Calcutta High Court (Appellete Side)
Union Of India And Ors vs Dg Raj Highway Services And Ors on 3 February, 2023
03.02.2023
KC(3)
M.A.T. 12 of 2023
Union of India and Ors.
-versus-
DG Raj Highway Services and Ors.
With
CAN 1 of 2023
With
CAN 2 of 2023
Mr. Asok Kumar Chakraborty, Ld. A.S.G.,
Mr. Promod Kumar Drotia,
Mr. Santosh Kumar Pandey.............For the appellants.
Mr. Abhratosh Majumdar, Sr. Adv.,
Mr. Saptarshi Roy,
Ms. Kakali Das Chakraborty.........For the respondents.
Re: CAN 1 of 2023.
The impugned judgment and order was passed on
6th July, 2022.
There is 122 days delay in filing this appeal.
The reasons for this delay have been sought to be
explained by the Railways in paragraphs 7 to 11 of their
application under Section 5 of the Limitation Act, 1963.
The Railways state without any particulars with
regard to the date and time that "deliberation amongst
the top level of the authorities" took place whether to
prefer an appeal against the impugned order. The senior
standing counsel for the Union of India was
approached. It was only on 10th November, 2022 that
his opinion that an appeal should be filed was obtained.
It appears from the averments in this application
that since according to the Railways the impugned
order was against their Comprehensive Parcel Leasing
Policy, 2014 and would create a risk for the safety and
security of the passengers, the decision to prefer the
appeal was taken.
The appeal was filed sometime in December,
2022.
The grounds made by the Railways, in our
opinion, do not seem to be adequate.
However, if the impugned judgment and order is
accepted by the Railways then the cargo and the
congestion at railway stations are bound to increase
considerably. This raises substantial questions
regarding the general railway policy to load and unload
cargo. A substantial amount of public interest is also
involved.
Considering all these circumstances, we condone
the delay in filing the appeal.
The application under Section 5 of the Limitation
Act, (CAN 1 of 2023) is allowed.
We direct the department to register the appeal.
Re: M.A.T. 12 of 2023.
We formally admit the appeal.
Since the respondents have appeared, service of
the notice of appeal is waived.
We propose to hear out the appeal dispensing
with all formalities.
Advocate-on-record for the appellants will
prepare an informal paper book and file the same in
this court by 10th March, 2023 serving a copy thereof
on the advocate-on-record for the respondents at
least seven days before the date fixed for hearing of the
appeal.
List the appeal for hearing on 20th March,
2023.
Re: CAN 2 of 2023.
It is common ground that the subject contract
between the parties has been fully executed by
performance. The question which arises is if the
impugned judgment and order is allowed to operate,
what implications it would have on the general
movement of cargo in parcel vans (VPs) and break vans
(SLRs)?
The respondents load and unload cargo on parcel
vans (VPs). Their case is that the subject circulars of the
Railways discriminate between parcel vans (VPs) and
break vans (SLRs). While loading perishable goods,
those operating in VPs are made to load their cargo not
later than a certain length of time before the time for
departure of the train. When the goods are perishable in
nature, this time duration does damage to them.
The respondents also claim the right to load cargo
at a reasonable time before departure of the train from
the platform itself as is allowed by the Railways in case
of SLRs.
According to the Railways if this is allowed then
there would be considerable increase in congestion in
railway stations. Other administrative difficulties would
also arise.
The question raised in this appeal is substantial
which has to be gone into and decided.
We have been shown about the letter of the
railway administration dated 18th July, 2022 at page 19
of the affidavit in opposition to the Section 5 application
filed by the respondents and a report of the Senior
Divisional Commercial Manager dated 22nd November,
2022 which suggest that the respondents were allowed
to load/unload cargo in terms of the impugned
judgment and order.
We have stated earlier that the respondents'
contract with the Railways stands discharged by
execution.
However, it is apprehended by the learned
Additional Solicitor General that the continuance of the
impugned judgment and order would have a serious
impact on the general railway policy regarding
transportation of cargo and the present and future
transportation of cargo by other carriers/parties.
Considering the questions raised and the balance
of convenience we stay further operation of the
impugned judgment and order dated 6th July, 2022.
However, as an interim measure we order that on
a consignment to consignment basis, the respondents
shall be free to approach the appellant Railways with a
representation that the cargo or a part of it is perishable
in nature and that the whole or any portion thereof be
allowed to be loaded into the wagons not beyond four
hours of departure of the train. The representation may
also include the necessity of loading the cargo from the
platform.
If such request is made by the respondents not
later than 12 hours before departure of the train the
Railways shall consider it fairly, reasonably and within
the shortest period of time, not later than 6 hours
before the departure of the train in accordance with law,
particularly the 2014 Parcel Van Leasing Policy.
Affidavit in opposition to the stay petition may be
filed by 14th February, 2023. Affidavit in reply by 24th
February, 2023.
The papers in the stay application shall be
included in the paper book and shall form the papers in
the appeal. The stay petition will be considered as
affidavit in opposition to the writ petition.
Leave is granted to the appellants to file an
additional memorandum of appeal by 10th February,
2023 and include the same in the paper book.
The stay application (CAN 2 of 2023) is disposed
of.
(I.P. MUKERJI, J.)
(BISWAROOP CHOWDHURY, J.)
