavit has been filed in SBCWP No.112/2007 denying the claim of the petitioner, not only on merits but even on maintainability of the writ petition.

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I have heard learned counsel for the parties.

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Ordinarily, this Court would have dismissed the writ petition on the grounds of not having exhausted the alternative remedy as provided under the Railways Act and not approaching the Railway Claims Tribunal. A specific preliminary objection has also been raised by the respondent-Union of India, that the petitioner has not approached the Railway Claims Tribunal before coming to this Court. However, given that the petition has remained pending since 2006, to remand the matter at this stage for an alternative remedy, will prolong litigation, and also amount to travesty of justice due to the sheer delay that may be caused in the process. 7. Accordingly, I shall proceed to delve into the merits of the petitioner's claim. 8. It is borne out that the entire transaction between the parties herein is commercial in nature, based on certain terms and conditions of the agreement executed between them. To that extent, the remedy for the same, if at all, would rather have been a competent court of jurisdiction deciding the rival claims based on the evidence adduced by the parties. This Court is not equipped, under extraordinary writ jurisdiction, to decide disputes of such a nature.

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Be that as it may, it transpires that the petitioner is seeking a refund of the money which has already been adjusted by the railways towards the future liability, which may arise, rather than physically accepting the claim for reimbursement.

(4 of 6)

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[CW-6083/2006]

The claim of the petitioner for refund of the money, in any case, lacks merit in view of the Station to Station (STS) Concessional Policy. The ground for raising such a claim by the petitioner is that he is entitled to a 10% benefit on the freight given in respect of the dispatches made through the open wagons. In the context of seeking such a benefit, instructions No.36 of 2002 of the STS issued by the Railway Board vide an order dated 06.06.2002 is relevant, which is reproduced hereinbelow: -

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“2.0 Principles for reducing freight rates

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2.1 Concession under the STS scheme will be granted only if the rail user offers written commitment to move traffic equal to or higher than the benchmark as defined in para 4.0 and subject to other provision mentioned under para 2.0.

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2.2 The STS concession will be in the form of percentage discount over the prevailing freight rates.

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2.3 Zonal railways need to exercise their rate reducing powers with the objective of retaining the existing levels of earnings and also attracting additional traffic to rail to generate higher revenues. The level of earnings will be judged on the basis of total earning from that particular stream of traffic by the same rail user during the corresponding period of the preceding year(s).

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2.4 Grant of STS concession between new pair(s) of stations should not lead to diversion of traffic from adjacent zonal railways.

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2.5 Concession under the STS Scheme can be granted only to that volume of traffic to which concession under no other scheme has been granted.

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2.6 While quoting STS rates, it should generally be seen that the reduced rates cover the fully distributed cost for moving the traffic. However, in case of idling of assets, the rates may cover only the marginal cost.”

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The perusal of the above instructions reflects that there is a specific condition contained in clause-2.5, ibid, that concessional

(5 of 6)

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policy under STS can be granted only to that volume of traffic to which concession under no other scheme has been granted. It is not the case of the petitioner that he was not aware of the aforesaid instructions. It carried out the work fully being aware of the said instructions and neither are the aforesaid instructions under challenge by the petitioner before this Court.To that extent, I am unable to persuade myself that the claim of the petitioner is entitled to any concession in view of a specific bar contained under para 2.5 (supra).

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Furthermore, the claim of the petitioner was rejected after due application of mind, and it was not done with any malafide intentions of any kind. The record reveals that the petitioner had submitted a representation qua the same, and it was considered by senior functionaries who were members of the Committee consisting of CCM, COM, FA & CAO, CCM/G, and FA & CAO/G to deal with the said representation.

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The aforesaid Committee, after due examination of the relevant documents submitted by the petitioner company in support of its claim, found the same to be inadmissible. Another aspect of the matter that deserves to be noted is a letter dated 02.12.2003, which was specifically states in para-9 thereof that ''all other terms and conditions shall be applicable as per Railway Board Rates , Instructions No.36/2002 dated 06.06.2002 and rate instruction No.62 of 2002 dated 29.09.2002.'' The said letter is not denied by the petitioner. In view thereof, the petitioner could not have subsequently turned around that the aforesaid instructions and the conditions contained in the specific letter are not applicable to him, as already observed hereinabove. Neither

(6 of 6)

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are the instructions under challenge nor the conditions imposed vide the letter dated 02.12.2003 are under challenge in the writ petition

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Accordingly, it is held that the petitioner is not entitled to any concession as claimed by it, and its representation was dealt by the Committee in accordance with the applicable instructions. I found no grounds to interfere in the same.

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These writ petitions are thus dismissed.

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Pending application(s), if any, shall also stand disposed of.

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(ARUN MONGA), J

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102-Taruna/-

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Whether reportable Yes / No

J.K.Lakshmi Cement Limited v. Union of India and Ors.

Case brief

What is this about?

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J.K.Lakshmi Cement Limited v. Union of India and Ors.

Case brief

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What the court decided

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