M/S Bhagwan Das Sagarmal V. The Union Of India through the General Manager East Central Railway, Hajipur, Vaishali and The Divisional Rail Manager (Commercial) Sonepure, Hajipur, Vaishali and The Chief Commercial Manager (Claims & Refunds) East Central Railway, Hajipur, Vaishali and The Senior Divisional Commercial Manager (Claims) East Central Railway, Hajipur, Vaishali and The Goods Superintendent, East Central Railway, Naugachia, Bhagalpur

CWJC/15081/2010

AI Insights

The case involves M/S Bhagwan Das Sagarmal, a partnership firm, which filed a writ petition against various authorities of the East Central Railway, challenging the imposition of demurrage and wharfage charges totaling approximately Rs. 24,62,600. The petitioner argued that the charges were imposed arbitrarily and discriminatorily, without adequate infrastructure at the railway sidings, and without providing a reasonable opportunity for a pre-decisional hearing. The court referenced a similar case, M/S Ganga Carrier Private Limited Vs. The Union of India & others, which highlighted violations of equity and natural justice due to the lack of a reasonable opportunity for a pre-decisional hearing and the issuance of non-speaking orders. The court's decision emphasized the need for a fair hearing and a reasoned decision-making process.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 701177 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 06-01-2012
• Assessment Year: misc
• Other Referred Cases: M/S Ganga Carrier Private Limited Vs. The Union of India & others, Sahara India (Firm), Lucknow Vrs. Commissioner of Income Tax, Central-I and another, Maya Devi (Dead) through LR.S Vrs. Raj Kumari Batra (Dead) through LR.S and others
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: PARASHURAM SINGH
• Assessee Lawyers: S D SANJAY
• Keywords: Arbitrary Decision; Certiorari; Certiorari; Demurrage; Natural Justice; Pre-decisional hearing; Wharfage; Discriminatory implementation

Judgement Text

" IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15081 of 2010 1. M/S Bhagwan Das Sagarmal, A Partnership Firm Having Its Office At D.N. Singh Road, Bhagalpur Through One Of Its Partners, Binod Kumar Kishopuria, S/O Late Sagarmal Kishorpuria, R/O D.N. Singh Road, P.S.- Kotwali, Distt.- Bhagalpur ------- Petitioner. Versus 1. The Union Of India through the General Manager East Central Railway, Hajipur, Vaishali 2. The Divisional Rail Manager (Commercial) Sonepure, Hajipur, Vaishali 3. The Chief Commercial Manager (Claims & Refunds) East Central Railway, Hajipur, Vaishali 4. The Senior Divisional Commercial Manager (Claims) East Central Railway, Hajipur, Vaishali 5. The Goods Superintendent, East Central Railway, Naugachia, Bhagalpur -------- Respondents. ---------- For the Petitioner : Mr. S. D. Sanjay, Advocate. For the Respondents: Mr. Parashuram Singh, advocate. ---------------------------------- 6. 2.1.2012 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner for the following reliefs: (i) For issuance of a writ in the nature of certiorari quashing of the arbitrary and discriminatory decision of the respondent- Railway and the consequential demand of demurrage and wharfage charges raised against the petitioner to the tune of Rs.15,13,800/- and Rs.9,48,800/- respectively in respect of the consignment of cement belonging to the petitioner brought through the railways rakes at the Naugachia Railway sites within Sonepur Division of the East Central Railway; 2 (ii) For issuance of a writ in the nature of certiorari for quashing of the decision of abbiutrary and discriminatory implementation of the Scheme/policy of realisation of demurrage and wharfage charges raised by the respondent-Railway irrespective of any infrastructure at the Railway sidings as it is not only arbitrary but also amounts to abuse of monopoly status. (iii) For a declaration that the implementation of the policy of levy of demurrage and wharfage charges at Naugachia Railway sidings suffers from the vice of hostile discrimination by treating unequals to be equals, as on the one hand, the policy is to be implemented on the railway sidings where the railway has provided adequate infrastructure for access to the railway siding, sufficient space for storage of unloaded goods, proper shed to save the unloaded goods form being damaged by rain, proper lighting etc. whereas the policy being implemented at the railway sidings where no infrastructure has been provided in most mechanical manner that too without any opportunity to the consignee to explain the delay; and for any other relief(s) for which the petitioner may legally be found entitled to in the facts and circumstances of the present case. 3. Learned counsel for the writ petitioner has challenged Annexures 3, 5 and 8 by which heavy penalty in the shape demurrage and wharfage charges had been levied against the petitioner. In that regard learned counsel for the petitioner has relied upon other Annexures to the writ petition, namely, Annexures 1, 2, 4, 6, 7, 9, 10, 11, 12, 13, 3 14, 15 and 16. 4. In this connection the petitioner has relied upon a decision of this Court dated 13.10.2011 passed in C.W.J.C. No. 14780 of 2011 (M/S Ganga Carrier Private Limited Vs. The Union of India & others) in which this Court relying upon several decisions of the Apex Court including the decision in case of Sahara India (Firm), Lucknow Vrs. Commissioner of Income Tax, Central-I and another, reported in (2008) 14 SCC 151 and also in case of Maya Devi (Dead) through LR.S Vrs. Raj Kumari Batra (Dead) through LR.S and others, reported in (2010) 9 SCC 486 held as follows: “15.…… However, these are questions of facts in which this Court does not intend to indulge as the basic question is the violation of rule of equity and natural justice which has been clearly committed by the authority concerned by not giving any reasonable opportunity for pre-decisional hearing by way of notice of any kind whatsoever and the impugned order being non-speaking order which is also violative of the settled principles of law. 16. In the aforesaid facts and circumstances, the impugned order of the authority concerned dated 20.8.2011 (Anexure-3) is hereby quashed 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.” 4 5. After hearing learned counsel for the parties, it is quite apparent that the facts of this case may be different from the fact of the aforesaid case but the common aspect of the matter in both the cases is the violation of rule of equity and natural justice which has been clearly committed by the authority concerned by not giving any reasonable opportunity for pre-decisional hearing by way of notice of any kind whatsoever and the impugned order being non-speaking order is also violative of the settled principle of law. 6. In the aforesaid facts and circumstances, the impugned orders of the authority concerned dated 23.4.2010 (Annexure-2), 18.4.2010 (Annexue-5) and 28.4.2010 (Annexure-8) so far as it concerns the petitioner is hereby quashed with a liberty to the authority concerned to take fresh decision after issuing notice to the petitioner and giving reasonable opportunity of pre-decisional hearing and thereafter pass a speaking order in accordance with law expeditiously. If the petitioner is aggrieved by the stoppage of consignment of cement by any authority, he shall be at liberty to approach the authority concerned, who will pass appropriate orders as per the aforesaid direction 5 of this Court. Vinay/ ( S. N. Hussain, J.) "