Bcms Traders Private Limited vs The Union Of India
2024 Latest Caselaw 136 Gua

Gauhati High Court

Bcms Traders Private Limited vs The Union Of India on 10 January, 2024

Author: Soumitra Saikia

Bench: Soumitra Saikia

                                                                 Page No.# 1/11

GAHC010014202018




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/412/2018

         BCMS TRADERS PRIVATE LIMITED.
         HAVING ITS PRINCIPLE PLACE OF BUSINESS AT- KABAITRAY,
         JOGIGHOPA, BONGAIGAON, ASSAM, REP. BY MAHESH KUMAR
         AGARWALA, THE DIRECTOR OF B.C.M.S. TRADERS PVT. LTD.



         VERSUS

         THE UNION OF INDIA
         REP. BY ITS SECRETARY, MINISTRY OF RAILWAYS, RAIL BHAWAN, NEW
         DELHI.

         2:THE RAILWAY BOARD

          RAILWAY BHAWAN
          NEW DELHI.

         3:THE GENERAL MANAGER

          NORTH EASTERN FRONTIER
          RAIWAYS
          MALIGAON
          GUWAHATI
          ASSAM.

         4:THE STATION SUPERINTENDENT

          NORTH EASTERN FRONTIER RAILWAYS
          JOGIGHOPA
          BONGAIGAON
          ASSAM.

         5:THE STATION SUPERINTENDENT
                                                          Page No.# 2/11


             NORTH EASTERN FRONTIER RAILWAYS
             KABAITARI
             BONGAIGAON
             ASSAM

            6:THE STATION SUPERINTENDENT

             NORTH EASTERN FRONTIER RAILWAYS
             DUDHNOI
             GOALPARA
             ASSAM.

            7:THE STATION SUPERINTENDENT

             NORTH EASTERN FRONTIER RAILWAYS
             PANCHARATNA (MAKRI)
             GOALPARA
             ASSAM.

            8:THE STATION SUPERINTENDENT

             NORTH EASTERN FRONTIER RAILWAYS
             GOALPARA TOWN
             ANANDA BAZAR
             GOALPARA
             ASSAM

Advocate for the Petitioner   : R K SHRESTHA

Advocate for the Respondent : SC, NF RLY




             Linked Case : WP(C)/1757/2017

            MAHALAXMI CONTINENTAL LTD.
            A COMPANY REGISTERED UNDER THE COMPANY ACT
            1956
            HAVING ITS REGISTERED OFFICE AT GALI NO.8
            N.H. 37
            BELTOLA
            GUWAHATI-29
            ASSAM AND BRANCH OFFICE AT KALPANA NAGAR
            GOALPARA
                                                 Page No.# 3/11

ASSAM-783101
REPRESENTED BY ITS AUTHORIZED SIGNATORY


VERSUS

THE UNION OF INDIA and 8 ORS.
REPRESENTED BY THE SECRETARY
MINISTRY OF RAILWAYS
RAILWAY BOARD
RAILWAY BHAWAN
NEW DELHI

2:THE RAILWAY BOARD

RAIL BHAWAN
NEW DELHI
3:THE JOINT DIRECTOR TRAFFIC COMMERCIAL RATES
RAILWAY BOARD
RAILWAY BHAWAN
NEW DELHI
4:THE GENERAL MANAGER
NORTH EASTERN FRONTIER RAILWAYS
MALIGAON
GUWAHATI ASSAM
5:THE STATION SUPERINTENDENT
NORTH EASTERN FRONTIER RAILWAYS
JOGIGHOPA
BONGAIGAON ASSAM
6:THE STATION SUPERINTENDENT
NORTH EASTERN FRONTIER RAILWAYS
KABAITARI
BONGAIGAON ASSAM
7:THE STATION SUPERINTENDENT
NORTH EASTERN FRONTIER RAILWAYS
DUDHNOI
GOALPARA ASSAM
8:THE STATION SUPERINTENDENT
NORTH EASTERN FRONTIER RAILWAYS
GOALPARA TOWN ANANDA BAZAR
GOALPARA ASSAM
9:THE STATION SUPERINTENDENT
NORTH EASTERN FRONTIER RAILWAYS
PANCHARATNA MAKRI
GOALPARA ASSAM
------------
Advocate for : MR.J P MORE
Advocate for : SC
                                                          Page No.# 4/11

NF RLY appearing for THE UNION OF INDIA and 8 ORS.



Linked Case : WP(C)/1781/2017

CHANDRA PRABHU INTERNATIONAL LTD.
A COMPANY REGISTERED UNDER THE COMPANY ACT
1956
HAVING ITS REGISTERED OFFICE AT 14
RANI JHANSI ROAD
NEW DELHI- 110055 AND BRANCH OFFICE AT KABAITARY
JOGIGOPHA
DIST. BONGAIGAON AND REP. BY ITS ONE OF THE DIRECTORS.


VERSUS

THE UNION OF INDIA and 8 ORS.
REP. BY THE SECRETARY
MINISTRY OF RAILWAYS
RAILWAY BOARD
RAILWAY BHAWAN
NEW DELHI.

2:THE RAILWAY BOARD

RAIL BHAWAN
NEW DELHI.
3:THE JOINT DIRECTOR TRAFFIC COMMERCIAL RATES
RAILWAY BOARD
RAILWAY BHAWAN
NEW DELHI.
4:THE GENERAL MANAGER

NORTH EASTERN FRONTIER RAILWAYS
MALIGAON
GUWAHATI
ASSAM
5:THE STATION SUPERINTENDENT

NORTH EASTERN FRONTIER RAILWAYS
JOGIGHOPA BONGAIGAON
ASSAM
6:THE STATION SUPERINTENDENT

NORTH EASTERN FRONTIER RAILWAYS
KABAITARI
                                                                 Page No.# 5/11

BONGAIGOAN
ASSAM
7:THE STATION SUPERINTENDENT

NORTH EASTERN FRONTIER RAILWAYS
DUDHNOI
GOALPARA
ASSAM
8:THE STATION SUPERINTENDENT

NORTH EASTERN FRONTIER RAILWAYS
GOALPARA TOWN
ANANDA BAZAR GOALPARA
ASSAM
9:THE STATION SUPERINTENDENT

NORTH EASTERN FRONTIER RAILWAYS
PANCHARATNA MAKRI GOALPARA
ASSAM
------------
Advocate for : MR.A CHOUDHURY
Advocate for : DR.B N GOGOIR- 1-9 appearing for THE UNION OF INDIA and 8
ORS.



Linked Case : WP(C)/6582/2011

FUEL SOURCES INDIA PRIVATE LIMITED and 2 ORS
AN EXISTING COMPANY WITHIN THE MEANING OF THE COMPANIES ACT
1956 HAVING ITS REGISTERED OFFICE AT RAM KUMAR PLAZA
1ST FLOOR
ROOM NO. 10
CHATRIBARI ROAD
GHY- 1.

2: M/S PURBANCHAL TRADERS
A PROPRIETOR CONCERN OF SRI LALCHAND AGARWALA
 RAM KUMAR PLAZA MARKET
 1ST FLOOR
 CHATRIBARI
 GHY-1 ASSAM.

3: M/S S.M. ENTERPRISES
A PROPRIETOR CONCERN OF SRI SAWARMAL AGARWAL
RAM KUMAR PLAZA MARKET
1ST FLOOR
CHATRIBARI
                                                              Page No.# 6/11

GHY- 1 ASSAM.
VERSUS

THE UNION OF INDIA and ORS
REP. BY THE SECY.
MINITRY OF RAILWAYS
RAILWAY BOARD
RAILWAY BHAWAN
NEW DELHI.

2:THE RAILWAY BOARD
RAIL BHAWAN
 NEW DELHI.
 3:THE JOINT DIRECTOR TRAFFICE COMMIERCIAL RATES
RLY. BOARD
 RLY. BHAWAN
 NEW DELHI.
 4:THE GENERAL MANAGER
NORTH EASTERN FRONTIER RAILWAYS
 MALIGAON
 GUWAHATI ASSAM.
 5:THE STATION SUPERINTENDENT
NORTH EASTERN FRONTIER RAILWAYS
 JOGIGHOPA
 BONGAIGAON ASSAM.
 ------------
Advocate for : MR.A GOYAL
Advocate for : MR.A K SARKAR appearing for THE UNION OF INDIA and ORS



Linked Case : WP(C)/1497/2017

M/S MEGHALAYA COAL CONCERN and ANR.
A PROPRIETOR CONCERN OF MD. HASHIM ALI
AGIA ROAD
NAYAPARA
GOALPARA- 783101
ASSAM

2: MD. HASHIM ALI
PROPRIETOR OF M/S MEGHALAYA COAL CONCERN
AGIA ROAD
 NAYAPARA
 GOALPARA- 783101
ASSAM
VERSUS
                                                               Page No.# 7/11

THE UNION OF INDIA and 8 ORS.
REP. BY THE SECY.
MINISTRY OF RAILWAYS
RAILWAY BOARD
RAILWAY BHAWAN
NEW DELHI

2:THE RAILWAY BOARD
RAIL BHAWAN
 NEW DELHI
 3:THE JT. DIRECTOR TRAFFIC COMMERCIAL RATES
RAILWAY BOARD
 RAILWAY BHAWAN
 NEW DELHI
 4:THE GENERAL MANAGER
NORTH EASTERN FRONTIER RAILWAYS
 MALIGAON
 GUWAHATI
ASSAM
 5:THE STATION SUPERINTENDENT
NORTH EASTERN FRONTIER RAILWAYS
 JOGIGHOPA
 BONGAIGAON
ASSAM
 6:THE STATION SUPERINTENDENT
NORTH EASTERN FRONTIER RAILWAYS
 KABAITARI
 BONGAIGAON
ASSAM
 7:THE STATION SUPERINTENDENT
NORTH EASTERN FRONTIER RAILWAYS
 DUDHNOI
 GOALPARA
ASSAM
 8:THE STATION SUPERINTENDENT
NORTH EASTERN FRONTIER RAILWAYS
 GOALPARA TOWN
ANANDA BAZAR
 GOALPARA
ASSAM
 9:THE STATION SUPERINTENDENT
NORTH EASTERN FRONTIER RAILWAYS
 PANCHARATNA MAKRI GOALPARA
ASSAM
 ------------
Advocate for : MR.J P MORE
Advocate for : MR.A K SARKAR appearing for THE UNION OF INDIA and 8 ORS.
                                                      Page No.# 8/11



Linked Case : WP(C)/1778/2017

MAHALAXMI MINING PVT. LTD.
A COMPANY REGISTERED UNDER THE COMPANY ACT
1956
HAVIN GITS REGISTERED OFFICE SITUATED AT GALI NO. 7
N.H. 37
BELTOLA
GUWAHATI -29
ASSAM REP. BY ONE OF ITS DIRECTORS AND HAVING ITS BRANCH
OFFICE SITUATED AT KALPANA NAGAR
GOALPARA
ASSAM-783101.


VERSUS

THE UNION OF INDIA and 8 ORS.
REP. BY THE SECRETARY
MINISTRY OF RAILWAYS
RAILWAY BOARD
RAILWAY BHAWAN
NEW DELHI.

2:THE RAILWAY BOARD
RAIL BHAWNA
 NEW DELHI.
 3:THE JOINT DIRECTOR TRAFFIC COMMERICAL RATES
RAILWAY BOARD
 RAILWAY BHAWAN
 NEW DELHI.
 4:THE GENERAL MANAGER

NORTH EASTERN FRONTIER RAILWAYS
MALIGAON
GUWAHATI
ASSAM
5:THE STATION SUPERINTENDENT

NORTH EASTERN FRONTIER RAILWAYS
JOGIHOPOPA
BONGAIGAON
ASSAM
6:THE STATION SUPERINTENDENT

NORTH EASTERN FRONTIER RAILWAYS
                                                                          Page No.# 9/11

           KABAITARI
           BONGAIGAON
           ASSAM
           7:THE STATION SUPERINTENDENT

           NORTH EASTERN FRONTIER RAILWAYS
           DUDHNOI
           GOALPARA
           ASSAM
           8:THE STATION SUPERINTENDENT

           NORTH EASTERN FRONTIER RAILWAYS
           GOALPARA TOWN ANANDA BAZAR GOALPARA
           ASSAM
           9:THE STATION SUPERINTENDENT
           NORTH EASTERN FRONTIER RAILWAYS
           PANCHARATNA MAKRI
           GOALPARA
           ASSAM
           ------------
           Advocate for : MR.A CHOUDHURY
           Advocate for : MR.A K SARKAR appearing for THE UNION OF INDIA and 8 ORS.



                                   BEFORE
                    HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                       ORDER

Date : 10.01.2024

Heard Mr. A. Goyal, learned counsel for the petitioners. Also heard Mr. B. K. Das, learned standing counsel, NF Railway in WP(C)/412/2018 and Dr. B. N. Gogoi, learned standing counsel, NF Railway in WP(C)/6582/2011, WP(C)/1497/2017, WP(C)/1757/2017,WP(C)/1778/2017 and WP(C)/1781/2017.

2. In the writ petition the challenge is to a circular dated 16.09.2011 issued by the Railway authorities for levy of penalty on the overloaded Wagon.

3. Petitioners are aggrieved as it is submitted that there is already a set of Rules, namely, the Railways (Punitive Charges for Overloading of Wagon) Rules, 2014 under which there is a procedure prescribed for levy of punitive charges Page No.# 10/11

for overloading of the Wagons.

4. It is further submitted that the validity of Rule 4 of the Rules of Railways (Punitive Charges for Overloading of Wagon) Rules, 2012 is presently pending before a Division Bench of this Court.

5. It is further submitted that a full Bench of this Court in Megha Technical and Engineers (Pvt.) Ltd. Vs Union of India reported in 2017 SCC Online Gau 564 : (2017) 179 AIC 326 (FB) has held that the decision of the Gauhati High Court in Union of India Vs Salt Marketing Centre , reported in 1993 (3) GLT 548 will prevail and accordingly before imposition of penalty, opportunity of hearing to be granted to the aggrieved party and principles of natural justice must be followed before penalizing a consignor.

6. It is submitted by the learned counsel for the petitioner that the present circular which has been issued by the Railways and assailed in the present petition, besides being in conflict with the Rules of 2012 is also in conflict with the Judgments of this Court rendered in Union of India Vs Salt Marketing Centre, reported in 1993 (3) GLT 548 as well as Megha Technical and Engineers (Pvt.) Ltd. Vs Union of India reported in 2017 SCC Online Gau 564 : (2017) 179 AIC 326 (FB).

7. Per contra Mr. B. K. Das, learned standing counsel, NF Railway in WP(C)/412/2018 and Dr. B. N. Gogoi, learned standing counsel, NF Railway in WP(C)/6582/2011, WP(C)/1497/2017, WP(C)/1757/2017, WP(C)/1778/2017 and WP(C)/1781/2017 appearing for the respondents opposed the contentions of the petitioners. It is submitted on behalf of the respondents that the counter affidavit has been filed. It is submitted that the Notification has been issued by the Railways and they are empowered to do so under the provisions of the Page No.# 11/11

Railways Act, 1989.

8. Considering the issues involved and upon perusal of the pleadings on record, this Court is of the view that these matters should be heard at length and an attempt also be made to dispose of the writ petitions.

9. Accordingly, let the matters therefore be listed for admission hearing on

6th February, 2024.

JUDGE

Comparing Assistant