TAPABRATA CHAKRABORTY, J. - (1.) THE subject matter of challenge in the instant writ application is a notice dated 27th September, 2006 issued by the Assistant Commercial Manager, South -Eastern Railway for and on behalf of the respondent no.2 by which the said respondent had demanded a payment of outstanding amount of Rs.41,27,665/- from the petitioners.
(2.) THE facts, in a nutshell, are that between June, 2005 and June, 2006 the petitioners had moved various railway rakes from mining areas to various ports, i.e., from various loading stations namely Barajamda, Noamundi, Barsuan etc. Several months after delivery of the goods, the railway authority intimated that they had weighed the rakes enroute and had found that in case of some of the wagons, there had been an overloading of iron ore fines. The punitive charges levelled against such overloading stands reflected in the chart annexed to the writ application at page 24. Upon receipt of the impugned notice dated 27th September, 2006 demanding an outstanding amount of Rs.41,27,665/ -, the petitioners through their learned advocate issued a notice to the respondents demanding withdrawal of the said impugned notice but the respondents maintained a deceptive silence. Mr. Agarwal, learned advocate appearing for the petitioners submits that the impugned notice is without jurisdiction and that the punitive charges had been demanded after unloading of the goods and that such demand is violative of provisions of Section 73 of the Railways Act, 1999 (hereinafter referred to as the said Act of 1999) which permits recovery of punitive charges prior to delivery of the goods.
(3.) ACCORDING to Mr. Agarwal the decision making process towards issuance of the memorandum demanding punitive charges suffers from unreasonableness and procedural impropriety inasmuch as the same was issued without affording any opportunity to the petitioners to exercise their right under Section 79 of the said Act of 1999.;