Party/Parties is/are represented in the order of their name/names as printed above in the cause-title. The matter has been on the desk of this Court since the 29th of April, 2019. The circumstances under which the matter has been repeatedly brought to the notice of this Court for considering the petition on an urgent basis have been fully discussed by the order of this Court dated the 30th of April, 2019. Accordingly, the discussion requires not to be repeated.
Pursuant to the order dated 30th April, 2019, the petitioner appearing in person or, the Petitioner-in- Person, Mr. Jain, partner of the Petitioner No. 1/the Firm produces service of notice upon the Respondent/Railways of the order of 30th April, 2019 as received on the 1st of May, 2019. Inspite of service of notice and the clear directions in the order of 30th April, 2019 whereby the petitioners were entitled to put the Railways to notice of their liberty to pray for orders ex- parte in the event of non-appearance by the Respondents, none appears even today for the Respondents/Railways to oppose the petition. Considering the exigencies connected to Court proceedings as exist on date, no officer of the Respondents/North Eastern Railway (NER) is present with the records to assist this Court inspite of the notice dated 1st May, 2019 (supra).
The petitioners produce a No Objection from their learned Advocate dated 29th April, 2019 which, be taken on record and the Department is permitted to suitably number the No Objection Vakalatnama as filed today.
The Petitioner-in-Person submits that the Parcel Van in respect of which a contract has been entered between the Petitioner No. 1/the Firm and the Respondents/ NER containing lifesaving drugs has been detained from the 18th of April, 2019 at the Railway yard at Howrah terminus on the purported reason that the Parcel Van was found to be overweight during an in- motion weighment prior to the train in question being No. 15960/15959 Kamrup Express, entering the terminus.
The Petitioner-in-Person reiterates, as already recorded by the order dated 30th April, 2019, that the weighment in presence of the Railway/Respondents at the originating station, that is Dibrugarh, as reflected in the Manifest Register is inconsistent with the in-motion weighment which now purports to be claimed by the Railways.
The petitioner therefore prays for a similarity of directions as passed by this Court in W.P. 15460(W) of 2015 dated 9th July, 2015, which has been affirmed by this Court in a similar action brought against the Railways in W.P. 6753(W) of 2019 dated 27th March, 2019.
For the benefit of this discussion the final order dated 27th March, 2019 (supra) containing the directions dated 9th July, 2015 (supra) are completely extracted and read as follows:-
" 27.03.19 Sws.M W.P. 6753(W) of 2019 [Harish Sharma vs. Union of India & Ors.] Mr. Debrup Bhattacharjee ...for the petitioner Mr. Mahendra Prasad Gupta Mr. M.K. Bandyopadhyay ....for the Union of India Party/Parties is/are represented in the order of their name/names as printed above in the cause-title.
he short grievance raised by the petitioner relates to a finding by the Respondents/Railways, more specifically the South Eastern Railway (SER), Khargapur Division, charging the petitioner, who is a parcel van operator under a contract with the SER, of excess loading of the parcel van to the extent of 3.20 tons.
The petitioner is aggrieved by the communication of the SER dated 17th March, 2019 from Shalimar Parcel Office demanding payment of punitive charges of Rs.1,50,942/- qua the alleged overloading.
Mr. Bhattacharjee, learned Advocate for the petitioner, relies upon a Final Order of this Court dated the 9th of July, 2015 in W.P. 15460(W) of 2015. It is emphasised by learned Advocate for the petitioner that by the Order of 9th July, 2015 (supra) this Court applied its mind to the scope of the statutory provision contained in Section 79 of the Railways Act, 1989 (for short the 1989 Act). The relevant discussion in the order of 9th July, 2015 which, in turn, is also relevant for the present discussion reads as follows:-
"Having heard the parties and considering the documents on record as well as the law on the point, this Court finds that on reading of the proviso to Section 79 of The Railways Act, 1989, as sought to be argued by Sri Das in Court today, it is noticed that the statutory restriction to reweighment of goodsbooked at owner's risk rate may not apply in case where an authorised Railway official considers it necessary to carry out such reweighment. Similarly, assuming Sri Das's argument for the moment that the circular of the Railway Board dated 15th April, 2014 now supersedes all previous circulars in all respects, a second weighment may not be permitted at the party's request but, does not exclude the discretion of an authorised Railway official to allow such second weighment even in the case of goods being carried at owners' risk rate.
In the facts of the present case this Court is of the opinion that the claim to second weighment by the petitioner is bonafide. This Court is of the further opinion that a competent Railway official could have exercised proper discretion within the statutory prescription under Section 79 of The Railways Act (supra) and take a prompt and appropriate decision in the matter pursuant to receipt of the representation of the petitioner on the same date on which the wagon was found to be weighed in excess.
As a consignee the petitioner cannot be faulted for expression of his anxiety to have the wagon with its materials at his disposal upon compliance of all formalities qua the Railways."
Accordingly, by the order of 9th July, 2015 this Court directed as follows:
"It is, therefore, directed that the petitioner shall furnish all charges, including demurrage, penalty etc. with the Railway Administration by tomorrow, that is the 10th July, 2015. The competent Railway official shall take a decision on the reweighment in the light of the observations made by this Court above and complete the same by 15th July, 2015.
In the event the weighment is found to be in excess the Railway shall be entitled to forfeit the dues charges, demurrage etc. as per law, already deposited by the petitioner. However, in the event the excess weighment is found to be in error the account shall be adjusted with the petitioner by the Railway within a further period of one week thereafter.
In the further opinion of this Court the order passed today is in accordance with the reference answered by an Hon'ble Special Bench of this Court by judgment dated 25th February, 2015 in FMA 317 of 2001 in the matter of Union of India vs. Biswanath Agarwal.
Since no affidavit-in-opposition has been used by the respondents, the allegations made in this writ petition are deemed not to have been admitted.
W.P. No. 15460(W) of 2015 stands accordingly disposed of."
On behalf of the Respondents/SER, Mr. Gupta, learned Counsel appears and points out that Section 79of the 1989 Act permits the competent Railway Official to exercise discretion in the matter of reweighment. Referring to the facts of the present case learned Railway Counsel submits that the petitioner sought reweighment by a communication dated 18th March, 2019 which was shown to be received by the SER on 19th March, 2019, i.e. the next day and, the writ petition has been filed immediately thereafter on the 20th of March, 2019.
Therefore, the stand is taken by learned Railway Counsel that the writ is premature. The further stand is taken by learned Railway Counsel that the claim of the petitioner that the parcel van is carrying lifesaving drugs and therefore requires an early release is a statement at the Bar meant to draw the sympathy of this Court.
Having heard the parties and considering the materials placed, this Court, in the context of the present facts, finds no reason to take a view different from the view taken by it qua Section 79 of the 1989 Act vide its Order of 9th July, 2015.
Therefore, this Court reiterates the operative portion of the order dated 9th July, 2015 to be also applicable to the facts of this case.
The petitioner shall accordingly pay the punitive charges as demanded by the Respondents/SER vide its communication dated 17th March, 2019 within the close of working hours tomorrow.
On receipt of the punitive charges the authorised Railway Official shall take a decision on the reweighment sought by the petitioner in the light of the above referred observations.
In the event, upon reweighment the weight of the parcel van is found to be in excess, the Railways shall be entitled to forfeit the punitive charges and the petitioner shall arrange to offload the excess as instructed through the communication dated 17th March, 2019.
However, in the event the reweighment is found to be in error, the petitioner shall be entitled to adjustment of his dues.
It is expected that the above directed exercise be completed not later than a period of seven days from the date of deposit of punitive charges as also directed above.
W.P. 6753(W) of 2019 stands thus disposed of.
Since Affidavits are not invited, allegations made are deemed to be denied.
Liberty is granted to the parties to act on a gist of the communication of this order.
Urgent certified photocopies of this order, if applied for, be given to the parties upon compliance of all necessary formalities." At this stage this Court finds the action of the Railways to be prima facie capricious since from the repeated demands made by the petitioners it appears that the Parcel Van in issue has been detained. Therefore, in addition to the reasons found by the orders dated 9th July, 2015 and the 27th of March, 2019 (supra), this Court finds the Railway action in detaining the Parcel Van in issue without a reason officially communicated from the 18th of April, 2019 till date to be also perverse.
Accordingly, this Court, at this stage, while expressing its intention to enter into the merits of the reasons behind the detention of the Parcel Van in issue by the Respondent/NER, if any, at this stage is of the view that in the absence of any officially communicated reason till date as well as considering the compelling urgency of releasing lifesaving drugs as claimed by the pe
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titioner, the Railway/NER shall release the Parcel Van in issue in favour of the petitioner within the close of working hours tomorrow, that is the 3rd May, 2019 upon production of a server copy of this order by the petitioner before the appropriate Railway Authority without prejudice to the rights and contentions of the parties as discussed by the order dated 9th July, 2015 and the 27th of March, 2019. The Railways/NER shall be however free to reweigh the Parcel Van, as advised, prior to its release for its records to be produced before this Court by way of a Report, if also advised, on the next date. The order is passed above in view of the fact that the Petitioner No. 1/the Firm is still under a subsisting contract with the Railway /NER up to February, 2022 which entitles either of the parties to claim their legitimate dues, if any, subject to further orders of this Court. At the same time this Court is acutely conscious of the fact that further detention of lifesaving drugs shall cause irretrievable public prejudice and loss to the petitioners. Let the matter return under the same heading 'Fixed Matters' by date on 16th May, 2019.