Kerala High Court

Railway Board vs M/S.Yamuna Roller Flour Mills (P) ... on 3 January, 2022

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
              THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                       &
                   THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
           MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
                              WA NO. 1598 OF 2013
AGAINST THE JUDGMENT IN WPC 13167/2008 OF HIGH COURT OF KERALA DATED 16.1.2013
APPELLANTS/RESPONDENTS IN THE WRIT PETITION:

     1      RAILWAY BOARD MINISTRY OF RAILWAYS,
            REPRESENTED BY SECRETARY, RAILWAY BOARD, RAIL BHAVAN, NEW DELHI.

     2      SENIOR DIVISIONAL COMMERCIAL MANAGER,
            SOUTHERN RAILWAY, TRIVANDRUM.

     3      CHIEF GOODS SUPERVISOR,
            SOUTHERN RAILWAY,TRICHUR.

            BY ADV SRI.JAMES KURIAN, SC, RAILWAYS


RESPONDENT/PETITIONER IN THE WRIT PETITION:

            M/S.YAMUNA ROLLER FLOUR MILLS (P) LTD
            REGD.OFFICE,22-A,DEVELOPMENT PLOT, P.O.PERINGADOOR,TRICHUR-680 681,
            REPRESENTED BY MANAGER, ADMINISTRATION AND LOGISTICS,
            MR.K.V.VENUGOPAL.


            SRI.C.K.KARUNAKARAN FOR RESPONDENT


      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
                                   :: 2 ::



                                JUDGMENT

Dated this the 3rd day of January 2022

S.MANIKUMAR, C.J.

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.

2. 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 W.A.1598 of 2013 :: 3 ::

writ petition seeking for the following reliefs:

"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.

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.

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. 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. 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. 3.6 To direct the 2 nd Respondent to dispose of Exhibit P1 and to order refund of Wharfage illegally collected. 3.7 To declare the demand and levy of "Wharfage" without considering the factual position in Trissur Goods shed as illegal and unconstitutional.

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."

3. Learned Single Judge vide judgment dated 16 th January 2013

directed the refund of the wharfage charges collected by Railways.

Relevant portion of the judgment reads thus:

"As far as the claim for refund of demurrage is concerned, W.A.1598 of 2013 :: 4 ::

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.

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."

4. 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.

5. 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. W.A.1598 of 2013 :: 5 ::

6. 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.

7. 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.

8. Sri.C.K.Karunakaran, learned counsel for the respondent/M/S

Yamna Roller Flour Mills (P) Limited made submissions to sustain the

judgment.

9. 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

2nd appellant/the Senior Divisional Commercial Manager. Today it is

submitted that the same is pending consideration before the authorities. W.A.1598 of 2013 :: 6 ::

Representation dated 24.10.2007 is reproduced below:

24.10.2007 To The Divisional Commercial Manager Divisional office, Southern Railway Thycaud Trivandrum-14.

Respected sir,

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.

We regret that the new rake placed on 20 th October vide RR No.51336 and RR No.367 dated 13th 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.