RAGHU FORWARDING AGENCY Vs. UNION OF INDIA

JUDGEMENT

(1.) In this application under Article 226 of the Constitution, the petitioners have sought for a direction on the respondents to refund the punitive charges of Rs. 9,50,114/- recovered from the petitioners for carrying goods in wagons beyond the permissible capacity and for directing the respondents to withdraw the demand of wharfage and demurrage charges and to release the five wagons of coal detained by the respondents for the purpose of realizing the said demurrage and wharfage charges.

(2.) The facts briefly are that the petitioner No. 1 registered an indent for a rake for despatch of coal from Jogighopa Railway Station. Pursuant to such registration of indent, a rake was placed and the petitioner No. 1 loaded Nangal Dry Coal in 35 wagons on 26-1-97. Since no weigh-bridge was available at Jogighopa Railway Station, the coal was loaded in the said wagons without weighment and a certificate dated 26-1-97 was issued by the Railway-authorities of Jogighopa Railway Station to the effect that measurement of the loaded wagons could notbe taken by the supplied measurement rod due to insufficient space inside the wagons between the loadable height and roof of the wagons, but on visual check, wagons were found correctly loaded up to the permissible loading height, marked inside the wagons under the supervision of the Chief Goods Superintendent (for short, "the CGS"). In the R. Rs. issued by the Railway-authorities of Jogighopa Railway Station, however, endorsements were made that the wagons were to be weighed at the weigh-bridge station enroute or at destination. The 35 wagons were thereafter despatched and at the Station Laksar the wagons were weighed on the weigh-bridge and it was found that most of the 35 wagons were over-loaded beyond the permissible limit. Thereafter, when the wagons arrived at the destination Station Rohtak in Haryana on 1-2-97, the CGS, Rohtak intimated the petitioner No. 2, the consignor of the coal, to deposit Rs. 12,23,860/- as undercharges at the time of delivery by his letter dated 1-2-97. In reply, the petitioner No. 2 wrote to the CGS, Northern Railway, Rohtak, inter alia, that before issuing the R.Rs. the authorities of the Forwarding Station checked the loaded height of the coal according to their specification and then issued the R.Rs. after endorsing on each R.R. that the coal was loaded within the permissible height. In the said letter dated 1-2-97, the petitioner No. 2 stated that on these facts the question of any under-charges for overloading did not arise and it should be presumed that the weigh-bridge where the wagons were weighed was not in working order. In the said letter dated 1-2-87, the petitioner No. 2 further requested the CGS to check the loading mark of each loaded wagon and to send the rake for reweighment as the petitioner No. 2 was not ready to accept the excess weight. But the CGS, Rohtak Railway Station informed the petitioner No. 2 in his letter dated 2-2-97 that the coal rake containing 35 wagons was weighed by the vigilance team at Laksar and on the basis of such weighment punitive charges amounting to Rs. 9,50,114/- were raised and requested the petitioner No. 2 for arranging payment before taking delivery of the same. The petitioner No. 2 then wrote to the CGS, Rohtak Railway Station that they would furnish a Bank Guarantee for Rs. 9,50,114/- for the under-charges at the time of delivery and requested him to issue a certificate of coal height in each wagon before unloading the rake. But the said request of the petitioner No. 2 was not accepted and the CGS, Rohtak Railway Station again requested the petitioner No. 2 to pay the punitive charges in his letter dated 2-2-97. The petitioner No. 2 thereafter made a request to send the rake of coal for reweighment at the nearest weigh-bridge in their presence and that they were willing to pay the amount of reweighment and haulage charges on demand. The petitioner No. 2 was thereafter informed on 4-2-97 that reweighment of coal rake had been permitted and that they should deposit reweighment and haulage charges amounting to Rs. 94,080/-. The petitioner No. 2 then deposited the said reweighment and haulage charges of Rs. 94,080/- and the coal rake was thereafter sent to Panipat Thermal Power Station for reweighment. On such reweighment at the Panipat Thermal Power Station it was found that there was a big difference between the weighment at the Station Laksar and the weighment at the Panipat Thermal Power Station and that as per the weighment at the Panipat Thermal Power Station, the wagons were not loaded beyond the permissible limit and the petitioners were not liable for any punitive charge for overloading. The said weighment at the Panipat Thermal Power Station, however, was not accepted by the respondents who continued to demand the punitive charges of Rs. 9,50,114/- on the basis of weighment made at the Station Laksar as well as demurrage and wharfage charges. In the circumstances, the petitioners paid the punitive charges of Rs. 9,50,114/- on 8-2-97 under protest and took delivery of 30 wagons of coal, but the remaining 5 wagons of coal were detained by the respondents for realizing of demurrage and wharfage charges. Aggrieved, the petitioners filed the present writ petition for appropriate relief.

(3.) When the writ petition was moved before this Court on 27-2-97, this Court while issuing Rule passed an interim order directing that on the petitioners' furnishing a Bank Guarantee for the full amount of demurrage and wharfage charges as indicated in the order dated 20-2-97 of the respondent No. 7, a copy of which has been annexed to the Additional Affidavit filed by the petitioner, the respondents would deliver the 5 wagons of coal to the petitioners. Pursuant to the said interim order passed on 27-2-97, it appears that the petitioners furnished a Bank Guarantee for the full amount of demurrage and wharfage charges indicated in the orderdated 20-2-97 of the respondent No. 7 and took delivery of the remaining 5 wagons of coal.