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2018 DIGILAW 1544 (GAU)

MAHALAXMI ASSOCIATES PVT LTD v. UNION OF INDIA

2018-10-12

PRASANTA KUMAR DEKA

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JUDGMENT : PRASANTA KUMAR DEKA, J. 1. Heard Ms. B Goyal, learned counsel appearing on behalf of the petitioners. Also heard Mr. BK Das, learned Standing Counsel for the respondent/ NF Railway. 2. The petitioners have challenged the decision of the Railways Authority imposing demurrage charges vide order No. G1002/DM/GVG/2012 dated 21.05.2012 and order No. G1003/DM/GVG/2012 dated 21.05.2012 issued by the Divisional Railway Manager, Comml. Ambala Cantonment by way of which the appeal of the petitioner No. 1 praying for waival of demurrage of Rs. 5,37,600/- and Rs. 4,59,200/- respectively thereby directing the CGS/GVG to collect the full amount of demurrage. 3. The petitioners in the course of their business purchased coal from North Eastern Coalfields, Coal India Limited sold under E-tendering system. The petitioner No. 1 was allotted one rack of coal and another rack of coal was allotted to M/s Ajay Trading Co. The said coal was dispatched by the North Eastern Coalfields, Coal India Limited from the Tirap Colliery at Margherita through the Railways to the destination station at Mandi Govindgarh. It would be pertinent to mention here that M/s Ajay Trading Co. sold the rack allotted to it to the petitioner No. 1 and endorsed the original railway receipt in the name of the petitioner No. 1. 4. The North Eastern Coalfields Coal India Limited, Ledo, Assam registered the indents for transportation of coal sold to its purchasers through racks and the North Eastern Coalfields collected the value of coal from its purchasers as well as the freight for transportation through railway and the same was paid by the North Eastern Coalfields to the Railways Authority. The General Manager, North East Frontier Railway, Maligaon, Guwahati as well as the authorities at Tinsukia Railway Station at Tinsukia, Assam are all parties to the contract arising out of the registration and allotment of the racks in question. The parties including the petitioners are governed and bound by the terms and conditions arising out of the registration of indents at Maligaon, Guwahati. 5. Out of the two racks one rack was shown to be given placement for delivery on 06.04.2012 at 0325 hours and the other rack was shown to be given placement for delivery on 07.04.2012 at 0755 hours. The racks were not given proper placement at the siding for unloading by the labourers. 5. Out of the two racks one rack was shown to be given placement for delivery on 06.04.2012 at 0325 hours and the other rack was shown to be given placement for delivery on 07.04.2012 at 0755 hours. The racks were not given proper placement at the siding for unloading by the labourers. During the period w.e.f. 03.04.2012 to 05.04.2012 about 10/11 coal racks were placed at the same siding along with racks of the petitioner No. 1. There were already other racks to be unloaded when the racks of the petitioners were placed on 06.04.2012. One of the racks of the petitioners was placed on 06.04.2012 at 0325 hours in such a manner that half of the wagons were placed at the platform where no unloading could be done at all. Similarly, the other racks were purportedly placed on 07.04.2012 at 0755 hours in such a manner that no unloading could be done at all. The said inconvenience and disadvantageous placement of both the racks was of such nature that the same could not be unloaded within the 9 (nine) hours free time allowed by the Railways. The petitioners were forced to wait till the racks were given proper placement. 6. On 07.04.2012 one of the racks which was purportedly given placement for delivery on 06.04.2012 at 0325 hours was moved from its position after 0900 hours and was placed in a position where unloading of goods was possible from only one side of the wagons owing to which the racks could not be unloaded within 9 hours free time allowed by the Railways. The unloading was completed at about 2100 hours on 07.04.2012. As such, as per the petitioners, even if there was delay the same was of only 3 hours so far the first rack is concerned and demurrage charges, if any, would come to Rs. 100/- x 42 wagons x 3 hours = Rs. 12,600/-. Similarly, the other rack which was purportedly given placement on 07.04.2012 at 0755 hours was later on moved from its position on 08.04.2012 about or after 9 hours and was placed at a position similar to the earlier one wherein unloading was possible from only one side of the wagons. Here also the unloading was completed by about 2100 hours of 08.04.2012. Here also the unloading was completed by about 2100 hours of 08.04.2012. Under such circumstances, if at all there was a delay the same was less than 3 hours and the demurrage charges, if any, would come to Rs. 12,600/-. 7. The Railways authority without giving proper placement facilitating unloading, without authority vide letter/ instruction bearing No. 09/COML/CNL/2012 dated 02.04.2012 the Senior DCM/UMB instructed the Goods Supervisor, Mandi Govindgarh to impose charge two times demurrage and subsequently vide letter dated 07.04.2012 the Senior DCM/UMB issued instructions to the Goods Supervisor to impose charge of four times of penal demurrage. On the basis of the said instructions demurrage were charged for both the racks as per four times the normal demurrage charge applicable for detention of wagons. 8. Representations were preferred by the petitioners for imposition of such penal demurrage charge and the Chief Goods Supervisor, Mandi Govindgarh forwarded to the Senior Divisional Commercial Manager, Northern Railway and vide the impugned orders dated 23.05.2012 rejected the prayer of the petitioners thereby asking the petitioners to pay the demanded penal demurrage charges within 7 days thereof. 9. On the basis of the said pleadings Ms. Goyal submits that the said imposition of penal demurrage and that too, on the four times the normal penal demurrage charge is totally arbitrary and totally without any basis nor due to negligence on the part of the present petitioners. Referring to the imposition of penal demurrage charge for two times and four times respectively issued on 02.04.2012 and 07.04.2012, Ms. Goyal further submits that it is mandatory on the part of the Railways authority to issue such notices of penal demurrage charge prior to giving into effect and the same time limit is 48 hours if due to heavy pipe line for unloading of racks exist. The same accordingly is required in order to act by the petitioners at least thereby delaying the departure from the destination. In the present case in hand, the four times penal demurrage notification was issued on 07.04.2012 at 0745 hours and as per the receipt of the said notice by the agent of the present petitioners it is seen that the same was delivered on 07.04.2012 itself at 1815 hours. The cause shown in the said notice is that there were 3 racks under demurrage in the prime line. Ms. The cause shown in the said notice is that there were 3 racks under demurrage in the prime line. Ms. Goyal further referring to the representation submits that the reasons as to why the unloading could not be completed was specifically mentioned therein. But even then, the appellate authority failed to consider the said grounds and as such the act of imposition of the penal demurrage charges is illegal and liable to be set aside and quashed. 10. Mr. Das who produced Wagon Transfer Register placement/ unloading w.e.f. 23.03.2012 to 09.04.2012 submits that as per the records, the said notification of four times penal demurrage charges for inward rack at GVG was notified w.e.f. 1745 hours of 07.04.2012. The rack No. 1 of the petitioners was placed for unloading on 06.04.2012 at 0325 hours and the same was released on 07.04.2012 at 1800 hours resulting 32 hours consumption in the process of unloading exceeding 9 hours free time for the purpose of unloading. Similarly, the other rack of the petitioners was placed for unloading on 07.04.2012 at 0755 hours and the same was released on 08.04.2012 at 1815 hours and in the process for unloading it took additional 28 hours more than the 9 hours free time for unloading. On the basis of the delay on the part of the petitioners the demurrage charges were imposed and the petitioners paid the same without any objection. According to Mr. Das, there is no arbitrariness in imposing the demurrage charges. 11. Considered the submission of the learned counsel for the parties. The respondent Senior Divisional Commercial Manager, Northern Railway, Ambala Cantonment, filed the affidavit-in-opposition on behalf of the respondents. It is stated in the said affidavit-in-opposition that the penal demurrage was imposed as per rules and the placement of racks were made by operation of feasibility and availability of space. The Railway Board Rate Circular No. 74/2005 authorises CCM/COM/DRM to impose penal demurrage after giving 48 hours advance notice to the parties and the said increase in the demurrage rate is subject to maximum of six times of the prevalent rate. Mr. Das produced the Corrigendum No. 2 to Rates Circular No. 21/2007 dated 17.01.2008 whereby under Group I Wharfage rates would be levied under Group I Rs. 100/- per wagon each or part thereof and the said rate is applicable uniformly for all types of wagon w.e.f. 01.02.2008. Mr. Das produced the Corrigendum No. 2 to Rates Circular No. 21/2007 dated 17.01.2008 whereby under Group I Wharfage rates would be levied under Group I Rs. 100/- per wagon each or part thereof and the said rate is applicable uniformly for all types of wagon w.e.f. 01.02.2008. The stand of the Railway is clear and specific that the penal demurrage charges are to be imposed after giving 48 hours advance notice to the parties. On perusal of the Wagon Transferred Register produced by Mr. Das, the learned counsel for the Railways it is seen that the rack No. 1 of the present petitioner was placed for unloading on 06.04.2012 at 0325 hours. From the said register itself it is clear and apparent that the said penal demurrage notification was issued on 07.04.2012 at 1745 hours. From the Annexure-4 which is the copy of the said notification of penal demurrage it is seen that the same was received by the agent of the present petitioners on 07.04.2012 at 1815 hours. There is no material piece of evidence brought by the respondent Railways in order to show that the said penal demurrage was imposed after giving 48 hours advance notice to the parties. Clause 3.3 of the Rates Circular No. 74/2005 dated 19.12.2005 speaks of in case excessive congestion takes place at any terminal, CCM/COM/DRM can increase the demurrage rates even at progressively increasing rate subject to a maximum of six times of the prevalent rate. This penal demurrage rates should be implemented only after giving wide publicity and due notice of 48 hours and should be applicable for the notified period. 12. In the present case in hand, the notified period was 0745 hours of 07.04.2012 and in terms of the said Clause 3.3, 48 hours notice with wide publicity must be given. Annexure-3 of the writ petition is the Notice No. 09/COML/CNL/2012 CG dated 02.04.2012 wherein it has been notified by the Senior DEM/UMB that due to heavy pipe line penal demurrage charge for two times at GVG Goods Office, penal demurrage charge for two times for 1 week with immediate effect shall be imposed from the date of its issuance i.e. 02.04.2012. 48 hours will expire at 1415 hours of 04.04.2012 as the same was notified at 1415 hours of 02.04.2012. 48 hours will expire at 1415 hours of 04.04.2012 as the same was notified at 1415 hours of 02.04.2012. Accordingly, in my opinion, the said notification was with respect to two times penal demurrage charge and the week w.e.f. 02.04.2012 ends on 07.04.2012. Under such circumstances, the petitioners are liable to pay penal demurrage charge for two times and not four times as from the register it is seen that racks were released, one on 07.04.2012 and the other one on 08.04.2012. The placement notice for four times penal demurrage was notified on 07.04.2012 and the mandatory 48 hours will expire on 09.04.2012 at 1745 hours. Under such circumstances, in my opinion, the imposition of four times penal demurrage charges is illegal. Rather, the penal demurrage charges must be confined with two times of the normal demurrage charge. Regarding the other grounds cited by Ms. Goyal it is difficult to accept with respect to the constraints so submitted and pleaded inasmuch as the representation which forms the Annexure of the representation of the agent of the petitioners does not indicate the grounds mentioned in this writ petition and accordingly, in my opinion, the same cannot be accepted. In the result, this writ petition is partly allowed with a direction to the respondents to calculate the demurrage at the rate of two times the normal demurrage charge in both the racks as per the notice No. 09/COML/CNL/2012 CG dated 02.04.2012 and the excess amount if paid, shall be returned within a period of 1 (one) month from the date of order to the petitioners. Accordingly, this writ petition is disposed of. Mr. Das shall be permitted to take back the Wagon Transfer Register produced by him.