FORM NO.(J2) IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE PRESENT: The Hon'ble JUSTICE RAKESH TIWARI AND The Hon'ble JUSTICE MIR DARA SHEKO APO3572015; WP19762006 UNION OF INDIA & ORS.Versus BAGADIYA BROTHERS PVT LTD.Advocates for the appellants: Mr.A.K.Ghosal, Sr.Adv.appears with Mr.S.Roy, Adv.Advocates for the respondents: Mr.S.Sarkar, Sr.Adv.appears with Mr.R.A.Agarwal, Adv., Mr.R.Dhara, Adv.Hearing concluded on: 11.11.2016 Judgment delivered on: 11.11.2016 RAKESH TIWARI, J.
: Petitioner no.1 in the writ petition is a company incorporated under the Companies Act, 1956, having its registered office at Bagadiya Mansion, Jawahar Nagar, Raipur, Chhatisgarh-492001.
It carries on its business through an agency and/or an instrumentality; whereas petitioner no.2 is a director of the aforesaid petitioner no.1.
The petitioners are exporters of different types of materials in bulk, particularly coal and iron which are collected from the mining areas and transported by railway rakes to various destinations.
Before elucidating the facts of the case, it may be stated that loading capacity or the carrying capacity of a railway wagon is decided in terms of the provisions of section 72 of the Railways Act, 1989 (hereinafter referred to as “the said Act”).The goods are to be loaded in the wagons after weighing them and in case upon weighment the commodity is found to be in excess of the permissible limit of the said wagon, then in that event the railway authorities may recover the costs for excess weightas provided under section 73 of the said Act.
Contention of the writ petitioners is that between April 2005 and July 2006, they utilised various railway rakes for transportation of the commodities from the mining area to other ports and places.
of the delivery Their grievance is that after several months of the goods, the railway authorities had served a notice upon them that the rakes enroute various ports were weighed such as at the ports at Haldia, Vizag etc.and found that out of 87 rakes, in some of them, the iron ore fines loaded in the wagons were found to be in excess of the carrying capacity of the wagons.
Punitive charges was therefore levied upon the petitioners for overloading.
The break up of the punitive charges levied by the railways between the aforesaid dated of April 3, 2005 and July 5, 2006 in respect of 87 wagons, the date of railway receipt, the date of unloading and the date of notice of punitive charges have been collectively appended to the writ petition as Annexure P-1.
According collected to about the Rs.56 coercion and that adjusted towards writ lakhs certain the petitioneRs.from them amount of alleged punitive the under railways duress had and/or associates was also charges the writ on petitioners by the railways without furnishing any details or particulars therefor.
Apart from petitioners is the also above, that the they had grievance of the deposited about writ Rs.1.50 crores for getting the railway rake on priority basis.
But neither the rakes were provided by the railway on priority basis nor the aforesaid sum of Rs.1.50 crores for the rakes to be made available on priority basis was refunded to the writ petitioneRs.However, petitioners on or received about a September purported 19, notice 2006, dated the September writ 13, 2006, issued by the Chief Commercial Manager, South Eastern Railway, alleging that a total outstanding of Rs.2,47,11,894/- is no.1.
lying against the writ petitioner The writ petitioners were also directed to clear the said amount within seven days from the date of receipt of the said notice and in default, the wagons of the writ petitioners enroute various places will be detained and there will be loading restriction pending legal action by filing suit.
On contacting the railway authorities at Kolkata, the writ petitioners were also informed that there are other notices under despatch to the writ petitioners in respect of punitive charges which have accrued to the demand notice dated September 30, 2006.
It is submitted on behalf of the writ petitioners that levy/demand of punitive charges by various notices was without jurisdiction and contrary to the provisions of section 73 of the said Act and also in violation of the principles of natural justice.
under The writ petitioners have preferred the application Article 226 of the Constitution of India being W.P.No.1976 of 2006 (Bagadiya Brothers PVT.LTD.& Anr.
–versus Union of India September & Ors.) 30, 2006 challenging and the praying aforesaid for a notice dated restraint order restraining the railway authorities from leviying or demanding any punitive charge in respect of the goods which they had already delivered.
The Trial Court, inter alia, passed the following order: “After having considered the respective submissions of the learned Counsel, I am of the opinion that the South Eastern Railway authority itself should consider the case of the petitioner and for this purpose I direct the petitioner to make an application or representation to the South Eastern Railway Authority, to be precise, to the 2nd respondent herein being the Chief Commercial Manager, South Eastern Railway, having his office at 14, Strand Road, 8th floor, within a week from date.
such representation of application is made to Once the 2nd respondent, the 2nd respondent will consider the same on its merits upon opportunity of giving hearing the petitioner before taking any a reasonable decision or passing any order thereon.
Such consideration shall take place two within a period of receipt of the application.
order passed petitioner upon such reasonable weeks from the date of The decision taken or the consideration opportunity of by giving hearing will the be communicated to the writ petitioner within a week from such decision.
In considering petitioneRs.the the application/representation authority concerned, namely of the the 2nd respondent herein will take into account all statutory provisions of the Railways Act including section 73 of the Railways Act, 1989 and any other relevant Act or Acts.
The writ petitioner, however, will be entitled to submit all the necessary documents in support of his application.
Until the application/representation of the petitioner is considered in terms of this order and the decision is communicated to the writ petitioner, the South Eastern Railway Authorities will not give any impugned notice dated 13th September 2006.
effect to the Wholly without prejudice to the rights and contentions of the parties in the writ petition, this stay is directed to continue until the decision is communicated to the petitioner in terms of the above order.” Mr.Panja submits that the South Eastern Railway is holding a sum of Rs.2 crores and therefore, no further security need be filed in its favour.
It is made clear that this interim protection has been made only for a limited period, that application/representation is, of the until petitioner the is considered within the time stipulated above and till the decision is communicated to the petitioner.
The South Eastern Railway authority however, will be entitled to deal with the above question of security deposits in accordance with law.
The writ petition is disposed of.
There will be no order as to costs.
All parties concerned are to act on xerox signed copy of this dictated on the usual undertakings.” Accordingly, in consonance with the aforesaid order, the writ petitioners represented, vide their representation dated September 29, 2006.
The railway authorities passed an order dated November 3, 2006, inter alia, holding as follows: (i) Though section 73 of Railway Act provides that punitive charges can be recovered before delivery of the goods but the same can be realised even after delivery also.