SANWARIA STEEL PVT. LTD. HAVING ITS REGISTERED OFFICE REPRESENTED BY ITS DIRECTOR VINOD KUMAR AGARWAL Vs. UNION OF INDIA (UOI) REPRESENTED BY THE GENERAL MANAGER AND ORS.

JUDGEMENT

(1.) THIS writ application has been filed with a prayer for quashing the letter dated 30.06.2010 under Annexure -9 and the provisional stacking charge bill enclosed to the said letter raised on the materials stacked by the Petitioner at Barbil Railway Siding on the ground that the same is illegal, without jurisdiction and authority of law. Further prayer of the Petitioner is for a direction to opposite parties to allow the Petitioner to dispatch the stock of iron ore lying at Barbail Railway siding during pendency of the writ petition.

(2.) PETITIONER 's case in a nutshell is that it has a plant for crushing iron ore lumps/processing iron ore for selling the sized ore to Sponge Iron Plants and Steel Plants mainly located outside State of Orissa. The Petitioner has been operating the said crusher plant for the last 5 years and has been selling processed iron ore to sponge iron plants outside the State of Orissa by transporting the same through opposite party -railways. To carry on its business, the Petitioner obtained trade licence dated 20.06.2009 under Rule 7 of the Orissa Mineral (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading & Transportation) Rules, 2007 (in short, "Rules, 2007"). By letter dated 08.06.2009, under Annexure -2, office of the Divisional Railway Manager (Commercial), Chakradharpur Division issued permission to the Petitioner to dump iron ore at the Railway siding of Barbil Railway Station under Chakradharpur Division under sump and load system prior to loading into Railway rakes as and when the empty rakes will be supplied to the Petitioner. Pursuant to the said permission issued by the office of the Divisional Railway Manager (Commercial) dated 20.06.2009, the Petitioner transported 2350.890 M.T. iron ore and stacked them at the Barbil Railway siding for dispatch of the same after empty rakes were made available by the opposite party -Railway Authority. At that stage, by order dated 31.10.2009, the Deputy Director, Mines, Joda suspended the trade licence of the Petitioner under Rule 9 of the Rules, 2007. On 04.11.2009, the mining authorities rescinded the trade licence of the Petitioner which disabled the Petitioner from carrying on crushing operation, transporting and selling of the iron ore. The Deputy Director, Mines withdrew the order dated 31.10.2009 and allowed the Petitioner to operate the crusher unit under Rule 3 of the Rules, 2007. While the unit started operating, by order dated 6.3.2010, the Sub -Divisional Magistrate, Champua imposed prohibitory order under Section 144, Code of Criminal Procedure restraining entry of any person into the Railway siding and to conduct any loading or unloading at the railway siding. The said prohibitory order continued for two months and by order dated 01.05.2010 exercising power under Section 145, Cr. P.C. the S.D.M., Champua rescinded the prohibitory order dated 06.03.2010 passed under Section 144, Code of Criminal Procedure The mining authorities on 26.6.2010 under Annexure -6 issued direction to the Petitioner for loading of the materials which have been stacked at Barbil Railway siding. At that juncture, opposite party -railway authorities forwarded a letter dated 30.06.2010 under Annexure -9 raising provisional stacking wharfage bill in respect of the materials of the Petitioner lying at Barbil Railway siding from 01.05.2010 to 25.06.2010 for Rs. 52,41,600/ - indicating therein that the final bill shall be submitted after lifting the materials. Being aggrieved by the said order, the Petitioner has filed the present writ petition.

(3.) MR . A.K. Mishra, learned Counsel appearing on behalf of opposite party -Railway Department submits that the writ petition is barred for non -compliance of Section 80, Code of Civil Procedure. It is also not maintainable in view of the disputed questions of fact involved. The Petitioner has committed unlawful act of dumping the alleged materials at the railway premises without any authority and required permission. The Petitioner has contravened the Railway Rules and is therefore liable to pay stack/wharfage charges as per the provision of Para 3.3. of the Divisional Rate Circular No. 12(G) dated 29.06.2009 wherein it has been clearly mentioned that the stacking permission shall be granted by the Senior Divisional Commercial Manager in consultation with the Senior Divisional Operations Manager only to those Rail users, who have indented for the wagons/rakes. Referring to para 3.4 of the said Circular, Mr. Mishra submitted that there is clear procedure provided in the Circular as to how to apply for stacking permission and obtain it. In the present case, the same has not been followed. Referring to para -3.2 of the said Circular, it was submitted that the consignor shall be allowed to dump and load the materials at the loading point on the confirmed forecast from the Chief Controller ( Minerals) of the Division. In the instant case, the Petitioner without making any indent has dumped the materials in the Railway premises. Provisional bill was raised for the period from 01.05.2010 to 25.06.2010 for an amount of Rs. 52,41,600/ - against 2316.024 MT iron ores un -authorisedly stacked at Barbil Station siding. The Petitioner has illegally stacked/dumped the materials in the Railway Premises without making any indent for transportation through railway. The Petitioner has not informed the railway authority regarding the alleged stacking and dumping of materials when it came to the notice of the railway authorities, the matter was reported to the Deputy Director, Mines, Joda for proper verification. After verification, Deputy Director, Mines informed that the alleged materials (iron ore) belonged to the Petitioner. Thereafter, provisional stacking charges bill was raised and served upon the Petitioner to make payment.