JUDGMENT : A. K. MISHRA, J. 1. Opposite party nos. 5 and 6 have assailed the Judgment dtd.23.12.2014 in OJC No.2525 of 1994 by learned Single Judge directing the Railway Authority to make refund of sum of Rs.13,86,248/- to the petitioner along with interest as the collection of wharfage through the Railways Receipt was bad. The writ petitioner is the respondent no.1 while opposite party nos.1,2,3,4 and 7 are Proforma Respondents. 2. The undisputed facts leading to this appeal may be stated thus:- The Respondent no.1 is a Company and deals with supply of Casurina ballies to paper industries. It placed indents bearing no.1 and 2 on 1.1.1994, Nos.9 to 12 on 5.1.1994 and nos.13 and 14 on 7.1.1994 for wagons with the Station Master, Vijayanagaram Railway Station for consignment to Brajarajnagar Railway Station to Consignee M/s. Orient Paper Mills. The Respondent No.1 with permission of the Station Master, Vijayanagaram Railway Station had stacked the goods at the Commercial Plot situated far away from the goods-shed. The Railway Authorities placed the wagons on 3.3.1994 and on the same day within permissible nine hours, loading was done. The Railway Authorities demanded a sum of Rs.13,86,248/-, charging wharfage for 49 days, i.e., from 14.1.1994 to 3.3.1994. The Respondent No.1 disputed the same on the ground that the goods were never stacked at the goods- shed but at the commercial plot and the wagons were supplied in delay without any of his fault. It was intimated that neither the Divisional Railway Manager nor the Chief Commercial Manager South Eastern Railways had power to consider such grievance. Accordingly, the Respondent no.1 by his letter dated 10.03.1994 put forth his grievance before the General Manager, South Eastern Railway. The Railway Authority clandestinely recovered the above wharfage amount from Oriental Paper Mills - consignee including the same in the Railway receipt. The consigner company filed writ petition claiming refund on the plea that wharfage charges could not be included in the Railway receipt issued U/s.2(33) and 65 of the Railway Act, 1989 and it was chargeable in respect of inward goods at the destination station after expiry of free time. The opposite party no.2, filed show-cause contending that the writ petition was not maintainable in view of the availability of remedy under the Railways Claims Tribunal Act, 1987 and wharfage was levied on the basis of Railways Boards instruction at 8.9.1989. 2(a). The opposite party no.2, filed show-cause contending that the writ petition was not maintainable in view of the availability of remedy under the Railways Claims Tribunal Act, 1987 and wharfage was levied on the basis of Railways Boards instruction at 8.9.1989. 2(a). Learned Single Judge referring the relevant provisions of the Railway Act held that; (i) The petitioner had no fault for the delayed dispatch of the consignment and as the Railway authority had not provided the wagons in time, claim was not justified for unlawful stacking of goods in the goods shed, (ii) The wharfage is chargeable at the destination station under the premises that no person should block at the destination station. (iii) The railway receipt as defined U/s.65 of the Railway Act does not provide for the inclusion of the wharfage and the preparation of Railway receipt was wholly improper. (iv) The collection of wharfage at the inward station on the basis of instruction/notification or circular is bad as the same can not supersede the statutory provisions. (v) Learned Single Judge observed, on the question of maintainability, that " Learned Counsel for Railways dropped the question of maintainability and further in view of long pendency of the writ petition for over 20 years, the proceeding before the Railway Tribunal would be grossly barred by that time". Learned Single Judge consequently allowed the writ directing refund with interest as noted above. 3. Learned counsel for appellant Mr. Pal submitted that; (1) The railway circular dated 8.9.1989 and 21.6.1990 are statutory circulars and are not conflict with any of the statutory provisions of the Railways Act, 1989. The said circulars were neither challenged as ultravires nor learned Single Judge had given any such finding for which levy of wharfage could not be said illegal. (2) A combined reading of Section 83(1), Section 74 read with Section 65 of the Railway Act would show that the statutory provisions give power to the Railways to recover the charge-due including wharfage and for that no illegality was committed for demanding the wharfage under the Railway receipt. (3) The writ petition was not maintainable in view of the provisions of the Railway Claims Tribunal Act, 1987. 3(a). Learned Senior Counsel for Respondent No.1-Consigner Mr. (3) The writ petition was not maintainable in view of the provisions of the Railway Claims Tribunal Act, 1987. 3(a). Learned Senior Counsel for Respondent No.1-Consigner Mr. S. Mishra would contend that; (i) The question of maintainability was dropped during argument of the writ and accepting such not-pressed plea, learned Single Judge passed the impugned Judgment, as such re-agitating such maintainability plea after withdrawal in this appeal is not permissible. (ii) The consigner cannot be made liable for the delayed supply of wagons and charging of wharfage on the railway receipt at the inward station is contrary to the provisions of the Railways Act. (iii) Facts which were not raised before the writ court, cannot be raised for the first time in this appeal to sustain a plea of suppression of fact to dismiss writ petition. Learned counsel for the Respondent no.1 cited the following decisions. 1. M/s. Raichand Amulakh Shah and another Vrs. Union Of India, (1964) AIR SC 1268 (V 51 C 162) 2. Union of India Vrs. Indian Sugar Mills Association and another, (1968) AIR SC 22 (V 55 C 8) 3. Upper Doab Sugar Mills Ltd. Shamli (U.P) Vrs. Shahdara (Delhi) Saha Light Railway Co. Ltd. Calcutta, (1963) AIR SC 217 (V 50 C 20) 4. Saha Mulji Deoji Vrs. Union of India,1957 AIR Nagpur 31(V 44 C 13 Feb) 5. The Merchantile Bank of India, Ltd. Vrs. The Central Bank of India, Ltd.,1938 MadLJR 268 6. Union of India Vrs. M/s. Khetwat Oil Mills and another, (1988) AIR Orissa 233 7. Union of India Vrs. The Steel Stock Holders Syndicate, Poona, (1976) AIR SC 879 3(b). Out of the above cited decisions, only the Judgment in M/s. Raichand Amulakh Shah case, (1964) AIR SC 1268 (Supra) is relevant and would be referred to in appropriate place later. 4. On the question of maintainability, we do not feel it proper to doubt the observation of learned Single Judge made in Para-5 of the impugned Judgment. The said 'dropped' plea cannot be reignited in this appeal particularly when such observation is not shown incorrect. We accept the learned Single Judge's observation. Finding consequential to that is final. The maintainability of writ petition having attained finality does not warrant any interference in this appeal. 5. The said 'dropped' plea cannot be reignited in this appeal particularly when such observation is not shown incorrect. We accept the learned Single Judge's observation. Finding consequential to that is final. The maintainability of writ petition having attained finality does not warrant any interference in this appeal. 5. On the point of charging wharfage in the Railway receipt, there is no dispute that the indents were made duly on 1.1.1994, 5.1.1994 and on 7.1.1994 but the wagons were provided on 3.3.1994. The Consigner had no fault to contribute for delayed supply of wagons. Charging of wharfage for such no fault is unreasonable. It is argued by the learned counsel for Railway authority that such action of levying wharfage was in consonance to the circular dated 8.9.1989 and 21.6.1990. 5(a). We carefully perused these circulars. In the circular dated 8.9.1989, on the subject "free time for goods brought to stations for dispatch but not loaded" it has been inter alia stated that; "A point has been raised as to whether the instructions contained in Board's letter No.TC I/83/201/14, dated 13.1.1986 in regard to permitting stacking in railway premises at nominated stations without payment of wharfage charge upto a maximum of seven days in advance of loading of commodities except those listed in that letter, will apply in cases where no indent has been placed by the party and whether indenting for wagons should be insisted upon before permission is given in such cases in terms of Board's letter No.TC I/1013/77/1 dated 24.8.78. 2. The matter has been examined and it has been decided that permission as envisaged in Board's letter No.TC I/83/201/14, dated 13.1.1986 may be given without insisting on prior placement of indent for wagons. The party can give a letter to the person in charge of the Goods Shed that he would be indenting for wagons within a maximum period of seven days and that he will be stacking the goods in advance at his own risk and responsibility." 5(b). In the letter dated 21.06.1990, response was given to the General Manager (Commercial) Central Railway Bombay's letter dated 6.2.1990 in the following manner:- "The matter has been examined. In the letter dated 21.06.1990, response was given to the General Manager (Commercial) Central Railway Bombay's letter dated 6.2.1990 in the following manner:- "The matter has been examined. The present dispensation that all commodities except the specified commodities listed in Board's letter No.TCI/836201/14 dated 13.1.86 may be permitted to be stacked in railway premises of nominated stations without payment of wharfage charges upto a mximum period of 7 days in advance of loading, should not be relaxed further. 2. Where such permission has been given wharfage charges are leviale on expiry of the 7 days period even in cases where Railways have not been able to supply wagons. 3. The expression "Drugs and containers" referred to in Board's letter dated 13.1.86 quoted above includes ISO containers for which separate wharfage charges have been prescribed in respect of each inland container Depot." In our considered view, both the letters were concerned with the treatment of a particular situation and were devoid of generality. Both the circulars are not issued U/s.83(1), Section-74 readwith Section 65 of the Railway Act as contended by learned counsel Mr. Pal. The question of declaring the same as 'Ultravires' does not arise. 6. It is pertinent to note that the statement of objects and reasons for bringing the Railways Act, 1989 states inter alia that; 2-(iii) In accordance with certain Judicial pronouncement, the bill provides for statutory recognition of the Railway receipt as a negotiable instrument". Section-65 readwith Section 2(33) defines the Railway receipts. That does not state to include wharfage. Section-2(41) defines wharfage to mean "the charge levied on goods for not removing them from the railways after the expiry of the free time for such removal". Section-2(ii) stipulates that "demurrage" means the charge levied for the detention of any rolling stock after the expiry of free time, if any, allowed for such detention". It is relevant that the inclusive definition of "Terminals" as provided U/s.3(14) of the Railways Act, 1890 has not been found place in the new Railways Act, 1989. On careful reading of the provisions, relating to wharfage, demurrage and Railway receipt, of the Railways Act, 1989, we do not find anywhere that for the no-fault of Consigner in making consignment, wharfage would be charged in the railway receipts. On careful reading of the provisions, relating to wharfage, demurrage and Railway receipt, of the Railways Act, 1989, we do not find anywhere that for the no-fault of Consigner in making consignment, wharfage would be charged in the railway receipts. In the Raichand Decision (Supra), the Hon'ble Apex Court, referring the provision of Old Railway Act, clarifies the concept of wharfage in the following words- "Demurrage is therefore a charge levied on the goods not unloaded from the wagons within the free time of six daylight hours and wharfage is the charge levied on goods not removed from the railway premises after the expiry of the free time allowed for that purpose. Indeed S. 46C(d) of the Act, which was inserted, by Act, 65 of 1945, has practically adopted the definition of the word "demurrage" given in the said rule. Wharfage and demurrage are, therefore, charges levied in respect of goods retained in the wagons or in the railway premises beyond the free time allowed for clearance under the rules." What follows from the reading of the relevant provisions of the Railways Act, 1989 is that there is no command of statute to include the wharfage in the Railway receipts. Further the letters dated 08.09.1989 and 21.06.1990 do not instruct for the same. We do not find any reason as to why fault of the Consigner should not be considered while charging wharfage. What is unreasonable should be avoided. Ergo, learned Single Judge is found to have not committed any illegality in considering the law on the admitted facts advanced by the parties. The decision arrived at in the impugned judgment warrants no interference in this appeal. In the result, the writ appeal stands dismissed. There shall be no order as to costs.