Madras High Court
Star Associates vs The Senior Divisional Commercial ... on 4 March, 2021
W.P. Nos.5494 & 5498 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P. Nos.5494 & 5498 of 2021 &
W.M.P.Nos.6103, 6104, 6109 & 6113 of 2021
Star Associates,
Rep. by its Managing Partner,
S.R.Venkat Vel,
No.2/122, Panikanoor,
Samudram Post,
Omalur Taluk,
Salem District. ... Petitioner in both W.Ps.
Vs
1.The Senior Divisional Commercial Manager,
Divisional Office,
Commercial Branch,
Salem.
2.The Divisional Railway Manager,
Southern Railway,
Salem.
3.The Commercial Supervisor,
Coimbatore North Junction,
Southern Railways,
Coimbatore. ... Respondents in both W.Ps.
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W.P. Nos.5494 & 5498 of 2021
Prayer in W.P.No.5494 of 2021: Petition filed under Article 226 of the
Constitution of India praying for the issuance of a writ of Certiorarified
mandamus calling for the records of the impugned notice SA/C.442/PCET
Corres/RJT/2020 of the 1st respondent dated 24.02.2021 and quash the same
and consequently direct the respondents 1 and 2 to waive the license fee to
the extent of 70% in respect of the leasing of PCET on Round Trip basis
over Coimbatore North – Rajkot Goods Shed) granted under LOA dated
15.07.2020 to the petitioner till normal functioning of railways and refund
the excess amount paid since July 2020.
Prayer in W.P.No.5498 of 2021: Petition filed under Article 226 of the
Constitution of India praying for the issuance of a writ of Certiorarified
mandamus calling for the records of the impugned notice SA/C.442/PCET
Corres/PTNR/2020 of the 1st respondent dated 24.02.2021 and quash the
same and consequently direct the respondents 1 and 2 to waive the license
fee to the extent of 70% in respect of the leasing of PCET on Round Trip
basis over Coimbatore to Patel Nagar Circuit Route granted under LOA
dated 15.07.2020 to the petitioner till normal functioning of railways and
refund the excess amount paid since July 2020.
For petitioner in
both W.Ps. ... Mr.AR.L.Sundaresan, Senior Counsel
for Ms.AL.Gandhimathi
For Respondents in
both W.Ps. ... Mr.P.T.Ramkumar,
Standing Counsel
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W.P. Nos.5494 & 5498 of 2021
COMMON ORDER
These writ petitions have been filed challenging the show cause
notices both dated 24.02.2021 issued by the first respondent and the
petitioner has sought for consequential direction to the respondents 1 and 2
to waive the license fee to the extent of 70 percent in respect of the leasing of
PCET on Round Trip basis over Coimbatore North to Rajkot Good Shed and
Coimbatore to Patel Nagar Circuit Route granted under LOA dated
15.07.2020 to the petitioner till the normal functioning of railways and
refund the excess amount allegedly paid by the petitioner since July 2020.
2. Mr.P.T.Ramkumar, learned Standing Counsel accepts notice on
behalf of the respondents. By consent of both parties, these writ petitions are
taken up for final disposal at the time of admission itself.
3. The petitioner is a contractor with the Indian Railways. According
to the petitioner, due to covid-19 lockdown, they have suffered huge losses
on account of lack of business. According to the petitioner, they have given a
representation on 28.01.2021 requesting the respondents for waiver of 70%
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W.P. Nos.5494 & 5498 of 2021
with regard to the payment that they have to pay under the contract entered
into with the Indian Railways. In the said representation dated 28.01.2021,
they have expressed their difficulties due to Covid-19 lockdown situation
and the loss suffered by them due to the said situation. It is their case that
similarly placed vendors of the Indian Railways have been given waivers. It
is also their case that their contract is for a period six years which is valid
upto the year 2026. However, according to the petitioner, by impugned show
cause notices, the second respondent has predetermined the issue and
without considering the representation seeking for waiver of charges to the
extent of 70% has called upon them to pay the outstanding amount as per
the contract without any waiver as sought for by the petitioner in their
representation dated 28.01.2021. In such circumstances, they have
challenged the impugned show cause notices on the following grounds:
(a) The impugned show cause notices have been issued with the pre-
determined conclusion and in violation of principles of natural justice.
(b) The first respondent has issued the impugned show cause notices
without giving due consideration to the representation given by the petitioner
requesting for waiver of freight charges for the next nominated trips based
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W.P. Nos.5494 & 5498 of 2021
on payment relaxations issued by railway administration with regard to the
other tenders.
(c) The first respondent ought to have seen that the non payment of
freight charges will not come under Clause 27.1 and the same cannot be
recovered from the security deposit.
(d) The impugned show cause notices sent to terminate the agreement
on the ground that there is a breach of agreement is without any notice as to
any breach committed by the petitioner.
(e) The first respondent has fixed the demurrage charges on its own
and the freight charges had been fixed without considering the request for
waiver of charges by the petitioner and had been issued with a
predetermined conclusion.
(f) The impugned notices have been issued without any application of
mind.
(g) The impugned notices have been issued by the first respondent in
total violation to the clauses of the agreement entered into between the
petitioner and the respondents.
4. Heard Mr.AR.L.Sundaresan, learned Senior Counsel representing
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W.P. Nos.5494 & 5498 of 2021
Ms.AL.Gandhimathi, learned counsel for the petitioner and
Mr.P.T.Ramkumar, learned standing counsel for the respondents.
5. It is settled law that a show cause notice can be challenged under
Article 226 of the Constitution of India only when it has been issued without
jurisdiction or without any authority under law.
6. Mr.AR.L.Sundaresan, learned Senior Counsel for the petitioner
drew the attention of this Court to the Judgment of the Hon'ble Supreme
Court in the case of Siemens Limited Vs. State of Maharashtra and Others
reported in 2007 [1] CTC 844 and would submit that if the show cause
notice has predetermined the issue, then the same can also be challenged
under Article 226 of the Constitution of India.
7. Mr.P.T.Ramkumar, learned standing counsel for the respondents
on instructions would submit that apart from representation dated
28.01.2021 given by the petitioner, the petitioner had also given another
representation on 04.02.2021 for which a reply has also been sent by the
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W.P. Nos.5494 & 5498 of 2021
first respondent on 05.02.2021.
8. Necessarily all the issues raised by the petitioner in these writ
petitions which have been indicated earlier will have to be addressed by the
first respondent in the final orders to be passed by the first respondent
pursuant to the impugned show cause notices both dated 24.02.2021. No
prejudice will be caused to any of the parties, if the grounds raised by the
petitioner in this writ petition is considered by the first respondent in the
final orders to be passed by the first respondent pursuant to the impugned
show cause notices dated 24.02.2021.
9. Learned senior counsel for the petitioner would further submit that
the petitioner may be permitted to send their detailed reply to the impugned
show cause notices dated 24.02.2021 stating all their objections.
10. For the foregoing reasons, this Court directs the petitioner to send
a reply within a period of one week from the date of receipt of a copy of this
order to the impugned show cause notices both dated 24.02.2021 issued by
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W.P. Nos.5494 & 5498 of 2021
the first respondent raising all objections which they have raised in these
writ petitions and the first respondent on receipt of the same shall pass final
orders on merits and in accordance with law after affording a fair hearing to
the petitioner including granting them a right of personal hearing within a
period of twelve weeks thereafter. It is made clear that till final orders are
passed, the petitioner's contract shall not be disturbed by the respondents
subject to the payment of the charges as per the contract.
11. With the aforesaid direction, this writ petition is disposed of. No
costs. Consequently, connected miscellaneous petitions are closed.
04.03.2021
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Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
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W.P. Nos.5494 & 5498 of 2021
To
1.The Senior Divisional Commercial Manager,
Divisional Office,
Commercial Branch,
Salem.
2.The Divisional Railway Manager,
Southern Railway,
Salem.
3.The Commercial Supervisor,
Coimbatore North Junction,
Southern Railways,
Coimbatore.
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W.P. Nos.5494 & 5498 of 2021
ABDUL QUDDHOSE, J.
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W.P. Nos.5494 & 5498 of 2021
04.03.2021
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