JUDGMENT 1. By Court-Heard learned counsel for the parties. 2. The appellant-Union of India particularly South Eastern Railway is aggrieved against the judgment dated 21st April, 2011 passed in W.P.(C) No.207 of 2011, by which the writ petition of the respondent M/s M/s Shree Balaji Mining Private Ltd., Singhbhum West had been allowed and demand of Rs.2,72,16,000/-raised by the Railway has been quashed and it has been held that the writ petitioner-respondent shall be liable to pay the stacking charges for stacking goods in the Railway property from March, 2010 to 6th March, 2010 instead of paying the stacking charges from May, 2010 to 31st October, 2010, excluding the period from 6th March, 2010 to 30th April, 2010, because of the prohibitory order passed under Section 144 Cr. P.C., which continued from March, 2010 to 30th April, 2010. 3. It will be appropriate to narrate the facts in brief as pleaded by the petitioner. The petitioner Company is a Company incorporated under the provisions of Companies Act, 1956 having its unit/ place of business at Plot no. 1830 Barajamda, Singhbhum West and is engaged in the business of trading of iron ore and for the purpose of trading has been registered with the Commercial Taxes Department, Government of Jharkhand as also with the District Mining Office, Chaibasa and has obtained the licence for that purpose. According to the writ-petitioner , for its business, the petitioner after procuring the lumps of iron ore from different mine owners within the state of Orissa, the same is procured and transported to petitioner's crushing unit at Kasia, Keonjhar where the petitioner crushes the lumps of iron ore and converts the same into iron ore fines and from where the iron ore fined are transported to different railway siding within the State of Orissa and after iron ore is downloaded at different railway siding, in view of the permission obtained by the petitioner from Dy. Director of Mines, Joda, district-Keonjhar having valid trading licence certificate issued in its favour from time to time, the petitioner either carries the same to the State of Jharkhand or sells it directly from the railway siding itself. 4. The petitioner's contention in the writ petition was that he having valid trade licence, certificate issued by the Deputy Director of Mines, stacked the iron ore in the railway siding and stacked 3556.1 Metric Tonne. 4. The petitioner's contention in the writ petition was that he having valid trade licence, certificate issued by the Deputy Director of Mines, stacked the iron ore in the railway siding and stacked 3556.1 Metric Tonne. However, after few days of its stacking of the said ore on the railway property , from 5/6th March, 2010 a prohibitory order under Section 144 Cr.P.C. was issued by the Executive Magistrate and that continued upto 30th April, 2010. The petitioner's contention is that in view of the policy of the Railway itself , the person having indent for such goods, could have stacked the goods in the railway property and that is called advance stacking. In view of such policy, the petitioner stacked the goods in the railway property and because of the prohibitory order he could not lift the goods upto 30th April, 2010 and petitioner thereafter, tried to lift the goods but Railway authorities did not allow the petitioner to lift the goods on pretext that he has to first pay the stacking charges for which ultimately the demand was raised against the petitioner only on 1st November, 2010 and the petitioner was saddled with the stacking charges of Rs.2,72,16000/-whereas the total cost of petitioner's goods was only about Rs.12-14 lacs. The petitioner, therefore, was prevented from lifting the goods by the Railway authorities themselves by creating this huge demand and pre-payment of more than Rupees Two Crores against the petitioner whereas the value of the goods of the petitioner was only in between Rs.12-14 lacs. The petitioner, therefore, challenged the demand raised by the respondent-railway by saying that petitioner came to know about this demand only when that demand notice was affixed on the Notice Board of the Railways. 5. The respondent filed a reply to the writ petition and contested the claim of the writ petition and tried to justify their demand on the basis of stacking policy(Annexure-7). 6. The learned Single Judge observed that, it appears that the the Railway allowed the petitioner to stack iron ore to the extent of 3556.1 Metric Tonne 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 only on 1.5.2010. 6. The learned Single Judge observed that, it appears that the the Railway allowed the petitioner to stack iron ore to the extent of 3556.1 Metric Tonne 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 only on 1.5.2010. Then the learned Single Judge observed that Railway has not denied and disputed the case of the petitioner that after the relaxation in the prohibitory order, the petitioner approached the Railway for transportation/removal of their material but the Railway insisted to deposit the stacking charges also for the prohibitory period. Then the learned Single Judge held that the stand of the Railway that the petitioner should have deposited the charges and then could claim its refund, is unfair. It was also inferred by the learned Single Judge that the charges were about 4-5 times of the value of the goods and it is observed that the Railway was required to act fairly and petitioner was fully justified in objecting to such demand. The learned Single Judge also observed that Railway took about six months in excluding the demand for the prohibitory order period and held, that the Railways were again wrong in demanding the stacking charges from 1.5.2010 till October, 2010 which time was consumed by it( Railway) in revising the demand excluding the charges of prohibitory period. In view of the above reasons, the learned Single Judge held that the petitioner is liable to pay stacking charges from 1st March, 2010 to 6th March, 2010 i.e. for the period of six days and quashed the rest of the demand. 7. In view of the above reasons, the learned Single Judge held that the petitioner is liable to pay stacking charges from 1st March, 2010 to 6th March, 2010 i.e. for the period of six days and quashed the rest of the demand. 7. Learned counsel for the appellant submitted that the petitioner never applied for taking benefit under “the advance stacking policy decision” and, in fact, it was totally an unauthorized act of the writ petitioner-respondent in stacking the huge quantity of the material in the railway property and the railway authorities had no knowledge as to who stacked the goods and railway authorities could come to know from the Mining Department about the owner of the goods and then found that the goods in question were stacked by the writ petitioner and , therefore, they raised a demand in accordance with the charge applicable for stacking of goods, containing the clause of penalty, which , in fact, is in public interest because of the reason that the railway property cannot be used by such type of traders for making the railway property their own stockyard for storing godown for their goods. 8. Learned counsel for the respondent-petitioner vehemently submitted that the learned Single Judge has considered all aspects of the matter and given cogent reason for quashing the demand. It is submitted that the petitioner, obtained the indent, and had tried to put the goods in the category of advance stacking under the policy referred above and it is submitted that the petitioner is not indulged in any illegal activity and after obtaining the valid permit and licence from the Mining Department, it collected the goods and put into the Siding and also obtained the indent. It is also submitted that Railways should have objected to the stacking of goods immediately and if petitioner was liable to pay the stacking charges then Railway should have raised the demand immediately and could have raised the demand even during currency of the prohibitory order passed under Section 144 Cr.P.C. , which could have made the petitioner known to its liability. It is also submitted that looking to the quantity which has been stacked in the railway properties, the learned Single Judge was fully justified in observing that the quantity could not have been stacked in a day or two. It is also submitted that looking to the quantity which has been stacked in the railway properties, the learned Single Judge was fully justified in observing that the quantity could not have been stacked in a day or two. It is also submitted that the petitioner was prevented from lifting the goods by the railway authorities themselves, which is apparent from the fact that they have raised the demand only on November, 2010 i.e., after delay of about eight months from the given time of imposition of prohibitory order as well as from the time of stacking of the goods by the petitioner. 9. We have considered the submissions of the learned counsel for the parties and perused the facts on record. From a bare perusal of The Comprehensive Stacking policy, it is clear that identified places are declared by the competent authority while stacking of goods are allowed for specified period. It is not in dispute that the railway station/property where the goods were stacked, were duly notified for allowing advance stacking. Clause 3.3 is relevant for our purpose, which are as under: “ The stacking permission for locations as mentioned in para 3.1 above shall be granted by Sr.DCM in consultation with Sr.DOM only to those rail users who have indented for the wagons/rake, i.e., stacking shall be permitted only after registration of indents” Clause 3.3. of the said Policy clearly provides that stacking permission for locations as mentioned in para shall be granted by Sr.DCM in consultation with Sr.DOM only to those rail users who have indented for the wagons/rake, i.e., stacking shall be permitted only after registration of indents. Therefore, from Clause 3.3., it is clear that for advance stacking prior permission is necessary. Clause 3.4 is as under : “The modus operandi as mentioned below shall be followed for the grant of advance stacking permission. (i)Rail users will apply for stacking permission in writing to CGS/ GS /or/SMR (where commercial staff is not posted) giving details about the indent type of the commodity and type of the wagons. The rail users shall also submit an undertaking to the effect that the stacking will be done at their own risk and responsibility. No claim for loss, damage etc. arising out of stacking will be admissible. The rail users shall also submit an undertaking to the effect that the stacking will be done at their own risk and responsibility. No claim for loss, damage etc. arising out of stacking will be admissible. (ii) The concerned CGS/GS or SMR( where commercial staff is not posted) will then issue a numbered diary entry to the Commercial Central, stating in detail about. (a) Name of the Rail User. (b) Indent Number against which stacking permission is sought (c) Type of wagon and commodity (d)Number of stacking permission already existing on that date (e) Availability of space” Clause 3.4 provides the complete modus operandi for grant of advance stacking permission and Clause 3.4(i) provides that Rail users will apply for stacking permission in writing to CGS/GS/or SMR (where commercial staff is not posted) giving details about the indent type of the commodity and type of the wagons. The rail users shall also submit an undertaking to the effect that the stacking will be done at their own risk and responsibility. No claim for loss, damage etc. arising out of stacking will be admissible and thereafter it has been provided what shall be the requirement for issuance of a valid permission for stacking of the goods in the railway siding. 10. In the entire writ petition, the petitioner has not stated that he ever applied for obtaining a stacking permission as provided under Clause 3.3 by following procedure as provided under Clause 3.4 and the contention of the learned counsel for the petitioner before this Court that they were not aware of the policy, is absolutely false plea, in view of the fact that the petitioner itself wants to take benefit under the policy as it claimed that it, because of this Policy only stacked and stored the goods on Railway Sidings otherwise it's act of stacking itself would be illegal act and not only this but petitioner annexed the copy of the Stacking Policy in the writ petition and claims that he has a right to put the goods in the railway property in the category of advance stacking under the policy. Therefore, the very foundational facts for any relief to the petitioner was missing in the writ petition. 11. Therefore, the very foundational facts for any relief to the petitioner was missing in the writ petition. 11. The observation of the learned Single Bench that it appears that the Railways allowed the petitioner to stack iron ore to the extent of 3556.1, cannot be accepted because of the plain and simple reason that when there is a procedure prescribed for stacking of good in Railway property, then there cannot arise any question of drawing inference for implied permission to allow advance stacking of material on Railway property; not even on the ground that stacking of goods was not objected to by employees of Railway. Apart from above reason, the inaction of lower employees and even subordinate officer or even their consent to stack the goods on Railway property cannot become valid permission under the policy because of their incompetence for grant of permission under the Policy. Drawing inference of implied permission under the policy, by implication is also against the public interest as it will give undue benefit to persons for extraneous consideration. 12. We, even from facts, are not satisfied that by conduct of Railway employee, it can be inferred that Railway has allowed the petitioner to stack the iron ore and merely because the petitioner could stack the iron ore to the extent of more than 3556 Metric Tonne . At the most, it indicates towards negligence of the persons working in the Railways and must be and may be the omission or illegal act of persons, who may be below the rank of a person, competent to grant permission. The Railway is a huge organization having its large properties spread throughout the area, even in one Railway station, then it is not possible to keep complete vigilance and vigil over the activities undertaken on every part of the land. Furthermore, there are no facts pleaded by the petitioner that in what time petitioner put it's goods on Railway Siding without which no even implied permission of Railway authorities could have been inferred, as inferred by the Single Bench. Furthermore, there are no facts pleaded by the petitioner that in what time petitioner put it's goods on Railway Siding without which no even implied permission of Railway authorities could have been inferred, as inferred by the Single Bench. 13 Be that as it may, we are of the considered opinion that when there is a procedure prescribed for taking advantage of advance stacking of goods under the valid policy for advance stacking of goods on the Railway siding, petitioner's this contention cannot be accepted that the railway had given implied permission to the petitioner to stack the goods in violation to their written policy. Once a wrong is committed then consequences are bound to follow and if the railway itself has not charged and imposed any penalty for the period of which there was prohibitory order, which was the discretion of the railway and, therefore, we are not interfering in this discretion of the Railways. 14. The petitioner also had no right to take benefit of delayed issuance of the demand against the petitioner because the Railway authorities had no knowledge about the fact that goods in question were stacked by the petitioner and the Railway authority therefore, had to obtain information from the Mining department who gave the list of parties who stacked their goods on Railway sidings and in the said list of parties, one of the party was the petitioner. It is not the case of petitioner that after informing the competent authority of Railway goods were stacked by the petitioner. Therefore, the Railway could have raised demand after knowing about the petitioner. The learned counsel for the petitioner-respondent could not brought to our attention to any of the written communication sent by the writ petitioner to the railways asking railways to permit it to lift the goods and the entire case appears to be that after getting the demand only the petitioner-respondent has concocted story that it tried to lift the goods. Such plea cannot be accepted, looking to the total business of the writ petitioner, who could stack the goods of more than 3556 Metric Tonnes on railway siding and did not bother to lift them in time for one pretext or another. Such plea cannot be accepted, looking to the total business of the writ petitioner, who could stack the goods of more than 3556 Metric Tonnes on railway siding and did not bother to lift them in time for one pretext or another. This is nothing but utilizing the railway property for its own use by the private trader, so as to avoid the expenditure of stacking the goods at own rented area or premises. 15. The plea of the petitioner-respondent that looking to total market value of the goods of Rs.12-14 lacs the petitioner would not have lifted the goods after paying the huge charges of more than two crores of rupees and even would not have lifted the goods after the order impugned , does not help the writ petition in any way. The damages or stacking charges and penalty are not dependent upon the lifting of the goods by the petitioner and if petitioner would not have lifted the goods even thereafter, his goods could have been auctioned by the Railways and till goods were auctioned the petitioner would have been liable to pay further charges and penalty for his wrong in addition to already incurred liability. 16. In view of the above reasons, since the petitioner has failed to prove that he was entitled to keep the goods on the railway property, we are of the firm opinion that equitable relief under Article 226 of the Constitution of India was not available to the writ petitioner and, therefore, writ petitioner was liable to be dismissed. 17. Consequently, the Letters Patent Appeal is allowed. The impugned judgment of the learned Single Judge is set aside. The writ petition of the petitioner is dismissed. However, there is no order as to costs.