AGARWALA AND CO Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners file this application under Article 226 of the Constitution of India praying for a writ in nature of mandamus to set aside and cancel the memorandum of demand being annexure 'E' to E3 to this writ petition and to forebear the respondents from enforcing realisation of impugned demand in any manner whatsoever.

(2.) The fact of the case in a nutshell is this on October 8, 1991 M/s. Hari Trading Co. and M/s. Laxmi Trading Co, despatched iodised salt consignments from Chirai, Gujarat to Bharampur (West Bengal in 30 wagons against bills for Rs. 3,20205/- and Rs. 2,42,831/- respectively. The railways authority at Chirai issued receipts against the loading of such consignments containing endorsements as follows : "Senders weight accepted SM enroute to weigh and advise jointly destination to weight before delivery". The senders engaged j. B. Boda surveyors Pvt. Ltd., for supervision of crushed salt in bags for human consumption in B. G. wagons and also for weighment the weight of bags at random. Thereafter, 24 wagons put of the aforesaid 30 wagons reached the destination staiion at Berhampur Court when shortage of 1141 bags of salt. were detected and short certificates were issued to that effect. Then the petitioners' were informed by the Station Superintendent Bharampore Court. Eastern Railway, as per his communication issued under Memo No. BPC/goods/11/91 dated October 29, 1991, that an amount of Rs. 52,938/- was charged as weighment charge by CGS/KKF as per his weighment order No. GI/635/91 dated February 12, 1991 and GI/635/91. dated October 12, 1991 and GI/ 635/91 dated October 14, 1991 against the aforesaid salt weights. The petitioners were requested to pay the aforesaid amount to clear the outstanding dues as well as to enable the office to deliver the balance consignment of the salt. On October 30, 1991 the petitioners submitted representation to the respondent Nos. 2 to 4 with request for re-weighment of the consignment and or the alleged excess eight salt bags in their presence as per provisions of paragraph 1744 of Indian Railway Commercial Manual-II. The Railway Authority did not pay any hit to that representation. Hence this writ application.

(3.) Mr. P. K. Samanta Learned Advocate, on behalf of the petitioners submits that on October 10, 1991 and October 11, 1991 the consignor raised the bill disclosing the weight of the iodised salt. Drawing my attention towards the railway receipts dated October 7/8, 1991 Mr. Samanta submits that the Railway Authority accepted the senders weight and advised Station Master en-route to weight before delivery. He draw my attention towards the provisions of subsection (2) of Section 65 and submits that the railway receipt is the prima facie evidence of the weight and number of packages stated therein. In the event the weight of number of packages of train loaded consignment is not checked by the Railway Authority and the statement for that effect is recorded in the railway receipt, the burden of proving the weight and number of packages as stated in railway receipt should be on the consignor or the consignee. But in the present case the railway receipts did not contain endorsement that the weight of number of packages were checked by the Railway Authority. Mr Samanta further submits that the alleged enroute weighment of the consignment without notice either to the consignor or to the consignee and in their absence without complying with the requirement of Rule 117(4) of the goods tariff cannot be sustained in law. Mr. Samanta further submits that in accordance with the provisions of paragraph 1423 of the Indian Railway Commercial Manual-II. in case of non-checking of the weight and number of packages at the forwarding station, an appropriate remark should be inserted to the effect that on the connected invoices and railway receipts. The weight of the wagons are to be taken at a particular station and the charges are subject to alteration on weighment at the destination station. But in the present case no such remark was recorded in the railway receipt,. Mr. Samanta further submits that on receipt of the representation dated October 30, 1991 with a request of reweighment of the said consignment in presence of the petitioners, as per provisions of paragraph 1744 of the Indian Railway Commercial Manual-II read with the provisions of Section 79 of the Railways Act 1989, it was not permissible for the respondent authority to sit tight over the matter. Mr. Samanta further submits that under the provisions of Section 73 of the Railways Act 1989, the Railway Administration has the option to off load the goods beyond the permissible carrying in capacity and to recover cost of charges for detention of wagons and the cost of handing of bags subject to obtaining the sender's instruments regarding disposal of the goods as required under the provisions of paragraph 1877(D) of the Indian Railway Commercial Manual-II. But in the present case the Railway Administration off loaded the alleged excess weight bags at en-route weighment Station (Kankaria) and disposed of the same by appropriating the sale proceeds without obtaining the sender's instruction as regards disposal of the alleged excess. Further in addition to appropriate an amount of Rs. 40,980/- the impugned under-charges were levied on the petitioners which includes flat charges for alleged excess/weight at penal rate amounting to Rs. 27,317, detention of wagons charges for an amount of Rs. 25,367 and handling charges of Rs. 254. According to Mr. Samanta such action cannot be sustained in law. Mr. Samanta submits that the penal charges were imposed upon the petitioners without giving an opportunity to defend against such unilateral action without due compliance of the rules and in violation of principles of natural justice thereby.