- (1.) THIS mandamus appeal is at the instance of the Union of India and is directed against the order dated December 20, 2006 passed by a learned Single Judge of this Court by which His Lordship allowed the writ application filed by the private respondent before us, by quashing the demand of the appellants dated October 29, 1991 being Annexure 'e' to the writ application and the communications being Annexures 'e-1', 'e-2' and 'e-3' with further direction upon the appellants to refund the security deposit of the private respondent within six weeks from the date of communication of the order. The appellants were further directed to refund the sale proceeds of the off-loaded goods in question to the writ petitioners within six weeks from the date of communication of the order.
(2.) THE private-respondent before us filed a writ application thereby praying for the following relief: " (a) Writ of and/or in the nature of mandamus commanding the respondents to cancel the memoranda of demand being Annexure 'e' to 'e-3' to the writ petition and to forbear them from enforcing realisation of the impugned demand in any manner whatsoever; (b) Writ of and/or in the nature of mandamus commanding the respondents from detaining the Salt Consignments under the invoice Nos. 14, 18, 19 and 28 dated 7/8 October, 1991 against the Railway receipt Nos. C-449102, c-449106, C-449107 and C-449116 on the ground of non-payment of impugned demand; (c) Writ of and/or in the nature of certiorari directing the respondent Nos. 3, 4 and 5 to produce the records relevant to the alleged enroute weighment of the relevant Salt Consignment and determination of the alleged excess weight as well as raising the impugned demand being Annexures 'e' to 'e-3' to the writ petition after authentication and certification so that on perusal of the same and after hearing the parties a conscionable justice may be done by quashing the memoranda of demand being Annexures 'e' to 'e-3' of the writ petition; (d) Writ of and/or in the nature of mandamus commanding the respondents and their agents and servants to weigh the consignments by beam scale which are subjected to under charges on demand by the consignee concerned and to forbear them from refusing to affect delivery of the Salt Consignments subjected to undercharges on weighment by beam scale; (e) Writ of and/or in the nature of mandamus commanding the respondents to provide for special allowance for the Salt Consignments in the line as provided under Rule 117 (3) of the Indian Railway Goods Tariff No. 3 7, part-I, Volume-1; (f) Rule Nisi in terms of prayer (a) to (e) above; (g) An order directing the respondents to deliver the Salt Consignments booked under invoice Nos. 14, 18, 19 and 28 dated 7/8 October, 1991 and against Railway receipts Nos. C-449102, C-449106, C-449107 and C-449116 in Wagon Nos. ER-22790, ER-27336, CR-92756 and CR-87671 on weighment by weighing machine and/or on assessment delivery basis without requiring the petitioners to pay the impugned demand as contained in the memoranda being Annexures 'e' to 'e-3' to the writ petition and to grant short certificate in case of shortage of the said consignment; (h) Ad interim order in terms of prayer (g) above; (i) Costs of and incidental to this application be ordered to be paid by the respondents to the petitioners; (j) Such other and/or further order or orders as this Hon'ble Court may deem fit and proper,"
(3.) THE case made out by the writ petitioners may be summed up thus: (a) On October 8, 1991, M/s. Hari Trading Co. and M/s. Laxmi Trading co. dispatched iodized salt consignments from Chirai, Gujrat to berhampur (West Bengal) in 30 wagons against bills for rs. 3,20,205/- and Rs. 2,42,831/- respectively. The Railway authority at Chirai issued receipts against the loading of such consignments containing endorsements as follows: "senders weight accepted SM enroute to weigh and advice jointly destination to weight before delivery". The senders engaged J. B. Boda surveyors Pvt. Ltd. for supervision of crushed salt in bags for human consumption in E. G. Wagons and for weighment of the bags at random. (b) 24 wagons out of the aforesaid 30 wagons reached the destination station at Berhampur Court when shortage of 1141 bags of salt were detected and short certificates were issued to that effect. The writ petitioners were informed by the Station Superintendent, Berhampur Court, eastern Railway as per his communication issued under memo dated october 29, 1991 that an amount of Rs. 52,938/- was chargeable as weighment charge as per weighment order dated October 12,1991 and october 14,1991 against the aforesaid weighment. The writ petitioners were, consequently, asked to pay the aforesaid amount to clear the outstanding dues as well as to enable the office to deliver the balance consignment of the salt. (c) On October 30, 1991, the writ petitioners submitted representation to the respondent Nos. 2 to 4 with request for reweighment of the consignment and/or the alleged excess weighed salt bags in their presence as per provisions of paragraph 1744 of the Indian Railway commercial Manual-II. The Railway authority, however, did not pay any heed to that representation. Hence, the writ application. ;