9911796707
TMI Blog2014 (9) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... leading Writ Petition by the learned Single Judge, Writ Appeal No. 917 of 2014 arising out of Writ Petition No. 13271 of 2011 is being treated as the leading Writ Appeal. Reference of pleadings in W.A. No. 917 of 2014 shall suffice in deciding all the Writ Appeals. The appellants hereinafter are referred to as the Writ Petitioners and the respondents as the respective respondents arrayed in the Writ Petitions. The challenge in all the Writ Petitions was to the penal demurrage charges as notified by the respondents for the period from 2nd May 2011 to 31st July, 2011, rate Circular No. 74 of 2005 as modified by the rate Circular dated 17.01.2008 including the consequential orders. 3. The facts giving rise to Writ Petitions are: The petitioners in (W.P(C) No. 13271 of 2011) are the companies engaged in manufacture and sale of cements. Consignments of cements brought to the Goods sheds of Nileshwar, Valapattanam, Vadakara, Kallai West Hill, Tirur and Palakkad junction in railway wagons are unloaded by workers registered with the Kerala Headload Workers Board. The working hours of various Goods Sheds are from 6.00 a.m. to 10.00 p.m. For unloading goods brought by railway wagons free ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er restraining respondents 2 to 12 from levying penal demurrage charges beyond Rs. 100/- per wagon of the Indian Railways and the Container Corporation of Indian in the absence of any fixation or alteration of rates by the first respondent as enjoined in Sections 30 and 31 of the Indian Railways Act. (iii)(a) to issue a writ in the nature of certiorari or other appropriate order quashing Exhibits P11 and P12. (iv) to issue a writ in the nature of mandamus or other appropriate writ or order directing respondents 2 to 12 to refrain from levying wharfage charges in respect of consignments which remain uncleared in the wagons. (v) to grant such other relief's as may be prayed for and to which this Hon'ble Court may deem just and necessary in the facts and circumstances of the case". Counter affidavit as well as counter affidavit to the amended Writ Petition were filed on behalf of the respondents to which reply affidavit has also been filed by the petitioners. 5. The arguments in the Writ Appeals have been led by Shri George Jacob. We have also heard Shri K. Sreekumar, Senior Advocate, Shri Lal K. Joseph and other counsel appearing in the different Wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delegare" has been relied on to support the above submissions. (viii) It is further submitted that even though the rate Circular authorizes the powers to be exercised by the CCM, COM and DRM, the notices and orders for imposing increased charges have been issued by the Goods Sheds Officers, Station Masters and other Railway Officers who have no authority to do so. (ix) It is submitted that rate Circular, Ext. P1 was not notified in the Gazette nor has been published in any other manner. The rate Circular having not been notified and published, the said Circular cannot be utilized for imposing increased penal charges on the petitioners. (x) It is submitted that although normal working hours in Good Sheds is 6.00 a.m. to 10.00 p.m. but the workers in the State of Kerala works only from 8.30 a.m. to 5.30 p.m. The workers being not available to work from 6.00 a.m. to 10.00 p.m., it is not the fault of petitioners in not uploading the wagons within the free time allowed. Goods Sheds are the scheme covered area under the Kerala Headload Workers Act under which the petitioners are compelled to employ only headload workers registered with the Headload Workers Board. The headload workers ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Goods Sheds and Station Masters have been issued after decision was taken by the competent authority. It is submitted that original files of the Railway containing the decision were placed before the learned Single Judge which clearly proved that the decision to impose penal rate of demurrage was taken by the CCM, COM and DRM and consequential actions were taken thereafter. It is submitted that rate Circulars are not required to be published in the Gazette of India nor any provision in the Act or Rules required that. It is submitted that rate Circular has been published in the Railway Web Site and is affixed on the notice board at all level including every Goods Sheds. It is submitted that each of the petitioners were well aware of the rate Circular since demurrage charges were increased by rate Circular, Ext. P11 and have been implemented by the Railway authorities from 29.12.2005 and petitioners have been making payment of demurrage charges under the said rate Circular. It is submitted that before imposing penal rate of demurrage charges 48 hours' advance notice as required by the rate Circular is given to all concerned. With regard to the submissions of the petitioners th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DRM? 5. Whether the rate Circular, Ext. P11 sub delegates the power to fix the rate of demurrage charge on CCM, COM and DRM? 6. Whether the rate Circular Ext. P11 cannot be enforced having not been published in the Gazette of India or by any other accepted mode? 7. Whether due to the provisions of the Kerala Head Load Workers Act restricting the right of employer in a scheme covered area to engage only registered head load workers the Railway Administration cannot demand penal demurrage charges from the petitioners? 8. Whether increased demurrage charges are not leviable to be charged due to lack of amenities in the various Railway Goods Sheds? 9. Whether levy of increased/penal charges have been made by Station Masters, Goods Shed Superintendents and other Officers of the Railway Administration and the notices Exts. P4 to P10 are illegal and unenforceable? 10. Before we proceed to consider the respective submissions of learned counsel for the parties and the issues as noted above, it is necessary to have a look on the statutory provisions regulating the field. 11. Act, 1890 was enacted to consolidate and amend the law relating to Railway i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding 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. 31. Power to classify commodities or alter rates.-The Central Government shall have power to- (a) classify or re-classify any commodity for the purpose of determining the rates to be charged for the carriage of such commodities; and (b) increase or reduce the class rates and other charges. 32. Power of railway administration to charge certain rates.- Notwithstanding anything contained in this Chapter, a railway administration may, in respect of the carriage of any commodity and subject to such conditions as may be specified.- (a) quote a station to rate; (b) increase or reduce or cancel, after due notice in the manner determined by the Central Government, a station to station rate, not being a station to station rate introduced in compliance with an order made by the Tribunal; (c) withdraw, alter or amend the conditions attached to a station to station rate other than conditions introduced in compliance with an order made by the Tribunal; and (d) charge any lu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Government of India Ministry of Railways Railway Board No. TC-I/2005/201/2 New Delhi, Dt. 19.12.2005 General Manager (Commercial) General Manager (Operating) All Indian Railways Sub: Free time and rates of demurrage, wharfage & stacking charges. .................... " The Circular was signed by the Joint Director, Traffic Commercial (Rates), Railway Board. A perusal of the heading of the Circular indicates that the said Circular is by the Government of India, Ministry of Railway. Learned counsel for the Railway has submitted and it has also been pleaded in the counter affidavit that Ministry of Railways is nothing but Railway Board and the Chairman of the Railway Board is the Principal Secretary of the Ministry of Railways. In paragraph 4 of the counter to the amended Writ Petition No. 13271 of 2011, the following has been stated: "In this connection, it is respectfully submitted that Ext. P11 (R.3-1) is an order issued by the Govt. of India, Ministry of Railways (Railway Board), as reflected from the face of the order itself. It can be seen that Ext. P11 comprises two separate orders such as orders Dated 19.12.2005 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a Province, the Provincial Government acting within the scope of the authority given to it under that sub-section; and (ii) in relation to the administration of a Chief Commissioner's Province, the Chief Commissioner acting within the scope of the authority given to him under sub-section (3) of Section 94 of the said Act; and (b) in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include,- (i) in relation to functions entrusted under clause (1) of article 258 of the Constitution to the Government of a State, the State Government acting within the scope of the authority given to it under that clause; (ii) in relation to the administration of a Part C state (before the commencement of the Constitution (Seventh Amendment) Act, 1956, the Chief Commissioner or the Lieutenant-Governor or the Government of a neighbouring State or other authority acting within the scope of the authority given to him or it under article 239 or article 243 of the Constitution, as the case may be; and (iii) in relation to the administration of a Union territory, the administrator thereof acting with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the Railway Board regarding fixation of rate under Sec. 29. Section 29 of Act, 1890 is almost similar to the power of the Central Government given in Sec. 30 of Act, 1989. It is not disputed by the learned counsel for the petitioners that the power of the Central Government could have been exercised by the Railway Board under Act, 1890. Whether only due to enactment of Act, 1989 the Railway Board is denuded to exercise the power of Central Government is the question which has to be answered. We do not find any such indication in the provisions of Act, 1989 which may indicate that the power of the Central Government which was being exercised by the Railway Bord cannot be exercised by the Railway Board. With regard to the powers under Act, 1989, merely because no fresh corresponding amendment has been made in Act, 1905 substituting the statute, Act, 1890 with the Statute, Act, 1989 it cannot be accepted that the power which was invested to the Railway Board has come to an end. It is well established principle of statutory interpretation that court should not adopt such interpretation which makes provisions of an Act unworkable and defeat the objects of the enactment. To accept th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petitioners, as noted above, is that the Central Government, having been delegated power to fix rates under Section 30 of the Indian Railway Act, 1989, cannot further delegate power to fix penal rate/increased rate of demurrage charges to CCM, COM and DRM. The submission is that the delegatee is incompetent to further delegate its legislative power. The maxim "delegatus non protest delegare" has been pressed into service. Thus, the contention is that there is sub-delegation of power under Section 30 of the Central Government which not having been contemplated by Act, 1989, action taken to increase penal rate is without jurisdiction. Before we advert to a scheme as delineated under Section 30 of Act, 1989, it is necessary to consider the concept of sub-delegation of legislative function. 22. The Central Government under Section 30 of Act, 1989 exercises the legislative function. It is well settled that legislation delegating power of rate fixation is delegation of a legislative function. De Smith's Judicial Review Sixth Edition, while distinguishing legislative function with that of administrative acts, had made the following observations: "B-010: A distinction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "5. The courts are normally rigorous in requiring the power to be exercised by the persons or the bodies authorised by the statutes. It is essential that the delegated power should be exercised by the authority upon whom it is conferred and by no one else. At the same time, in the present administrative set-up extreme judicial aversion to delegation cannot be carried to an extreme. A public authority is at liberty to employ agents to exercise its powers. That is why in many statutes, delegation is authorised either expressly or impliedly. Due to the enormous rise in the nature of the activities to be handled by statutory authorities, the maximum delegatus non potest delegare is not being applied specially when there is question of exercise of administrative discretionary power. 6. By now it is almost settled that the legislature can permit any statutory authority to delegate its power to any other authority, of course, after the policy has been indicated in the statute itself within the framework of which such delegatee is to exercise the power. The real problem or the controversy arises when there is a sub-delegation. It is said that when Parliament has specificall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment. In other words, the delegate has been authorized to further delegate its power in respect of the exercise of the powers of Section 3. Mr. Umrigar contended that it was for the Legislature itself to specify the particular authorities or officers who could exercise power under Section 3 and it was not open to the Legislature to empower the Central Government to say what officer or authority could exercise the power. Reference in this connection was made to two decisions of the Supreme Court of the United States of America-Panama Refining Co. v. Ryan and Schechter v. United States. In both these cases it was held that so long as the policy is laid down and a standard established by a statute, no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. These decisions in our judgment do not help the contention of Mr. Umrigar as we think that Section 4 enumerates the classes of persons to whom the power could be delegated or sub-delegated by the Central Government and it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntains conditions for imposing the demurrage at progressively increasing rates. Paragraph 3.3 further provides that the above penal demurrage rate should be implemented only after giving wide publicity and due notice of 48 hours and should be applicable for the notified period. Paragraph 3.3 is thus not a provision delegating power on the designated authority to fix rates, rather the said paragraph gives power to implement the rate, which may be upto the maximum of six times of the prevalent rate. Said power is to be exercised in case of excessive congestion at any terminal. The second line of the paragraph, which specifically mentions that "this penal demurrage rates should be implemented...... " indicates that the power, which is given to CCM, COM and DRM, is to implement the rates, which have already been fixed by the rate circular. CCM, COM and DRM thus exercise a statutory power by virtue of paragraph 3.3 to implement the rate circular in a progressive manner, which power cannot be said to be a power to fix rates. Then Section 30(1) of the Act, 1989 itself empowers the Central Government to specify the conditions subject to which rates shall apply. We are thus not persuaded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready granted vide S. 21 of the General Clauses Act. The rule did not expressly authorise it to make rules for its own guidance in the matter of granting and cancelling licences but this fact did not prevent its doing so. Any authority upon whom a power is conferred is competent to make rules for its own guidance in the exercise of it. The authority conferring the power may make rules governing its exercise; if it has done so, the rules made by the authority should not clash with any of them and must be in conformity with them. If it has not done so, the authority is free to make any rules. Obviously, if it can exercise the power without any rules being made by it, it can certainly do so in accordance with rules made by it and brought to the notice of all interested. It is always better that the power is exercised in accordance with certain rules than that it is exercised unfettered by any rules. If the State government could cancel a licence without there being any rules we fail to understand why it could not cancel a licence in accordance with certain rules, though made by itself for own guidance. In the case of Harshankar Bagla, AIR 1954 SC 465 (supra) also no express p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces. In this view we receive support from Amaravathi Motor Transport Co. v. State of Andhra, AIR 1956 Andh 232 in which Subha Rao, C.J., as he then was, and Satyanarayana Raju, J. held that Rule 134-A of the Madras Vehicles Rules made by the State Government empowering the Transport Board to delegate certain functions to its Secretary was valid." 33. As observed above, the powers in the rate circular given to CCM, COM and DRM are not sub-delegation of any power of fixing rate, rather rate circular provides for conditions for implementing the rates fixed by the Central Government. It is relevant to note that power to fix penal rates, i.e., progressively increasing rate upto maximum 6 times of the prevalent rate has been upheld by the Division Bench of the Allahabad High Court in M/s. Nbk Trade Linker Pvt. Ltd.'s case (Supra). It is useful to quote the following observation of the Division Bench: "The penal charges under paragraph 3.3 of the Rates Circular No. 74 of 2005 are leviable where excessive congestion takes place at any terminal(Railway Station). The penal rates as contemplated under paragraph 3.3 is nothing but progressively increasing rate subject to a maximu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve to be rendered not for the personal benefit of this or that importer but in the larger national interests. Congestion in the ports affects the free movement of ships and of essential goods. The scale of rates has therefore to be framed in a manner which will act both as an incentive and as a compulsion for the expeditious removal of the goods from the transit area. Ships, like wagons, have to be kept moving and that can happen only if there is pressure on the importer to remove the goods from the Board's premises with the utmost expedition. The writ petitioners in their reply statement filed in the High Court have referred to the Report of the Committee set up in 1967 by the Ministry of Transport and Shipping, Government of India. The Committee consisted of top-level experts, one each from the Ports of New York, London and Notterdam who made a general survey of the Ports and Harbours in India. The Committee observed in its Report: "To effect quick clearance of the cargo from the Harbour, the demurrage rates may be so fixed as to make it unprofitable for importers to use the port premises as a warehouse." Viewed from this angle, the scale of rares cannot be characterised as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequence of non publication of rate circular in the Gazette. There cannot be any dispute with the proposition that in case a statutory provision requires publication of delegated legislation in Gazette, non publication in the Gazette shall make the delegated legislation unenforceable. Learned counsel for the appellant placed reliance on B.K. Srinivasan and others v. State of Karnataka and others [(1987)1 SCC 658]. The Apex Court in the said case held that where the parent statute prescribes the mode of publication or promulgation that mode must be followed and where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the official gazette or some reasonable mode of publication. The following was laid down in paragraph 15 of the said judgment: "15.....But unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobstrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t due to non publication of rate circular in the Gazette, the said circular is unenforceable. Paragraph 3.3 of the rate circular dated 19.12.2005 itself contemplates for wide publicity before implementation of penal demurrage rate in following manner:- "..... This penal demurrage rates should be implemented only after giving wide publicity and due notice of 48 hours and should be applicable for the notified period." 37. The petitioners in the Writ Petitions are aggrieved by the penal demurrage charges which has to be imposed by wide publicity and 48 hours notice. Thus mode and manner of imposing the penal charge has already been prescribed in the subordinate legislation; In the Writ Petition there is no pleading that above part of paragraph 3.3 has not been complied with. 38. The rate circular was issued in 2005 and the demurrage, according to the rate circular, was being paid and it was only when penal demurrage charges were imposed by the Railway authorities, challenge was laid in the Writ Petition. Various notices issued by Station Master and Goods Superintendents, where Exhibits P4 to P10 were under challenge, where three times and six times of normal demurrage rates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge has gone into the said submission and after noticing the pleadings made on behalf of the Railways, had found that on the basis of said submission the challenge to penal demurrage charges cannot be upheld. In the counter affidavit filed in the Writ Petitions, the respondents have pleaded that amenities have been provided for. We are of the view that on this ground also challenge to rate circular cannot be upheld. 42. Now we come to the last submission raised by learned counsel for the writ petitioners that the order imposing penal demurrage charges has been issued by Station Master/Goods Superintendent and officers, who are not even referred to in paragraph 3.3 of the rate circular. The said submission has been vehemently denied and it has been submitted that all orders where penal demurrage charges have been imposed in an increasing manner have been taken by the CCM, COM and DRM. It is submitted that before the learned Single Judge the original records of the Railway were produced. The learned Judge perused the records and was fully satisfied that the order for imposing penal demurrage charges was passed by the designated authority as specified in Exhibit P11. It was held that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
