Sandeep Cement (P) Ltd. vs Union of India and Others

The petitioner herein had consigned coal at Rurkela in a broad guage wagon to be delivered at Mahuva. The coal was transhipped from the broad guage wagon into 3 small meter guage wagons at Sabarmati. Out of the said 3 meter guage wagons, 2 of them bearing Nos. 60718 and 3206 were delivered at Mahuva. The third wagon, bearing No. 53024 containing 13,320 M.Ts. was not delivered. The said delivery of 2 meter guage wagons was against the production of Original Railway Receipt No. 258449. A certificate was issued on 02-04-1983 by the Station Master, Mahuva, to the effect that the said third wagon was not delivered. The petitioner therefore prays that a writ of mandamus may be issued against the respondents restraining them from withholding the delivery of coal as per the contract.

Mr. T. H. Sompura, learned Counsel for the petitioner has urged that there is a clear admission by the respondent Railway Administration in the form of the letter written by the Station Master, Mahuva, admitting that the third wagon was not delivered. He submitted that a writ of mandamus may be issued against the respondent Railway Administration directing them to reimburse the petitioner with the quantity and quality of coal, which, was consigned but was not delivered at the place of destination. He has submitted that the coal is a scarce commodity and its non-delivery by the Railway Administration results in great hardship to the petitioner. On account of non-delivery, the factory operations have to be closed down which adversely affects the production as well as renders the workmen jobless. Therefore he has submitted that the petitioner should be reimbursed with the quantity and quality to the coal, which the respondents failed to deliver as per the contract.

Mr. R. M. Vin, learned Counsel for the Railway Administration has urged that in this case, where the wagon is not traceable, and in similar cases, the appropriate order should be that the consignee should be paid, monetary compensation for the non-delivery of the goods. According to him, if the goods are delivered to a public body or is used by the Railway Administration itself, reimbursement could be ordered, but in a case where there is non-delivery for diversion to other destination or any other reason, the proper relief would be to order monetary compensation.

Mr. Sompura has urged that compensation is not an adequate relief as the mineral coal is not available freely and therefore the consignee is entitled to the goods in kind and not in money by way of compensation. The submission of Mr. Sompura is quite correct and is accepted. The Railway Administration being a monopoly national carriers on payment of the fixed freight, they are bound under the contract to deliver the goods in kind especially if the goods are of a nature, which need to be delivered in kind. In the facts and circumstances of the case, it would not be proper to direct the respondents to pay monetary compensation. Hence it is directed that a writ of mandamus will issue against the respondent Railway Administration to deliver the coal in question to the petitioner weighing 13.320 M.Ts. within five weeks from today.

Before parting with the matter, this Court would like to express its unhappiness that the Railway Administration should take up the attitude of total negligence in not giving the reimbursement to the consigners and force them to go to the Court of law to do something which the Railway Administration is legally and morally bound to do. The present petition was filed in 1983. A period of about 6 years has passed when the reimbursement will be made under the orders of this Court. This situation could have well been avoided by delivering the goods when they ought to have been delivered. But it seems that the Railway Administration is not responsive enough to its customers'' representations and is virtually ignoring their hardships.

In the result, the petition succeeds. Rule is made absolute accordingly. However, there shall be no order as to costs.

Petition allowed.