UNION OF INDIA Vs. HASIJA COAL TRADERS

JUDGEMENT

(1.) :-This appeal has been filed against the decision of the learned single Judge given in Civil Rule No. 639 of 1993 (Hasija Coal Traders v. Union of India).

(2.) We have heard Mr. B. K. Sarma assisted by Mr. P. K. Tiwari, learned counsel appearing for the Union of India and Mr. N. M. Lahiri assisted by Mr. G. N. Sahewalla and Mr. A. K. Goswami, learned counsel appearing for the contesting respondent/ petitioner.

(3.) The brief facts for the purpose of adjudicating the controversy raised in this appeal are that the petitioner/respondent Hasija Coal Traders is a proprietary firm carrying on the business of sale and supply of coal. The coal is being loaded from Baihata Jogighopa Railway Station. According to the petitioner/respondent there is no weigh bridge for the purpose of weighing coal loaded in wagons at the Railway Station and for the purpose of determining the carrying capacity of particular wagon, the Railway authorities have provided various measurement for wagons regarding permissible carrying capacity and if the loading is made up to a particular height then loading will not exceed the permissible carrying capacity. After the coal is loaded in accordance with the instructions of the Railway authorities, the Railway authorities issue Railway Receipt and make endorsement including the endorsement in respect of the height measurement. It may however be detected later on that there may be more weight and load while making check at the destination station. This apprehension was based on the ground that the processes which were carried by the Railway authorities at the destination station for determination of carrying capacity amounts to arbitrariness and it cannot make the petitioner liable to penalty. If the excess loading/over loading is found either at the destination or during the journey, penalty for excess loading cannot be charged. There would be no power to levy penalty available to the Railway authorities to initiate penalty proceedings under S. 73 of the Railways Act, 1989 (hereinafter referred to as the Act), the reference, of which will be made later in the judgment .