M/S. JAGANNATH PLASTIPACKS LTD. Vs. COLLECTOR, JAGATSINGHPUR

JUDGEMENT

(1.) This writ petition has been filed by the petitioner-company, namely, M/s. Jagannath Plastipacks Ltd. challenging the action of the of the Addl. District Magistrate, Paradeep - O.P. No. 2 directing M/s. Paradeep Phosphates Ltd.-O.P. Nos. 3 and 4, not to dispatch the Phospo-Gypsum through railway rakes, as a result of which the O.P. Nos. 3 and 4 are not allowing the petitioner to transport the Phospho-Gypsum through railway rakes; and praying for the following reliefs :

(2.) The case of the petitioner in brief is that M/s. Paradeep Phosphates Ltd. (hereinafter referred to as 'PPL') vide its order dated 01.04.2011 appointed the petitioner-company as its Buffer Stockist for Phospho-Gypsum Bulk by Rail and Road for the year 2011-12. The petitioner has also been authorized for State of Odisha and other neighbouring States for Gypsum operations and accordingly petitioner has been doing the job of transportation of Phospo-Gypsum since 2006 through railway rakes from PPL to Nirgundi (Cuttack) and from that spot, it is transported to different places through trucks. It is stated that Phospho-Gypsum is a waste product of PPL after manufacturing the D.A.P. fertilizers. It is used by the small and marginal farmers, who do not afford for costly D.A.P. fertilizers, as fertilizers in their lands and it is also used by the cement industries as clinker, fly ash manufacturers, Gypsum Board Manufacturers, Plaster Paris Manufacturers as raw material. About 5000 MT of Gypsum come out of the plant of PPL everyday and after it is dried, it is transported to different places. The mode of transportation available at PPL is only by way of railway rakes and trucks. Further, the rate fixed by the railway for transportation of Gypsum from PPL to Nirgundi which is at a distance of about 90 to 100 Kms is at Rs. 188.50 per MT. However, the Truck Owners Association, Paradeep has fixed the same at Rs. 535/-, which is near about three times of the railway freight. Therefore, it is submitted that if the materials will be transported through truck only, the cost of the Gypsum will go high and it will not be viable on the part of the end users like small and marginal farmers of Odisha. If the transportation cost of a waste material like Gypsum will be increased, ultimately, the end users of Gypsum Board, Plaster Paris, fly ash, and fertilizers etc. will suffer. It is further stated that since 2006 petitioner is transporting the Phospho-Gypsum from PPL to Nirgundi through railway rakes and from Nirgundi it is transported by trucks to different places. The PPL intimated the petitioner vide letter dated 27.12.2011 that the ADM, Paradeep opp. party No. 2 has directed to dispatch Gypsum by road only as pre Memo No. 1743 dated 08.12.2011 under Annexure-4, therefore the PPL is unable to dispatch gypsum by railway rakes to Nirgundi. It is alleged that the opposite party No. 2 being influenced by the Truck Owners Association of Paradeep has directed the PPL not to allow the petitioner to transport Phospho-Gypsum by rakes and transport the same by road only, which is quite unreasonable. It reveals from the impugned order of the O.P. No. 2 that he has considered a fact that as there is a ban on export of iron ore and there is no engagement of the trucks, truck owners are having no source of livelihood. In order to give business to the truck owners, the O.P. No. 2 has passed such an order, even though he has no authority to interfere with the business of the petitioner or PPL regarding transportation of gypsum, which is in clear violation of Article 19(1)(g) of the Constitution of India and the same is arbitrary, illegal and in violation of the fundamental rights. In such situation, finding no other remedy, petitioner made a representation to the Chief Secretary on 31.12.2011 requesting him to look into the matter and take necessary action, however, the Government has also taken no action in the matter. In this matter since last 10 months the transportation of Phospho-Gypsum is stalled in business of the petitioner as well as livelihood of about 500 poor workers of the petitioner-company is affected. It is submitted that taking into consideration the livelihood of the truck owners, the O.P. No. 2 has taken such a decision and imposed restrictions on the PPL to transport the Phospho-Gypsum only through trucks, but at the same time he has forget about the livelihood of the poor workers who are starving due to stoppage of transportation of the Gypsum and also the far reaching consequence of hike in market price of fertilizers, Planter of Paris, Gypsum Board, fly ash etc. due to higher transportation charges of Gypsum and the consequence on the public at large. Therefore, it is prayed that taking into all the fact situation into consideration, the order under Annexure-4 may be quashed and a direction may be issued to the opposite party No. 2 not to interfere with the business of the petitioner and PPL in respect of mode of transportation of Gypsum and allow the petitioner to transport the same through railway rakes from PPL to Nirgundi.

(3.) Truck Owners Association-O.P. No. 5, represented by its President, B.B. Pattnaik, has filed a preliminary counter affidavit stating that the writ petition is devoid of any merit and not maintainable for the reason that a writ petition to enforce the fundamental rights such as Article 19 (1)(g) at the behest of a company is not maintainable. Further, no relief can be claimed against the opposite parties, 3, 4 and 5, as they are not statutory authorities or State within the meaning of Article 12 of the Constitution of India. O.P. Nos. 3 and 4 are companies whose shareholders are of private entities and are not amenable to writ jurisdiction of this Court. It is further stated that a meeting was conducted in the Chambers of the O.P. No. 2 on 05.12.2012. He being the custodian of the law and order situation in Paradeep, he invited all parties to have a mutual discussion in the said matter to remove the impasse which arose out of the dissension of the truck owners as they were rendered jobless on account of total stoppage of their work due to the closure of mining activities in the State. In the said meeting the representative of the petitioner-company, namely, Prakash Chandra Swain was also present. All the parties agreed that certain amount of gypsum sold by O.P. No. 3 would be carried by truck and the entire would not be carried by rail, to bring about rehabilitation of the truck owners. There are two industries operating in Paradip area selling Gypsum, one is opposite party No. 3 and the other is IFFCO. Everyday both by rail and trucks gypsum is being carried to different places in the country. Further, the representations made by the petitioner under Annexures-5 and 6 reveal that its prayer is to transport the gypsum both by rail and trucks and to fix up the proportion thereof. Therefore, the petitioner cannot have any grievance in this matter. It is further submitted that in the railway rakes the gypsum is carried in open exposed to weather, which is hazardous to the environment, whereas in trucks they are carried in sealed condition being covered by tarpaulin and tied through strings, so there will be no environmental pollution. The entire gypsum is carried to industrialists, who are the end users. It is further submitted that if proportion is fixed for transportation of the gypsum through rail as well as through trucks, the opp. party No. 5-Association would have no objection.