Chief Goods Supervisor, South vs M/S Bimaldeep Steel Pvt.Ltd.& on 21 April, 2011

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Jharkhand High Court

Chief Goods Supervisor, South vs M/S Bimaldeep Steel Pvt.Ltd.& on 21 April, 2011

Mr. Mittal, learned senior counsel appearing for the petitioner submitted as follows. The demand of stacking charges from 01.03.2010 was bad, as due to prohibitory order under Section 144 of -2- Cr.P.C. the petitioner could not transport the iron ore stacked at Jaroli Railway station. After the said order was relaxed on 1.05.2010, petitioner wanted to remove the iron ore, but the respondents-Railways insisted for payment of stacking charges even for the prohibitory period. As such demand was apparently wrong, petitioner was justified in refusing to pay it. Then after about six months i.e. in the month of November 2010, a demand of Rs. 2,72,16,000/- was served on the petitioner for the period 1.3.2010 to 31.10.2010 excluding the prohibitory period from 6.03.2010 to 30.04.2010. Such demand again is bad as the Railways could not penalize the petitioner for the delay caused by it in not correcting the demand. As the Railways insisted for payment of such demand, the petitioner had to file this writ petition.

2. On the other hand, Mr. Tewari learned counsel appearing for the Railways justifying the demand submitted as follows. In Chakradharpur Division 'dump and load' system as per clause 3.2 of DRC No. 12 (G) of 2009 (Annexure 7) was prevailing under which the consignor was allowed to dump the material at the loading point on the confirmed forecast from the Chief Controller (Mineral) of the division. The advance stacking of iron ore was not permissible. Petitioner stacked iron ore to the tune of 3556.1 Metric Tonne without making any indent or without any permission. Petitioner could have lifted the material just after the prohibitory order was relaxed on 1.5.2010 by making payment of stacking charges, and could have prayed for waiver of the charges during prohibitory period, which could have been refunded to it. The stacking charges is accruing every day for which additional bill will be raised at the time of lifting of the material. Had the petitioner followed the 'dump and load' system as per para 3.2 of DRC No. 12 (G) of 2009, he could not have been affected by the prohibitory orders under Section 144 Cr.P.C. All the other parties have paid such demands.

3. In reply, Mr. Mittal submitted that the materials were dumped by the petitioners against alive indents of the contracting parties, the Railways allowed the petitioner to dump such huge quantity. The Railways could have refused dumping if it was unauthorised. The payment of such demand by other parties is not -3- binding on the petitioner and moreover such payments have been made under protest.

4. Thus, the question is whether the demand of stacking charges from 1.5.2010 onwards is justified or not.

5. It is not in dispute that a prohibitory order under Section144 Cr.P.C. was promulgated w.e.f. 4.03.2010 and it was relaxed on 1.05.2010.

According to the petitioner, after such relaxation, it approached the Railway authorities for providing racks for transporting the material, but stacking bill/penalty was imposed/pasted on the notice board. The petitioner requested to correct the demand excluding the prohibitory period, but nothing was done. After about six months, the revised demand was served on the petitioner in November 2010 excluding prohibitory period. This position has not been denied and disputed by the Railways. The main case of the Railways is that petitioner stacked materials without indent/permission.

The circular letter dated 29.06.2009 (Annexure 7) has been relied by both the parties. It appears from clause 3.1 thereof that advance stacking of iron ore was permissible from the specified stations and all loading points of Chakradharpur Division with the permission of concerned authorities and for other stations, the system of 'dump and load' was to be followed under which the consignor was allowed to dump its material on receipt of confirmed forecast from the concerned authorities regarding placement of empty wagons on the following day. According to the Railways, the advance stacking was not permissible. But, as per Annexure 7 circular, advance stacking was permissible. No document has been brought on record by the Railways to show that Annexure 7 circular was modified to the extent that advance stacking was not permissible in Chakradharpur Division. The stand of the Railways is further contradictory when it is said that - had the petitioner followed the 'dump and load' system, he could not have been the victim of prohibitory proclamation. In other words, it is said that the petitioner did not dump iron ore under the 'dump and load' system.

It may also be noted that, while raising the impugned demand, the Railways did not disclose as to under what provisions, the -4- demands were raised. Only in the counter affidavit, it is said that the 'dump and load' system was prevailing in Chakradharpur Division. Thus, the stand of the Railways regarding the provisions applicable to the petitioner is uncertain and contradictory.

6. Then it appears that the Railways allowed the petitioner to stack iron ore to the extent of 3556.1 M.T. which could not be stacked in a day. Within a couple of days of such stacking, prohibitory orders were promulgated w.e.f. 4/6.3.2010 which was relaxed on 1.5.2010. Railways has not denied and disputed the case of the petitioner that after the relaxation in the prohibitory order, it approached the Railways for transportation/removal of their material, but the Railways insisted to deposit the stacking charges also for the prohibitory period. The stand of the Railways that the petitioner should have deposited the charges and then could claim its waiver/refund, is unfair. The charges were about 4-5 times of the value of goods. The Railways was/is required to act fairly. Petitioner was fully justified in objecting to such demand.

Then it appears that the Railways took about six months in excluding the demand for the prohibitory period. Again the Railways were wrong in demanding the stacking charges from 1.5.2010 till October 2010 which time was consumed by it in revising the demand excluding the charges of prohibitory period. Petitioner is justified in objecting to such demand also. According to the Railways, the stacking charges are accruing every day and further demand will be raised when the materials will be removed by the petitioner.

7. In the facts and circumstances noticed above, in my opinion, the Railways is not justified in raising demands of stacking charges even from 1.05.2010. At best, it can claim stacking charges from 1.3.2010 to 6.3.2010, which the petitioner is liable to pay.

In the result, the demand of stacking charges except for the period 1.3.2010 to 6.3.2010 is quashed.

Within one week, the Railways will inform the petitioner whether it can provide wagons for transportation of the stacked iron ore. If it is not in a position, the petitioner is directed to remove the materials within one week from the receipt of such communication from the Railways, failing which the Railways will be entitled to realise -5- stacking charges from the petitioner after the end of such period, till it is removed.

With these findings, observations and directions, this writ petition is disposed of. However, no costs.

Civil Review No. 99 of 2010:

This review petition has been filed for reviewing the order dated 27.8.2010 passed in W.P.(C) No. 2778 of 2010.

The said writ petition was taken up 29.06.2010. As prayed by the counsel for the respondents-Railways three weeks time was allowed for filing counter affidavit. On 11.08.2010, I. A. No. 2668 of 2010 filed in that case, for amendment was taken up which was made part of the main writ petition. No body appeared on behalf of the respondents on that day. However, two weeks time was allowed for filing counter affidavit to the main writ petition as well as the said I.A., failing which the matter was to be viewed seriously on the next date. The matter was fixed on 27.08.2010. On 27.08.2010, the writ petition was disposed of inter-alia quashing the impugned demands of stacking charges.

Mr. Mahesh Tewari, learned counsel appearing for the review petitioner referred to paragraph 22 and 23 of the review petition which reads as follows:

"22. That notices were served to the learned counsel of the Railways, but no one appeared on behalf of the Railways on 27.8.2010."

"23. That this was because of the fact that although the case handed over to Mr. Mahesh Tewari, learned counsel for the respondents-Railways, along with counter affidavit, the same could not be filed in the said writ petition being W.P.(C) No. 2778 of 2010."

He also submitted that the review petition may be treated as counter affidavit. He made submissions on the merits of the case also.

There is no explanation as to why no body appeared on 11.08.2010 in the writ petition. Even on 27.08.2010, no body appeared on behalf of the Railways. Review can not be allowed on such ground. Otherwise, in all the cases where a party chooses not to appear or neglects to appear will claim review on one or other ground.

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Moreover, in similar circumstances, in the aforesaid writ petition, i.e W.P.(C) No. 207 of 2011, the stacking charges demanded by the Railways has been quashed after hearing the parties.

In my opinion, no grounds are made out for reviewing the order in question. This review petition is accordingly, dismissed.

(R. K. Merathia, J.) R.Shekhar Cp 2

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Jharkhand High Court