Partly allowed

Railway Board v. M/S.Yamuna Roller Flour Mills (P) Ltd.

Kerala HC3 Jan 2022WA/1598/2013

Case brief

AI extract

What is this about?

Two-writ appellants (Railways) filed an appeal challenging a single-judge order directing refund of wharfage charges. The High Court observed that the record did not establish the issue regarding demand after removal. The appeal petition was admitted, the refund direction was set aside, and the pending representation was directed to be considered.

What did the court decide?

Direct the Railway authorities to consider the pending representation (Ext.P1) regarding waiver of charges within two months.

Railway Board Vs M/S.Yamuna Roller Flour Mills (P) Ltd. — Kerala HC (2022) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 3^RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943

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WA NO. 1598 OF 2013

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AGAINST THE JUDGMENT IN WPC 13167/2008 OF HIGH COURT OF KERALA DATED 16.1.2013 APPELLANTS/RESPONDENTS IN THE WRIT PETITION:

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1 RAILWAY BOARD MINISTRY OF RAILWAYS,

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REPRESENTED BY SECRETARY, RAILWAY BOARD, RAIL BHAVAN, NEW DELHI.

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2 SENIOR DIVISIONAL COMMERCIAL MANAGER,

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SOUTHERN RAILWAY, TRIVANDRUM.

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3 CHIEF GOODS SUPERVISOR, SOUTHERN RAILWAY,TRICHUR.

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BY ADV SRI.JAMES KURIAN, SC, RAILWAYS

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RESPONDENT/PETITIONER IN THE WRIT PETITION:

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M/S.YAMUNA ROLLER FLOUR MILLS (P) LTD

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REGD.OFFICE,22-A,DEVELOPMENT PLOT, P.O.PERINGADOOR,TRICHUR-680 681, REPRESENTED BY MANAGER, ADMINISTRATION AND LOGISTICS, MR.K.V.VENUGOPAL.

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SRI.C.K.KARUNAKARAN FOR RESPONDENT

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.1598 of 2013

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JUDGMENT

Dated this the 3^rd day of January 2022

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S.MANIKUMAR, C.J.

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The appellants are the respondents in W.P.(C)No.13167/2008. Writ appeal is filed challenging the judgment dated 16.1.2013 in W.P. (C)No.13167/2008 whereby, the writ petition was allowed directing refund of the wharfage charges levied from the respondent. Writ petition was filed, inter alia, challenging levy of demurrage and wharfage charges.

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Brief facts leading to the filing of this writ appeal are that the writ petitioner, a company, has been using railways for carriage of goods belonging to it. Writ petitioner consigned certain goods which arrived at the railway yard of Southern Railway, Thrissur. Writ petitioner could not remove the goods from the railway yard within the grace period permitted under rules, because of strike by lorry owners. Subsequently, with police protection, the goods were removed. For the delay in removal of goods, Railways demanded demurrage, which was paid under protest and refund was claimed. Writ petitioner is also aggrieved by the demand for wharfage for the period subsequent to the removal of the goods from the railway yard. Hence the petitioner approached this court by filing a

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W.A.1598 of 2013

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writ petition seeking for the following reliefs:

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“3.1 To issue a writ of certiorari or such other appropriate writ order or direction calling for the records leading up to the issue of Exhibits P4 and P5 and to quash the same.

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3.2 To issue a writ of mandamus or such other writ order or direction commanding the Respondents not to levy Wharfage charges on detention of rolling stock, and to restrict such charges on goods remaining un-cleared in the railway premises after unloading from rolling stock.

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3.3 To declare that the demand for Wharfage charges through which resulted in Exhibit P3 payment as illegal, and to direct the Resondents to refund of amounts paid through Exhibit P3 which such interest as this Honourable Court may deem fit to award.

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3.4 To declare that the classification of Trissur Goods shed as category I, without adhering to the requirements in Exhibit P4 as illegal, and the demand which resulted in Exhibit P3, issued on such illegal basis as illegal and unsustainable in law.

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3.5 To declare the period of detention of rake and goods at Trissur on account of the truck strike and flooding of premises as “dies non” and to direct the Respondents not to charge Wharfage for such detention and to refund the Wharfage already levied.

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3.6 To direct the 2 nd Respondent to dispose of Exhibit P1 and to order refund of Wharfage illegally collected.

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3.7 To declare the demand and levy of “Wharfage” without considering the factual position in Trissur Goods shed as illegal and unconstitutional.

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3.8 To issue such other writ, order or direction that this Honourable Court may deem fit and proper to grant on the facts and circumstances of the case and to grant the costs of these proceedings to the petitioner.”

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Learned Single Judge vide judgment dated 16^th January 2013

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directed the refund of the wharfage charges collected by Railways. Relevant portion of the judgment reads thus:

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“As far as the claim for refund of demurrage is concerned,

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W.A.1598 of 2013

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the petitioner submits that, the petitioner may be left to other remedies in respect of the same. But the petitioner submits that the railways have no manner of right to demand wharfage for a period subsequent to the clearance of goods from the railway yard. The petitioner had categorically asserted in the writ petition that the demand is for a period subsequent to the removal of the goods from the railway yard. The respondent has not chosen to file any counter affidavit denying that averment. When the railways cannot demand wharfage for the period subsequent to the removal of the goods from the railway yard, the petitioner is entitled to that relief prayed for.

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In the above circumstances, the respondents are directed to refund to the petitioner the wharfage which has been collected from the petitioner as expeditiously as possible at any rate within three months from the receipt of a copy of this Judgment.”

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According to Mr.James Kurian, learned counsel for the appellants, the intention of the legislature in imposing demurrage and wharfage charges as per the Railways Act, is deterrent for the purpose of ensuring that goods are unloaded from the wagons and released so as to ensure the smooth and uninterrupted flow of goods booked through the Railway mode of transport.

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Being aggrieved by the judgment of the writ court, appellants/railway authorities have filed this writ appeal contending, inter alia, that Railways have the jurisdiction and power to impose demurrage and wharfage charges, if the consignee does not get the wagons released within the allotted free time.

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W.A.1598 of 2013

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Learned counsel for the appellants submitted that the railways have issued notice to the writ petitioner demanding demurrage charges for the period after the lapse of free time to the actual time of release of wagons.

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Railways demanded wharfage charges for the period after the lapse of free time for clearing consignments from the Railway premises to the actual time of clearance of consignments. Railways have never demanded charges for a period subsequent to the removal of goods from the railway premises. The rate existed at that time of placement of wagons only was charged. Railways have never demanded charges for a period subsequent to the removal of goods from the railway premises as alleged by the writ petitioner.

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Sri.C.K.Karunakaran, learned counsel for the respondent/M/S Yamna Roller Flour Mills (P) Limited made submissions to sustain the judgment.

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It is evident from the records that on receipt of the demand, the writ petitioner has preferred a representation dated 24.10.2007 before the 2^nd appellant/the Senior Divisional Commercial Manager. Today it is submitted that the same is pending consideration before the authorities.

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W.A.1598 of 2013

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Representation dated 24.10.2007 is reproduced below:

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24.10.2007

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The Divisional Commercial Manager Divisional office, Southern Railway Thycaud Trivandrum-14.

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Respected sir,

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Yamuna Roller Flour Mills is a company manufacturing wheat products such as Atta, Maida and Sooji for which we purchase wheat from various parts of India. Yamuna is consistent and long term customer carrying wheat through rail since 1989 that too atleast 2 to 3 rake a month. Usually we unload the rake at the earliest and avoid inconvenience to railway.

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We regret that the new rake placed on 20^th October vide RR No.51336 and RR No.367 dated 13^th October 2007 and Invoice number 01 and 02 could not be unloaded due to lorry strike prevailing. Now we have received a bill for an amount of Rs.1,71540/ (Rupees one lac seventy one thousand five hundred and forty) as wharfage charges. In spite of our best efforts we couldn't clear the rake within the free hours owing to the unforeseen strike which is a Force majuere. Normally rakes will take only 4 days time to reach Thrissur from Rajkot and this rake has taken 07 days to reach Thrissur. The intent was placed before lorry strike and as per railway record itself we are not defaulters. None other than us in Kerala has cleared goods from any good shed taking such effort and risk in the face of the scarcity of vehicles acquiring police protection. Moreover Railway has already charged DC for an amount of Rs.5,58,000/- for the same. So please waive the wharfage charge which is so excessive and has located us in utter dismay and grievance.

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We will be much obliged if you are kind enough to waive the demurrage charges which was due to a reason beyond our control and prudence.

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Yours faithfully

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Sd/C.G.Prathibasmidan Chief Operating officer

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W.A.1598 of 2013

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We have heard Sri.C.K.Karunakaran, learned counsel for the respondent/ M/S Yamna Roller Flour Mills (P) Limited.

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Posed with a question as to whether demand for wharfage was made after the removal of the goods from the premises of the railways, Sri.C.K.Karunakaran, learned counsel for the respondent/ M/S Yamna Roller Flour Mills (P) Limited submitted that it was not so.

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Going through the averments made in the writ petition, we do not find any statement or document as regards the alleged demand for wharfage charges made after removal of goods from the premises of the railways. However, it appears that submission has been made that the demand for wharfage was subsequent to the removal of the goods from the railway premises and accepting the said contention, directions have been issued by the writ court to refund the wharfage to the petitioner.

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Thus placing on record the above, direction issued requires interference. Accordingly, impugned direction to refund wharfage to the writ petitioner within a specified time limit is set aside.

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However, Ext.P1 representation dated 24.10.2007, which is now pending consideration before the 2^nd appellant/the Senior Divisional Commercial Manager, is directed to be considered by the authority

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W.A.1598 of 2013

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concerned in accordance with law. We make it clear that the respondent

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is at liberty to place all the relevant materials in support of Ext.P1 before the concerned authority and that the same also be considered within a

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period of two months from the date of receipt of a copy of the judgment.

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Writ appeal is disposed of.

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SD/S.MANIKUMAR CHIEF JUSTICE

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SD/SHAJI P. CHALY JUDGE

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jes

Railway Board v. M/S.Yamuna Roller Flour Mills (P) Ltd.

Case brief

What is this about?

What did the court decide?

Railway Board v. M/S.Yamuna Roller Flour Mills (P) Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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