Calcutta High Court (Appellete Side)
Dg Raj Highway Services vs Union Of India And Others on 4 July, 2022
05
04.07.2022
TN
WPA No. 12872 of 2022
DG Raj Highway Services
Vs.
Union of India and others
Mr. Saptarshi Roy,
Mr. Arkadipta Sengupta,
Ms. Kakali Das Chakraborty
.... for the petitioner
Mr. S. Kumar Ghosh
.... for the respondent nos.1 to 5
Learned counsel for the petitioner contends that the petitioner, being one of the consignors of goods in the Railways, has been facing undue hardship and loss of business due to existence of two Circulars of the Eastern Railways. The Circulars, respectively dated June 24, 2013 and July 01, 2013, it is contended, restrict the petitioner to load and unload goods to the rake of the trains provided to them on the previous day to the date of departure. It is submitted that the perishable goods, as per definition, shall perish/be damaged unless they are loaded/unloaded within close proximity of the time of departure. However, due to the existent situation, the petitioner 2 is not being able to do so, thereby facing financial loss since even five tonnes of perishable goods are not being able to be loaded/unloaded.
Learned counsel appearing for the respondents contends that the writ petition is barred by res judicata as well as not maintainable due to lack of territorial jurisdiction. It is submitted that the same issue has been contended by the petitioner in a separate challenge against its termination of contract before the Gauhati High Court. Upon being dissatisfied partially with the said judgment of the learned Single Judge of the Gauhati High Court, the petitioner has preferred an appeal before the Division Bench, which is still pending in the Gauhati High Court. As an ad hoc measure, however, the petitioner has been permitted to carry on loading and unloading on the rakes-in-question, subject to the result of the appeal pending in the Gauhati High Court.
Upon a primary consideration and upon hearing parties on the question of maintainability, it is evident that the bar of res judicata or principle akin thereto is not applicable to the present case, since the challenge before the Gauhati High Court was against the ultimate termination and blacklisting of the petitioner. One of the defences of the petitioner against such termination and blacklisting is that, due to existence 3 of the impugned Circulars, the petitioner was not being able to do business in proper manner, insofar as the loading and unloading of perishable goods are concerned.
The Gauhati High Court, while dealing with the petitioner's challenge to the termination, incidentally recorded such defence of the petitioner, but did not adjudicate finally on the validity of the Circulars. Hence, there is no scope of applicability of the principle of res judicata.
The territorial jurisdiction of the Gauhati High Court is exclusive insofar as the challenge to the termination is concerned, because the cause of action therefor arose within the territorial jurisdiction of the Gauhati High Court.
However, insofar as the present impugned Circulars are concerned, those were issued by the Eastern Railway squarely within the territorial jurisdiction of this court.
Hence, the objections as to maintainability are turned down.
However, the learned Advocate appearing for the Railway Authorities has raised a relevant question, by placing reliance on the Circular dated July 01, 2013, annexed at pages-118 and 118(A) of the writ petition, to the effect that the Howrah Goods Shed Siding for 4 Eastern Railway trains are available for the purpose of loading and unloading, without creating any harassment or security hazard to the passengers boarding and alighting at Howrah station. The same could be availed of by the petitioner for loading/unloading perishable goods as well, it is contended.
At this, learned counsel for the petitioner controverts by submitting that the petitioner is not being allowed to use the said Goods Shed Siding on the same date as loading/unloading and to get the relevant rake attached to the departing train concerned on the same day, for which the said solution is not feasible.
Learned counsel for the respondents seeks two days' adjournment to take proper instruction with regard to whether the petitioner can be permitted to use the Goods Shed Siding for the purpose of loading/unloading at least five tones of perishable goods within a reasonable span of time prior to loading and unloading during the same day as departure of the train. Hence, the matter is adjourned till July 06, 2022, when it will be enlisted next under the same heading.
5
Learned counsel for the petitioner, with the leave of court, files a supplementary affidavit in court today and the same be kept on record.
Learned counsel also places reliance on the content of a pen drive to indicate that other trains are allegedly being permitted to load and unload from the platforms of the station itself. For the safe-keeping of the same, learned counsel for the petitioner is requested to retain the pen drive for the present in his custody, for producing the same as and when required by the court.
(Sabyasachi Bhattacharyya, J.)