- (1.) THE present writ petition has been filed for quashing the orders dated 7-8-2006 passed by the respondent No. 4 (Annexure 14 to the writ petition) and orders dated 23-8-2005, 2- 9-2005, 24-11-2005 and 30-11-2005 passed by respondent No. 5 (Annexures 4, 5, 8 and 9 to the writ petition ). Further prayer in the nature of mandamus commanding the respondents not to implement the impugned orders and not to proceed for recovering the amount against the petitioners in pursuance thereof. Further a writ in the nature of mandamus commanding the respondent No. 4 to refund the amount of Rs. 11,39,358. 00 alongwith reasonable interest to the petitioner which was paid by the petitioner by the Bank Draft dated 17-5-2006 alongwith application dated 5-6-2006.
(2.) THE fact arising out of the present writ petition are that the petitioner No. 1 is a company registered and incorporated under Companies Act having its registered office at Mumbai where the petitioner No. 2 and is its Branch (Unit) situated at Ghanshyamdham Lal Kua and is discharging work of petitioner No. 2. THE petitioner No. 2 was consignee as defined in Para 2 (8) of the Railways Act, 1989 (hereinafter referred to as Act) and the respondent Nos. 7 and 8 were consignors as defined under Section 2 (10) of the said Act for the Commodity of coal which were booked ex Ray siding/kdh siding (Khalari) Railway Station in the East Central Railway to destination of Railway Lal Kua in the North Eastern Railway, District Nainital. Previously Railways (Punitive Charges for Over-loading of Wagons) Rules, 1990 were framed under Section 87 of the Railway Act which were amended in the year 2004 and further amended in the year 2005. All the consignment were booked between the period 29-9-2004 to 20-8-2005 in installments. Before the consignments started from stations where they were booked. THE Railway authorities concerned were of the view that there was overloading, therefore, they had adjusted and included the charges of overloading at the originating station itself according to Rules so framed under Rule 3 referred above. It may be further submitted that consignment consisted of 39 racks (each rack containing 57 to 59 wagons) whereas another consignment consisted of only one rack. In the said lodging/consignment railway authority had adjusted/levied an extra amount besides chargeable freight. THE description of the consignment giving details of the chargeable freight and charge by way of penalty for overloading is fully described. A copy of the same has been filed as Annexure 2 to the writ petition. The railway administration had prepared railway receipt for each rack separately, which are 40 in numbers. The details of which is in chart referred to above. Since whatever was the alleged extra loading charges were already recovered by the railway administration at the starting point namely booking stations of Ray-Siding/kdh Siding Khalari and therefore, there was no hindrance in delivering the consignments. After about six months of delivery of the last consignment a notice dated 23-8-2005 and 2-9-2005 were given by the railway administration for payment of alleged punitive charges for overloading for 39 rake. Similar notices dated 24-11-2005 and 30-11-2005 were also given to the petitioners concerning 40th rake. The petitioners submitted their reply dated 29-8-2005 and 2-9-2005. A demand notice was issued by respondent No. 5 regarding 39 rakes covered under the aforesaid notice. When no orders were passed on the reply/representation submitted by the petitioner No. 2, instead administration was pressing for recovery, the petitioner was compelled to file Writ Petition No. 1034 of 2005 (M/b) in Uttaranchal High Court against notices dated 23-8-2005 and 2-9-2005. Similarly another writ petition was filed by the petitioner as Writ Petition No. 1396 of 2005 (M/b) and the interim order was granted. Both the writ petitions were consolidated and decided vide its order dated 28-4-2006 with a direction to file a representation within a period of six weeks alongwith the bank draft of equal amount to the normal charges. The operative portion of the judgment is being quoted below: " (6) We, therefore, direct that on the petitioners' submitting a representation within a period of six weeks from today to the competent authority of Railways alongwith a Bank Draft of the amount equal to the normal charges for the quantity found over loaded in the wagons as mentioned in the Annexures filed alongwith the writ petitions, the competent authority shall consider the petitioners' representation in accordance with law by passing a speaking order within a period of one month from the filing of the representation with the Bank Draft. The petitioners shall be free to take all permissible grounds in their representation. (7) The interim orders passed in the above writ petitions shall stand vacated after a period of three months or the date of the decision on the representation, whichever is earlier. (8) With the above order, the writ petitions stand disposed of. " In pursuance of the judgment and order passed by the High Court the petitioners submit a representation dated 5-6-2006 alongwith a Bank Draft dated 17-5-2005 for a sum of Rs. 11,39,358. 00. The respondent No. 4 has passed an order-dated 17- 8-2006 communicated by the respondent No. 5 by order dated 11-8- 2006 and the same was served upon the petitioner on 17-8-2006. Aggrieved by the aforesaid order, the petitioner has approached this Court.
(3.) THE notices were issued by order dated 13-3-2006 and this Court had directed to file a counter- affidavit. As the counter and rejoinder affidavits have already been exchanged the matter is being decided finally with the consent of parties. It has been submitted on behalf of the petitioners that the order dated 7-8-2006 is an ex parte order without affording an opportunity to the petitioners, as such, is violative of principles of natural justice and the points raised in the representation filed by the petitioners has not been considered. The respondent No. 4 has not only refused to consider the relevant provision of Act 2005 but has omitted to take into consideration the relevant provision. The respondent No. 4 has also not applied his mind to the representations submitted by the petitioner and has passed the impugned order in an highly arbitrary manner without application of mind to the real controversy involved in this case. The notices were purported to be based on the re-weighing although no re-weighing had been carried out nor the petitioners were informed of any overloading when consignment was delivered to them. It has been contended on behalf of the petitioners that the impugned order dated 7-8-2006 suffers from non- application of mind inasmuch as neither the reply of the petitioners has been considered nor any reason has been recorded before rejecting the claim of the petitioners. In view of the aforesaid fact, the learned Counsel for the petitioners submit that the order impugned is liable to be quashed only on this ground alone.;