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2015 DIGILAW 940 (CAL)

R. S. Fuel Pvt. Ltd. v. Union of India

2015-12-02

SUBRATA TALUKDAR

body2015
JUDGMENT : Subrata Talukdar, J. The short point which this Court is required to answer in this writ petition is the legality of the impugned demand notice raised by the respondent-railways in respect of three railway rakes booked by the petitioner no.1-company for carrying coal purchased from Eastern Coal Fields Ltd. (for short ECL). 2. Sri Ram Anand Agarwala, Ld. Counsel appearing for the writ petitioners submits that in this writ petition the writ petitioner no.1 which is a registered company is represented through one of its Directors, being the writ petitioner no.2 and is engaged in purchasing coal from different collieries, including ECL. The coal purchased from ECL is loaded on to the rakes provided by the railways. Such rakes are thereafter weighed. Pursuant to such weighment freight is collected by the railways upon issuance of railway receipts (for short RRs). 3. Taking this Court to the facts of the present case Sri Agarwala further submits that after the coal was loaded on to the rakes and such rakes were respectively bound for Ayodhyay, Kashi and Kusumi, the rakes were weighed prior to the journey at Andal Weigh Bridge. After such weighment the railways following usual procedure issued the RRs in favour of the petitioner no.1 and collected the freight applicable. Thereafter the railways delivered the consignment of coal in respect of the said three rakes in favour of the petitioners at their respective destination stations namely, Ayodhyay, Kashi and Kusumi on 19th November, 2012, 21st November, 2012 and 25th January, 2013 respectively without raising any demur. 4. Sri Agarwala points out that the date of loading in respect of the first rake was 16th November, 2012, the date of delivery of the RR was 18th November, 2012, date of delivery of goods was 19th November, 2012 and the date of the impugned demand claiming punitive charges on account of overloading of the rake was 3rd January, 2013. Similarly in respect of the second and third rakes the corresponding above noted dates are as follows:- 18.11.2012 and 22.01.2013; 20.11.2012 and 24.01.2012; 21.11.2012 and 25.01.2013; and 03.01.2013 and 26.01.2013 respectively. 5. Sri Agarwala therefore strongly makes the point that there is no legal ground available to the railways to claim punitive charges or any other charge after delivery of the goods. Ld. 5. Sri Agarwala therefore strongly makes the point that there is no legal ground available to the railways to claim punitive charges or any other charge after delivery of the goods. Ld. Counsel for the petitioners points out that such position has been clarified under Sections 73 and 78 of The Railways Act, 1989 (for short The 1989 Act). 6. Sri Agarwala submits that since the railways threatened not to allot rakes in future to the petitioner no1-company the writ petitioner had no option but to pay the illegal demand in the interests of conducting their business. Further relying upon three decisions of this Hon’ble Court reported in AIR 2011 Cal 216 in the matter of Union of India vs. Ultratech Cement Ltd, an unreported decision of the Special Bench of this Court in FMA 317 of 2001 in the matter of Union of India vs. Biswanath Agarwala and, an unreported decision of this Court in WP 1976 of 2006 in the matter of Bagadiya Brothers Pvt. Ltd. vs. Union of India, Sri Agarwala submits that upon loading of the rakes the first weighment was made at Andal Weigh Bridge of the railways and, therefore there could be no reason to disbelieve their own weighment by the railways. There is little substance in the contention of the railways that out of the two weigh bridges, namely, Andal and Gomoh, sanctity can only be inferred in respect of the weighment at Gomoh without upholding the weighment at Andal when, arguably the Andal departure point and its weigh bridge handles equal if not more freight traffic compared to Gomoh. 7. Challenging the point of maintainability raised by the railways-respondents on the ground that the objection raised by the petitioner which is essentially in the nature of a claim to refund requires to be referred to the Railways Rates Tribunal (for short RRT), Sri Agarwala relies upon a judgment of the Hon’ble Apex Court in the matter of Union of India vs. Orient Paper and Industries Ltd. reported in 2009 (16) SCC 286 . Sri Agarwala argues that the Hon’ble Apex Court made it clear that the RRT does not have the jurisdiction to direct refund of the excess freight. 8. Sri Agarwala argues that the Hon’ble Apex Court made it clear that the RRT does not have the jurisdiction to direct refund of the excess freight. 8. Finally, arguing on the point raised by ECL, being the respondent no.4 in the writ petition, Sri Agarwala submits that no relief has been claimed by the ECL in the pending writ petition and the issue of maintainability raised on the platform of pendency of an arbitration reference between ECL and the petitioner no.1-company is admittedly outside the purview of this writ petition. Sri Agarwala submits that the railways is not a party to the arbitration reference and the petitioners have only claimed for return of the charges deposited with the railways on the ground that the railways lack the jurisdiction to impose the charges under The 1989 Act. Since ECL and the petitioners are in the midst of a completely different issue in the arbitral reference which arises out of a supplementary bill raised by the ECL on the basis of reweighment by the railways, the petitioners are entitled to carry this writ petitioner forward on the ground that the railways-respondents acted de hors their statutory mandate. 9. Therefore, Sri Agarwala prays for a writ of mandamus commanding the railways-respondents to refund the amount of Rs. 19,78,926/- and Rs. 59,883/- to the petitioner no.1-company by setting aside the impugned demand notices. 10. Per contra, Sri Swapan Banerjee, Ld. Railway Counsel strongly argues that the railways-respondents have acted within their statutory domain by claiming the punitive charges on account of overloading of the three railway rakes. Sri Banerjee argues that in respect of the first rake bound for Ayodhyay the date of weighment at Andal was 18th November, 2012; the second weighment at Gomoh was carried out also on 18th November, 2012 subsequently; the demand notice was served on 23rd November, 2012; and the punitive charges imposed on the petitioner in terms of the aforesaid demand was paid on 20th January, 2013. 11. Sri Banerjee further points out that in respect of the rakes bound for Kashi and Kusumi respectively the dates are 20th November, 2012; 21st November, 2012; 23rd November, 2012 and 19th August, 2013; and for Kusumi 24th January, 2013; 25th January, 2013; 26th January, 2013 and 31st January, 2013 respectively. 12. 11. Sri Banerjee further points out that in respect of the rakes bound for Kashi and Kusumi respectively the dates are 20th November, 2012; 21st November, 2012; 23rd November, 2012 and 19th August, 2013; and for Kusumi 24th January, 2013; 25th January, 2013; 26th January, 2013 and 31st January, 2013 respectively. 12. Relying on a Railway Board Rakes Circular No. 86/06 (for short Circular No. 86/06), Sri Banerjee argues that the railways-respondents are competent to carry out a second weighment upon instructions from the appropriate Authority or the Vigilance Department, as the case may be. Ld. Railway Counsel points out that the special rakes were reweighed at Gomoh under the instructions of the Vigilance Department. 13. It is the further argument of Ld. Railway Counsel that Section 83 of The 1989 Act has given the power to the railways to collect any freight and other charges even after the delivery of the consignment. Therefore, having regard to Circular No. 86/06 and the advice of the Vigilance Department, the railways were within their competence to issue the impugned demand notices even after the delivery of the goods. 14. Taking this Court to Section 33 of The 1989 Act Sri Banerjee strongly argues that the issues raised in the writ petition fall within the jurisdiction of the RRT. Therefore, Ld. Railway Counsel seeks dismissal of the writ petition in limine on the ground of lack of maintainability. 15. Relying on other provisions of The 1989 Act Sri Banerjee argues that under the statute no opportunity of hearing is provided prior to reweighment. Ld. Railway Counsel further argues that the petitioners have already deposited the punitive charges without demur, therefore the principle of waiver shall now apply as a bar to agitating their claims before this Court. 16. Sri Saunak Sengupta, Ld. Advocate appearing for the respondent no.4-ECL submits that this writ petition has been affirmed on 26th June, 2014, i.e. after several months of issuance of the three demand notices respectively on 23rd November, 2012; 23rd November, 2012; and 26th January, 2013. 16. Sri Saunak Sengupta, Ld. Advocate appearing for the respondent no.4-ECL submits that this writ petition has been affirmed on 26th June, 2014, i.e. after several months of issuance of the three demand notices respectively on 23rd November, 2012; 23rd November, 2012; and 26th January, 2013. Sri Sengupta therefore makes the point that the present writ petitioner is merely a collateral exercise put into motion by the writ petition in order to frustrate the pending arbitral reference with the ECL challenging the supplementary bills raised by the latter based on the actual quantity of coal sold and delivered to the petitioner no.1 on the basis of the final weighment determined by the railways after reweighment at Gomoh. Sri Sengupta argues that the arbitral reference was instituted on 10th June, 2014 and the writ petition was filed immediately thereafter on 26th June, 2014. 17. It is the further argument of Ld. Counsel for ECL that although the writ petitioner claimed no direct relief from ECL in the present writ petition, the ultimate objective of the writ petition is to put a brake on the arbitral reference by relying on any order to be finally passed by this Court in the writ petition. Sri Sengupta argues that at no point of time the writ petitioners have protested against the impugned demand notice and, only after the arbitral reference was instituted on the 10th of June, 2014, in order to bolster their position in the reference, the writ petitioners have filed the present writ petition for collaterally frustrating the arbitral reference. 18. Having heard the parties and considering the materials on record this Court is required to notice the time tested principle that a person claiming equity must come to the Court with clean and straight hands. Notwithstanding the impressive legal arguments advanced on behalf of the writ petitioners that the impugned demand notices could not be raised after delivery of the goods since in respect of the three rakes the demand notices were raised after the goods were delivered, this Court is required to notice at the same time that the impugned amount demanded was deposited by the writ petitioners without demur. 19. 19. It is also noticed by this Court that after the demand was paid by the writ petitioner without raising any protest challenging the legal validity of such demand which the writ petitioners could do under the law and soon after ECL raised the supplementary bill based on the reweighment carried out by the railways and the arbitral reference commenced on 10th June, 2014, the writ petitioners filed the present writ petition on 26th June, 2014. 20. On the basis of the above factual matrix this Court is persuaded to accept the submissions of Sri Sengupta, Ld. Counsel for the ECL that this writ petition is intended to fulfil a collateral purpose which is to frustrate the arbitral reference. This Court is also persuaded to hold that in an obvious expression of their intent to recover dues which are claimed by the railways allegedly without the authority of law, the writ petitioners were required to file a demand for justice or, a timely representation before the railways claiming the refund. 21. To the further mind of this Court the facts of the present case are a proverbial instance of the popular adage of trying to kill two birds with one stone. The writ petitioner based on legal advice are now claiming refund from the railways, which they could have claimed within due time, being only wiser after receiving notice of the arbitral reference. Therefore, in the facts of this case this Court is persuaded to hold that the writ petition is not maintainable at the present stage without the writ petitioners taking recourse to a demand for justice before the railways. 22. Such representation shall be decided by the competent railways authority after giving an opportunity of hearing to the writ petitioners. Needless to mention such decision will be in accordance with law and on its own merits. The writ petitioners will be thereafter free to challenge such decision before the appropriate court/forum, as advised. 23. It is also made clear that the arbitral reference shall proceed in usual course in accordance with law. 24. WP 594 of 2014 stands accordingly disposed of. 25. There will be, however, no order as to costs.