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Judgment
1.Heard Mr. G. N. Sahewalla, the learned Senior Counsel, assisted by Mr. M. Sahewalla, the learned counsel for the
petitioner as well as Mr. B. Sarma, the learned Standing Counsel, for the respondents Railways.
Based on the request of the present petitioner, the respondent railway vide Rate Circular No.41/2008 dated 13.08.2008 accorded to grant 20%
freight concession (rebate) on Normal Traffic Rates (NTR) on bamboo traffic booked from N.F. Railway in empty flow direction by M/s Kalpataru
Agro Forest Enterprises Private Ltd., the petitioner herein along with 2 (two) other bamboo merchants on certain terms and conditions. The said grant
as per the said Circular No. 41/2008 remained effective from 23.08.2008 up to 22.02.2009. Vide letter dated 20.10.2008, the respondents railway
informed the present petitioner thereby modifying one of the conditions in the said Circular No. 41/2008 dated 13.08.2008 and the same is reproduced
hereinbelow:-
“ Sir,
In reference to the above, it is to inform you that 20% freight concession on Bamboo traffic have been granted for three parties, i.e., M/s Rahul
Enterprises, M/s Bharat Bamboo & Timber Suppliers and M/s Kalpataru Agroforest Enterprises under RC/No. 41/2008. It has been clarified that
Bamboo Merchants other than the three parties mentioned above are not eligible for availing concession under provision of this circular. The Rail
users who are eligible for concession under Rate Circular No. 41/2008 but did not offer any loading in the corresponding period of previous year,
would be eligible for granting 50% discount of the prescribed rates.â€
Vide letter dated 19.11.2008, the respondent railway further clarified the position which was already recorded in the letter dated 20.10.2008,
following which the railway authority asked the present petitioner to amend certain stipulations in the agreement already submitted by the present
petitioner in order to modify in the said agreement the modifications of the said Circular No. 41/2008. It was further intimated to the present petitioner
asking it to be present in the office of the respondents with 2 (two) copies of non-judicial stamp papers of Rs. 50/- each for execution of the
agreement. The present petitioner failed to sign such modified agreement. The petitioner started loading bamboo for despatching it to the destination
beyond the State of Assam, i.e., in the empty flow direction and against that the N.F. Railway had earned revenue in the form of freight charge.
The present petitioner sought for clarification from the respondents and confirmation of the admissibility of 20% freight concession in reply to
which, the respondent No. 4 issued letter dated 19.11.2008 intimating therein that the Circular No. 41/2008 was modified vide letter dated 29.09.2008,
whereby it has been stated that the rail user, who are eligible for freight concession under Railway Circular No. 41/2008, but did not offer any loading
in the corresponding period of previous year would be eligible for granting 50% discount of the prescribed rates, i.e., 10% out of the 20% rebate.
Being aggrieved by the said clarification, the petitioner preferred WP(C)5369/2008 and vide judgment and order dated 19.07.2011, this Court
dismissed the said writ petition, which was challenged in Writ Appeal No. 365/2011 and the same was also dismissed vide judgment and order dated
15.12.2011. Though SLP was filed before the Supreme Court, the same was dismissed vide order dated 04.05.2012.
The Division Bench in the said Writ Appeal No. 365/2011, while dismissing the same, held as follows:-
“The petitioner having not conformed to the requirements of the terms and conditions of the Rates Circular No. 41/2008, cannot claim the
concessional rate. As noted above, the learned Single Judge has exclusively dealt with the matter. Considering all the aspects of the matter, has also
provided that it would be open for the petitioner to make a representation with performance report to the railways and in the event of making such
representation, the Railways would consider the same in terms of the said Circular No. 41/2008.â€
After rejection of the petitioner’s claim of 20% freight concession and in terms of the observation of the Division Bench, the petitioner vide
representation dated 03.07.2012 and 19.09.2012 sought for availing the 50% discount out of the prescribed concessional rate of 20%. The same was
rejected by the respondent railway vide letter dated 12.08.2013 in the light of the order passed by the Hon’ble Apex Court affirming the order of
the dismissal of the WP(C) 5369/2008.
Thereafter, the present petitioner preferred this writ petition thereby claiming 10% freight concession to which the petitioner is entitled, the same
having rejected by the railway authority vide letter dated 12.08.2013.
Mr. Sahewalla, the learned Senior counsel, submits that the petitioner claimed for the 20% freight concession as per the Circular No. 41/2008 and,
thereafter, it was decided by this Court that the petitioner is not entitled to the said 20% freight concession as the petitioner did not offer any loading in
the corresponding period of previous year as per the Railway Circular No. 41/2008. But, as per the said letter dated 20.10.2008, it is very much clear
and apparent that if the petitioner fails to qualify for the 20% freight concession then automatically the petitioner would be eligible for granting 50%
discount of the prescribed rates. Accordingly, the petitioner filed its representation dated 03.07.2012 to consider the application in accordance with law
and to allow the present petitioner to avail 50% discount of the prescribed rates, i.e. 10%. The said representation was rejected by the respondent vide
letter dated 12.08.2013.
The learned Senior counsel submits that the said rejection of the representation and the alleged disentitilement of the petitioner by the railway
authority is totally illegal. Mr. Sahewalla submits that the petitioner continued loading keeping in mind that in the event the 20% freight concession is
not granted to the petitioner, then it would be entitled to the alternate 10% freight concession. Though the claim for 20% freight concession was
rejected by this Court that alone cannot be the yardstick to reject the prayer of the petitioner which the railway authority has duly considered and
granted vide their letter dated 20.10.2008. The terms stipulated in the subsequent letter dated 20.10.2008 need not be accepted rather the same has its
binding force so far the present petitioner along with other 2 (two) bamboo merchants and the Railway authority are concerned. Further, it is
submitted that out of the two offers if the petitioner is not entitled for the freight concession of 20%, it would automatically flow that the petitioner is
entitled to the alternate concession, which is specifically provided to the petitioners. Accordingly, Mr. Sahewalla submits that this is a fit case for
interference by this Court.
Mr. Sarma, the learned counsel for the respondents, submits that the content in the letter dated 20.10.2008 is a mere offer and until and unless the
same is accepted in an expressed form by the petitioner, the same cannot be termed to be a binding term of the agreement between the parties to the
writ petition. The said circular is not having the force in rem. Rather, the same is a benefit given to the three parties as a special concession. Referring
to the letter dated 19.11.2008, Mr. Sarma submits expressing the intention of the respondents railway, the petitioner was called for execution of a
fresh agreement thereby stipulating the terms of the alternate provision which the present petitioner is claiming in this writ petition. However, they
opted not to enter into the agreement thereby agreeing the said terms. Filing of the writ petition earlier itself shows the intention of the petitioner that
they are not agreeable to the alternative terms, which now they have claimed in this writ petition inasmuch as such act on the part of the petitioner
amounts to estoppel and they are estopped from claiming the concession of the 50% of 20% freight concession.
Further it is submitted that if there is a term binding on the part of the respondent railway for arguments sake, supposed to be performed, the act of
filing the writ petition earlier expressly goes to show the intention that the petitioner under no circumstances would accept the alternative concession.
Thus, Mr. Sarma submits that the petitioner is not entitled to the relief as sought for in this writ petition.
I have considered the submissions of the learned counsels.
The Circular No. 41/2008 shows the conditions for a party to be qualified in getting the freight concession for grant of 20% rebate on the NTR on
bamboo traffic booked from N.F. Railway in empty flow direction, the said terms and conditions does not include the alternate concession reflected in
the letter dated 20.10.2008. It is the clarification, which is the outcome of the railway authority expressed by the said letter dated 20.10.2008, wherein
it has been specifically mentioned that the rail user, who are eligible for freight concession under Railway Circular No. 41/2008, but did not offer any
loading in the corresponding period of previous year would be eligible for granting 50% discount of the prescribed rates. Accordingly, it is argued that
the petitioner was upon the bonafide belief that in the event of failure of qualifying the criteria for entitlement to 20% freight concession, the petitioner
would be eligible for 50% concession of the prescribed rate. This is countered by Mr. Sarma that it cannot be accepted so inasmuch as the petitioner
never accepted the said term even when they were called to enter into the agreement vide letter dated 19.11.2008. It is apparent and clear that the
concession so made vide letter dated 20.10.2008 is an incentive to the petitioner by the Railway Board in order to increase the bamboo traffic through
railway in the empty flow direction. The earlier writ petition was preferred as the petitioner was found disqualified in order to get the benefit of 20%
rebate on freight charge.
The RC 41 of 2008 is reproduced below:-
“No. TCR/1618/2006/18
The Chief Commercial Manager,
Northeast Frontier Railway,
Maligaon,
Guwahati.
New Delhi dated 13.08.2008
Sub-Freight Concession on Bamboo traffic originating from NF Railway .
1.0 Sanction of the Central Government is hereby accorded to grant 20% (twenty percent) freight concession (rebate) on NTR on Bamboo traffic
booked from NF Railway in empty flow direction by M/s Kalpataru Agro Forest Enterprises (P), subject to following terms and conditions.
I. Overall loading of Bamboo traffic from NF Railway during the period of validity of these instructions must exceed NFR’s total loading figures
for the corresponding period of previous year both in terms of number of rakes as also in terms of total revenue from Bamboo traffic.
II. Loading of each customer during the period of validity of these instructions must exceed his loading figures of the corresponding period of previous
year both in terms of rakes as also in terms of revenue.
III. Concession will be admissible on incremental traffic accounted in terms of rakes.
IV. Concession will be admissible on traffic moved only in covered wagons.
V. Destinations will be stations falling in empty flow direction as notified vide Annexure I of Rate Circular No. 25 of 2008, and as amended from time
to time.
VI. No other freight concession will be admissible on this traffic except 6% (six) percent concession on traffic booked from NE Region.
VII. Concession will be given on freight rate derived after grant of freight concession of 6% admissible for traffic booked from NE Region vide Rates
Circular No. 80 of 2007.
VIII. All other applicable charges will be leviable.
IX. Concession will be given as refund after the fulfillment of all terms and conditions.
2.0. Zonal Railway should furnish a monthly appreciation report indicating the Bamboo traffic loading/incremental loading (in Tonnage/rakes),
earnings/incremental earnings derived (in lakhs) in comparison to corresponding period of previous year) etc. The continuation of these instructions
will be reviewed in the month of Feb, 2009 on receipt of suitable recommendation from the Railway.
3.0. These instructions will be effective from 23.08.2008 and shall be valid upto 22.02.2009.
4.0. This issues with the concurrence of Finance Directorate of Ministry of Railways.(This disposes off NF Railway’s letter
No.C/486/RG/Concession/Bamboo dated 26.06.2008).
(N.K. Parsuramka)
Director, Traffic Comml. (Rates)
Railway Board
New Delhi, dated 13.08.2008â€
The letter No. C/486/RG/Concession/Bamboo dated 20.10.2008 is also reproduced below:-
“Sir
In reference to the above, it is to inform you that 20% freight concession on Bamboo traffic have been granted for three parties, i.e. M/s Rahul
Enterprises, M/s Bharat Bamboo & Timber Suppliers and M/s Kalpataru Agroforest Enterprises under RC No. 41 of 2008. It has been clarified that
Bamboo Merchants other than the three parties mentioned above are not eligible for availing concession under provision of this circular. The Rail
users who are eligible for concession under Rate Circular No. 41 of 2008 but did not offer any loading in the corresponding period at previous year,
would be eligible for granting 50% discount of the prescribed rates.â€
Now, if the said letter dated 20.10.2008 is considered, it is found that Criteria No. 1(II) of RC 41 of 2008 has become redundant thereby modifying
RC 41 of 2008. The intent of the respondent Railway as per letter dated 20.10.2008 is clear to the effect that none others except the petitioner and the
two others are entitled to the benefit of 20% freight concession and if Criteria 1(II) of RC 41 of 2008 cannot be qualified, the petitioner is qualified to
50% rebate of the prescribed rate, i.e., 10% of the 20% concession as per RC 41 of 2008. So it is a special incentive given to the petitioner along with
two other firms, which is affirmed by the Railway authority.
The petitioner could not fulfill the Criteria 1(II) of R C 41 of 2008 but as per letter dated 07.11.2008, the petitioner informed the Railway authority
that w.e.f. 23.08.2008 till 07.11.2008, it had loaded more than 10 rakes, which satisfies the Criteria 1(I) of RC 41 of 2008. Admittedly the petitioner
falls in the special modified category as per letter dated 20.10.2008. The fact of booking of 10 rakes w.e.f. 23.08.2008 is not denied by the Railway
authority in its affidavit-in-opposition. Booking of rakes is an increase in the bamboo traffic of the Railway authority. Further, the concessional freight
benefit of 50% of prescribed 20% rebate was not the subject matter in the earlier writ petition rather it was the claim therein that the petitioner is
entitled to 20% of freight concession. It was decided that the petitioner may approach the authority concerned for availing the aforesaid freight
concession by filing a representation with performance report in using railway traffic/rakes during the corresponding period of previous year. But it
has not been held that the petitioner is not entitled to the benefit as informed vide letter dated 20.10.2008.
In my opinion filing of the earlier writ petition claiming for the 20% freight concession and decision rendered therein cannot be construed that the
petitioner is not entitled to the 50% discount of the prescribed rates. The submission of Mr. Sarma that in order to be qualified even to get the alternate
concession, there must be an intent of accepting the same in an expressed form. It is not mandatory that proposal and counter proposal in order to
culminate as a valid agreement need to be in expressed form always, more so, when certain acts and deeds are carried out by the Government and its
agencies. It is true that the idea of concession was first placed by the petitioner before the railway authority and the said authority after going through
the pros and cons of the issue and keeping in view the revenue earning in the form of freight forwarded certain terms and conditions vide Rate
Circular No. 41/2008. The same was modified vide letter dated 20.10.2008 as reproduced hereinabove. The said modification is in the nature of
assertion of the benefit, which is alternative in nature to the petitioner in the event of failure to qualify for the concession of 20% freight rebate. Such
positive assertion is sufficient in my opinion to bind the respondent railway keeping in view the legitimate expectation of the petitioner and alteration in
its position by booking rakes for bamboo traffic, as, there was no such direction on the part of the railway to the petitioner not to go ahead with
booking of rakes till the issue of freight concession was settled. This writ petition is allowed thereby holding the letter bearing No. C/RFG/C-1/DM/
605090101688 to 1771/APDJ/Bamboo/10/2009-10 T/B dated 12.08.2013 is bad in law and accordingly direct the respondents authority to release 50%
freight concession of the prescribed concessional rate of 20% for bamboo traffic booked for the period from 23.08.2008 up to 22.02.2009 by the
petitioner in terms of the letter No. C/486/RG/Concession/Bamboo dated 20.10.2008 issued by the Chief Commercial Manager/Rates, Maligaon,
Guwahati-781011.
Accordingly, this writ petition is disposed of.