Chettinad Cement Corporation Ltd vs The Union Of India
2021 Latest Caselaw 22118 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                   WP(C) NO. 2632 OF 2011
PETITIONER/S:

    1     CHETTINAD CEMENT CORPORATION LTD
          IVTH FLOOR, RANI-SEETHAI HALL,, 603, ANNA SALAI,
          CHENNAI-6, REP. BY ITS DULY, AUTHORIZED POWER-
          OF-ATTORNEY HOLDER, SRI.M.V.SIVAKUMAR,
          MANAGER(SALES-AUDIT).
    2     DALMIA CEMENTBHARATH LIMITED
          IVTH FLOOR, FAGUN MANSION,, NEAR ETHIRAJ
          COLLEGE, CHENNAI-8, REP. BY ITS, DULY AUTHORIZED
          POWER OF ATTORNEY HOLDER, SRI.RANJITH JACOB
          MATHEWS, GENERAL MANAGER, (MARKETING-KERALA).
    3     ULTRA TECH CEMENT LIMITED
          LITTLE GROUND, SAIDAPET,, CHENNAI-15, REP. BY
          ITS DULY AUTHORIZED, POWER OF ATTORNEY HOLDER
          SRI.N.K.MIMANI ASSISTANT, VICE PRESIDENT,
          (FINANCE & COMMERCIAL).
          BY ADV SRI.GEORGE JACOB (JOSE)


RESPONDENT/S:

    1     THE UNION OF INDIA
          REP. BY THE SECRETARY,, MINISTRY OF RAILWAYS,
          CENTRAL SECRETARIAT,, NEW DELHI.
    2     THE DIVISIONAL RAILWAY MANAGER
          PALAKKAD.
    3     THE SENIOR DIVISIONAL COMMERCIAL
          MANAGER,, PALAKKAD.
    4     THE CHIEF GOODS SUPERVISOR
          RAILWAY GOODS SHED,, NILESWAR, KASARAGOD.
    5     THE CHIEF GOODS SUPERVISOR
          RAILWAY GOODS SHED, VALAPATTANAM, KANNUR.
                                           -2-
W.P.(C). No. 2632 of 2011



      6          THE CHIEF GOODS SUPERVISOR
                 RAILWAY GOODS SHED,, VADAKARA, KANNUR.
      7          THE CHIEF GOODS SUPERVISOR
                 RAILWAY GOODS SHED, KALLAI,, KOZHIKODE.
      8          THE CHIEF GOODS SUPERVISOR
                 RAILWAY GOODS SHED,, TIRUR, MALAPPURAM.
      9          THE CHIEF GOODS SUPERVISOR
                 RAILWAY GOODS SHED,, PALAKKAD JUNCTION,
                 PALAKKAD.
                 BY ADV SC, STANDING COUNSEL FOR SOUTHERN
                 RAILWAY



          THIS    WRIT        PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION         ON        05.11.2021,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                                             -3-
W.P.(C). No. 2632 of 2011




                               P.V.KUNHIKRISHNAN, J.
                               ==============================================================


                                  W.P.(C) No.2632 of 2011
                     ===================================================================================


                   Dated this the 5th day of November, 2021


                                                JUDGMENT

The above writ petition is filed with following prayers:

i) To issue a writ in the nature of certiorari, or other appropriate writ or order quashing Exts.P5 to P10 communications of the respective respondents.

ii) To issue a declaration that respondents 2 to 9 have absolutely no authority to require the petitioners, if occasions arise, to pay penal demurrage charges beyond Rs.100/- per wagon per hour which is the rate fixed by the Central Government.

iii) To issue a writ in the nature of mandamus or other appropriate writ or order restraining respondents 2 to 9 from levying penal demurrage charges beyond Rs.100 in the absence of any fixation or alteration of rates by R1 as enjoined in

W.P.(C). No. 2632 of 2011

Sections 30 and 31 of the Indian Railways Act."

2. When this matter came up for consideration, the

learned counsel for the petitioner submitted that the matter is

squarely covered by the decision in Ultra Tech Cement Ltd.

Chennai v. Union of India and others [2014 (4) KHC 190].

I perused the above decision. Paragraph 45 reads thus:

"45. In view of the foregoing discussing, we confirm the judgment of the learned Single Judge. While confirming the judgment of the learned Single Judge dated 31/03/2014, we dispose of these Writ Appeals in the following manner:

(1) The writ petitioners are permitted to make an application for waiver before the Station Manager / Goods supervisor within 30 (thirty) days from today giving all details along with reasons and relevant records as necessary.

(2) Station Master / Goods Supervisor shall forward the application for waiver of demurrage charges to the Divisional Officer with his

W.P.(C). No. 2632 of 2011

remark within 15 (fifteen) days of receipt of the application.

(3) The Divisional Officer shall take a decision on the waiver application considering the reasons and circumstances given by the writ petitioners in the waiver application. Consequential orders be issued thereafter. In case the writ petitioners are aggrieved by the said decision, they can prefer appeal to the higher authority."

3. I think this writ petition can be disposed of in tune

with the above decision.

Therefore, this writ petition is disposed of in tune with

the decision in Ultra Tech Cement Ltd.'s case (Supra). The

petitioners are free to approach the authorities in tune with

the observations in the above judgment.

Sd/-

P.V.KUNHIKRISHNAN JUDGE das

W.P.(C). No. 2632 of 2011

APPENDIX OF WP(C) 2632/2011

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE POWER OF ATTORNEY DEED DATED 18/01/2011 AUTHORIZING SRI. M.V. SIVA KUMAR, MANAGER (SALES0AUDIT) OF THE FIRST PETITIONER COMPANY. Exhibit P2 TRUE COPY OF THE POWER OF ATTORNEY DATED 13/01/2011 AUTHORIZING SRI. RENJITH JACOB MATHEW, GENERAL MANAGER (SALES & MARKETING) OF THE SECOND PETITIONER COMPANY.

Exhibit P3 TRUE COPY OF THE POWER OF ATTORNEY DATED 22/10/2008 AUTHORIZING SRI. N.K, MIMANI ASSISTANT VICE PRESIDENT OF THE THIRD PETITIONER COMPANY.

Exhibit P4 TRUE COPY OF THE INTERIM ORDER DATED 01/10/2010 OF THIS HON'BLE COURT IN WPC NO. 30232/2010.

Exhibit P5 TRUE COPY OF THE COMMUNICATION DATED 10/01/2011 OF R3 INTIMATING OF THE IMPOSITION OF PENAL DEMURRAGE CHARGES AT 6 TIMES THE NORMAL RATE IN RESPONDENTS 4 TO 9 GOODS SHEDS. Exhibit P6 TRUE COPY OF THE COMMUNICATION DATED 07/1/2011 OF R4 ENHANCING PENAL DEMURRAGE CHARGES.

Exhibit P7 TRUE COPY OF SIMILAR COMMUNICATION DATED 07/01/2011 OF THE 5TH RESPONDENT ENCHANCING D.C.

Exhibit P8 TRUE COPY OF SIMILAR COMMUNICATION DATED 07/01/2011 OF THE 6TH RESPONDENT ENHANCING D.C.

Exhibit P9 TRUE COPY OF THE COMMUNICATION DATED 07/01/2011 OF THE 8TH RESPONDENT ENHANCING PENAL DEMURRAGE CHARGES.

W.P.(C). No. 2632 of 2011

Exhibit P10 TRUE COPY OF SIMILAR COMMUNICATION DATED 07/01/2011 ISSUED BY THE 9TH RESPONDENT ENHANCING PENAL DEMURRAGE CHARGES.

Exhibit P11 TRUE COPY OF THE COMMUNICATION DATED 19/12/2005 AND THE CORRIGENDUM DATED 17/01/2008 OF THE JOINT DIRECTOR, TRAFFIC, COMMERCIAL (RATES), RAILWAY BOARD, NEW DELHI, ADDITIONAL 11TH RESPONDENT.

Exhibit P12 TRUE COPY OF THE NOTIFICATION DATED 29/12/2005 ISSUED BY THE CHIEF COMMERCIAL MANGER, SOUTHERN RAILWAY, CHENNAI, ADDITIONAL 12TH RESPONDENT. RESPONDENT EXHIBITS Exhibit R3-1 COPY OF CIRCULAR NO. TC-1/2005/201/2, ISSUED AS RATE CIRCULAR NO. 74/2005 WITH A CORRIGENDUM DATED 17/01/2008 ISSUED BY MINISTRY OF RAILWAYS, NEW DELHI.

Exhibit R3-2 COPY OF THE EARLIER NOTIFICATION WITH THE HEADING ADVANCE RATE NOTIFICATION NO.12/2005 (GOODS NO. 129/2005) ISSUED BY THE CHIEF COMMERCIAL MANAGER.