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Judgment
Debangsu Basak, J.—The writ petitioners herein have assailed the Order dated January 4, 2011 passed by the Chief Commercial Manager (FS), South-Eastern Railway.
It is contended on behalf of the writ petitioners that the Railway authorities had claimed stacking charges on account of stacking of materials by the writ petitioners. The writ petitioners had questioned such claim made by the respondent authorities. The writ petitioners had filed a writ petition being W.P. No. 1113 of 2010 questioning such demand for stacking charges. Such writ petition was disposed of by an Order dated September 6, 2010 requiring the respondent No. 2 to consider and decide such writ petition as a representation and to pass a reasoned order thereon.
It is contended on behalf of the writ petitioners that, the respondent No. 2 did not consider the representation in terms of the Order dated September 6, 2010. Moreover, the goods said to be belonging to the writ petitioners and stacked at the Railway yard has not been proved to be belonging to the writ petitioners. The writ petitioners have not claimed ownership in respect thereof. The writ petitioner is similarly situate as that of Gimpex Limited who has disowned the materials. The writ petitioner has also disowned the materials. Therefore, the respondent No. 2 has no basis to find against the writ petitioner. It is further contended on behalf of the writ petitioners that a penalty is sought to be imposed on the writ petitioners. The ground for imposition of such penalty has not been established. The Railways not having established the fact that the goods stacked belonged to the writ petitioners are not entitled to demand any amount on account of stacking charges or otherwise from the writ petitioners.
Referring to the judgment and order dated February 2, 2015 in W.P. No. 2065 of 2006 (Rameshwar Das v. The Union of India and Ors.) it is submitted that All India Reporter 2010 Calcutta page 13 (Bhagaban Dey v. Union of India& Ors.) has been considered therein.
It is submitted that the writ petitioner has no other alternative remedy against the order impugned. The Tribunal established under the Railways Act, 1989 has no jurisdiction to determine the instant proceedings. In support of such contention reliance is placed on Union of India (UOI) Vs. Modi Industries Ltd., AIR 1973 SC 1281 : (1973) 1 SCC 781 : (1973) 3 SCR 835 .
On behalf of the Railway authorities it is contended that, the order impugned has been passed in accordance with the Order dated September 6, 2010 passed in W.P. No. 1113 of 2010. It is contended that disputed questions of fact are involved. The ownership of goods is being disputed by the writ petitioners. In view of the disputed questions of fact the present writ petition is not maintainable. In this regard reliance is placed on All India Reporter Bhagaban Dey Vs. Union of India (UOI) and Others, AIR 2010 Cal 13 .
It is contended on behalf of the Railway authorities that, the imposition of stacking charges is within the jurisdiction of the Tribunal established under the Railways Act, 1989. Since the writ petitioner has an alternative remedy, the present writ petition should not be entertained. On facts it is submitted that the writ petitioner is not similarly situate as that of Gimpex Limited. The writ petitioner is liable to pay the stacking charges as claimed by the Railway authorities.
I have considered the rival contentions of the parties and the materials made available on record. The first writ petitioner claims to be an exporter of iron ore fines. The first writ petitioner had participated in Wagon Investment Scheme introduced by the Indian Railways. The first writ petitioner had entered into an agreement dated December 5, 2007 with the Railways in respect of one rake under such scheme.
The first writ petitioner had placed indents for carriage of goods from Noamundi Station on the Railways. The Railway authorities had carried out an inspection at various stations in Chakradharpur Division on June 19, 2006. Noamundi Station falls within Chakradharpur Division. On such inspection the Railways authorities noticed huge stacking of iron ore at various stations in the Chakradharpur Division. On November 17, 2006 Rates Inspector of the Railway authorities had inspected Noamundi Station. On inspection they found huge quantity of iron ore lying on the Railway land along with line No. 5 of Noamundi Station. The Railway authorities did not permit any person to stack such materials on Railway land. The Railway authorities had prepared a stacking charge bill in accordance with the Rates Circular dated January 3, 2006 against the writ petitioner amounting to Rs. 27,80,000/-. On receiving such bills the first writ petitioner had disowned the materials by a letter dated March 6, 2007.
The writ petitioner thereafter had approached this Hon''ble Court by a writ petition being W.P. No. 1113 of 2010. Such writ petition was disposed of by an Order dated September 6, 2010 by directing the respondent No. 2 herein to treat the writ petition as a representation and to decide the same in accordance with law. The writ petitioners were heard by the respondent No. 2. The respondent No. 2 had passed a reasoned Order dated January 4, 2011 which is impugned herein.
It is not the case of the writ petitioners that the order impugned herein had been passed in breach of the principles of natural justice. It is however contended on behalf of the writ petitioners that the impugned order discriminates between similarly situate persons and that with no material to arrive at a finding that the materials lying at the Noamundi Station belonged to the first writ petitioner, the impugned order so far as it upholds the actions of the Railway authorities in demanding stacking charges, is perverse.
The respondent No. 2 herein in the impugned order had proceeded to infer that the materials lying at the Noamundi Station belonged to the first writ petitioner. In arriving at such finding, he took into account the fact that three persons including the first writ petitioner were charged with stacking charges bills. Out of the three persons, one namely, Core Minerals Limited accepted the stacking charges bills and paid the same. The two remaining parties, namely, Gimpex Limited as well as the first writ petitioner herein disowned the materials. However, the respondent No. 2 in the impugned order noted that Gimpex Limited did not have any subsisting indent and that on the detection of unauthorized stacking on November 7, 2006 Gimpex Limited had cancelled all indents. Contrary to the conduct of Gimpex Limited, the first writ petitioner herein had loaded materials on October 6, 2006 had subsisting indents pending throughout November 2006 and had live indents on which it loaded materials on December 14, 2006 and December 17, 2006.
The writ petitioners did not place any material before the respondent No. 2 to establish that the subsequent two indents were loaded out of materials brought into the stack yard later than the date of inspection. The date of inspection and the subsequent loading of materials in respect of the two indents were of sufficient close proximity to draw an inference that the stacked materials available at the yard in the date of the inspection were that of the writ petitioners. More so, when there are no other claimants to such materials and when the other person for good reason had disowned it.
As a Writ Court I am not to scrutinize the order impugned as a Court of appeal. A Writ Court is concerned with the decision making process and the perversity, if any, in the order impugned. It is not called upon to reappraise evidence and substitute its view with that expressed in the order impugned, more so, when the order impugned has expressed a view which is plausible in the facts of the case. When the order before me is not vitiated due to breach of principles of natural justice and is not perverse, a Writ Court is not called upon to interfere.
The order impugned is a speaking order. The respondent No. 2 has given reasons as to why he has inferred that the materials belonged to the first writ petitioner in spite of the first writ petitioner disowning the same. Such reasons to my mind could not be said to be perverse or arbitrary or not based on any materials at all. Gimpex Limited and the first writ petitioner had disowned the materials. Simply because the first writ petitioner herein had disowned the materials as that of Gimpex Limited does not place the first writ petitioner in a similar situation as that of Gimpex Limited. Gimpex Limited had cancelled all subsisted indents after detection of unauthorized stacking on November 17, 2006. The first writ petitioner on the other hand had subsisting indents on November 17, 2006 and had loaded materials on December 14, 2006 and December 17, 2006. These events are in very close proximity on the date of the inspection dated November 17, 2006. A rake is required to be loaded within a specified period of time. A party placing an indent for rake would therefore have materials ready for loading on to the rake within the specified period failing which such party is called upon to pay additional charges to the Railways. Consequently, the only reasonable inference from the close proximity between the dates of the inspection being November 17, 2006, the subsistence of live indents during the month of November 2006 and the ultimate loading on December 14, 2006 and December 17, 2006, leads one to the conclusion as that arrived at by the respondent No. 2 in its impugned order. To put it in other words the conclusion drawn by the respondent No. 2 from the materials made available before him is a plausible conclusion.
The conclusion arrived at in the order impugned has not been demonstrated to perverse. The contention of availability of an alternative remedy to the writ petitioner in respect of the impugned order is not acceptable in the facts of this case. The claim made by the Railway authorities is on account of stacking charges. The claim that has been made by the Railway authorities is subsequent to the stacking happening. The same would therefore not come within the purview of Section 37 of the Railways Act, 1989 in view of the ratio laid down in M/s. Modi Industries Ltd. (supra).
In M/s. Modi Industries Ltd. (supra) the Supreme Court has considered the provisions of Section 41 of the Railways Act, 1989 and is of the view that the words ''is charging'' in clause (b) and ''is levying'' in clause (c) of Section 41 must be construed to mean ''is demanding'' a price at the present time for services to be rendered.
Bhagaban Dey (supra) relates to dispute on account of freight charges. The question of lack of jurisdiction was raised therein. Such contention was based on Section 43 of the Act of 1989. It has been held that the bar of jurisdiction mentioned in Section 43 of the Act of 1989 does not apply to Writ Courts. On facts the Court found that disputed questions of fact had been raised requiring oral evidence between the parties. Since disputed questions of fact were involved in the case and the same could not be decided sitting in a Writ Court, the writ petition was not entertained.
I am not inclined to accept the contentions of the Railway authorities that the Writ Court has no jurisdiction to entertain the present writ petition. When the earlier challenge to the demand for stacking charges was made by way of a writ petition the lack of jurisdiction of this Court or the availability of an alternative remedy to the writ petitioners was not raised. The Railway authorities allowed the Writ Court to pass an order directing the respondent No. 3 to consider the earlier writ petition as a representation. The respondent No. 2 had acted such order passed by the Writ Court. Such order of the respondent No. 2 has been impugned in the present writ petition.
In such circumstances, I find no merit in W.P. No. 186 of 2011. The same is dismissed however without any order as to costs.