- (1.) THE petitioners in this art.226 petition dated September 23, 2011 are seeking the following principal relief: (a) A Writ of and/or in the nature of Mandamus do issue commanding the respondents and each of their men, servants and agents not to give effect and/or further effect to the notice dated 19th August 2011, being annexure P-17 hereto and the letter dated 9th September 2011 being annexure P-19 hereto. While the letter dated September 9, 2011 referred to in prayer (a) is at p.77, the letter dated August 19, 2011 also referred to in prayer (a) is at p.74. THE Railway Administration levied wharfage and stacking charge on the grounds that the petitioners stacked materials on the Railway Siding. THE petitioners objected to the claim. Considering their representation, the Railway decided that a PHOD Committee comprising of CCM, FA and CAO and COM would hear the petitioners case on July 14, 2010.
(2.) NOW this petition has been brought alleging that without disclosing what happened at the PHOD Committee level that remained silent for a long period allowing in the process a member thereof to retire, all of a sudden the Railway has arbitrarily issued the letter dated September 9, 2011 and the fresh claim dated August 19, 2011. Relevant parts of the letter dated September 9, 2011 are quoted below: With reference to your letter quoted under reference, it is informed that the subject case has been deliberated by the PHOD Committee and it has been decided that customers should be asked to clear the Railway dues immediately otherwise, appropriate measures would be taken against the defaulters. In the circumstances, you are requested to clear the outstanding at the earliest. The other issues mentioned in your letter are being examined and you will be intimated in due course. Mr Mitra appearing for the petitioners has submitted that in view of the decision I gave in Bhagaban Dey v. Union of India and Ors., AIR 2010 Cal. 13 questioning the claim of the Railway the petitioners may decide to approach the Railway Rates Tribunal or any other authority or forum only if the decision of the PHOD Committee communicated by the letter dated September 9, 2011 is set aside. Mr Razzak, the Additional Solicitor-General of India, appearing for the respondents has submitted that there is no reason why the petitioners should feel that the things stated in the letter dated September 9, 2011 will get in the way of their approaching the Tribunal only where their remedy, if any, is against the claim of the Railway Administration. In view of the provisions of ss. 33 and 36 of the Railways Act, 1989 and the decision I gave in Bhagaban Deys case, in my opinion, there can be no dispute that questioning the reasonableness of the wharfage and stacking charge levied by the Railway Administration the petitioners were required to go to the Railway Rates Tribunal.
(3.) THE questions whether the goods in question were stacked at the railway siding in question, and whether the stacking of the goods made the petitioners liable to pay any wharfage and stacking charge and entitled the Railway Administration to levy such charge are questions of fact which are to be decided on the basis of oral evidence adduced by the parties. Here the only question is whether anything said in the letter dated September 9, 2011 is likely to get in the way of the petitioners approaching the Tribunal. It is evident from the things stated in the letter dated September 9, 2011 that nothing therein has changed the consistent stand of the Railway Administration that the charges had been lawfully levied. As a matter of fact, the things stated in the letter only show that the committee appointed by the Railway Administration for examining the petitioners grievances against the statutory claim has found no reason to recommend to the Railway Administration to modify or rescind its original claim. The committee was not a statutory committee. Hence its decision, if any, is of no consequence insofar as the question of reasonableness of the Railway Administrations decision to levy wharfage and stacking charge is concerned. In my opinion, on the facts, there is no reason to say that anything stated in the letter dated September 9, 2011 can affect the petitioners right to approach the Tribunal questioning the reasonableness of the claim of the Railway Administration made afresh by the letter dated August 19, 2011.;