BANSAL ASSOCIATES LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) The grievance raised in these writ petitions being similar and the same being founded on more or less identical facts were heard together and are being disposed of by this common Judgment and order.

(2.) Though the broad facts of all these cases are similar, a brief recital of the facts of each of the cases separately would be convenient and is, therefore, setout hereunder. 38 BCN Wagons were booked by the petitioner for transporting coal purchased by the petitioner from the Collieries of the North Eastern Coal Fields, Coal India Limited, Margharita. The coal was loaded at Ledo Railway Station and its destination was Bhatinda. At Ledo, the coal was weighed in an electronic-in-Motion Weigh Bridge in the presence of the representatives of the North Eastern Coal Fields, Coal India Limited and the representatives of the Railways. The Railway authority had issued difference circulars regarding loading and weighment of coal at various stations and circular No. 197 issued by the respondent Railway was in force at the relevant point of time with regard to weighment of coal in the Electronic-in-Motion Weigh Bridge at Ledo. On the basis of the weighment of coal as aforesaid. Railway receipts were issued by the Railway authority and while the coal was in transit, on 5.6.98, the same was re-weighed at Laksar Railway Station. The result of such re-weighment was adverse to the petitioner inasmuch as almost all the 38 wagons were found to be over loaded and such over loading was also found to be in excess of the maximum carrying capacity of the wagons. The aforesaid re-weighment was, however, without any notice to the petitioner and in the course of such re-weighment the petitioner or its representatives were not present. Thereafter, the 38 BCN Wagons booked by the petitioner arrived at its destination i.e. Bhatinda. On such arrival, the Chief Goods Supervisor, Bhatinda, by a letter dated 5.6.98 required the petitioner to deposit a sum of Rs. 9, 74,694.00 towards penal freight/over loading charge in respect of the 38 BCN Wagons. The petitioner by letter dated 6.6.98 protested against the weighment done at Laksar and the demand for the penal freight stating that the initial weighment at Ledo was made under the supervision and control of the Railway authority and wagons including the coal transported were also all along in the custody of the Railways. Furthermore, it was stated by petitioner, the re-weighment at Laksar was done without any intimation to the petitioners and that there were some mechanical defects in the weigh Bridge at Laksar. In these circumstances, the petitioner demanded a re-weighment On receipt of the aforesaid letter dated 6.6.98, the Chief goods Supervisor, Bhatinda made an endorsement on the body of the said letter to the effect that it was not within his power to order for any re-weighment and if the petitioner, if so desired, may apply for reweighment to the Divisional authorities of the Railways. Thereafter, it appears that on the same date i.e. on 6.6.98, the petitioner paid the penal freight demanded i.e. Rs. 9,74,694.00. Contending that the same was paid under protest and in order to minimize the possible business losses, the instant writ petition has been filed. The fact are largely similar with those of CR 3642/98, save and except, that in the present case the number of Wagons booked by the petitioner were 40 and the re-weighment at Laksar Railway Station was done on 14.6.98. The amount of penal freight demanded by the Railway in the present case was Rs. 2,83,607.00 which was paid by the petitioner on 15.6.98. In the present case, unlike in CR 3642/98 no written demand for re-weighment, alleged to have been made by the petitioner, has been brought on record by the writ petitioner. In the present case 40 BCXN wagons were booked by the petitioner for depatch of coal from Jogighopa Railway Station to Meerut city. As the Jogighopa Railway Station did not have an Electronic Weigh Bridge, wagons were loaded by the petitioner in the presence of the Railway staff upto the limit of height of the wagons to which loading was permissible. It may be mentioned here that the procedure for loading upto a particular height of the Wagons is an alternative mode of loading which is also governed by a separate circular issued by the Railway authority. The consignment of coal which is the subject matter of the present writ petition was loaded on 28.5.98 and was re-weighed enroute at Laksar Railway Station on 13.6.98. As in the other two 'cases, the result of the re-weighment at Laksar was again adverse to the petitioner. On the basis of such weighment, penal freight to the extent of Rs. 15,96,093.00 was demanded from the petitioner. It appears that the petitioner made the aforesaid payment on 13.6.98/14.6.98. Contending that the said payment was made under protest and in order to enable the petitioner to fulfil its commitment to its customers, the instant writ petition has been filed.

(3.) Mr. G. N. Sahewalla, learned Sr. Counsel appearing for the petitioners in all the cases as well as Mr. S. Sarma, learned Standing Counsel, Railways, have been heard.