Calcutta High Court (Appellete Side)
Kiran Devi Patwari vs The State Of West Bengal & Anr on 22 November, 2024
22.11.2024
Sl. No.: 4
Court No.30
BM
CRR 1232 of 2021
(Assigned)
Kiran Devi Patwari
Vs.
The State of West Bengal & Anr.
Mr. Sekhar Kumar Basu, Sr. Adv.
Mr. Pradeep Kumar Tarafder
Mr. Sambudha Dutta
Mr. Satadru Lahiri
Mr. Safdar Azam
... for the Petitioner
Mr. Arun Kumar Maiti (Mohanty)
Mr. Kallol Mondal
Mr. Amajit De
Mr. Somnath Adhikary
... for the CBI
1. Mr. Basu, learned senior counsel submits that the revisional
application may be taken up for final disposal after the
matter before the Hon'ble Apex Court is decided.
2. It is submitted that vires of the Railway Circular involved in
the present case is being challenged before the Hon'ble
Supreme Court.
3. The issue in the present revisional application and the
proceeding before the trial court involves allegation of
submission of false affidavit, which it is submitted is part of
the said circulars, the vires of which has been challenged and
presently pending the consideration of the Hon'ble Apex
Court.
4. Thus, the relevant extract of the said Railway Rate Circular
No.36 of 2009 is re-produced here for convenience:-
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"..........III) Submission of Affidavit by
consignee before taking delivery.
After arrival of the consignment at the destination
terminal, consignee will be given delivery of the
consignment only after he furnished an affidavit
on non-judicial stamp paper (for each rake) which
should inter alia include the following averments.
"It is certified under oath that the consignments of
iron ore received on date --- with RR no --- in
wagon nos --- at --- Goods shed/siding is meant
for domestic consumption at the manufacturing
unit ---- located at ---- with Factory registration no -
------- and Cenvat no ------ It is also certified that
this consignment is not meant for export out of
India and this consignment will not be exported
out of India and this consignment will not be
exported out of India under any circumstances"
IV) ..................
V) Furnishing of Indemnity Note by consignee
The consignee must also furnish a stamped
indemnity note to indemnify the railway against
mis-declaration of export iron ore as domestic iron
ore for nonpayment of Distance Based Charge or
any other misuse of rules prescribed by railways
from time to time................"
5. Mr. Basu, by way of filing a written argument has
submitted as follows:-
"...Assailing vires of different Rate circulars
published by Ministry of Railway, Government of
India, the Rule 126(1)(a) of Goods Tariff No.41,
Part-1(Volume-1) as well as authority of the
Ministry of Railways for issuing purported show
cause notice, M/s. Aryavrata Steel Private Limited
(Accused No. 3) and Ashok Kumar Patwari,
preferred a writ petition being W.P. No.2914 (W) of
2013 before the Hon'ble High Court at Calcutta,
restrained the Railway Authority from taking any
penal action pursuant to the individual show
cause(s) assailed in W.P No.2914 (W) of 2013 and
in other analogues writ proceedings preferred by
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respective parties. His Lordship was pleased to
observe
"............ But as jurisdictional issue has been
raised in each of these proceedings, no penal
action shall be taken against the petitioners on
the basis of individual notices of show cause
assailed in these writ petitions, until the next date
of hearing of this batch of writ petitions. Liberty is
given to apply for extension of interim order or for
vacation or variation of the interim order to the
petitioners and the respondents. On the next date
of hearing, I shall examine the matter in greater detail."
The interim order/relief so passed by the court has not been vacated.........."
6. On the other hand the learned counsel for the CBI has placed his affidavit in opposition filed in a connected revision being CRR 2967 of 2022.
7. It appears from the said affidavit in opposition that the relevant Rate Railway circulars of the Indian Railway are RC 14 of 2008, RC 15 of 2008, RC 20 of 2008, RC 30 of 2008 and RC 36 of 2009.
8. It is further submitted on behalf of the petitioner that in another writ petition being W.P No.14656(W) of 2011 filed by one Rashmi Metaliks being identically circumstanced, manufacturers of iron and steel products wherein identical questions of law had been agitated, this Hon'ble Court by an order and judgment inter alia held that:-
(i) Clause 6 of the Rate Circular 36 of 2009 is valid and enforceable 4
(ii) the Railways Administration is entitled to impose penal charges in the manner prescribed in the aforesaid clause 6 of the Rate Circular 36 of 2009
(iii) the Central Government shall be entitled to issue direction on Railways administration for blacklisting the establishment during the administrative proceedings.
9. Against the aforesaid order dated 29.09.2014, the aforesaid Rashmi Metaliks Ltd. & Anr. preferred a Mandamus Appeal being MAT No.1970 of 2014. The Hon'ble Division Bench of this Hon'ble Court by an order and judgment inter alia, held that:-
(i) the Rate Circular No.36 of 2009 could not be declared invalid or inoperative for want of jurisdiction as it was issued by the Railway Board having jurisdiction to issue such circular;
(ii) since the Railways Act, 1989 has not empowered the Railways authority to determine the alleged evaded freight charges by itself, the Railway Administration, cannot undertake any adjudication proceeding for determining the freight charges allegedly evaded by the appellant during the relevant period and for the same reasons, the Railway authorities are also not entitled to realize its self-estimated evaded freight charges from appellant through coercive measures;
(iii) since the civil court had not yet decided the said suit the claim of the Railways Administration is still liquid 5 shape which will be transformed into solid state only when the civil court after adjudication of the dispute involved in the said suit, declared the entitlement of the Railways Administration to realize its claim as a debt of the company. Until a decree is passed in favour of the Railway administration in the said suit by fixing the liability of the appellant company to any amount on account of such alleged evaded freight charges, the appellant company cannot be saddled with any penalty by the Railways administration on the basis of its self-
determination of the alleged evaded amount, inasmuch as the Railway Act, 1989 does not vest any authority with the Railway administration either to make any self-assessment in this regard or to impose penalty upon it for non-compliance of the Railways demand on account of its self-assessment towards evasion of Railway Freight charges;
(iv) the penalty as per provision contained in paragraph 6 of the Rate Circulate 36 of 2009 by way of blacklisting for giving misdeclaration cannot be imposed upon the consignor and/or the consignee on the ground that (a) it is not supported by any legislative action; (b) Railway authority cannot exercise this jurisdiction on the basis of self assessment so long the falsity/inaccuracy is not declared/found by the civil court; (c) the rights of the parties in the present cases are not governed by contract; (d) once goods are delivered, railway 6 administration loses its jurisdiction to exercise any of its powers.
10. Against the aforesaid order dated 24.12.2014, a Special Leave Petition being SLP (Civil) No.19925 of 2015 has been filed by the Rashmi Metaliks Limited. Also, another Cross Special Leave Petition being SLP (Civil) No.15869 of 2015 was also filed by the Railways authorities. Both of the Special Leave Petitions were admitted and are pending adjudication before the Hon'ble Supreme Court.
11. It is further stated that:-
"..............Union of India preferred a Civil Suit being C.S. No. 235 of 2015 for recovery of money claiming differential freight and consequent mis-declaration penalty, to the tune of Rs.56,96,56,251/-. The said suit is pending for adjudication before this Hon'ble Court.
Union of India preferred a transfer petition being T.P (C) No.833 of 2015 (Union of India & Ors. Versus Rashmi Metaliks Limited and Anr.) before the Hon'ble Apex Court in Special Leave Petition (Civil) No.19925 of 2015 (Rashmi Metaliks Limited and Anr. vs. Union of India & Ors.) to get the writ petition being W.P. No.2914(W) of 2013 along with other writ petitions, pending before the Hon'ble High Court, Calcutta pertaining to identical issues be transferred to the Hon'ble Supreme Court of India for hearing. Stay application was also preferred in the said Transfer Petition.7
The said transfer petition has been preferred for hearing of all the writ petitions along with two Special Leave Petitions being Special Leave Petitions (Civil) No.19925 of 2015 and Special Leave Petitions (Civil) No.15869 of 2015, on the premises that identical issues and/or disputes arising from self same issues are subject matter of the said proceedings.
The matters are pending adjudication before the Hon'ble Supreme Court of India..........."
12. On 14.12.2015 the Hon'ble Apex court was pleased to stay: -
"...........All further proceedings of as many as 23 proceedings pending before Hon'ble High Courts at Calcutta, Cuttack, Ranchi and Karnataka between respective parties relating alleged evasion of railway freights during transportation of goods..........."
13. Though it is clear that the stay is not in respect of the proceedings in the present case nor in respect of the proceedings before the trial court or the High Court in criminal revision, it appears that the issue involved in the present case is directly and clearly connected to the issue which is before the Hon'ble Apex Court for adjudication and as such rule of propriety requires that the present revision be taken up for final hearing after the matters before the Hon'ble Apex Court is finally decided.
14. Accordingly, let the criminal revision be put after disposal of the proceeding before the Hon'ble Apex Court. 8
15. Liberty to mention.
( Shampa Dutt (Paul), J. )