Patna High Court
M/S Swastik Associates vs The Union Of India on 4 April, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8170 of 2020
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M/s Swastik Associates A Proprietorship firm having its place of business at
10, A, Narmada Apartment Exhibition Road, Patna- 800001 through its Karta
namely Anand Vardhan, S/o Late Narayan Prasad Dalmia, R/o 53, B-
Narmada Apartment, Exhibition Road, Patna.
... ... Petitioner/s
Versus
1. The Union of India Through the Secretary, Ministry of Railways,
Government of India, New Delhi.
2. The General Manager East Central Railway, Hajipur.
3. The Chief Commercial Manager East Central Railway, Hajipur.
4. The Divisional Railway Manager (Commercial) Samastipur.
5. The Goods Superintendent Dauram, Madhepura.
... ... Respondent/s
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Appearance :
For the Petitioner/s : M/s Gautam Kumar Kejriwal,
Alok Kumar Jha
Mukund Kumar
Akash Kumar
Aditya Raman, Advocates
For the Respondent/s : Mr. Bindhyachal Rai, Advocate
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CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
Date : 04.04.2025
I.A. No. 1 of 2021
1. This interlocutory application has
been filed for amendment in prayer portion of
para-1 of the writ petition by addition of the reliefs
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
2/19
mentioned in paragraph No. 1 (VII) and (VIII) of the
interlocutory application.
2. I.A. No. 1 of 2021 is, hereby,
allowed amending the prayer portion. The reliefs
mentioned in paragraph No. 1 thereof would form
part of the writ petition.
I.A. No. 2 of 2022
3. This interlocutory application has
been filed for amendment in prayer portion of
para-1 of the writ petition by addition of the reliefs
mentioned in paragraph No. 1 (V) and (VI) of the
interlocutory application.
4. At the time of hearing of this
interlocutory application, the Learned counsel for
the parties submit that this interlocutory
application has become infructous in view of the
intervening developments, as auction was dropped
in view of the payment made by the petitioner, the
present petition has become infructuous.
5. Accordingly, I.A. No. 2 of 2022 has
become infructuous.
Re. C.W.J.C. No. 8170 of 2020
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
3/19
6. The petitioner has filed the Writ
petition for the following reliefs:
"i. For issuance of a writ in
the nature of certiorari for quashing of
the letter number GS/DMH/Court
Case/07/1 dated 17.07.2020 issued by
the respondent number 5 being
violative of the principles of natural
justice and also being in teeth of the
order dated 23.08.2012 passed in CWJC
number 14957 of 2012 (M/s Swastika
Associates Vs The Union of India and
others);
ii. For further holding and a
declaration that the impugned letter
number GS/D MH/Court Case/07/I dated
17.07.2020
being a demand of
demurrage charges issued afresh after
annulment of the original demand
notice dated 09.07.2012 issued in the
year 2012 and never thereafter is badly
barred by limitation and as such is not
maintainable against the petitioner;
iii. For further issuance of a
writ or order or direction restraining the
respondents from executing the
impugned demand of demurrage
charges raised vide letter number
GS/DMH/Court Case/07/1 dated
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
17.07.2020 on grounds of the same
being barred by limitation as also being
in teeth of the principles of natural
justice;
iv. For grant of any other
relief (s) to which the petitioner is found
entitled to in the facts and
circumstances of the present case.
v. For issuance of a writ in
the nature of a direction upon the
respondents specially the respondent
Divisional Railway Manager
(Commercial) Samastipur to refund the
sum of Rs. 705,600/- which has been
recovered from the petitioner by way of
coercive method during the pendency
of the above-mentioned writ
application;
vi) For further issuance of a
direction upon the respondents to
adequately compensate the petitioner
by way of payment of interest on
account of coercive recovery of the
demurrage charges which is otherwise
illegal, misconceived and unsustainable
in the eye of law."
2. The petitioner, a HUF firm,
operates as a clearing and forwarding agency
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
works of cement Company, namely, M/s Maihar
Cements having its infrastructure throughout Bihar.
3. It is contended in the Writ petition
that the petitioner previously challenged the
demand for demurrage charges for a sum of Rs.
7,05,600/- raised by the respondent Goods
Superintendent Dauram, in a letter dated
09.07.2012, vide C.W.J.C. No. 14957 of 2012. The
case was disposed of by this Court on 23.08.2012,
following the order in C.W.J.C. No. 20814 of
2011 (Sri Ram Enterprises v. Union of India &
Ors.), and the demand for demurrage charges was
quashed. The Court granted liberty to the
respondents to give a pre-decisional hearing to the
petitioner and then to pass a fresh order in
accordance with the law.
4. It is submitted in the Writ petition
by the petitioner that in pursuance of the order
dated 23.08.2012 passed in C.W.J.C. No. 14957 of
2012, the respondents never issued any notice or
intimation of any kind of the nature as directed by
the Court, for the purpose of affording any hearing
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
to the petitioner in the matter of demand of
demurrage charge. The respondents never raised
the issue, at any point until 2020 since the order
dated 23.08.2012 and nearly eight years have
passed. However, suddenly, the respondent Goods
Superintendent, vide the impugned Letter No.
GS/DMH/court case/07/1 dated 17.07.2020, issued
a fresh demand for demurrage charges of Rs.
705,600 related to the rake placed at the Dauram
siding in Madhepura in 2012. It is submitted on
behalf of the petitioner that the letter refers to
another communication, GS/DMH/DC/06/20 dated
27.06.2020, which was never served on the
petitioner. It is submitted by the Learned counsel
of the petitioner that in response to the impugned
letter, the petitioner replied on 22.07.2020,
referring to the categorical directions of this Court
as contained in the order dated 23.08.2012, which
was not observed by the respondent Goods
Superintendent.
5. The Learned counsel of the
petitioner submitted that the impugned letter,
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
dated 17.07.2020 (Annexure-6), is the first
communication regarding the demand for
demurrage charges after the initial demand letter
dated 09.07.2012, which was quashed by the
Court order dated 23.08.2012. Therefore, the
impugned demand is barred by the law of
limitation, in terms of Articles 26 and 113 of the
Limitation Act, 1963. It is further submitted by the
Learned counsel for the petitioner that more than
eight years have passed, since the initial demand
was raised followed by the Court's order, rendering
the demand of demurrage charge issued in 2020 to
be stale barred by limitation. Additionally, the
Goods Superintendent has failed to issue any prior
notice or set a date to allow the petitioner to
present their case, as directed by this Court in the
23.08.2012 order. Thus, the impugned letter dated
17.07.2020 thoroughly constitutes an illegal and
invalid demand raised by the respondents, made in
violation of the Principles of Natural Justice, and is
therefore unsustainable in law.
6. The petitioner has brought several
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
orders passed by this Court in similar matter. The
Learned counsel of the petitioner submitted that
this Court, while considering a similar issue in the
matter of M/s Ganga Carriers Private Ltd.
(C.W.J.C. No. 14780 of 2011), addressed a
challenge made to the imposition of demurrage
charges by the respondents on the grounds of
denial of any pre-decisional hearing as well as an
order of imposition of financial liability without
providing information of reasons and facts,
specially when the consignee had raised objections
regarding the condition of the siding. The Court, in
its order dated 13.10.2011, held that the demand
for demurrage charges, being a non-speaking
imposition of liability without any opportunity for
the consignee to explain, was bad in law and,
accordingly, quashed the demand. It is further
submitted that in several of its judgments, this
Hon'ble Court has decided that demurrage and
wharfage penalties can only be imposed after due
observance of the principles of natural justice.
Failing to do so, renders such a demand illegal and
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
unsustainable in the eye of law. Some of the
relevant orders include the orders dated
22.06.2016 passed in C.W.J.C. No. 18846 of 2013
and the order dated 08.08.2014 passed in C.W.J.C.
No. 24766 of 2013. The most recent, order dated
22.06.2020 passed in C.W.J.C. No. 21861 of 2018,
is on the same issue where the Court quashed a
similar order on the same issue.
7. A counter affidavit was filed on
behalf of respondent Nos. 4 and 5. It is submitted
by the said respondents that the petitioner's case
is legally untenable and factually incorrect
rendering the writ petition not maintainable. It is
further submitted that this Hon'ble Court, vide its
order dated 23.08.2012 passed in CWJC No. 14957
of 2012 (M/s Swastic Associates v. Union of India &
Ors.), directed as follows:
"In the circumstances, this writ
application is disposed of and it is held that
so far as prayer made in clause (ii) of
Paragraph 1 is concerned, the writ
application shall stand disposed of in terms
of the order passed by this Court in CWJC
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
No. 20814 of 2011. Consequently, the
impugned order dated 09- 07-2012, as
contained in Annexure- 3, shall stand
quashed with liberty to the respondents to
give a pre- decisional hearing to the
petitioner and thereafter to pass fresh orders
in accordance with law"
8. It is submitted by the Learned
counsel for the respondents that despite several
requests followed by the office letter No.
C/782/CWJC No. 14957/12/HC PAT/SA dated
28.01.2020, wherein the petitioner was asked to
submit a reply/statement regarding the pending
DC/WC, no response was received from the
petitioner. In such circumstances, the railway
administration had no option but to proceed with
the recovery of the pending DC/WC. Accordingly,
office letters dated 27.06.2020 and 17.07.2020
were issued, requesting the petitioner to deposit
the pending DC/WC. Subsequently, the railway
administration proceeded in accordance with the
applicable rule.
9. It is submitted by the Learned
counsel for the respondents that it is evident from
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
the aforementioned facts that the petitioner
neither informed nor cooperated with the railway
administration, contrary to the direction of this
Hon'ble Court dated 23.08.2012 passed in CWJC
No. 14957/2012. The Learned counsel for the
respondents submitted that in view of the facts
and circumstances stated above, it is clear that the
petitioner is not entitled to any relief, as prayed in
the writ application, and the same is liable to be
dismissed.
10. A rejoinder to the counter
affidavit has been filed by the petitioner and
controverted the statements made in the counter
affidavit.
11. It is contended by the petitioner
in rejoinder that the statements made in
paragraph 4 of the counter affidavit are
misconceived, insofar as the claim of the
respondents that the petitioner's case is bad in law
and erroneous in facts and, therefore, not
maintainable. The reference to the order of this
Hon'ble Court dated 23.08.2012 in CWJC No. 14957
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
of 2012 is true and correct. The statements in
paragraph 5 of the counter affidavit are false,
baseless and unsupported by any evidence.
Specifically concerned with the reference made to
letter number C/72/CWJC No. 14957/12/HC PAT/SA
dated 28.01.2020. It is contended that the
petitioner never received the said letter
demanding payment of demurrage charges or to
show cause disputing such liability. This is further
confirmed by the impugned letter of demand dated
17.07.2020 (Annexure-6), which makes no
reference to the letter dated 28.01.2020.
12. It is submitted by the Learned
counsel of the petitioner that the petitioner's
statements made in paragraph Nos. 23, 24, and
25 of the writ application, regarding the issuance
of fresh demand for demurrage charge of Rs.
705,600 raised, after the order of this Court on
23.08.2012, have not been disputed by the
respondents. Thus, the claim in paragraph 5 that
the letter of 28.01.2020 was issued by the
respondents in order to afford an opportunity to
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
the petitioner against proposed demand of
demurrage charge is false, misconceived and
misleading. Furthermore, the impugned letter of
demand dated 17.07.2020 would indicate that no
reference of any previous letter dated 28.01.2020
was made rather it discussed a letter dated
27.06.2020, which is the impugned letter of
demand. This attempt to justify the demand by
supplementing new grounds is impermissible in
law, as held by the Hon'ble Supreme Court in
Hindustan Petroleum Corporation Ltd. v.
Darius Shapur Chenai (2005) 7 SCC 627, and
Rashmi Metalliks Ltd. v. Kolkata Metropolitan
Development Authority (2013) 10 SCC 95.
These decisions categorically state that an order
passed by a statutory authority must stand on its
own reasoning and cannot be sustained by
additional reasons introduced through pleadings
before the court. Accordingly, the reference to the
letter dated 27.06.2020 is also flawed.
13. The Learned counsel of the
petitioner submitted that the respondents ought
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
to have complied with the court's order by
affording the petitioner, an opportunity to be
heard before issuing any fresh demand, which
they failed to do. It is further submitted that the
statement made in paragraph 6 of the counter
affidavit are false and misleading as the petitioner
was never called upon to present their case
against the proposed liability prior to the issuance
of the demand letters dated 27.06.2020 and
17.07.2020. The petitioner was not served with
any show cause notice regarding the demand of
Rs. 705,600/- as demurrage charge. Therefore, it is
contended that the respondents never initiated
any proceedings to determine the petitioner's
liability in compliance with the directions of this
Hon'ble Court. The claim that the petitioner failed
to cooperate or represent their case is wholly
misconceived and factually incorrect. The court's
order did not impose any obligation on on the
petitioner to take initiative in the matter rather it
was the respondents' responsibility to provide a
fair opportunity of hearing, to the petitioner, which
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
they admittedly failed to do. Consequently, the
respondents' justification for raising said demand is
legally untenable. The statement made in
paragraph 7 of the counter affidavit is
misconceived, erroneous and deserves to be
rejected by this Court.
14. The Learned counsel for the
petitioner further submitted that even if the
statement of the respondents, as contained in
paragraph no. 5 of the counter affidavit regarding
issuance of the letters dated 28.01.2020,
27.06.2020 and 17.07.2020 are accepted for a
while for the sake of argument alone, the
respondents case is still barred by the doctrine of
delay and latches. All the aforesaid letters were
issued in the year 2020 which is nearly 8 years of
the order of the Hon'ble court reserving the liberty
to the respondent. He further submitted that the
respondents having failed to avail such liberty for
an inordinate period of eight years, are not at all
entitled to avail such liberty, at this belated stage
and the repeated attempt to recover demand of
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
demurrage charges are, therefore, barred by the
doctrine of delay and latches. The respondents
themselves have committed deliberate delay in
initiating any process afresh in order to avail the
liberty granted by this Court and, therefore, they
are estopped from seeking enforcement of any
such claim at this juncture.
15. In support of the case of the
petitioner, the Learned counsel has relied on the
judgments of the Apex Court reported in (1)
(2013) 2 SCC 606: Gian Chand & Brothers &
Anr Vs Rattan Lal @ Rattan Singh (paragraph
nos. 23 and 24), (2). AIR 1973 SC 2537 :
Rajendra Singh & Ors. V. Santa Singh & Ors.
(paragraph Nos. 176 and 18), (3). (1997) 6 SCC
71 : Mohamad Kavi Mohamad Amin Vs.
Fatmabai Ibrahim (paragraph Nos. 2 & 3), (4)
(2002) 1 SCC 134 : Veerayee Ammal Vs. Seeni
Ammal (paragraph No. 13) and (5). (2010) 6 SCC
193 (Eureka Forbes Limited Vs. Allahabad
Bank and ors. (paragraph Nos. 65 & 66).
16. Heard the Learned counsel for the
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
petitioner and the Learned counsel for the
respondents.
17. Admittedly, the notices/letters
were issued by the respondents after a period of
eight years. Furthermore, the Letters do not
disclose about the previous notices issued to the
petitioner, which can be construed that the
petitioner received the Letters after a span of eight
years, and the respondents have not strictly
complied the orders of this Court.
18. Further, the petitioner has
brought on record some judgments passed by this
Court in identical issue, which are annexed as
Annexure - 4 series. From perusal of these
judgments, it appears that a similar issue was
considered in CWJC No. 14780 of 2011 (M/s
Ganga Carrier Private Limited Vs. The Union
of India & Ors.) wherein this Court by order
dated 13.10.2011 (Anneuxre-3) set aside the
demand notice on the ground that it violates the
rule of equity and Principle of Natural Justice and
observed as under in paragraph 10:-
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
"In the aforesaid facts and
circumstances, the impugned order of
the authority concerned dated
20.08.2011 (Annexure-3) is hereby
2019quashed with a liberty to the
authority concerned to take fresh step
after issuing notice to the petitioner and
giving reasonable opportunity for a pre-
decisional hearing and thereafter pass a
speaking order in the matter in
accordance with law."
19. In the aforesaid facts and
circumstances of the case, this Writ petition stands
disposed of with similar direction as has been
issued in order dated 13.10.2011 passed in CWJC
No. 14780 of 2011 (supra). In view of sthe
above, the present Writ petition is also disposed of
with identical direction as issued in the said
judgment. Consequently, the demand notices as
contained in Annexure-6 shall stand quashed. The
authorities, in the present case also shall act in
terms of the direction issued in the aforesaid Writ
petition i.e., CWJC No. 14780 of 2011 (supra).
20. Interlocutory Application(s), if
Patna High Court CWJC No.8170 of 2020 dt.04-04-2025
any, shall stand disposed of.
(G. Anupama Chakravarthy, J)
Spd/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 19.04.2025
Transmission Date
