Narbheram Vishram & Anr vs Chief Commercial Manager
2022 Latest Caselaw 898 Cal/2

                     IN THE HIGH COURT AT CALCUTTA
                       Constitutional Writ Jurisdiction
                               ORIGINAL SIDE

Present :-
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA.

                             W.P.O. 101 of 2012

                      NARBHERAM VISHRAM & ANR.
                                   Versus
                      CHIEF COMMERCIAL MANAGER,
                     SOUTH EASTERN RAILWAY & ORS.


For the Petitioner                        :     Mr. Ratnanko Banerji, Sr. Adv.
                                                Mr. Anuj Singh, Adv.
                                                Mr. Madhuja Barman, Adv.
                                                Mr. Aman Agarwal, Adv.


For the Respondents Nos. 1 to 6           :     Mr. R.N. Bag, Adv.
                                                Mr. Deepak Kr. Singh, Adv.


Respondent No. 7                          :     Mr. Swarajit Dey, Adv.


Last Heard on                             :     11.03.2022.

Delivered on                              :     16.03.2022.



Moushumi Bhattacharya, J.

1. The writ petitioners pray for cancelling of four notices of demand issued

by the South Eastern Railways in relation to stacking charges of the

petitioners' goods at Barbil Railway Sidings. The impugned notices of demand

were issued on 13th January, 2007, 14th August, 2008, 20th July, 2010 and

22nd December, 2011. By the first notice dated 13th January, 2007, the

respondents / Railways claimed a sum of Rs. 11,26,56,480.00/- as stacking

charges and referred to a joint inspection done on 3rd December, 2006. The

said demand notice also contained a handwritten chart in support of the claim

of Rs. 11,26,56,480.00/. The petitioners replied to the demand notice on 19th

January, 2007 disputing the imposition of the wharfage charges. The

respondents / Railways did not reply to this letter and issued a second demand

notice dated 14th August, 2008 after a gap of 19 months. The second demand

notice also raised an amount of Rs. 11,26,56,480.00/- which was identical to

the first demand notice and asked the petitioners to treat the said notice as

final and most urgent. The petitioners replied to the second demand notice by

a letter dated 18th October, 2008 reiterating its objection to levying of the

wharfage charges and demanded that the bills in that respect be dropped by

the respondents. The respondents chose not to reply to the petitioners' letter

and issued a third demand letter on 20th July, 2010 after a lapse of 21 months

and a fourth demand letter on 22nd December, 2011 after 38 months.

2. The above facts are undisputed and the present writ petition was filed

after the fourth demand letter dated 22nd December, 2011.

3. The affidavit-in-opposition of the respondents/ Railways states that the

petitioners are liable for the payment demanded since the petitioners stacked

16,616 metric tons of iron ores in the Railway premises without permission

and dumped the materials without authorisation. The position of the Railways

is that the stacking of materials was detected by a joint team and calculated as

per paragraph 7 of the Rates Circular No. 4(G) of 2006. It is also contended

that a surprise inspection was carried out by a joint team on 2nd December,

2006 and a sketch map of stacking material was prepared on this basis

showing the petitioners' stocks marked as serial no. 5 and 6 lying in the said

godown.

4. The response of the Railways to the questions raised by the Court

indicate that a joint inspection had been undertaken and the petitioners'

stacking materials measured on the basis of the Rate chart. According to the

Railways, the measurement was done on the basis of volume calculating length

of the area of stacking materials multiplied by the breadth of the area of the

stacking materials plus height which amounted to 16616 metric tons. The

Railways further stated that the stacking materials were measured through

volumetry process and divided in relation to 248 rakes which resulted in the

quantification of Rs. 11,26,56,480/-. The Railways have also submitted that

the guards engaged by the petitioners refused to put their signatures on the

Report although they were approached to do so. The position is, however, that

the guards appointed by the petitioners were present at the time of the joint

inspection.

5. Upon hearing learned counsel appearing for the parties, the undisputed

facts lead to certain questions. First, the dates of the impugned notices show

that the respondents/ Railways were extremely lax on proceeding against the

petitioners, even assuming they had a case against the petitioners. To repeat,

the demand notices are dated 13th January, 2007, 14th August, 2008, 20th

July, 2010 and 22nd December, 2011; thus being issued with gaps of 19 to 38

months in between each of the notices.

6. Second, the tenor of the impugned notices are vague and without any

material particulars save for a hand-written calculation accompanied by an

equally unclear sketch map. The letters do not indicate the basis of the

demand raised upon the petitioners. The reference to a joint inspection is

equally ambiguous and there is no evidence accompanying the particulars to

the joint inspection carried out on that date.

7. Third, none of the petitioners' letters / representations dated 19th

January, 2007 and 18th October, 2008 raising specific questions were replied

to by the railways. The Railways chose to no pay any heed to the petitioners'

denial of any liability as against the charges levied or answer or respond to the

questions raised in the representations.

8. Fourth, the letters show a mechanical repetition of the demands without

any application of mind. There is no effort to refer to earlier notices or explain

the said notices with further particulars.

9. Besides the above, the respondents have not disclosed any material in

their affidavit-in-opposition on the alleged joint inspection undertaken on

2nd/3rd December, 2006. There are no contemporaneous records to show that

the petitioners were represented at the time of such inspection or that 16616

metric tons of iron ore belonging to the petitioners were actually found during

the course of such inspection. The alleged presence of the petitioners' security

guards does not find place in any of the demand letters or even in the

pleadings filed by the Railways before this Court save the Notes of arguments

filed by the Railways. Moreover, the assertion of the respondents that there is

no provision for serving any notice to the petitioners before quantification of the

impugned demand or before any joint inspection, is not only contrary to the

principles of natural justice but also shows a high-handed attitude of the

respondents in making uncorroborated demands from the petitioners. The

reliance on the Rate Circular cannot be of any assistance to the respondents /

Railways without any corroborating material that 16616 metric tons of iron

ores were actually found during the course of the inspection and proof that it

belonged to the petitioners and were lying at the Railway premises for a period

of 100 days. Finding that the goods were lying in the said premises since 26th

August, 2006 is also arbitrary and the Railways have not produced any

evidence to substantiate this date.

10. The affidavit filed by the added respondent proceeds on the basis that the

petitioners have sought to make the added respondent liable for the stacking

charges. Since no relief has been claimed against the added respondent and

the petitioners have only challenged the demand notices issued by the

Railways, the contentions of the added respondent are not material.

11. More than 15 years have passed since the first demand notice of 13th

January, 2006 and the railways have failed to substantiate their claim or

provide any basis in support of the same. The Railways are precluded from

raising any Wharfage, Cess Fee or tax without any proof or particular

corroborating the same and particularly without due process or authority of

law.

12. In view of the above reasons, this Court finds substance in the

contentions made on behalf of the petitioners and W.P.O. No. 101 of 2012 is

accordingly allowed and disposed of in terms of prayer (a). The impugned

notices of demand and letters dated 13th January, 2007, 14th August, 2008,

10th July, 2010 and 22nd December, 2011 are cancelled. The respondents/

Railways are restrained from taking any steps or giving any effect to the

aforesaid impugned notices of demand as prayed for by the petitioners in any

manner whatsoever.

12. The Writ Petition is disposed of in accordance with this judgment.

Urgent Photostat certified copies, if applied for, be supplied to the

respective parties upon fulfillment of requisite formalities.

(Moushumi Bhattacharya, J)