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Judgment
Ruma Pal, J.—The Petitioner has challenged the refusal of the Railway Authorities to refund freight charges admittedly unauthorisedly recovered by them from the Petitioner. The Petitioner transported dolomite from Salbari under the North Eastern Frontier Railway (the Respondent No. 3) to Adityapur under the South Eastern Railway (represented by the Respondent No. 2) via Dankuni. The freight was paid for by the Petitioner on the basis of Railway receipts issued by the Respondents at Salbari. Upon payment of the freight charges at Adityapur the dolomite was released to the Petitioner No. 1 at Adityapur. In this mariner the Petitioner No. 1 had paid a sum of Rs. 7,06,16,265.00 on account of freight between the period May 31, 1988 to December 4, 1990.
In 1990 the Auditor of the Respondent No. 3 pointed out that the calculation of the Railway freight had been made wrongly on the basis of a distance of 1043 km. between Salbari and Adityapur whereas the distance was 951 kms. This was communicated to the Station Master at Salbari inter-departmentally by the office of the Respondent No. 3 by letter dated November.21, 1990.
The Station Master was directed to calculate the charge on the basis of 951 kms. and not on 1043 kms. in future. Coming to know of this, the Petitioner Immediately thereafter by letter dated December 27, 1990 wrote to the Respondent No. 3 asking for refund of the excess amount of Rs. 42,80,375.00 for the period May 31, 1988 to December 4, 1990.
By letter dated December 26, 1991 the General Manager (Claims) at Gauhati wrote to the Petitioner stating that as the freight charges had been realised at Adityapur Station and therefore the Chief Commercial Superintendent (Refund) South Eastern Railway was the competent authority to deal with the question of refund. The letter was accordingly forwarded by the office of the General Manager (Claims), Guwahati to the South Easten Railway. There was no response from the South Eastern Railway authorities at all till January 20, 1995 when the Respondent No. 2 wrote to the Petitioner rejecting its claim in respect of excess transport charges for the period May 31, 1988 to July 1, 1990 because of the ''time bar'' u/s 106 of the Indian Railways Act, 1989. However, as far as excess freight paid from July 5, 1990 to December 4, 1990 this was stated to be ''within time limit''. The claim was accordingly forwarded to the freight adjustments section of the" South Eastern Railway ''for necessary action''. The Petitioner then filed this writ application on August 30, 1995 challenging the repudiation of the Petitioner''s claim. A rule nisi was issued subject to the defence raised by the Respondent authorities that the Petitioner had not exhausted its, alternative remedy by filing a suit or approaching the Railway Tribunal.
In their affidavit in-opposition the Respondents have not disputed that the Petitioner had been overcharged to the extent claimed by it. The only point taken was that the Petitioner''s claim in respect of the period prior to July 1, 1990-was barred by virtue of the six months period of limitation u/s 106 of the Indian Railways Act, 1989.
According to the Petitioner the Railway Authorities could not take the plea of limitation as the amount had admittedly been wrongfully realised and the Respondents could not be permitted to be unjustly enriched. Several decisions had been relied upon in this context. It is also said that the claim was made within six months of the date of knowledge of the wrong calculation. It is said that no suit could be filed as the Petitioner''s claim is barred by limitation now. It is further submitted that the Respondent''s conduct was wholly malafide as was evidenced by two letters which have subsequently come into the possession of the Petitioner. The first is a letter dated July 22, 1996 form the Chief Commercial Manager/rates of the Respondent No. 3 to the Petitioner that at present the chargeable break up distance of Salbari to Adityapur is 787 kms. The second is a letter issued by the office of the FA & CAO of the South Eastern Railway dated November 18, 1991 to the Special Superintendent at Salbari which is in the following terms:
It is understood from your letter under reference that you have taken 1041 kms. as chargeable distance ex Salbari to Adityapur as per records available at your office but you have not mentioned the route and break up of distance. Perhaps the distance has been calculated by you taking ''Dearer Route''. Recently M/s. TISCO Ltd. has preferred a claim for refund of Rs. 36,99,550.00 for the period from 9.1.89 to 4.12.90 stating that the distance should be 932 kms. instead of 1941 kms. The Railway will have to bear heavy loss of revenue if refund is admissible. Considering this you are requested to issue a certificate that the route has been selected by the sender as ''Dearer Route''..... (illegible) for the period from 9.1.8.9 to 6.12.90 mentioning via with break-up. If it is not obtained from your end per bearer the responsibility for refund of overcharges will devolve on you only.
At the hearing the Respondents stated that the writ application" should be dismissed because of the alternative remedy available to the Petitioner under the Act. On the merits the Respondents reiterated their stand that they are agreeable to make payment of the claim for the period after July 1996-btit that Section 106 of the Railway Act, 1989 wholly debarred the Petitioner from obtaining any compensation for the prior period as admittedly no claim had'' been raised within the time limit before the Appropriate Authority.
On the question of alternative remedy the observation of the Supreme Court in Shiv Shankar Dal Mills v. State of Haryana AIR 1980 S.C. 1937 is a complete answer.
Where public bodies, under colour of public laws, recover people''s moneys, later discovered to be erroneous levies the dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of ''alternative remedy'', since the root principle of law married'' to justice, is ubi jus ibi remedium.
This view was restated by the Supreme Court in Hindustan Sugar Mills Vs. State of Rajasthan and Others, by holding:
It is the duty of the State to do what is fair and just to the citizen and the state -should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand.
The only question therefore is whether the provision of Section 106 bars the remedy of the Petitioner to realise its full claim.
The relevant portion of Section 106 of the Railways Act, 1989 reads:
Notice of claim for compensation and refund of overcharge -
(1) x x x x x x x
(2) x x x x x x x
(3) A person shall not be entitled to a refund of an overcharge in respect of goods carried by railway unless a notice therefore has been served by him or on his behalf to the railway administration to which the overcharge has been paid within six months from the date of such payment or the date of delivery of such goods at the destination station, whichever is later.
The two main requirements are (a) the claim must be made to the Railway Administration which received the payment of the overcharged amount; (b) The claim must be made within six months from the date of such payment or delivery of goods.
In this case the Railways having agreed to pay the claim for the period of six months prior to the submission of the claim by the Petitioner to the Respondent No. 3 do not base their objection on the first limb of Section 106. The only dispute therefore is Whether the railways authorities can restrict the claim to a period of six months prior to the making of the claim in this case. The answer to the question, in my opinion, must be in the negative.
Section 106 cannot be read to mean that the six months period would commence from the date of actual payment even though no one knows that it is an overcharge. The words ''such'' payment means payment of overcharge. This presumes payment being made with the knowledge that it is an overcharge. If the knowledge of overcharge and payment coincide there is no difficulty. If they do not, the date of the overcharge must be the date of knowledge. Since a question of overcharge would only arise when the facts relating to the overcharge are established. Any other construction of Section 106(3) would be inequitable and absurd. This is also the principle which underlines Section 72 of the Contract Act. The payment of over-charge therefore must be taken at the earliest as the date on which the fact was established to the knowledge of the parties. It is not the case of the Respondents that the Petitioner made payment at a time when it was established that the payment was an over-charge. The Respondents themselves were not aware till the fact was pointed out by their auditor. Even the Station Master at Salbari was not aware that he had been calculating on a wrong basis this was pointed out to him in November 1990 by the Respondents. It has not been disputed that the Petitioner came to know about the over-charge only in November 1990. In these circumstances the claim of the Petitioner cannot be said to be time barred u/s 106.
Further and in any event, as observed in Shiv Shankar Dal Mills( Supra) case there is no law of limitation for public bodies to return what was wrongly recovered to Whom it belongs.
For the reasons aforesaid I make the Rule absolute without any order as to costs.