Arindam Sinha, J. - (1.) The challenge in this writ petition is directed against demand dated 26th April, 2016 and purported exercise of lien by letter dated 10th May, 2016 of the Railways. The petitioners had consigned coal from Kottaddi Colliery, Pandaveswar in Burdwan to Kushmi, in Uttar Pradesh. The consignment was unloaded and delivered to the petitioners at Kushmi without any demand raised.
(2.) It appears from the impugned demand that one rake of the coal consigned was re-weighed at Mughalsarai and upon finding there was overloading, penalty of Rs. 18,94,498/- became due as was demanded from the petitioners. The Railways sought to exercise lien over a subsequent consignment as per the impugned letter dated 10th May, 2016.
(3.) Mr. Agarwal, learned advocate for the petitioners referred to Section 73 of the Railways Act, 1989. He submitted, since there was no demand made prior to delivery, it was impossible for his clients to challenge the demand based upon purported re-weighment at Mughalsarai. Admittedly, the re-weighment was done en route and without notice to the petitioners. He submitted the re-weighment could not be done in relying on an unreported judgment dated 24th December, 2014 of a Division Bench of this Court in MAT 1970 of 2014 [Reshmi Metaliks Limited and Anr. v. Union of India and Ors .] in particular to the paragraph as is reproduced below:- "Similarly, Section 78 of the said Act does not authorize the railway administration to blacklist any consignor and/or consignee on any of the grounds as mentioned in para 6 of the said Rates Circular. Section 78 of the said Act simply authorizes the railway administration to re-measure, re-weigh or reclassify any consignment and/or calculate the freight and other charges and correct any other error or collect any amount that may have been omitted to be charged and such exercise can only be done by the railway authorities before delivery of consignment. Thus, once the consignment is delivered, the railway administration loses its jurisdiction to exercise any of its powers as enumerated under Section 78 of the said Act.";