Calcutta High Court (Appellete Side)
Sunil Kumar Agarwala And Others vs Union Of India And Others on 22 June, 2022
2 22/06/2022
WPA No. 2828 of 2022
Sunil Kumar Agarwala and others
Vs.
Union of India and others
Mr. Ram Anand Agarwala,
Ms. Nibedita Pal,
Mr. Ananda Gopal Mukherjee,
Ms. Soman Ray
...for the petitioners.
Mr. Ashok Kumar Chakraborty,
Mr. Sanajit Kumar Ghosh
...for the respondents.
The petitioners are empanelled salt importers of West Bengal and are allotted railway rakes by the Salt Commissioner, Government of India for transportation of salt.
By Rate Circular No. 36 of 2012, issued under TCR/1078/2012/06 dated November 27, 2012, it was informed by the Railways that the Central Government has sanctioned graded concession in freight rates for booking of non-refined iodised and non-refined salt meant for iodisation, in the manner stated therein. Such concession is to be granted on production of the certificate issued by the Salt Commissioner or his authorised officials about the nature and category of salt, along with forwarding note detailing the nature and category of the salt with the endorsement/counter signature by the Salt Commissioner or his representative. 2 While transporting salt, the petitioners' commodities reached the destination station Chitpur on March 14, 2013, when the petitioners were informed that the Salt Commissioner had lodged a complaint vide letter dated March 13, 2013, alleging wrong description of goods by the petitioners.
A contingent of officers of the Railways and Food Safety Officials were present when the representatives of the petitioners reached the spot, who were informed that according to a complaint from the Salt Commissioner, Jaipur, 13 out of 14 wagons had allegedly been loaded with refined free flow iodised salt under priority "C" and accordingly, the Food Safety Officers were called for taking samples of 13 wagons for identifying the quality of salt in the laboratory. The salt samples from all 13 wagons were collected and a memorandum, signed by all present, was prepared.
The Goods Shed Superintendent (GSS), Eastern Railway, Chitpur issued three Demand Notices dated September 12, 2013 to the petitioners, alleging under- charging for misdeclaration of salt in the wagon-in- question.
The Salt Commissioner, by a letter dated September 25, 2014, informed the Chief Commercial Manager, Eastern Railway that 10 wagons contained sub- standard non-refined iodised salt and three wagons contained standard non-refined iodised salt. 3 Subsequently, on February 12, 2015, three rectified Demand Notices were issued by the GSS, directing the petitioners to make payment in respect of the same, pursuant to the report of the Salt Commissioner dated September 25, 2014.
The petitioners requested the GSS to withdraw the Demand Notices vide letters dated February 18, 2015, denying the misdeclaration of goods.
After expiry of one year, on February 15, 216 the GSS again issued separate notices to the petitioners in terms of the earlier Demand Notices dated February 12, 2015, to which the petitioners replied by Advocate's Letter dated February 19, 2016, calling for withdrawal of all the three Demand Notices, with a copy to the Chief Commercial Manager, Eastern Railway.
Subsequently, despite representations by the petitioners, the Railway-Authorities did not allow the petitioners to operate their respective godowns. As such, the petitioner filed a writ petition bearing WP 5257(W) of 2016, challenging the alleged arbitrary and illegal action of the Railway-Authorities. The said writ petition was disposed of on March 18, 2016, quashing and setting aside the purported Demand Notices dated February 15, 2016 with observation that the order would not prevent the Railway-Authorities to proceed against the petitioner in accordance with law, if so advised, and also directing 4 that the posting of Railway Police Force in the godowns of the petitioners shall be lifted by the Railway-Authorities.
Again, on May 3, 2016 the Divisional Commercial Manager, Sealdah Division, Eastern Railway issued three further Notices alleging misdeclaration of goods and directing the petitioners to pay the undercharges, otherwise to explain why the railway authorities should not proceed against the petitioners. Petitioner No.2 and 3 replied to the said Notices vide letters dated May 9, 2016 and petitioner no.1 vide letter dated May 11, 2016, requesting the withdrawal of the said Notices.
The Divisional Commercial Manager, Sealdah Division, Eastern Railway issued three letters dated May 17, 2016 to the petitioners, observing that the petitioners' replies to the Notices dated May 3, 2016 were not convincing and the petitioners were required to comply with the demand made therein, without prejudice to the rights and contentions of the Railways.
The petitioners challenged the said letter dated May 17, 2016 vide WP 9911(W) of 2016, which was disposed of by a Co-Ordinate Bench of this Court by an order dated July 12, 2016, setting aside the impugned letters with liberty to the Railway Administration to proceed afresh based on the observations contained in the order dated March 18, 2016 passed in WP 5257(W) of 2016 by this Court.
5
The Railways thereafter issued Show-Cause Notices dated October 17, 2016 to the petitioners, reiterating the allegation that the contents of the consignment of the wagons-in-question were misdeclared as edible salt.
The petitioners gave their respective replies to the said Notices on November 7, 2016, denying the allegation of misdeclaration as the consignment was admittedly non-refined iodised salt.
The railway authorities, by three different letters dated December 9, 2016, informed the petitioners that their representations to the show-cause notices were not convincing and, as such, not acceptable.
The petitioners, challenging the Show-Cause Notices dated October 17, 2016 and letters dated December 9, 2016 and other Notices dated November 28, 2018 of the Certificate Officer, South 24 Parganas, Alipore, filed a writ petition bearing WP 26024(W) of 2018, which was dismissed by this Court by an order dated January 11, 2019, inter alia setting aside the impugned orders of the Railway-Authorities and certificates of the Certificate Officer, with liberty to the Railway-Authorities to proceed from the stage of consideration of the replies to the show-cause notices and by directing the Railways to pass a reasoned order upon giving opportunity of hearing to the petitioners. Thereafter the Senior Divisional Commercial Manager, Eastern Railway, Sealdah (in short "the SDCM") called the petitioners for hearing. The 6 petitioners were represented and, upon hearing, the SDCM passed an order on April 30, 2019, holding that the Railway is not in a position to indicate clearly the cause of misdeclaration, rather to depend upon the assessment of the Salt Commissioner Authority to clearly indicate whether the salt sample is edible or non-edible industrial salt.
Several correspondences and a revision later, pursuant to an order dated December 22, 2022 passed in WPA 7371 of 2020, the Principal Chief Commercial Manager, Eastern Railway passed an order on November 13, 2021 and communicated the same by a memo dated November 15, 2021 through Senior Commercial Manager, Eastern Railway, inter alia, directing the Railway- Authorities to issue Demand Notices to the petitioners upon holding that there was misdeclaration in respect of 10 wagons, for which the petitioners are liable to pay under-charges for penalty as calculated by the Railways. The said order has been challenged by way of the present writ petition.
At the outset, the learned Senior Advocate appearing for the respondent-Railways submits that the writ petition is not maintainable in law and in its present form on different scores.
It is contended that, under Section 36 of the Railways Act, 1989 (hereinafter referred to as "the 1989 Act"), the complaints which lie against the Railway 7 Administration to the Railway Claims Tribunal have been specified. Such Tribunal, established under Section 3 of the Railway Claims Tribunal Act, 1987 was designated as the Tribunal for the purpose of the 1989 Act, to exercise the jurisdiction, charges and powers, conferred on it by or under the 1984 Act. Hence, it is submitted that the present challenge ought to have been preferred before the Railway Claims Tribunal and, as such, the writ petition is not maintainable. It is submitted that this Court ought not to entertain the writ petition.
It is next submitted on behalf of the respondent- Railways that the order under challenge is a reasoned order passed after duly hearing the parties. There being no procedural irregularity in making the decision, the petitioners ought to have preferred an appeal before the Tribunal.
It is further contended that the single writ petition, preferred at the behest of three separate petitioners having individual causes of action, is not maintainable in law and in its present form as well.
By placing reliance on the judgment reported in Jigya Yadav Vs. Central Board of Secondary Education and others [(2021) 7 SCC 535] , it is argued that, in the absence of any public law element, the writ court does not ordinarily interfere with disputes relating to contractual liability. Since the dispute raised by the petitioners arise from their contracts with the Railway-Authorities, by 8 applying the aforesaid principle, the writ petition is not maintainable.
Next placing reliance on Section 41 of the Specific Relief Act, the learned Senior Advocate contends that a relief to enforce a contractual remedy cannot be granted by the writ court.
Learned counsel appearing for the petitioners, in reply to the question of maintainability, argues that the dispute-in-question pertains to classification of a commodity, as envisaged under Section 37(a) of the 1989 Act. As per the said Section, such a matters have specifically been excluded from the jurisdiction of the Tribunal.
That apart, it is submitted that the three petitioners, for abundant caution, have deposited court fees equivalent to three separate writ petitions. Moreover, all the three petitioners challenge a common impugned order, due to which a single writ petition is very well maintainable.
As regards the argument advanced by the learned Senior Advocate for the Railway-Authorities that the challenge has been mounted against a reasoned order passed after hearing the parties, it is submitted that the order is arbitrary and de hors the Railways Act, 1989.
In reply, the learned Advocate for the petitioner places reliance on an unreported judgment of a co- ordinate Bench of this Court dated December 6, 2019 passed in Shyam Steel Manufacturing Limited Company 9 and another Vs. Union of India and another in W.P. No.6127 (W) of 2012, submits that the facts of the said case were similar to the present case. In the said case, the questions which fell for consideration included the query as to whether demands similar to the present case, in impugned orders with reasons, passed by the respondent- Railway Authorities, were without jurisdiction and whether the writ court could determine the freight rate on the consignment-in-question as per relevant Circulars.
Besides the issue as to whether the writ court can decide the issue of falsity or truthfulness of a declaration made by the parties with regard to the consignment-in- question and whether it was for domestic or export purpose, it was further in issue in the said judgment as to whether, in view of Sections 33, 36, 38 and 44 of the Railways Act, 1989, the Tribunal was the appropriate forum for adjudication of the nature of dispute involved and relief claimed in the writ petition.
In answer, the learned Single Judge, inter alia, held that the writ court is not the appropriate forum to adjudicate the disputed question of fact about the falsity or truthfulness of a declaration made by the parties about the consignment-in-question or to inquire about the use of the same as to whether it was used for the domestic purpose or for the purpose of export. Taking into consideration the aforementioned Sections, the learned Single Judge further held that the Tribunal is the 10 appropriate forum for adjudication of the nature of dispute involved and relief claimed by the petitioners in the said writ petition.
Upon hearing learned counsel for the parties on the question of maintainability, this Court comes to the following conclusions.
The learned Single Judge, in Shyam Steel Manufacturing Limited (supra), had considered all the relevant Sections of the 1989 Act and arrived at a conclusion that disputes of the same nature as the present case were the subject-matter for determination by the Tribunal.
Although the Railway-Authorities have raised the question whether a single writ petition is maintainable at the instance of three writ petitioners for separate causes of action, the said issue is decided in favour of the petitioners inasmuch as the petitioners have deposited adequate court-fees for three separate writ petitions and have challenged in the writ petition a single order, affecting all the three petitioners. In any event, procedure is the handmaid of justice and the writ court ought not to resort to hyper-technicalities while deciding the entitlement of litigants to the reliefs claimed.
Inasmuch as the objection as to contractual liability and bar of Section 41 of the Specific Relief act is concerned, the ratio of the judgment of Jigya Yadav (supra) is not applicable to the present case. It is well- 11 settled that public authorities, even in case of private disputes, are duty-bound to adopt transparent procedure and adhere to the principles of natural justice.
Moreover, in the present case, the disputes arising between the parties does not strictly emanate from any contract between the parties but for violation of the statutory notifications/classifications of the Railway- Authorities, framed within the broad conspectus of the 1989 Act.
Yet, inasmuch as the maintainability of this Court is concerned, the argument made by the petitioners as regards applicability of Section 37, on the ground that the dispute is in respect of classification or re-classification of a commodity, the said argument cannot be accepted. The scopes of Section 36 vis-a-vis Section 37 of the 1989 Act, upon a comparison clearly shows that the present disputes comes within the purview of Section 36, since the same has been raised in respect of charging for the carriage of commodity between two stations at a rate which is allegedly unreasonable.
Insofar as Section 37(a) of the Act is concerned, the dispute, although incidentally involving the actual category under which the commodity being transported comes, does not ipso facto pertain to classification or re- classification of a commodity.
The question which has fallen for consideration is not whether the commodity being carried by the petitioner 12 was classified or re-classified properly but as to the charges leviable in respect of such commodities and the reasonability of such charges.
Although the question of the actual category of the commodity-in-question has to be gone into indirectly for the purpose of deciding the reasonableness/unreasonableness of the charge levied, the dispute pertains primarily to the levy of such charges, which falls within the contemplation of Section 36(b) and
(c) of the 1989 Act. Hence, under Section 33 of the 1989 Act, the Railway Claims Tribunal established under Section 3 of the Railway Claims Tribunal Act, 1987, is the appropriate authority to exercise the jurisdiction, authority and powers conferred under the 1989 Act, including Section 36 thereof.
Moreover, since disputes involving appreciation of factual evidence has been raised, it would not be appropriate for the writ court to enter into such investigation but rather, it is the Tribunal which is to decide such questions on merits.
Hence, the objection as to maintainability raised by the respondent-Railway Authorities is sustained. By application of self-imposed restriction, this Court desists from entertaining the writ petition.
Accordingly, W.P.A. No.2828 of 2022 is dismissed, with liberty to the petitioners to approach the Railway Claims Tribunal with the disputes raised in the writ 13 petition. If so approached, the Tribunal shall decide the same upon hearing both parties and in accordance with law, without being influenced by any of the observations made herein. Needless to say, the merits of the respective contentions of the parties with regard to the meat of the matter has not been entered into by this Court at all.
No order as to costs.
Urgent certified copies, if applied for, be given to the parties upon prior production of the server copy of this order.
(Sabyasachi Bhattacharyya, J.)