Kerala High Court
M/S.Ultra - Tech Cement Limited vs The Union Of India on 31 January, 2013
IN THE HIGH COURT OF KERALAATERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
FRIDAY,THE 24TH DAYOF JUNE 2016/3RD ASHADHA, 1938
WP(C).No. 3559 of 2013 (T)
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PETITIONER : -
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M/S.ULTRA - TECH CEMENT LIMITED,
REGISTERED OFFICE, B WING AHURA CENTRE,
SECOND FLOOR, MAHAKALI CARVES ROAD,
ANDHERI(EAST), MUMBAI 400 093,
REPRESENTED BY ITS DULYAUTHORIZED POWER OF ATTORNEY
HOLDER SRI REMESH MALOO,
DEPUTY MANAGER(FINANCE & COMMERCIAL),
ULTRA TECH CEMENT LIMITED, ERNAKULAM, KERALA 682 016.
BY ADV.SRI.GEORGE JACOB (JOSE)
RESPONDENTS : -
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1. THE UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRYOF RAILWAYS,
CENTRAL SECRETARIAT,NEW DELHI 110001.
2. THE SENIOR DIVISIONAL COMMERCIAL MANAGER,
SOUTHERN RAILWAY,TRIVANDRUM 695011.
3. THE STATION MASTER,
SOUTHERN RAILWAY,
KALAMASSERY GOODS SHED
KALAMASSERY,ERNAKULAM 683 103.
4. THE CHIEF GOODS SUPERVISOR,
KALAMASSERY GOODS SHED,
SOUTHERN RAILWAY,
KALAMASSERY,ERNAKULAM 683103
BY ADV.SRI.JAMES KURIAN, SC, RAILWAYS
BY ADV.SRI.C.S.DIAS,SC, RAILWAYS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24-06-2016, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
WP(C).No. 3559 of 2013 (T)
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APPENDIX
PETITIONER'S EXHIBITS :
EXHIBIT P1 : TRUE COPY OF THE POWER OF ATTORNEY DEED DATED26.12.12
OF THE PETITIONER COMPANY AUTHORIZING Sri. RAMESH
MALOO, DEPUTY MANAGER (FINANCIAL & COMMERCIAL),
ULTRA TECH CEMENT LIMITED, ERNAKULAM, KERALA TO
PREFER THE WRIT PETITION.
EXHIBIT P2 : TRUE COPY OF THE RAILWAYRECEIPT No. 262007228 DATED
31.1.2013.
EXHIBIT P2(a) : TRUE COPY OF THE RAILWAYRECEIPT No. 262007229 DATED
31.1.2013.
EXHIBIT P3 : TRUE COPY OF THE LETTER DATED 10.9.2012 OF THE REGIONAL
HEAD (LOGISTICS) ADDRESSED TO THE 2nd RESPONDENT.
EXHIBIT P4 : TRUE COPY OF THE RAKE CIRCULAR No. 74/2005 DATED
19.12.2005.
EXHIBIT P5 : TRUE COPY OF THE E-MAIL COMMUNICATION DATED 4.2.2013
OF THE PETITIONER ADDRESSED TO THE SECOND RESPONDENT.
EXHIBIT P6 : TRUE COPY OF THE RELEVANT EXTRACT OF CHAPTER XVII OF
THE RAILWAYESTABLISHMENT MANUAL.
EXHIBIT P7 : TRUE COPY OF THE CLARIFICATORYLETTER DATED20.1.2011
OF THE RAILWAYBOARD TO THE GENERAL MANAGER
(COMMERCIAL).
EXHIBIT P8 : TRUE COPY OF THE INTERIM ORDER DATED 2.2.2013 OF THIS
HON'BLE COURT IN WP. (C) No. 77/2013.
EXHIBIT P9 : TRUE COPY OF THE RELEVANT EXTRACT OF PETITION DATED
26.02.2016.
RESPONDENTS' EXHIBITS : NIL.
// TRUE COPY //
P.A. TO JUDGE
DMR/-
DAMA SESHADRI NAIDU, J.
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W.P.(c) No. 3559 of 2013
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Dated this the 24th day of June, 2016
JUDGMENT
The petitioner is a Company engaged in the manufacture and sale of cement. To transport its product, it uses the railway freight system, as a part of which it takes the product to the goods-sheds of the railways at various places.
2. As has been explained by the learned counsel for the petitioner, the transport of the consignment is as follows: a goods- shed usually will have three lines--(1) regular line, where a product like cement is handled; (2) fertilizer line, where exclusively fertilizer is handled; and (3) NAD line, where only the goods of the Defence Ministry are handled.
3. On 04.02.2013, the petitioner brought its consignment of cement to Kalamassery goods-shed. At that material point in time, as line one was occupied by the rake of another cement manufacturer, the railways placed the petitioner's consignment at line three, temporarily. The next day, by 6.00 a.m. it was shifted W.P.(c) No. 3559 of 2013 2 to line one since by then the consignment of the other manufacturer was cleared.
4. At any rate, on the very same day, the third respondent, acting on the second respondent's behalf, demanded the petitioner to pay Rs.1,56,000/- as demurrage and wharfage charges. Though the petitioner had filed this writ petition and obtained an interim order on the same day, before it could be communicated to the authorities, it was constrained to pay the amount under protest, however.
5. In the above facts and circumstances, the learned counsel for the petitioner has submitted that if a consignment is placed at a different line of clearance, not at the instance of the consignor or consignee but owing to the reasons beyond its control, it could not be penalized on that count. In elaboration, he has submitted that, in the present instance, the clearing of the petitioner's consignment at line one was not possible initially because it had been occupied by some other manufacturer's consignment. It is the railways that made the petitioner place its consignment at line three, temporarily though.
W.P.(c) No. 3559 of 2013 3
6. The learned counsel, in the end, has submitted that the railways on earlier occasions, under similar circumstances, have disposed of the consignor's representations, keeping in view the Railway Establishment Manual. He, therefore, pleads that this Court may dispose of the writ petition with a direction to the second respondent to consider the petitioner's application dated 14.02.2013 and Exhibit P9 reminder, keeping in view the Railway Establishment Manual.
7. On the other hand, the learned Standing Counsel for the respondent railways has submitted that the authorities have no objection to considering the petitioner's representations in accordance with law.
In the facts and circumstances, having regard to the submissions made by the learned counsel for the petitioner and the learned Standing Counsel for the respondents, this Court, without adverting to the merits of the matter, disposes of the writ petition directing the second respondent to consider the petitioner's application dated 14.02.2013 and Exhibit P9 reminder, keeping in view the Railway Establishment Manual, and pass W.P.(c) No. 3559 of 2013 4 appropriate orders thereon, expeditiously, at any rate, within a period of two months from the date of receipt of a copy of this judgment. No order on costs.
DAMA SESHADRI NAIDU JUDGE DMR/-