Hindalco Industries Ltd vs M/S. Hirakud Industrial Works
2025 Latest Caselaw 5817 Ori

Orissa High Court

Hindalco Industries Ltd vs M/S. Hirakud Industrial Works on 27 May, 2025

Bench: K.R. Mohapatra, M. S. Sahoo

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 W.A. NO.901 OF 2025
                 Hindalco Industries Ltd., Sambalpur         ....        Appellant
                                 Mr. A.K. Parija, Senior Advocate along with
                                                   Mr. K. A. Guru, Advocate
                                                     Mr. A. Prasad, Advocate
                                                     Mr. M. Dutta, Advocate,
                                                     Mr. B.P. Das, Advocate

                                            -versus-
                 M/s. Hirakud Industrial Works               ....     Respondents
                 Limited, Sambalpur & others

                                      Mr. Krishnaraj Thaker, Senior Advocate
                                          along with Mr. S. Sourav, Advocate
                                                        (for respondent no.1)

                             Mr. P.K. Parhi, DSGI for respondent nos.2 and 3

                          CORAM:
                          JUSTICE K.R. MOHAPATRA
                          JUSTICE M. S. SAHOO
                                  ORDER

Order No.                        27.05.2025

   01.      1.      This intra-court appeal has been filed assailing the judgment of

learned Single Judge dated 09.05.2025 in W.P.(C) No.14664 of 2022.

2. The question that requires consideration in this intra-court appeal is that whether the appellant is entitled to use the railway siding in question after 31.05.2022, i.e., after expiry of the term of the agreement entered into between the appellant and respondent no.1. The agreement in question was executed between the appellant and respondent no.1 on 28.06.2002 and its term expired on 31.05.2022.

Mr. Parija, learned Senior Advocate referring to an independent agreement between the East Coast Railways and the respondent no.1 submits that the appellant has right to continue to use

the railway siding in question as a co-user with respondent no.1. He refers to clause 15(b) of the said agreement under Annexure-4, which reads as under :

"15. Siding not to be used by other person xxx xxx xxx

(b) The applicant is forbidden to assign, transfer or sublet in any manner whatsoever either/whole or any part of the siding without prior written permission of the Railway Administration. The booking and delivery of traffic of co-

user of the siding shall be governed by the same rules and regulations as applicable to the siding owner as far as levy of freight and other charges are concerned. The siding owners shall give a written undertaking that Hindalco Industries, Hirakud (Name of the party co-user) has been allowed to use HIW siding (Name of the siding) owned by him with his consent and that the co-user (s) will be responsible for the payment of all Railway dues that may accrue as a result of granting of such facility."

3. It is his submission that in spite of expiry of period of the agreement under Annexure-3 executed between the appellant and respondent no.1, the appellant was continuing to use the railway siding till Annexure-31 (annexed to I.A. No.2578 of 2025) was issued by the Senior Divisional Manager, Sambalpur, East Coast Railways that would interfere with use of the Railway siding.

4. It is further submitted that restraining the appellant from using the Railway siding will inure to the benefit of none. Since Annexure- 4 has not yet been determined in terms of the clause for determination enumerated therein, it is still in vogue and the appellant is entitled to use the railway siding as a co-user with the respondent no.1. The respondent no.1 is not using the railway siding as on date. Thus, by allowing the appellant to use the railway siding as a co-user with it, will not prejudice the respondent no.1 in any manner. He, therefore, submits that the appellant has a prima facie case; the balance of

convenience leans in favour of the appellant in view of clause 15(b) of Annexure-4 (Agreement) and the appellant will suffer irreparable loss, if it is not allowed to use the railway siding during pendency of the writ appeal.

5. Mr. Thaker, learned Senior Advocate appearing for respondent no.1 vehemently objects to interim prayer of the appellant. It is submitted that Annexure-4 was executed between the East Coast Railways and respondent no.1. The appellant is not a party to it. Thus no right from the said agreement flows in favour of the appellant to use the railway siding. The respondent no.1 is the true owner of the railway siding. Thus no order of injunction whatsoever or any interim order of like nature should be passed against a true owner.

It is further submitted that the appellant had moved this Court previously in W.P.(C) No.18571 of 2011 claiming to use the railway siding till expiry of the period of the agreement executed between the appellant and respondent no.1. No plea with regard to clause-15(b) (quoted supra) was taken in the said writ petition to continue to use the railway siding.

6. It is further submitted that after expiry of the period of agreement on 31.05.2022 executed between the appellant and respondent no.1 the appellant is a trespasser to the railway siding and is using the same unauthorizedly without written permission of the true owner. These aspects were dealt with by the learned Single Judge while adjudicating the matter. As such, the impugned order should not be interfered with and the writ appeal is liable to be dismissed in limine.

7. Mr. Parhi, learned DSGI appearing for the East Coast Railways referring to the counter affidavit filed by the railways in the writ petition submitted that in spite the expiry of the agreement under

Annexure-3 the appellant was using the railway siding. It is also submitted that the appellant is entitled to use the railway siding till Annexure-4 is operates, complying with the provisions enumerated therein. He further submits that a detail response will be filed, if leave is granted.

8. Upon hearing the learned Senior Advocates and learned DSGI appearing for the parties and on perusal of the records it appears that there existed an agreement between the appellant and respondent no.1 (Annexure-3) which expired on 31.05.2022. Even after expiry of the agreement under Annexure-3 the appellant was using the railway siding on payment of the statutory and other dues as per the agreement under Annexure-4 till the letter under Annnexure-31 was issued by the Railways.

9. It is also apparent on the face of the record that Annexure-4 entitles appellant to use the railway siding in question as a co-user along with respondent no.1.

These vital aspect were not considered by learned Single Judge while adjudicating the writ petition. Thus, we are of the opinion that the intra-court appeal requires consideration.

10. Issue notice.

Since respondent no.1 has entered appearance on caveat and has been served, the caveat stands discharged. Mr. Parhi, learned DSGI accepts notice on behalf of respondent nos.2 and 3, no requisites need be filed to issue notice to them. Two extra copies of the writ appeal be served on Mr. Parhi within a period of three days.

Issue notice to respondent no.4 by registered post/speed post with A.D. Requisites for which shall be filed by 29.05.2025.

11. Put up this matter on 04.07.2025 along with tracking report of the postal department.

12. Issue notice as above. Accept one set of process fee.

Since finding a prima facie case in favour of the appellant this Court has issued notice in the matter, and it appears that the appellant will suffer irreparable loss, if it is not allowed to use the railway siding in question, this Court directs that the operation of the impugned order dated 09.05.2025 passed in W.P.(C) No.14664 of 2022 shall remain stayed till the next date.

Objection, if any to the I.A. shall be filed by the next date, exchanging copy thereof between the learned counsel.

(K.R. Mohapatra) Vacation Judge

(M.S. Sahoo) Vacation Judge

GsRadha