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RESERVED
WRIT - C No. 10993 OF 2010
M/s. Prakash Road Lines through its proprietor Jai Prakash Pandey
Vs.
Union of India & Others
******
Hon'ble Ashok Bhushan, J.
Hon’ble Virendra Singh, J.
(Delivered by : Hon’ble Virendra Singh, J.)
By way of this writ petition, the petitioner has prayed for a
writ, order or direction in the nature of quashing the demand
notice dated 20.01.2010 issued by respondent no. 3 the
Commercial Superintendent, Nakaha Jungle, North Eastern
Railway, whereby the petitioner has been directed to pay Rs.
13,79,407/- as punitive charges for the overload alleged to have
been loaded on the goods train.
We have heard learned counsel Sri M. K. Tiwari on behalf
of the petitioner and Sri Govind Saran learned counsel for the
respondent.
It is submitted on behalf of the petitioner that the petitioner
is enrolled consignee of M/s Bridge Cement Industries and M/s
Jagdamba Cement Industries, Nepal and is regular user of the
Indian Railway for proper and smooth transportation of the
cement clinker and other materials associated to it. A rake
consisting of 58 Box-N Wagon loaded with Cement Clinker was
booked Ex-LCTS Nakaha Jungle Goods Shed on Railway Risk
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Rate which was delivered to the petitioner on 20.01.2010. It was
properly weighed at several points under the strict control and
supervision of the Excise and Custom Authorities being the
duties leviable on the consignment. It was also duly weighed at
the originating/first weigh bridge on the orders of the CFTM,
North Western Railway, at Railway Bridge, LCTS/BANAS under
the supervision of railway staff where the punitive charges
detected on the wagon were duly deposited. The re-weighment
of the goods loaded on the wagon was illegally and arbitrarily
done by the railway authorities against the provisions of the
relevant rules thereby demanding a sum of Rs. 13,79,407/- as
punitive charges. Section 78 of the Indian Railways Act permits
Railways to re-weigh any consignment before its delivery, but the
Railway Board by way of Circular permitted re-weighment only in
exceptional and peculiar circumstances and merely on the
instructions of the Divisional Railway Manager which should be
done thereby giving an opportunity to witness the re-weighment
by the consignee and only if the wagon has not been weighed at
the originating station due to non availability of the weigh bridge.
In such circumstances, the Commercial Control of the originating
station should send a message for the weighment of such rake
to the Commercial Control of the Division where the first
available en-route weigh bridge is located. Since the Railway
Board has itself decided that once the weighment has been done
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at the originating station, it cannot be done at en-route or
destination station in normal circumstances, therefore, the
railway authority has reweighed the consignment ignoring the
circulars in this regard. The petitioner had also moved a
representation/appeal on 26.01.2010 against the notice dated
20.01.2010 ventilating all the grievances, but nothing has been
done in this matter. On 08.02.2010 again, a representation was
sent by the petitioner. There was no justification with the
Railways for the second weighment at Sawai Madhopur Weigh
Bridge as it was already done at the weigh bridge situated at
LCTS/BANAS.
Learned counsel for the respondent submitted that the
petitioner was found overloading of the goods train and for this
reason, he is liable to pay a sum of Rs. 13,79,407/- as punitive
charges imposed as per rules and regulations prescribed in
Section 73 of the Indian Railways Act. The Railway
Administration has not established railway weigh bridge at LCTS/
BANAS, the loading in this case on the rolling stock was not
supervised by the railway authorities. The petitioner has himself
accepted overloading of the rake at the time of the delivery of the
consignment. Since no weigh bridge has been established at the
originating station by the Railway Administration, hence, the
weighment of the consignment in question at Sawai Madhopur
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cannot be challenged saying it unreasonable and against the
Rules.
In the light of the contentions of both the parties, we have
gone through the entire facts and circumstances on record. It is
an admitted fact that the consignment weighment at Sawai
Madhopur weigh bridge Is found overloaded for which though
there is a dispute in between the parties as to whether the
consignment was weighed at its originating station or whether
there was no facility available for such weighment as is the case
of the respondent, but looking into this fact that there has been a
difference of weight found at the weigh bridge situated at Sawai
Madhopur, therefore the technical objections raised by the
petitioner in this petition with regard to the circulars of Railway
Board are not acceptable. The goods under consignment being
liable to be weighed by the Excise Department for the purpose of
excise duty, etc. being under weighment for storage inside the
factory by the paraphernalia of the Custom Department, is the
internal matter in between the Custom Department and the
petitioner and the Railway Department is least concerned about
such facts of weighment of the consignment.. Since the Railway
Administration has not established railway weigh bridge at LCTS/
BANAS, from where the consignment is said to have been
loaded, therefore, the re-weighment of the consignment at Sawai
Madhopur cannot be challenged. So far the question of this
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dispute on the facts is concerned as to whether the weighment at
LCTS/BANAS was done on the direction of CFTM or as to
whether there has been any importance of such weighment at
that weigh bridge alleged to have been available at
LCTS/BANAS the originating station, such disputes cannot be
decided in writ side in the light of this admitted fact that the
consignment was found overloaded on the weigh bridge at
Sawai Madhopur. Similarly, the contentions of the petitioner
raised through the rejoinder affidavit that the weighment advice
of Sawai Madhopur is not correct as the weighment is done at
the speed of 15 km/hour while it could have been done at the
speed of 10 km/hour and the first wagon being dummy wagon
having its maximum weight for 23 tonnes, which is shown in the
weighment advice as 60 tonnes and the other facts in dispute of
this weighment may not be the issue of decision in writ
jurisdiction of this court. The fact of overloading has been
accepted by the petitioner as is exhibited by the respondent as
per Annexure CA-4 to the Counter Affidavit and the delivery has
already been made under the clear signature, therefore, the re-
weighment of consignment which is prerogative of the Railways,
cannot be declared as illegal or arbitrary.
Therefore, this petition has no force, which is liable to be
dismissed and is hereby dismissed accordingly.
Dt. 08.07.2010
Jaideep/-