DARSHAN KUMAR Vs. STATION MASTER

JUDGEMENT

(1.) The above said three writ petitions raises identical question and the controversy also relates to the similar facts, which are heard together and are hereby disposed of by a single judgment.

(2.) The case in brief of the petitioner is, that he is a local merchant, who imports coal within the State of Jammu and Kashmir from various States in the country for the purpose of loading coal from Railway Station Jogi Gopha to North-east Frontier Railways located in Assam. The Wagons were allotted to the petitioner with the directions to load the same with an area of 42.6 square meter cc 53 tonnes up to the height of 1.35 meter, vide memo dt. 19-5-1983. The wagon was despatched to Bari Brahmana Railway Station in the State of Jammu and Kashmir for the transhipment of the above said local under a valid Railway receipt duly executed and signed by the petitioner in token of despatch of consignment. This is an admitted fact that the railway receipt, which is issued to the petitioners contains overleaf a notice, which forms part of the contract. The petitioner further contends that the respondents vide their letter (Annexure -A) to the petition dt. May 31, 1983 demanded the rate-of Rs. 615.50 per metric tonne instead of Rs. 296.30 per metric tonne as quoted in the RR, the reason given by the respondents that the coal has been found to be excess in weight and the petitioners liable to pay a penalty on the excess weight of coal. The said action is attacked on several grounds inter alia that the Wagons were not weighed in presence of the petitioner, no opportunity was provided to the petitioner to rebut the allegations of the respondents, that the action of the respondents is illegal and against the provisions of law, there is no provision in the Railways Act for imposing penalty on the excess weight, R. 161 of the General Rules for Goods Tarrif No. 36 Part-I (Volume-I) is illegal, void and inoperative on the ground that the same has been framed without any authority of law, the rule is discriminatory and violative of the Railways Act and the Constitution of India and above all that the principles of natural justice are violated inasmuch as the petitioner was never afforded an opportunity to show cause regarding excess weight in the Wagons.

(3.) The respondents in their counter contested the claim of the petitioners with preliminary objections also raising the objection regarding entertainability of the present writ petition alleging that the disputes raised in the present petition flow from the contract of consignment of coal handed over to the Railways for transhipment from one Station to the other under the terms of the contract containing conditions overleaf with a specific notice to the consignor by which he is bound, the petitioner has more efficacious and effective remedy of filing a civil suit and also that the present writ petition involves disputed question of facts and law arising out of the private contract as distinguished from the statutory contract, hence the writ petition is liable to be dismissed on the above said grounds. In their counter, it is further submitted that under the Railway Receipt, the Railway weight found en route or on the destination and the rate prescribed under R.161 of the General Rules contains Goods Tarrif No. 36 Part-I (Volume-A, which forms part of the contract, thus the respondents were within their right to reweigh the Wagons en route which were in fact reweighed at Ludhiana by the Railways Staff, which consists of responsible high Railway Officials within the four corners of their right. It is also submitted that if there was any doubt to the petitioner, he could have got the same reweighed at the destination at his own cost, which was never done by the petitioners. No fundamental right under Art.19 of the Constitution of India is infringed, hence the petition is liable-to be dismissed.