Debangsu Basak, J. - (1.) THE writ petitioner challenges the imposition of punitive charges by the railway authorities.
(2.) MR . Shyamal Sarkar, learned Senior Advocate for the writ petitioner contends that, the writ petitioner used the Indian Railways to transport goods under five several railway receipts in the months of July and August 2005. Those consignments were released in the months of July and August 2005 at the destination station without weighment in the presence of the writ petitioner. The railway authorities raised demands for punitive charges on October 17, 2005 in respect of four consignments. He contends that, the railway authorities having denied the writ petitioner the recourse to Section 79 of the Railways Act, 1989 cannot levy punitive charges on his client. In support of such contention he relies upon the unreported judgment and order dated July 30, 2009 delivered in W.P. No. 357 of 2006 & W.P. No. 358 of 2006 (Ultra Tech Cement Limited & Anr. v. Union of India & Ors.) as well as the unreported judgment and order dated January 27, 2010 delivered in A.P.O. No. 241 of 2009 & W.P. No. 358 of 2006 (Ultra Tech Cement Limited & Anr. v. Union of India & Ors.). He contends that, applying the ratio of the two decisions cited by him, the notices impugned in the writ petition claiming punitive charges must be quashed. Mr. Sarkar referring to an unreported judgment rendered in W.P. No. 2060 of 2006 contends that, since the railway receipts were issued containing an endorsement to the effect that "sender weight accepted", the burden was upon the respondents to show that the declaration of weight mentioned in the receipt was not correct.
(3.) MR . Animesh Kanti Ghosal, learned Senior Advocate for the railway authorities contends that, Section 65 of the Railways Act, 1989 defines a railway receipt. In terms of the proviso to sub -section (2) of Section 65 of Railways Act, 1989 the burden of proving the weight of a consignment is on the consignor, the consignee or the endorsee as the case may be. He points out, in the instant case, the consignment was not weighed at the loading station. The railways had accepted the consignment with the endorsement "sender weight accepted" on the railway receipt issued. The railway receipt stated that the consignment would be weighed enroute. The railway stations where such weighment would take place are enumerated on the railway receipts. So according to him, the weight of the consignment was not established at the loading point. The writ petitioner in accordance with Section 65 of the Railways Act, 1989 is required to establish the weight of the consignment enroute at the two stations named in the railway receipts, or at least at the destination station. He points out that the provisions 79 of the Railways Act, 1989 is available to the writ petitioner in such circumstances to establish the weight of the consignment before taking delivery thereof. The consignment was weighed in one of the two stations named in the railway receipts for the purpose of weighment. No representative of the writ petitioner was present at the time of weighment. It is for the writ petitioner to establish the weight of the consignment under Section 65 of the Railways Act, 1989. The writ petitioner also had the provisions of Section 79 of the Railways Act, 1989 to establish the weight of the consignment. Instead of establishing the weight, the writ petitioner took delivery of the consignment unconditionally. The railway authorities, thereafter, raised demand for punitive charges in accordance with the Railways Act, 1989 on the basis of the weight found at the weighment station. The writ petitioner cannot assail such demand of the railway authorities. The writ petitioner having chosen to waive its rights under Section 79 of the Railways Act, 1989, cannot turn around and contend that the writ petitioner was denied such right. In support of his contentions, He relies upon All India Reporter : 1998 Supreme Court page 1959 (Jagjit Cotton Textile Mills v. Chief Commercial Superintendent N. R. & Ors.), All India Reporter 2010 Calcutta 13 (Bhagaban Dey v. Union of India & Ors.) and : 2013 Volume 4 Calcutta High Court Notes (Cal) page 379 (Union of India v. Rameshwar Lal Agarwal).;