Gauhati High Court

WP(C)/3311/2015 on 13 June, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

Page No.# 1/12

GAHC010015092015

2025:GAU-AS:7739

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/3311/2015

M/S Century Merchantile Pvt. Ltd.,
A Pvt. Ltd. Company incorporated under Companies Act, 1956 and having its
registered office at Bajoria Complex, 1st Floor, T.R. Phookan Road, Fancy Bazar, Ghy-
12, Assam and is rep. by its Managing Director, Shri Prakash Chand Kabra, S/O- Lt.
Ram Karan Kabra, R/O- Kabra Bhawan, B.R. Phookan Road, Guwahati in the dist. of
Kamrup, Assam.

2: M/S Cta Logistics Ltd.,
A Private Limited Company incorporated under The Companies Act
1956 and having its registered office at A.T. Road Bharalumukh Guwahati -781009 and
its head office at 5g, Crescent Tower, 229 AJC Bose Road, Kolkata and is represented
by its authorized representative, Shri Kanhaiya Lal Bothra, son of late Bhanwar Lal
Bothra, resident of A.T. Road Bharalumukh, Guwahati in the district of Kamrup, Assam.

3: Patanjali Foods Limited.
Ruchi House, Royal Palms
Survey No. 169, Aarey Milk Colony
Near Mayur Nagar, Goregaon (East )
Mumbai Maharashtra, India 400065

4: M/S Gauhati Roller Flour Mills.,
A Private Limited Company incorporated under The Companies Act
1956 and having its registered office and its head office at G.S. Road, P.O. Dispur,
Guwahati -781005 and is represented by its authorized representative, Shri Ajit Bajni.

5: M/S Brijhora Roller Flour Mills Pvt. Ltd.
A Private Limited Company incorporated under the Companies Act
1956 and having its Registered Office and its Head Office at G.S. Road, P.O. Dispur,
Guwahati-781005 and is represented by its Authorized Representative Shri Ajit Bajni.

6: Shree Ganesh Flour Mills
Page No.# 2/12

A Unit Of Ityadi India Pvt. Ltd.
A Private Limited Company Incorporated under the Companies Act
1956 and having its registered Office and its Head Office at Bye Lane No. 2, Industrial
Estate, Bamunimaidan, Guwahati- 781021.

7: M/S Purbanchal Enterprises
A Registered Partnership Concern
Having its Office at S.N. Mour Market
T.R.P. Road, Fancy Bazar
Guwahati- 781001 in The District of Kamrup, Assam and is represented by its duly
authorized
Representative Sri Nirmal Kumar Jain.

8: Brahmaputra Flour Mills
A Registered Partnership Concern
Having its Office At Noonmati
Guwahati -781020 in the District of Kamrup
Assam and is represented by its duly Authorized
Representative Sri Prabhu Dayal Sharma.

9: Rajasthan Food Grain Store
A Registered Partnership Concern
Having its Office at Bara Bazar, Shillong
And is represented by its duly
Authorized Representative Sri Panalaljilunia.

10: M/S Mandal And Brothers
A Registered Partnership Concern Having Its Office At Radharani Market, T.R.P. Road,
Fancy Bazar
Guwahati -781001, Assam, Its Head Office At 5n
Bidhan Nagar Road, Ultadange, Kolkata
West Bengal And Is Represented By Its Duly Authorized Partner
Sri Naba Kumar Mandal.

11: Shree Mahalaxmi Mills
A Registered Partnership Concern Having Its Head Office And Registered Office At M.G.
Road
Fancy Bazar, Guwahati - 781001
Represented by its duly authorized
Representative Sri Ajay Kumar Dhanuka.

12: Choradia and Sons
Page No.# 3/12

A Proprietorship Concern
Having Its Registered Office And Head Office At B-7
H.M. Market, T.R.P. Road, Fancy Bazar, Guwahati, Assam
Represented by its Proprietor Shri Kamal Choradia.

13: Karimganj Saraogi Trading Co.
A Proprietorship Concern
Having its Registered Office & Head Office at East Market
Karimganj, Assam, Represented by its Proprietor Shri Ajay Kumar Jain.

14: S.S. Enterprises
A Proprietorship Concern
Having its Registered Office and Head Office at Old Dhanuka Building
T.R.P. Road, Fancy Bazar, Guwahati -781001, Assam
Represented by its Proprietor, Shri Surya Prakash Agarwal.

15: Gangh And Sons
A Proprietorship Concern
Having Its Registered Office And Head Office At T.R.P. Road
Fancy Bazar, Guwahati- 781001
Assam And Is Represented By Its Proprietor
Shri Bhushan Kumar Jain.

16: M/S C.S. Enterprises
A Proprietorship Concern
Having Its Registered Office
Head Office At 2nd Floor
Radha Rani Market, T.R.P. Road, Fancy Bazar
Guwahati -781001, Assam
Represented By Its Proprietor Shri Sitaram Bihani.

17: Vikash Trading Co.
A Proprietorship Concern
Having Its Registered Office
Head Office At Radha Rani Market
T.R.P. Road, Fancy Bazar, Guwahati 781001
Assam And Is Represented By Its Proprietor
Shri Param Hansh Pandey.

18: Laxminarayan Ajit Kumar Jain
A Huf, Having Its Registered Office At R. No. 7
1st Floor, H.M. Market
T.R.P. Road, Fancy Bazar, Guwahati
Assam And Its Head Office At East Market
Page No.# 4/12

Karimganj, Assam
Represented By Its Authorized Representative
Shri Ajay Kumar Jain
...... Petitioners
Versus
The Union of India
Ministry Of Railways, Railway Board,
Rep. by its Secy., Rail Bhawan, New Delhi.

2: The Chief Commercial Manager
North Eastern Frontier Railway, P.O. Maligaon, Guwahati-11.

3: The Senior Divisional Commercial Manager
Lumding.

4: The Commercial Supervisor (Goods)
Northeast Frontier Railway New Guwahati, Assam
...... Respondents
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

For the petitioners : Mr. G. N. Sahewalla, Sr. Adv.,
Mr. H. K. Sarma, Adv.
For the respondents : Dr. B. N. Gogoi, SC, NF Railway
Date of hearing : 05.06.2025
Date of judgment & order : 12.06.2025

O R D E R (CAV)

Heard Mr. G. N. Sahewalla, learned Senior counsel, assisted by Mr. H. K. Sarma, learned counsel for the petitioners. Also heard Dr. B. N. Gogoi, learned Standing Counsel NF Railway.

2. The petitioners are aggrieved with the impugned WT Message dated Page No.# 5/12

27.01.2015, by which the petitioners have been directed to deposit the demurrage charges as follows:-

"1 2 3 4 5 6 7 8 SN INV RR.NO DATE FROM TO COMMODITY AMOUNT PARTY NAME 295 dt.29.08.14 to 1035/212008224 to 06.08.14 LCH NGC Mixed Goods 12,41,100/- CTA Logistics Ltd.

296 dt.29.08.14 33/212001522 12.08.14 HDCG NGCSoyabean Oil/Rs.12,53,700/- Rudhi Soya Industries Ltd.

297 dt.29.08.14, 145, 6/262002681-2682 09.08.14 PMIR NGCDAPRs.5,70,000/- Sanjoy Chang Kakati 303 dt.30.08.14 126 to 167.212002923 to 2964, 13.08.14 GR NGCSugar Rs.11,84,400/- Century Mercantile P/Ltd.

304 dt.30.08.14 04 to 44/212000776 to 212000816 07.08.14 KVW NGCSugar Rs.12,42,300/- M/s Purbanchal Enterprise 305 dt.30.08.14 15 to 16/212001973-212001984 17.08.14 GDKNGC Sugar Rs.7,00,650/- M/s Guwahati Roller Flour Mills. DRM/C/LMG-

From DRM/C/LMG sent At: 16:51:37 on 27.01.2015 Sent by User id: LMGT1 Client Id: 10.134:207:22"

3. The case of the petitioners is that they are traders doing the business of transportation of goods. On 14.08.2014, the petitioners were informed by their clearing agents stationed at New Guwahati Railway Siding that the rakes carrying goods belonging to some of the petitioners had reached and the same had been placed in Line Nos. 9 & 10. They were also informed that some other rakes of the petitioners had been placed in Line Nos. 1, 2 & 3. Upon receipt of the information, the petitioners arranged to have their goods unloaded from the train rakes. However, the petitioners found that the train wagons were completely blocked by a huge consignment of iron rods and iron coils, due to which it was impossible for the trucks to reach the wagons for unloading their goods. The goods that were to be unloaded were consignments of sugar and Page No.# 6/12

edible oils etc.

4. The petitioners' counsel submits that the problem being communicated to the authorities, the petitioners were informed that the obstruction would be removed, which would allow the petitioners to unload their goods from the train wages. The petitioners were also informed that no demurrage charges would be demanded from the petitioners. The Kamrup Chamber of Commerce thereafter wrote a letter dated 21.08.2014 to the General Manager, NF Railway, Maligaon, Guwahati, conveying their thanks that the area between line Nos. 9 and 10 would be cleared and due to the assurance given that demurrage charge was to be waived. He submits that the iron rods and iron coils were thereafter removed by the Railways on 21.08.2014, which allowed the petitioners to unload their goods from the wagon train on 22.08.2014 itself.

5. However, vide WT Message dated 27.01.2015, issued by the Divisional Regional Manager (DRM), Lumding, the petitioners were directed to deposit the demurrage charges as follows:-

"1 2 3 4 5 6 7 8 SN INV RR.NO DATE FROM TO COMMODITY AMOUNT PARTY NAME 295 dt.29.08.14 to 1035/212008224 to 06.08.14 LCH NGC Mixed Goods 12,41,100/- CTA Logistics Ltd.

296 dt.29.08.14 33/212001522 12.08.14 HDCG NGCSoyabean Oil/Rs.12,53,700/- Rudhi Soya Industries Ltd.

297 dt.29.08.14, 145, 6/262002681-2682 09.08.14 PMIR NGCDAPRs.5,70,000/- Sanjoy Chang Kakati 303 dt.30.08.14 126 to 167.212002923 to 2964, 13.08.14 GR NGCSugar Rs.11,84,400/- Century Mercantile P/Ltd.

304 dt.30.08.14 04 to 44/212000776 to 212000816 07.08.14 KVW NGCSugar Rs.12,42,300/- M/s Purbanchal Enterprise Page No.# 7/12

305 dt.30.08.14 15 to 16/212001973-212001984 17.08.14 GDKNGC Sugar Rs.7,00,650/- M/s Guwahati Roller Flour Mills. DRM/C/LMG-

From DRM/C/LMG sent At: 16:51:37 on 27.01.2015 Sent by User id: LMGT1 Client Id: 10.134:207:22"

6. The petitioners' counsel submits that once the respondents have taken a decision not to impose any demurrage charges on the petitioners, they cannot be allowed to back track from their assurance/promise and charge the petitioners demurrage charges. He also submits that the respondents having admitted to the fact that the train wagons had been blocked by the iron rods and iron coils, the unloading of the wagon train could not have been done till the obstacles were removed. As such, no demurrage charge should have been claimed by the respondents due to the petitioners having unloaded the train wagons after seven days, as the same was not the fault of the petitioners.

7. Dr. B. N. Gogoi, learned Standing Counsel, NF Railway, on the other hand, submits that the New Guwahati Good Shed is fully equipped with resources with all basic facilities for handling goods and parcel traffic and it can handle huge number of wagons in its 9+2 lines with 42 wagons placement capacity. The railway yard has sufficient space for free movement of tucks to unload the inward rakes. However, a group of traders were intentionally avoiding loading and unloading the rakes within the free time of 9 hours, for reasons best known to them, which led to major constraints to the smooth running of train services. He also submits that though para 2.2 of the Railway Board's Rates Circular No. 74/2005 dated 19.12.2005 provides for a free time of 9 hours for unloading of covered wagons (more than 26 and above), a nominal demurrage charge is charged in excess of the permissible free time for loading and unloading, as per the Circular No. 5 of 2013 dated 22.03.2013. He submits that the petitioners Page No.# 8/12

had taken time between 173 hours to 202 hours in unloading the wagons/rakes, despite having only 9 hours permissible time for unloading the wagons. As such, there was no infirmity with the impugned WT Message dated 27.01.2015.

8. Dr. Gogoi also submits that as per the Advance Correction Slip No. 12 to Chapter-XI (Wharfage and Demurrage) of Indian Railway Code, for Traffic (Commercial) Department (1993 edition), the following lines were added at the end of para 1102, which are as follows:-

"The rules regarding waiver of demurrage/wharfage charges have been revised vide Boards letter No.TC-I/2004/201/9 dated 11.10.2004 (Rates Circular No. 39 of 2004)."

2. The content of paras 1102 to 1106 may be replaced by the following:

"1102 Power of officers to waive Demurrage or wharfage charges:-

Designation of officer Maximum amount of Maximum amount of demurrage per wharfage per wagon, which can be consignment, which considered by an can be considered by officer an officer

1 GM Full powers Full Powers

2 CCM (Co-ordinating Rs.1,00,000/- Rs.1,00,000/-

HOD in Commercial Department

3 DRM Rs.25,000/- Rs.25,000/-

4 CTM/Sr.DCM/DCM Rs.6000/- Rs.6000/-

     working     as   Branch
     Officer

5    DCM/DTM/Area              Rs.600/-               Rs.1,200/
                                                                                Page No.# 9/12

     Officer in senior scale

6    ACM/ATM/Area Officer Rs.300/-                 Rs.300/
     in junior scale

The powers of waiver of wharfage charges indicated in the table above will be on consignment basis except in the case of trainload consignments where it will be applicable on per wagon basis."

9. Dr. Gogoi also submits that as the present impugned WT Message dated 27.01.2015 has been issued by the DRM concerned, the petitioners always have the remedy to challenge the said impugned WT Message and ask for waiving the Demurrage Charges before the concerned General Manager.

10. I have heard the learned counsels for the parties.

11. The case of the petitioners is basically to the effect that though the wagons had arrived in the station on 14.08.2014, the petitioners could unload the train wagons only on the night of 22.08.2014, after the iron rods and iron coils, which had been obstructing the passage to the said train wagons, were removed by the respondents on 21.08.2014. Though the petitioners in their writ petition have stated that the train wagons were completely blocked by iron rods and iron coils, for which it was impossible for them to unload the wagons, the respondents have not specifically answered the said averment made by the writ petitioners in their affidavit-in-opposition. The respondents reply in their affidavit, in response to the above averment made by the petitioners, is to the effect that the same was "not agreed" by the respondents. This reply, in the opinion of this Court is subjective, though it can also imply that it amounts to Page No.# 10/12

disputing the correctness of the averments made by the petitioners.

12. The above being said, Clause 1102 provides the power to waive demurrage or wharfage charge. In this respect, the DRM, who had issued the impugned WT Message dated 27.01.2015, only has the power to waive demurrage charges amounting to Rs. 25,000/- only. The next higher officer, i.e., CCM has the power to waive demurrage charges only up to 1 Lakh, while the General Manager has unlimited powers.

13. As the impugned WT Message dated 27.01.2015, issued by the DRM states that the competent authority had regretted the request for waiver of demurrage charges, this Court, vide orders dated 10.09.2024 and 21.01.2025, had directed the counsel for the respondents to produce the decision making process and the rejection order issued by the DRM, Lumding, in connection with the impugned WT Message dated 27.01.2025.

14. Today, Dr. B. N. Gogoi has submitted letter No.C/104/484/LM/2024(Misc) dated 30.01.2025, issued by the Assistant Commercial Manager (I), Lumding, addressed to the GM/Law/MLG, N.F. Railway, which is to the following effect:-

"Sub:- WP(C) No. 3311/2015 before the Hon'ble Gauhati High Court. M/s Century Merhcantile Pvt.Ltd & 17 Ors-Vs-U.O.1 & 30rs.

Ref:-i) Your's L.No-Z/208/11/COM/HC/GHY/2015 dtd 23/01/2025

Vide under reference, it is informed that the concerned case file is currently untraceable in the DRM/C/LMG Office, possibly misplaced during the Clean India Mission Programme run by Bharat Sarkar. Efforts to obtain a copy from CGS/NGC were unsuccessful, as they reported no available files regarding this matter.

Page No.# 11/12

Therefore, this office is unable to furnish the rejection order issued by DRM/LMG due to its unavailability.

This is for your kind information please."

15. The said letter dated 30.01.2025, issued by the Assistant Commercial Manager (I), Lumding is made a part of the record and marked as Annexure-X.

16. Though the petitioners have relied upon the letter issued by the Kamrup Chambers of Commerce in respect of their stand that the respondent authorities had acknowledged the problems faced by the petitioners, which prevented them from unloading their goods from the railway rakes on time and that the respondents had assured the petitioners that no demurrage charges would be imposed, the affidavit of the respondent Nos. 1 to 4 shows that they have denied the stand/averments made by the petitioners in the writ petition. Further, the respondents have stated that a group of traders intentionally avoided loading and unloading the rakes within the free time for reasons best known to them. As such, there are disputed questions of facts as to whether there was an obstruction, which prevented the petitioners from unloading the railway rakes. There is no document issued by the respondents admitting the stand taken by the petitioners. The inability of the respondents to trace out the concerned case file/official records has also compounded the problem, as this Court is unable to take any informed decision in the absence of the official records.

17. In view of the reasons stated above, this Court is of the view that the petitioners will have to avail the appropriate forum for redressal of their grievances, as this Writ Court is unable to decide disputed questions of facts.

Page No.# 12/12

The petitioners should accordingly either approach the General Manager, pursuant to the applicable rules regarding waiver of demurrage, as provided in the foregoing paragraphs or the Civil Court or the Railway Claims Tribunal, if the learned Tribunal has jurisdiction over the subject matter in matter, for redressal of their grievance.

18. In view of the reasons stated above, this writ petition is dismissed, as there is efficacious alternative remedy available, which can decide disputed questions of facts. The petitioners are accordingly given the liberty to approach the appropriate authority or forum for redressal of their grievance, as per legal advice received.

19. The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant