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18.04.2023
AK
W.P.A. No. 1334 of 2016
IA No: CAN 1 of 2023
Adani Enterprise Ltd. & Anr.
Vs.
Union of India & Ors.
Mr. Anuj Singh,
Mr. Siddharth Roy,
Mr. Aman Agarwal
Ms. Trinisha De
Mr. Ashok Kumar Singh
...for the petitioners
Mr. Sanajit Kr. Ghosh
Ms. Ranjana Chatterjee
...for the Union of India
Learned counsel for the applicants in the recall
application submits that there were palpable errors
in the order sought to be recalled, dated March 2,
2023.
It is contended that a perusal of Sections 78
and 79 of the Railways Act, 1989 palpably indicate
that there is provision for a request being made by
the consignee or endorsee, for allowing weighment
of the consignment subject to such conditions and
on payment of such charges as may be prescribed
and the demurrage charges if any.
It is, thus, submitted that, read in conjunction
with Section 78, Section 79 imposed a liability on
the petitioner in the writ petition to request for
weighment.
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In view of no such request having been made
by the petitioner, there was no scope of challenging
the imposition of penalty on the petitioners.
It is further submitted that Section 78
stipulates that notwithstanding anything contained
in the railway receipt, the railway administration
may, before the delivery of the consignment, have
the right to re-measure, re-weigh or re-classify any
consignment and/or re-calculate the freight and
other charges and correct any other error or collect
any amount that may have been omitted to be
charged.
It is next contended that Section 64 of the
1989 Act provides for issuance of forwarding note,
which is the very premise of the preparation of the
railway receipt.
Again, Section 65 provides for railway receipts.
It is evident from sub-Section (2) of Section 65
that a railway receipt shall be prima facie evidence
of the weight and the number of packages stated
therein.
On such premise, it is argued that the
unilateral declaration of the petitioners in the
forwarding note, which ultimately form the basis of
the railway receipt, could not be an indicator of the
actual weight of the carriage/wagon.
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Learned counsel also cites an unreported
Division Bench judgment of this court dated
January 27, 2020 passed in MAT 1418 of 2018
where it was held, inter-alia, that without any
reweighment being sought, there is little scope for
challenging the demand made by the railways for
additional weight or overweight or for penalty or the
like as in that case.
Learned counsel appearing for the respondents
in the recall application and the petitioners in the original writ petition argues that the very first paragraph of the cited judgment indicates that the matter pertains to penalty and charges for overloading the rake as imposed by the railways, whereas in the present case, the penalty imposed by the railways were levied under the caption of detention charges.
That apart, the presumption raised by Section 65(2) of the 1989 Act, it is contended, operates in favour of the petitioners insofar as the railway receipt, as observed in the order sought to be recalled, proved prima facie the weight and the number of packages in the consignment.
It is further submitted that Section 79 does not operate in favour of the present recall applicant in any manner, since no question of any request 4 being made by the consignee or endorsee to allow weighment arose at the relevant juncture.
The dispute arose only upon the railway authorities levying detention charges on the petitioners.
A perusal of the order sought to be recalled indicates that one of the premises of the said order was that a presumption was drawn on the basis of the railway receipt, where no penal charges or allegations or overloading were reflected.
That apart, it was also observed in the said parent order that in the event there was any overloading at the relevant juncture, the railway receipt would not have been issued; alternatively, the railway receipt would have reflected the penal charges levied for such reason.
That apart, it was also observed that inasmuch as the allegation of the height of the load on the rakes exceeding the alleged limits was concerned, the petitioners rightly submitted, by placing reliance on a response by the railway authorities to an information sought by the petitioner under the Right to Information Act, 2005, that there was no loading height restriction in case of the wagons-in- question and loading is done on the basis of permissible carrying capacity of wagons. 5
Hence, the same was held to be a non-issue in the case under consideration.
That apart, even a cursory perusal of Section 78 of the Railways Act, 1989 clarifies beyond doubt that a burden has been cast by the said Section on the railway authorities, before delivery of the consignment, to re-measure, re-weigh or re-classify any consignment or to re-calculate the freight and other charges.
In the present case, no such exercise was undertaken by the railway authorities at all.
Section 79 does not come into play at all, since no charges were levied specifically for overloading.
Insofar as Section 64 of the 1989 Act is concerned, the forwarding note is not a germane issue in the present case at all, nor is the same any premise of the parent order, which is sought to be recalled.
Section 65(2), as rightly argued by the present respondents / writ petitioners, provides that a railway receipt shall prima facie be evidence of the weight and the number of packages stated therein.
The parent order sought to be recalled specifically referred to the railway receipt and relied on the same.
As such, no contention of overloading etc. having been taken or reflected in the railway 6 receipt, there was no opportunity for this court to observe in any other manner than was done while passing the order under challenge.
The Division Bench judgment cited by the present recall applicant does not apply on facts or on proposition of law to the present case, since the present matter involves levy of detention charges, without any reflection of overloading the rake at the relevant juncture or subsequently.
It must be clarified here that the above considerations is undertaken by this court to satisfy its judicial conscience, since the court has to be doubly cautious when an error of the court itself is sought to be pointed out.
However, I cannot satisfy my judicial conscience to the level that the order sought to be recalled carries any patent or palpable error on the face of the record which is not arguable on merits.
For arguing their case, the railway authorities, who repeatedly chose not to avail of the opportunities for filing affidavit-in-opposition and were not present on the date of hearing of the writ petition, cannot now turn around and cite fresh judgments or advance arguments of law and/or rely categorically on several annexures of the writ petition.
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However, either way, the recall application does not carry any merit sufficient for it to be allowed.
On the grounds as indicated above, CAN 1 of 2023 is dismissed without any order as to costs.
At this juncture, learned counsel for the writ petitioners (respondents in the recall application) reiterates his previous prayer for incorporation of a rider to the order dated March 2, 2023, to the effect that the amount deposited by the writ petitioners with the Registrar General, Appellate Side of this court is required to be refunded to the petitioners.
As a consequence and necessary corollary of the said order, liberty is granted to the writ petitioners in WPA 1334 of 2016 to apply in appropriate format before the Registrar General of the Appellate Side of this court for refund of the amount deposited by the petitioners pursuant to the order dated April 11, 2016 passed in connection with the writ petition, being WPA 1334 of 2016, along with the interest which might have accrued on the same, after deducting the statutorily deductible charges.
If such an application is made, the office of the Registrar General shall, immediately thereafter, ensure that the due amount after such deduction and calculation is refunded to the petitioners or an 8 authorized agent of the petitioners upon being duly satisfied of the identity of such agent.
Urgent photostat copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.
(Sabyasachi Bhattacharyya, J.)