Calcutta High Court (Appellete Side)
Eastern Railway And Ors vs Shree Enterprises Coal Sales Pvt. Ltd. ... on 9 December, 2024
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
09.12.2024
Court No.13
Item No.6
AP
MAT 659 of 2017
With
CAN 3 of 2024
Eastern Railway and Ors.
Vs.
Shree Enterprises Coal Sales Pvt. Ltd. and Anr.
Mr. Sauvik Nandy, Senior Advocate
Mr. Subrata Santra
... For the Appellant/Eastern Railway.
Mr. Rajesh Kr. Gupta
Ms. Nibedita Pal
Mr. Ananda Gopal Mukherjee
Ms. N. Khatoon
... For the Respondent No.1/Writ Petitioner.
1. The instant appeal is directed against a judgment and order dated 8th March, 2017 passed by a Single Bench of this Court. By reason of the said judgment, a demand of the railways dated 26th April, 2016 and a consequential order dated 10th May, 2016, exercising lien over the goods subsequently dispatched by the writ petitioner, was quashed and set aside.
2. The brief facts relevant to the case are that sometime in January 2016 the writ petitioner from Pandaveswar near Burdwan in West Bengal loaded consignment of coal on the rakes of the Indian railways. The consignment was to be delivered to the petitioner at a place called Kushmi in the State of Uttar Pradesh.
3. While the train was passing through Mughalsarai, much before the destination, the railways claimed to have detected a quantity of coal loaded on its 2 rake, allegedly at the instance of the writ petitioner, in excess of the disclosed weight in the consignment note.
4. The rakes reached Kushmi on 21st January, 2016. The coal was unloaded and delivered to the consignee/writ petitioner. There was no weighment of the excess quantity of coal before delivery. There was no demand raised by the railways either before such delivery. Upon delivery the consignee appropriated the consignment to its use and benefit and resold the coal to his customers.
5. On the part of the railways it is submitted that since after delivery in the end of January 2016, the writ petitioner was allegedly notified of the excess weight. No such document has been produced by the railways to this effect.
6. Challenging the purported communication of alleged excess weight prior to the demand, the writ petitioner filed WP 3514 of 2016 which was dismissed by an order dated 8th March, 2016 for being premature.
7. It is only four months later, i.e. on 26th April, 2016, that the railways raised demand for the alleged excess freight/differential freight on the writ petitioner for a sum of Rs.18,94,498/-.
8. Upon the writ petitioner denying his liability thereunder, the railways, by a further letter dated 10th May, 2016, exercised lien over in respect of the 3 subsequent consignments dispatched by the writ petitioner.
9. WP 12628 (W) of 2016 was filed subsequent to the demand dated 26th April, 2016 and the letter of lien dated 10th May, 2016 issued by the railways.
10. The appellant/railways filed affidavit-in- opposition. Except for questioning the territorial jurisdiction of this Court to entertain the writ petition, the railways did not challenge the proceedings on the ground of availability of effective alternative remedy before the Railways Claims Tribunal under Section 36 of the Railways Act of 1989. The railways also did not raise any disputed questions of fact, for the writ Court to relegate the writ petitioner to a civil suit. The learned Single Bench, in fact, found no disputed questions of fact.
11. Placing reliance on Section 73 of the Railways Act, 1989 the Single Bench held that since there is no weighment of the alleged excess quantity of coal allegedly, laden by the petitioner, by the railways prior to delivery of consignment to the writ petitioner, the railways have robbed/deprived the writ petitioner of an opportunity to contest the contention and consequent demand of the railways of differential freight.
12. Reliance was placed by the Single Bench on a Three Judge Bench decision of this Court in the case of 4 Union of India Vs. Biswanath Agarwal reported in 2015 (2) CLJ (Cal) 257 particularly Para 44 thereof.
13. With regard to the jurisdiction of this Court, counsel for the Eastern Railway has placed reliance on the decision of a Single Bench of this Court dated 23rd February, 2017 in WP 2917 (W) of 2017 (Nirma Ltd and Anr. Vs. Union of India and Ors.), and the case of Friend's (H.P.) Station Vs. Senior Regional Manager reported in (2009) 3 WBLR (Cal) 981, were not found applicable by the Single Bench.
14. This Court finds that it is an admitted position by and between the parties that the consignment which left Pandaveswar near Burdwan was delivered without protest demur, reweighment or demand by the railways to the writ petitioner/respondent on 22nd January, 2016.
15. The observation of a Full Bench of this Court at Paragraph 44 of the Biswanath Agarwal (supra) decision would therefore clearly apply in the facts of the case. There are, in fact, no disputed questions of fact that have been brought on record by the railways before this Court.
16. Mr. Rajesh Kumar Gupta, Learned counsel for the writ petitioner/ respondent has placed reliance upon the decision of the Supreme Court in the case of Hirday Narain Vs. Income Tax Officer, Bareilly reported in 5 1970 (2) SCC 355 particularly paragraph 13 at page 359 thereof. In the said decision it is held that it would be inappropriate for the High Court or the Supreme Court for that matter, to dismiss a writ petition that was admitted, heard and disposed of for rectification of a demand by the ITO, on the ground of availability of an alternative remedy before the Commissioner of Income Tax under the Income Tax Act, 1922.
17. Reliance is next placed on the decision of a Coordinate Bench of this Court in the case of Paramount Leathers Vs. Regional Provident Fund Commissioner reported in 2010 SCC OnLine Cal 2375 particularly Paragraph 27 thereof. A similar view has been taken by the said Coordinate Bench of this Court that after the writ petition is admitted and decided by a Single Bench, it would be inappropriate for a Division Bench, sitting in appeal over the findings of the Single Bench, to dismiss the writ petition on the ground of alternative remedy.
18. Learned Counsel, Mr. Gupta, lastly relied on paragraph 67 of the decision of the Supreme Court in the case of Uttar Pradesh Power Transmission Corporation Limited and Anr. Vs. CG Power and Industrial Solutions Limited and Anr. reported in (2021) 6 SCC 15.
19. The aforesaid decision, at paragraph 67 of the case, was placed to argue that alternative remedy would 6 not be an absolute bar to entertain a writ petition. The Supreme Court cited with approval the dicta laid down in the case of Whirlpool Corpn. Vs. Registrar of Trade Marks reported in (1998) 8 SCC 1.
20. Having regard to the above, it appears to this Court that the railways did not object to the maintainability of the writ petition on the ground of availability of alternative remedy before the Single Bench. Even in the Memorandum of Appeal, no ground has been urged in this regard, except for some feeble pleas in the application for Stay.
21. This Court considers the same belated and the views of Coordinate Bench in Paramount Leathers (supra) and Hirday Narain (supra) would stand in the way of the objection being entertained before this Court at this belated stage.
22. This Court even otherwise finds that the facts are narrow and undisputed. There are no contemporaneous documents produced by the railways to upset any of the findings of the fact by the Single Bench. No such documents or facts brought on record in the affidavit-in- opposition before the Single Bench.
23. For the reasons stated hereinabove, the appeal fails and is hereby dismissed. The impugned order of the Single Bench dated 8th March, 2017 is upheld. 7
24. In view of the dismissal of the main appeal, connected pending applications, if any, is also hereby dismissed.
25. There shall be no order as to costs.
26. All parties are to act on a server copy of this order duly downloaded from the official website of this court.
(Rajasekhar Mantha, J.) (Ajay Kumar Gupta, J.)