JUDGMENT & ORDER : Heard Mr. I. Chakraborty, learned counsel appearing for the petitioner as well as Mr. C.S. Sinha, learned counsel appearing for the respondents. 2. By means of this petition, the petitioner has urged this court to forbear the petitioner from deducting any amount on account of railway demurrage charges from his bill relating to the contract under No. Cont.9/NEFR/TC/JRNA-NDN/15/1220 dated 17.02.2016 and directing them to refund the amount that has been already deducted from the running bills of the petitioner. The petitioner has further prayed for prohibiting the respondents to deduct any amount from the bills on account of the railway demurrage charge in future. 3. Short resume of the facts, relevant in the writ petition, is that the petitioner is a contractor working with the respondents for some years and transporting the food grains from railway siding/FSD Dharmanagar to FCI godown at Nandannagar. The petitioner was favoured with the contract dated 17.02.2016 [Annexure 2 to the writ petition] for transportation of the food grains to the FCI godown at Nandannagar. When the petitioner had submitted the running bills for transportation in terms of the said contract [Annexure 4 collectively], the respondents deducted the demurrage charge while paying against the running bills. According to the petitioner, the respondents are not entitled under the said contract to deduct any amount on account of the purported demurrage charge from the bills inasmuch as there is no authority of such deduction within the provisions of the said contract. 4. Mr. I. Chakraborty, learned counsel appearing for the petitioner at the very outset has submitted that this case is covered by a decision of the Gauhati high court which had the territorial jurisdiction over the transaction and also by a decision of this court in Putul Saha versus Food Corporation of India & 2(two) Others [judgment and order dated 04.03.2014 delivered in WP(C) 316/2013]. The said decision according to Mr. Chakraborty, learned counsel is based on Bulbul Enterprise versus F.C.I. & Others reported in (2000) 2 GLR 537 the Gauhati High Court decision. Mr. Chakraborty, learned counsel has however submitted that if the demurrage had arisen for any attributable act of the Contractor as per the terms of the agreement, the Corporation can recover it after the demurrage is duly ascertained. Mr. Chakraborty, learned counsel has however submitted that if the demurrage had arisen for any attributable act of the Contractor as per the terms of the agreement, the Corporation can recover it after the demurrage is duly ascertained. The Corporation cannot recover the demurrage from running bills without ascertaining the quantum of demurrage in due course and as per the terms of agreement. 5. Mr. C.S. Sinha, learned counsel appearing for the respondents has submitted that in terms of the previous judgment in Putul Saha versus Food Corporation of India & 2(two) Others this writ petition may also be decided. In Bulbul Enterprise the Gauhati high court held that demurrage cannot be deducted without undergoing an exercise as provided in Clause XII of the contract. Clause XII of the contract is similar to Clause X of the agreement which is relevant for the writ petition. Clause XII of the contract as fallen for consideration before the Gauhati High Court, has been reproduced in the said report. Clause X of the contract as relevant in the context is reproduced hereunder : “X. Liability of Contractor for losses suffered by Corporation (a) The Contractor shall be liable for all costs, damages, registration fees, charges and expenses suffered or incurred by the Corporation due to the Contractors negligence and un workman like performance of any services under this Contract, or breach of any terms of the Contract, or failure to carry out the work under the Contract, and for all damages or losses occasioned to the Corporation, or in particular to any property or plant belonging to the Corporation due to any act, whether negligent or otherwise, of the Contractor or his employees. The decision of the General Manager regarding such failure of the Contractor and their liability for the losses, etc. suffered by the Corporation, and the quantification of such losses, shall be final and binding on the Contractor. (b) Without prejudice to the generality of the foregoing, it is a further condition of the Contract that in the event of failure of the Contractor to provide the number of trucks per day as indented by the Corporation, the contractor will be liable to pay the Corporation Liquidated Damages @ Rs.300/- with maximum of Rs. (b) Without prejudice to the generality of the foregoing, it is a further condition of the Contract that in the event of failure of the Contractor to provide the number of trucks per day as indented by the Corporation, the contractor will be liable to pay the Corporation Liquidated Damages @ Rs.300/- with maximum of Rs. 1000 (One Thousand) per truck per day for a 9 MT truck which the parties to the contract having agreed to as a reasonable estimate of the losses to the Corporation arising on account of such failure. (c) The Contractor shall provide sufficient number of tarpaulins for each truck to cover the bags of food-grains etc. and take reasonable precautions to avoid wetting/damage/loss to food-grains during the transport. In the event of deficiency in service by contractor in not providing the tarpaulins for spreading on the decks of trucks or for covering the truck after loading. Liquidated Damages @ Rs. 200/- per truck will be imposed by the concerned General Manager/Area Manager without prejudice to any other right or remedies under the contract and law. (d) Without prejudice to the rights of the Corporation under Sub-clause (a) of this Clause, it is a further condition of the Contract that in respect of any shortage, wastage, loss or damages to the goods in transit, the Contractor is liable to pay to the Corporation Liquidated Damages at twice the average acquisition cost, as applicable from time to time, for all food grain and commodities other then sugar, and thrice the average acquisition cost as applicable from time to time in respect of sugar, except when the General manager (whose decision shall be final) decides that the difference between the weights taken at the dispatching and receiving ends is negligible and is due to discrepancies between the scales gain or loss in moisture or other causes beyond the Contractor’s control. The parties to the Contract have agreed that the amount of Liquidated Damages specified above represents a genuine estimate of the loss likely to be caused to the Corporation by the shortage, wastage, loss or damage to the goods in transit. Such recovery of Liquidated Damages shall be effected without prejudice to the right of FCI to initiate civil/criminal proceedings against the defaulting Contractors wherever it is suspected that the shortage/losses occurred due to deliberate/wilful omission, theft, misappropriation, irregularities etc. Such recovery of Liquidated Damages shall be effected without prejudice to the right of FCI to initiate civil/criminal proceedings against the defaulting Contractors wherever it is suspected that the shortage/losses occurred due to deliberate/wilful omission, theft, misappropriation, irregularities etc. committed by the Contractors or their representatives/ employees.” 6. There is no substantive difference between the two provisions in two different contracts as referred by this court. Clause X (d) provides that without prejudice to the rights of the Corporation under Sub-clause (a) of this Clause, it is further provided in the Contract that in respect of any shortage, wastage, loss or damages to the goods in transit, the Contractor is liable to pay to the Corporation Liquidated Damages in the average acquisition cost, as applicable from time to time, for all food grains and commodities other then sugar and thrice of the average acquisition. This clause is not perhaps related to the demurrage. But since the demurrage comes within the losses suffered by the Corporation, similar principle may be invoked. It is also not in dispute that by in Clause XII, the manner of recovery of losses has been provided identically. For purpose of reference, Clause XII is extracted hereunder : “XII. Recovery of losses suffered by the Corporation (a) The Corporation shall be at liberty to reimburse themselves for any damages, losses, charges, costs or expenses suffered or incurred by them, or any amount payable by the Contractor as Liquidated Damages as provided in Clauses X above. The total sum claimed shall be deducted from any sum then due, or which at any time thereafter may become due, to the Contractors under this, or any other, Contract with the Corporation. In the event of the sum which may be due from the Contractor as aforesaid being insufficient, the balance of the total sum claimed and recoverable from the Contractors as aforesaid shall be deducted from the Security Deposit furnished by the contractor as specified in Clause IX. Should this sum also be not sufficient to cover the full amount claimed by the Corporation, the Contractor shall pay to the Corporation on demand the remaining balance of the aforesaid sum claimed. Should this sum also be not sufficient to cover the full amount claimed by the Corporation, the Contractor shall pay to the Corporation on demand the remaining balance of the aforesaid sum claimed. (b) In the event of termination of this Contract, or in the event of any breach of any of the terms and conditions of this Contract by the contractor, the General Manager shall have the rights to forfeit the entire or part of the amount of Security Deposit of the contractor or to appropriate the Security Deposit or any part thereof in or towards the satisfaction of any sum due to be claimed for and damages, losses, charges, expenses or cost that may be suffered or incurred by the Corporation.” [Emphasis added] 7. In Bulbul Enterprise the Gauhati High Court has held that non-arbitrariness is an essential concomitant of the rule of law and that all actions of every public functionary, in whatever sphere, must be guided by reason. It is clear from the above that exercise of power must be for public good, instead of being an abuse of the same. The exercise of power by the State instrumentality, emanating from the terms of the contract cannot be beyond the purview of judicial scrutiny. This being the law in force as on today, the arbitrary action of the respondents herein stands contrary to the terms to the contract and that cannot be allowed to continue. There was no exercise at all for ascertaining the demurrage. Thus the respondents ought to have avoided realising the said sum literally behind the back of the petitioner. Even in Putul Saha versus Food Corporation of India & 2(two) Others this court has observed as under : “Further, as I find WP(C) No. 464 of 2011 was also decided referring to the decision in Bulbul Enterprise (supra). Since the identical issue was examined in Bulbul Enterprise (supra) and the Court has directed that the demurrage charges should be realised after undergoing an exercise as provided in the agreement, I think with a similar direction the writ petition may be disposed of.” [Emphasis added] 8. Since the identical issue was examined in Bulbul Enterprise (supra) and the Court has directed that the demurrage charges should be realised after undergoing an exercise as provided in the agreement, I think with a similar direction the writ petition may be disposed of.” [Emphasis added] 8. Having regard to the submission made by the learned counsel for the parties, this writ petition is disposed with the following directions : The respondents are prohibited from realising the demurrage from the running bills of the petitioner in terms of the said contract, unless the demurrage is ascertained by the due process and on embarking a proper exercise where the petitioner will have a room for having his say. Only on consideration of his say, the demurrage can be ascertained. That apart, the amount that has been realised so far on the purported provisions incorporated in the said contract dated 18.11.2015 [part of Annexure 2] shall be refunded to the petitioner unless the demurrage is ascertained by the respondents following the process as indicated above, within a period of 3 (three) months from the day when the respondents shall receive, a copy of this order. Consequentially, the respondents are restrained from realising any demurrage from the running bills of the petitioner in future without ascertaining the amount of demurrage realisable from the petitioner, the contractor in terms of the said agreement dated 18.11.2015. There shall be no order as to costs.