Adani Enterprise Ltd. & Anr vs Union Of India & Ors
2023 Latest Caselaw 2650 Cal

   28
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.
                       2




     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.
                     3




     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

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.

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

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.

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

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.)