Vineet Kothari, J. - (1.) THIS writ petition has been filed by the Rajasthan State Mines and Mineral Limited, a Government of Rajasthan Enterprises, RSMM, for short, against the Railway Administration challenging the vires of Railways (Punitive Charges for Over -riding of Wagons) Rules, 2004 framed under the provisions of Section 73 of the Railways Act, 1989 and framed in supersession of earlier Rules of 1990 prevailing in this regard.
(2.) THE petitioner had initially laid a challenge to the provisions of Section 73 of the Railways Act, 1989 also, but that challenge was given up before the Division Bench of this Court on 26.9.1997 and challenge was restricted to the validity of aforesaid Rules of 2004 and thus, the matter was remanded to the Single Judge. However, prior to that, on 6.12.2006, the Division Bench had passed the following Interim order in the matter: Hon'ble Mr. Justice Rajesh BaliaHon'ble Mr. Justice Gopal Krishan Vyas Mr. M.R. Singhvi, for the appellant. Mr. Kamal Dave, Mr. J.P. Joshi, for the respondents. Learned Counsel for the respondents wants time to file reply to the writ petition. Four weeks' time is allowed as prayed. Meanwhile the respondent - Railways, if were to raise any demand by way of penal rate of freight after accepting goods from the petitioner for carriage at destination or mid way, the same may not be enforced against the petitioner or his consignee until further orders. However, the same shall be intimated to the petitioner and on receipt of intimation, the petitioner shall furnish adequate security for its payment, in case writ petition fails, to the satisfaction of the DRM, North -Western Railway, Jodhpur. Meanwhile, the pleading may be completed before next date. Put up on 22.1.2007 along with SAW No. 867/2006 as prayed. (Gopal Krishan Vyas) J. (Rajesh Balia) J. That while sending the matter to Single Judge, the Division Bench passed the following order on 26.9.2007: Hon'ble MR. Justice P.B. MajmudarHon'ble Mr. Justice Deo Narayan Thanvi Mr. M.R. Singhvi, for the petitioner. Learned Counsel Mr. M.R. Singhvi appearing on behalf of the petitioner submitted that the petitioner is giving up the challenge regarding constitutional validity of Section 73 of Railways Act, 1989. He has submitted that the petitioner is now challenging only the validity of concerned Rules of 2004, therefore, the matter is required to be decided by the learned Single Judge as challenge to validity of Section 73 is giving up. Learned Counsel Mr. M.R. Singhvi submitted that mistake in the prayer clause, instead of mentioning Section 73, Section 78 has been mentioned. Considering the said aspect of the matter, the Registry is directed to list the matter before the learned Single Judge taking up such matters. (Deo Narayan Thanvi) J. (P.B. Majmudar) J. 3. The petitioner - company is engaged in mining activities and marketing of excavated minerals and one of its mining operations are located in Jaisalmer within the State of Rajasthan where limestone is excavated which is called Low Silica High Graded Limestone. It is used by the Steel producing companies like Steel Authority of India situated at Durgapur, Bihar. For transportation of such limestone from Jaisalmer to Durgapur, on the request of the petitioner company, the Railway Administration provides railway wagons to the petitioner - company in the form of Rake and such train loads loaded with lime stone are transported by the Railways from Jaisalmer to Durgapur, Bihar. The system of weighing goods at Jaisalmer is volumetric system, under which wagons are supposed to be filled up upto the marked lines In wagons, upon which the Railway receipts are issued to the petitioner - company. Since there is no weigh bridge at Jaisalmer itself, but such weigh bridges are installed at Merta Road, which is enroute from Jaisalmer to Durgapur within the State of Rajasthan . There weight load of each of the wagons is ascertained and computerised print out of such weight load is available and on the basis of such computerised print out, excess weight or load is determined by the Railway Authorities and such excess weight printouts are sent with consignment to the destination where on the basis of excess weight load under the aforesaid Punitive Charges Rules of 2004, punitive charges are recovered from the consignee of the goods which in turn is deducted from the bill amount of the petitioner - Company and thus, the petitioner company has to bear such excess load punitive charges.
(3.) THE grievance of the petitioner - company in the present case is about such punitive charges and illustratively the petitioner - company has produced a schedule with the writ petition which indicates that for the period October, 2004 to June, 2005, punitive charges to the extent of 3.90 crores was realized from the consignee of the petitioner - company by the respondent - Railway Administration.;