Dismissed

M/S Taj Baba Forawarding Agencies v. Chairman Railwayboard and 4

Telangana HC10 Jul 2009WP/1802/2001

Case brief

AI extract

What is this about?

Single judge dismissed a writ petition challenging an adjudicating order which imposed undercharges for excess weight in a consignment of mangoes. The court held the Adjudicator considered all contentions and evidence, and findings of fact regarding weight and weighing procedure could not be interfered with in writ jurisdiction.

What did the court decide?

The writ petition was dismissed. No costs awarded to the petitioner.

M/S Taj Baba Forawarding Agencies Vs Chairman… — Consumer Protection | Telangana HC (2009)

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THE HON’BLE SRI JUSTICE G.CHANDRAIAH

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W.P.NO.1802 OF 2001

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O R D E R

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Heard both the counsel.

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2. This writ petition is filed for a writ of mandamus to declare the action of the 5^th respondent – The Adjudicator/ Sr. Divisional Operation Manager, DRM’S Office, New Delhi, in passing the impugned order No.Adjudication.Mis.2000 dated 4.5.2000, as arbitrary, illegal, perverse and based on no evidence and consequently to set aside the same.

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3. The petitioner – M/s Taj Baba Forwarding Agency is a firm carrying on business in supplying/transporting mangoes from Nuzvid, Andhra Pradesh to Nayaazadpur Market, New Delhi. It is represented by its partner – Syed Abbas Miya. In the affidavit filed in support of the writ petition it is stated that on 16.4.1997 at 4.00 p.m. the petitioner has consigned mangoes to New Delhi from Nuzvid under Sender’s weight Accepted Clause, in the 4^th mango special train. As the weighing facility was not available at Vijayawada, the train was taken to Jhansi, Utter Pradesh, en-route and weighed on 19.4.1997 and it was informed to consignees at New Delhi, by demand notice dated 21.4.1997, that it was carrying excess weight and hence a demand was made to the consignees and the consignees paid the amount of Rs.7,00,000/. Challenging the demand notice, the petitioner, which is the consignor, filed writ petition before this court in W.P.No.9297/1997 and by interim order, while staying the demand order dated 21.4.1997, the petitioner was directed to pay

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an amount of Rs.3,00,000/- and in the event of success, it was ordered that the respondents shall refund the amount. The petitioner paid the said amount and while disposing of the said writ petition, this court quashed the impugned demand notice dated 21.4.1997 and directed the railway authorities to adjudicate the matter afresh after giving opportunity to the petitioner. Though the demand notice was quashed, as the amount paid by the petitioner was not directed to be refunded, the petitioner filed writ appeal before this court in W.A.No.1795/1998 and this court by order dated 4.11.1998 directed the respondents to adjudicate the matter within a period of eight weeks from the date of receipt of the order. Pursuant to the same, the respondent no.5 issued letter dated 9.12.1998 calling for adjudication and for payment of the balance amount. The petitioner participated in the adjudication by filing reply and ultimately by order dated 4.5.2000 the claim of the petitioner was dismissed and the petitioner was directed to pay the balance amount out of Rs.16,21,953/- i.e., Rs.6,21,953, as the petitioner had already paid Rs.10,00,000/-. For the payment of balance amount, the petitioner was issued notice dated 2.1.2001. Aggrieved by the order dated 4.5.2000, the petitioner filed the present writ petition.

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4. The learned counsel for the petitioner contended that in the impugned notice, the adjudicator has recorded that no notice be given to the consignor while weighing the consignment and the same is in violation of the principles of natural justice. He stated that in the impugned notice it is stated that the respondent had admitted that there is excess load. He contended that the said statement is false. He further contended that the licence of the weighbridge at Jhansi, where the wagon containing mangoes was weighed, had lapsed and hence the use of such weighbridge, is in utter violation of

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Section 9 of the Weights and Measurements (Enforcement) Act, 1985 and hence the weight shown by such a defective weighbridge cannot be taken to hold that the petitioners loaded excess weight than the permissible limit. He further contended that the railway weighbridge at Jhani, where the wagons were weighed cannot accommodate eight-wheeled NMG wagon and hence the method adopted for weighing, was unscientific. He further contended that the re-weighment conducted at Naya Azadpur Railway Station, New Delhi was done in the absence of either consignor or the consignee. He contended that the railway authorities have forged and manipulated the delivery book and hence the entire procedure is illegal and arbitrary.

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5. The learned counsel for the petitioner further contended that there is defect in the adjudication process as the adjudicator had not considered the contentions raised by the petitioner and the evidence produced by the petitioner and hence the impugned order is based on no evidence and the same is liable to be set aside. He contended that this court directed the railway authorities to pass orders afresh after giving opportunity to the petitioner and by recording reasons. But the impugned order does not disclose any reasons and it was passed in a mechanical way and hence the same needs to be set-aside in exercise of the power under judicial review. He further contended that the weighing of the consigned goods was made in the absence of consignor and hence the unilateral weighing and the decision taken thereon, is arbitrary and in violation of the principles of natural justice. He also vehemently contended that the licence of the weighbridge at Jhansi had lapsed and hence the weight shown by such weighbridge cannot be taken as basis to hold that the petitioner had loaded in excess of the capacity

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of the wagon. The learned counsel for the petitioner also relied on certain judgments in support of his contention that this court can exercise its power under judicial review, if the decision making process, is defective. As there is no dispute with regard to the said proposition, the said decisions are not being referred to. With these averments, the impugned order was sought to be set aside.

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6. On the other hand, the submission of the Standing Counsel for the 4^th respondent – The Divisional Railway Manager, S.C. Railway Vijayawads, who also filed counter, is that the rake consisting of 20 NMG wagons were loaded with mangoes at ex Nuzvid to Naya Azadur, consigned to different parties at Naya Azadur by the petitioner – consignor and as the railway administration at Nuzvi had no infrastructure to cause physical weighment of huge turn out, it had adopted the weight declared by the consignor under sender’s weight accepted system. As the weighbridge facility was not available at Nuzvid, the rake was weighed en-route at Jhansi, by a team of Railway Board Vigilance Inspectors on 19.4.1997 and found that all the wagons were loaded with excess weight and accordingly the details of each wagon was supplied to the consignees on arrival of the rake at Naya Azadpur, before delivery. Further as per the written request of consignees for re-weighment, DCM along with other railway officials, examined the rake in the presence of the consignees and it was found that the number of packages were loaded much excess than the number of packages actually shown. The average weight of excess packages from wagons was calculated and the weight arrived, was equal to the weight found at Jhansi weighbridge. He further submitted that the consignees were accordingly asked to pay the

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undercharges levied as per rules, amounting to Rs.16,21,953/- on excess weight of 223.5 tonnes and after great persuasion, an amount of Rs.7,00,000/- was paid by the consignees, undertaking to pay the balance within a couple of days. Thereafter, the petitioner filed writ petition before this court in W.P.No.9297/97 and ultimately the matter was carried in writ appeal in W.A.No.1995/98 and by order dated 4.11.1998 the matter was directed to adjudicated afresh within eight weeks and accordingly the adjudicator after giving reasonable opportunity and considering the entire material available on record, found that the petitioner was transporting excess goods than the declared ones. He contended that as per Section 78 of the Indian Railway Act, 1899, the railway administration has power to re-measure and re-weight the goods booked by the consignor and while doing so, no notice need be given, but however, in the present case, the re-weighment was made at Nayazadpur in the presence of the consignee and the weight arrived at Nayaazadpur was perfectly tallying with the weight found at Jhani, where the racks were weighed and hence the contention of the petitioner that the re-weighment was made in the absence of either consignor or the consignee, is unsustainable, based on facts and circumstances. With regard to the contention of the petitioner that the licence of the weighing bridge at Jhansi lapsed and they were imposed a fine, he contended that the weighbridge at Jhansi was not renewed by the weights and measurement department in time, and at the time of renewal, fine was imposed only for nonrenewal of weighbridge within prescribed time and it was never said that the weighbridge was out of order. With these contentions, he sought to dismiss the writ petition.

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7. In the light of the above facts and circumstances and the rival

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contentions, it is necessary to examine whether there is any defect in the decision making process by the 5^th respondent and whether the impugned order is liable to be set aside?

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8. In order to appreciate the rival contentions, it is necessary to note few admitted facts.

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9. The petitioner, which is the supplier/transporter of the mangoes, loaded 20 NMG wagons containing mangoes at Nuzvid to Naya Azadpur in the special train. It is admitted that at the railway administration at Nuzvid has no infrastructure to cause physical weighment of huge turn out and hence, it had adopted the weight declared by the consignor under ‘sender’s weight accepted system’. As the weighment facility was available at Jhansi, enroute Naya Azadur, the wagons were weighed at Jhani by a team of Railway Board Vigilance Inspector on 19.4.1997 and found that all the wagons were loaded with excess weight.

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10. Here, the contention of the counsel for the petitioner is that the licence of the weighbridge at Jhansi had expired and hence the weight shown by such a weighbridge cannot be taken as basis to hold that the wagons were carrying excess weight. This contention, alone cannot be taken to discard the weight shown at the weighbridge at Jhansi, the other circumstances and the corroborating material available on record, also has to be taken into consideration. As found in the impugned order, it is not the case of the petitioner that the weighbridge was out of order. The contention raised by the petitioner can only be taken as a technical lapse on the part of the railway administration. Further as noted in the impugned order and as

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contended by the counsel for the 4^th respondent and also stated in the counter affidavit, the wagons were re-weighted at Naya Azadpur in the presence of the consignees and the railway officials, at their request and the weight arrived at Naya Azadpur was found to be tallying with the weight arrived at Jhani weighbridge. This circumstance can be taken to discard the contention of the petitioner in this regard. Further this circumstance also negatives the contention of the counsel for the petitioner that the wagons containing mangoes were weighed in the absence of either consignor or the consignee.

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11. Further, the counsel for the petitioner has also disputed the procedure adopted by the railway authorities in weighing the wagons at Jhansi contending that the weighbridge at Jhani cannot accommodate eight wheeled NMG wagon at a time and the system adopted by the railway authorities in weighing the NMG is unscientific and arbitrary. But the petitioner has not produced any material in this regard before the adjudicator to contend that the procedure of weighing at Jhani was defective and in the absence of any report by any appropriate authority, this court cannot go into such minute technicalities and it is for the petitioner to establish the same before the adjudicating authority. The petitioner failed to produce any material in this regard before the adjudicator and hence he cannot be permitted to raise such issues at this stage.

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12. From a perusal of the impugned order it could be seen that the 5^th respondent has gone into all the contentions raised by the petitioner and by considering the material on record, held that the railway administration has

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proved on record that the number of packages were loaded much excess than the number of packages actually shown in the railway receipts and hence the railway administration is entitled for undercharges. This being finding of fact recorded by the adjudicator, based on evidence, cannot be interfered by this court under writ jurisdiction.

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13. A perusal of the impugned order, discloses that the 5^th respondent – Adjudicator, considering the material on record recorded that the petitioner has loaded the mangoes in excess of weight shown by him in the railway receipt books and accordingly imposed the penalty under the relevant provisions. Further the impugned order does not disclose that there is any defect in the decision making process and by considering all the contentions raised by the petitioner, the adjudicator passed the orders. Hence, the issue framed at paragraph no.7 is answered in the negative.

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14. Accordingly, I do not find any merit in the writ petition and the same is liable to be dismissed and accordingly dismissed. No costs.

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AVS ----------------------------10--07—2009

M/S Taj Baba Forawarding Agencies v. Chairman Railwayboard and 4

Case brief

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M/S Taj Baba Forawarding Agencies v. Chairman Railwayboard and 4

Case brief

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