SHYAMA MINERALS, REPRESENTED BY ITS PROPRIETOR SRI PRASANNA KUMAR SAMANTARAY Vs. STATE OF ORISSA AND ORS.

JUDGEMENT

(1.) THE Petitioner in the present writ petition challenges the imposition of stacking charges on iron ore fines belonging to the Petitioner dumped at the railway siding awaiting loading into the railways rakes to be provided by the railways for which indents have been made on depositing Rs. 15,000/ - (rupees fifteen thousand) per rake on the ground that such imposition of stacking charges is illegal. The further prayer of the Petitioner is to quash Annexures -6, 11 and 14 and for issuing a direction to the railways to provide rakes to the Petitioner at the earliest to clear the railway sidings.

(2.) THE petitioner 's case in nutshell is that the Petitioner is a licensed proprietorship business concern. He has been carrying on trading business in iron ore since 2007. He was granted licence vide letter No. 79875 dated 31.12.2008 by opposite party No. 2 for storing iron ore under the Orissa Minerals (Prevention of Theft, Smuggling and Illegal Mining and Regulation of Possession, Storage, Trading & Transportation) Rules, 2007 (for short, "Rules, 2007") and was allowed to store iron ore at Bansapani Plot No. 624, Khata No. 131/167 and the licence was valid till 30.12.2010. The said licence was issued in the name of one Rajib Kumar Panda, Power of Attorney Holder of the Petitioner. As per the procedure adopted by the Railways, the Railways had been allowing dumping of materials for loading into the rakes on placing of indent with the pre -requisite deposit of Rs. 15,000/ - per rake. The Divisional Manager (Commercial), South Eastern Railway, Chakradharpur vide letter dated 05.01.2010 certified that the Petitioner can use Public Sidings both at Bansapani and Jaroli railway stations for loading of rakes and dumping of materials as and when the empty rakes are supplied to them.

(3.) MR . S.K. Purohit, learned Counsel for the Petitioner, submits that the Senior Divisional Manager (Commercial), South Eastern Railway, Chakradharpur had brought out a comprehensive wharfage and stacking policy on 29.06.2009 which was valid till 30.06.2010. The petitioner 's case was covered within the said period. The circular is very specific as to when and how the wharfage or stacking charge can be levied. Referring to Clauses 3.5 to 3.10 of the said circular, Mr. Purohit submitted that the policy provides for applicability of wharfage and stacking charges only when the indentor or rail user cancels his indent. The said provisions are silent as to the consequence in the event of cancellation of a valid indent by the railways itself or for any reason the railway is unable to provide the rakes against the valid indents. The Petitioner is in no way responsible for cancellation of the rakes by the railway -authorities during the period from 6th March, 2010 till May, 2010. The availability of railway rakes being few and far, the Petitioner had to avail the rakes operated by persons who were operating with the railways on Private Public Partnership under WIS Policy. Under the compelling circumstances, the Petitioner was forced to stack the materials in the railway siding. The railways charged for the stacking and further directed unless the same is paid, the Petitioner would neither be provided with rakes nor the materials would be allowed to be removed from the railway siding. Thus, opposite parties started to earn stacking charges keeping the stock captive and the charge have presently assumed the diabolic figure.