Kerala High Court
Viju vs The Union Of India on 17 October, 2024
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W.P.(C) No.5044 of 2017
2024:KER:77145
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
WP(C) NO. 5044 OF 2017
PETITIONERS:
1 VIJU ASSOCIATES
PETTA, FEROKE, KOZHIKODE, REPRESENTED BY ITS
PROPRIETOR, SMT. K. FATHIMA
2 ADDL.P2:
VIJU ASSOCIATES,
PETTA, FAROKE, KOZHIKODE REP. BY ITS
\MANAGING PARTNER, AFSAL V, S/O V VEERAN,
AGED 54 YEARS, BUSINESS BY OCCUPATION,
RESIDING AT MANGALATHALIYIL HOUSE,
PETTA, FAROKE, KOZHIKODE - 673631
(ADDL.P2 IS IMPLEADED AS PER ORDER DATED
03.10.2024 IN I.A.-2/2024 IN WP(C)NO.5044/2017)
BY ADVS.
M.K.SUMOD
VIDYA M.K.(K/910/1990)
THUSHARA.K(K/1443/2020)
DELITA TITUS(K/1063/2020)
NAMITHA GEORGE(K/3227/2023)
RESPONDENTS:
1 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF RAILWAYS, CENTRAL
SECRETARIAT, NEW DELHI 110001
2 THE DIVISIONAL RAILWAY MANAGER COMMERCIAL
OFFICE OF THE DIVISIONAL RAILWAY MANAGER,
COMMERCIAL BRANCH, PALAKKAD 678002
2
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3 THE CHIEF GOODS SUPERVISOR
RAILWAY GOODS SHED, VATAKARA,
KOZHIKODE, 673508
BY ADV.
SRI.C.DINESH - CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.P.(C) No.5044 of 2017
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HARISANKAR V. MENON, J.
------------------------------
W.P.(C) No.5044 of 2017
------------------------------
Dated this the 17th day of October, 2024
JUDGMENT
The petitioner engaged in the trading of cement, has filed
W.P.(C).No.7977 of 2012 before this Court when certain
consignments of cement brought in its name were detained on
account of the demand of demurrage / penalty for the delay in
clearing the goods brought as above. It is pointed out that this
Court directed the goods to be released on the petitioner,
furnishing a bond for the penalty demanded and making the
payment of the demurrage. The petitioner complied with the said
interim order by remitting the demurrage demanded by the
Railways and by furnishing Ext.P1 bond as regards the penalty
sought for.
2. Later, W.P.(C).No.7977 of 2012 was disposed of by
Ext.P4 judgment dated 04.12.2015, taking into account a
judgment dated 03.09.2014 in W.A.No.917 of 2014. The operative
portion of Ext.P4 judgment is as under;
"3. Today, when the matter came up for hearing, it was
submitted by both sides that the matter in issue has been
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considered by a Division Bench of this Court in intra court
appeals, i.e., WA No.917/2014 and connected cases. A
certified copy of the judgment dated 03.09.2014 in the
aforesaid writ appeals was made available for perusal. The writ
appeals were disposed of as under:
"(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 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."
In the light of the above, the writ petition is closed, permitting
the petitioner to move as per the aforesaid direction."
3. However, it is pointed out by the petitioner that, even
earlier to the date of Ext.P4 judgment, the petitioner had placed
on record before the Railways Ext.P3 application for waiver of the
penal demurrage charges amounting to Rs.4,16,000/-. The said
application at Ext.P3 dated 26.11.2014, was received by the
Railways on 01.12.2014, as seen from the endorsement on the
face of Ext.P3.
4. The application for waiver as above is rejected by
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Ext.P5 dated 14.01.2017 issued by the 2nd respondent herein, as
under;
"With reference to your letter, it is regretted by the competent
authority that no waiver can be given. You are requested to
make the payment of the dues immediately.
No further appeal will be entertained without first paying up
all the dues and it should be submitted within thirty days from
the date of issue of this letter. The next appellate authority is
GM."
5. It is in the above circumstances that the captioned writ
petition is filed by the petitioner.
6. A counter affidavit has been filed on behalf of the
respondent Railways. In the said counter affidavit, the Railways
rely upon Ext.R2(1), a communication dated 09.01.2017,
informing that as per the directions in W.A.No.917 of 2014, only a
window of 30 days was available to the petitioner to have
submitted Ext.P3 application. Ext.R2(1) thereafter points out to
the date of Ext.P3 application and concludes that since the same
is filed beyond the period of 30 days, no consideration of the same
can be carried out. It is pointed out in the counter affidavit that it
is relying on Ext.R2(1) that Ext.P5 is issued by the 2nd respondent.
7. I have heard Sri.M.K.Sumod, the learned counsel for
the petitioners and Sri.C.Dinesh, the learned Senior Central
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Government Counsel for the respondent Railways.
8. The dispute in this writ petition is essentially as regards
the sustainability or otherwise of Ext.P5 issued by the Railways.
The admitted facts are that the petitioner had suffered demurrage
penalty on account of the reasons afore noted. The petitioner was
before this Court by filing a writ petition, and the goods were
permitted to be released on furnishing a bank guarantee. Ext.P1
is the bank guarantee so furnished by the petitioner. The writ
petition filed as above stood disposed of by Ext.P4 judgment only
on 04.12.2015. In the said judgment, it is true that this Court
made reference to the directions contained in W.A.917 of 2014.
The directions in the said judgment of the Division Bench of this
Court directed the writ petitioners therein to file an application for
waiver within 30 days' time. Sri.Sumod, the learned counsel for
the petitioners, would point out that the directions contained in
W.A.No.917 of 2014 were only followed by this Court in Ext.P4 and
the time limit of 30 days ought to be reckoned with the date of
Ext.P4 judgment. He further points out that the writ petitioner was
not a party to the judgment in W.A.No.917 of 2014, which was
filed by a totally different individual / company. The above
submissions appear to be correct, from a reading of Ext.P4
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judgment and the judgment in W.A.No.917 of 2014. In such
circumstances, the findings in Ext.P5 cannot be upheld.
9. Sri.C.Dinesh, would also point out that the petitioner
filed Ext.P3, not in pursuance to Ext.P4 judgment, but in
pursuance to Ext.P2, a communication addressed by the Railways
to the petitioner. However, the fact remains that Ext.P3 was filed,
even before the judgment at Ext.P4 was rendered.
10. I also take note of the submissions made by the
learned counsel for the petitioners, Sri.Sumod, with reference to
the Indian Railway Code for Traffic (Commercial) Department,
whereunder a specific power for waiver has been provided under
paragraph 1103 of Chapter 11. Under the said chapter, the
relevant provisions are as under;
"1103(b) In case the consignor/ consignee feels that
demurrage/wharfage was due to reasons beyond his control
he could apply for waiver giving all relevant details with
documentary evidence wherever necessary.
**********
1103(h) The circumstances, which lead to accrual of
demurrage/wharfage charges, can be broadly grouped in
three categories as under:
(i) Reasons within the control of the
consignor/consignee.
(ii) Reasons beyond the control of consignor/consignee
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like labour strike, transportation strike, general
bandhs, agitations, riots, curfew, fire, explosion,
heavy rains or other abnormal/unforeseen
circumstances.
(iii) Act of God, act of War and act of public enemies.
**********
1103(j) The powers for waiver as mentioned above should be
exercised judiciously keeping in view the merits of each case
as per instructions contained in this letter. The waiver should
not be granted in a routine manner."
Thus, it was the duty of the 2nd respondent to have considered the
application filed by the petitioner, with specific reference to the
powers available to him under the Indian Railway Code referred to
above. However, it is seen that the 2nd respondent has proceeded
purely on technicalities, which itself was not the correct approach.
11. On the whole, I am of the opinion that Ext.P5 requires
to be set aside.
Resultantly, this writ petition would stand allowed as under;
i. Ext.P5 issued by the 2nd respondent would stand
set aside.
ii. The 2nd respondent is directed to pass fresh orders
on Ext.P3 furnished by the petitioner as above, with
specific reference to the relevant clauses of the
Indian Railway Code for Traffic (Commercial)
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Department.
iii. The above exercise is to be carried out within a
period of three months from the date of receipt of
a copy of this judgment.
iv. Needless to say that the petitioner would also be
granted an opportunity for being heard.
Sd/-
HARISANKAR V. MENON
JUDGE
anm
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APPENDIX OF WP(C) 5044/2017
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE BOND DATED 10.04.2012
EXECUTED BY THE PETITIONER TO THE 3RD
RESPONDENT
EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 10.10.2014
ISSUED BY THE 3RD RESPONDENT
EXHIBIT P3 TRUE COPY OF THE REQUEST FOR WAIVER DATED
26.11.2014 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC.NO.
7977/2012 OF THIS HON'BLE COURT DATED
04.12.2015
EXHIBIT P5 TRUE COPY OF THE DECISION DATED
14.01.2017 OF THE 2ND RESPONDENT
Exhibit P6 TRUE COPY OF THE DEED OF PARTNERSHIP
DATED 01/04/2018 OF THE PETITIONER FIRM
Exhibit P7 TRUE COPY OF THE CERTIFICATE OF
REGISTRATION OF THE PETITIONER FIRM DATED
25/04/2019 ISSUED BY THE REGISTRAR OF
FIRMS
Exhibit P8 TRUE COPY OF THE DEED OF PARTNERSHIP WAS
RECONSTITUTED BY THE ERSTWHILE PARTNERS
INCLUDING ME AND BY EXECUTING THE
RECONSTITUTED DEED OF PARTNERSHIP DATED
24/03/2021
Exhibit P9 TRUE COPY OF THE RECONSTITUTED DEED OF
PARTNERSHIP OF THE PETITIONER FIRM DATED
18/06/2021
Exhibit P10 TRUE COPY OF THE DEATH CERTIFICATE OF
SMT. K FATHIMA ISSUED BY THE KOZHIKODE
CORPORATION DATED 02/06/2023
