High Court · 2012

[2] By way of this writ petition, petitioner has challenged the noti ce dated 15.12.2004 asking the petitioner to pay Rs.72,736/- as under charges fo r delivery of consignment and retaining 1823 bags of cement out of the consignme nt in the custody of the respondents to be released on payment of the said amoun t. [3] Case of the petitioner is that it is a public limited company en gaged in the business of distribution and sale of cement in the State of Assam a nd other Northeastern States. In course of business, the petitioner imports ceme nt from outside the State. Petitioner had purchased one rake of cement from M/s Ultratech Cemco Ltd. comprising of 40 wagons. The goods were loaded at Dhutra Si ding (DTV Siding) by M/s Ultratech Cemco Ltd. to New Bongaigaon Railway Station, where goods were to be down loaded. The payment was made vide RR No. I/E-427136 dtd. 1/2-12.2004 charging freight @ Rs. 92.53 less 6% per quintal under Class 1 40 of the Goods Tariff No. 42. When the petitioner went to claim delivery of the consignment at New Bongaigaon, 1823 bags of cement were withheld by the railway authorities on the ground that the consignment was under charged. [4] According to the railway authorities, the consignment to New Bon gaigaon Station should have been charged under Class 145 which prescribes higher rate of Rs. 95.83 per quintal instead of Rs. 92.53 under Class 140. [5] The aforesaid amount of Rs. 72,736/- was determined as the under charged amount for which the aforesaid quantity was retained. [6] When the petitioner refused to pay the aforesaid amount, the res pondents informed the petitioner that they may have to auction the goods as the goods could not be retained indefinitely. [7] rit petition. At that stage, petitioner approached this Court by way of this w This Court by order dated 02.02.2005 while admitting the writ pe [8] tition, directed that 1832 bags of cement in the custody of the respondents shou ld be released to the petitioner on his paying of Rs. 72,736/- on account of und er charges which would be refunded along with the interest at the applicable rat e in the event of the petitioner succeeding in the writ petition. [9] The respondents have filed their counter affidavit wherein they have stated that rake of cement was booked to New Bongaigaon in train load class rate. But the consignment should have been booked on wagon load class rate as N ew Bongaigaon station was not open for handling full rake capacity i.e. the New Bongaigaon station was open for half rake in-ward traffic only. Train load class is 140 whereas wagon load class is 145 and that the corresponding rates were Rs . 92.53 and Rs. 95.83 respectively, less 6% rebate for Northeastern region. [10] Mr. O. P. Bhati, learned counsel for the petitioner submits that whatever freight was required to be paid was paid by the consignor therefore, w ithholding of a portion of the consignment on the ground that the consignment wa s undercharged and demanding additional amount was not justified. He submits tha t New Bongaigaon station is both a train load station as well as a wagon load st ation. He submits that in view of the provisions of Goods Tariff No. 42, the rai lway authorities at New Bongaigaon could not have unilaterally charged a higher amount on the petitioner. [11] Learned Standing Counsel, Railways on the other hand submits tha t it is an admitted position that the New Bongaigaon station is not open for han dling full rake capacity as it is open for half rake in-ward traffic only. In su ch circumstances, the railway authorities at Bongaigaon was justified in treatin g the consignment under wagon load class 145 and charging higher amount resultin g in the aforesaid quantification of under charges. Learned Standing counsel further submits that the railways have the right to re- measure, re-weigh, re-classify and re-calculate the rates and other charges befo re the goods are delivered and there is no infirmity in the decision taken by th e respondents. [12] The submissions made have been considered. [13] Question is whether after the goods are booked and payment made for transportation of the goods to the destination, the railway authorities at t he destination can charge a higher amount by bringing in a different classificat ion. [14] In the present case, the goods were booked and transported on pa yment of the freight charges at class 140 by the Railways themselves knowing ful ly well that the New Bongaigaon station is open for half rake and not full rake. It is not a case of misrepresentation or suppression of the quantity or destina tion. As per Goods Tariff No. 2 framed by the Northeast Frontier Railw [15] ay (Annexure-H to the writ petition), train load consignments are to be booked f rom and to only those stations/good sheds/sidings notified for handling train lo ad traffic and the benefit of train load classification may not be denied to a c onsignment which otherwise fulfills all the conditions prescribed for applicatio n of train load, merely because the forwarding station has not been notified as open for handling train load tariff. [16] Considering the above, this Court is to the view that the demand made by the respondents for payment of Rs. 72,736/- as under charges for releas ing the retained bags is without any justification. [17] The same is accordingly interfered with and set aside. Consequentially, the respondents shall now refund the aforesaid [18] amount to the petitioner within a period of 2 (two) months from the date of rece ipt of a certified copy of this order. This Court in the order dated 02.02.2005, had observed that in t [19] he event the petitioner succeeds in the writ petition the said amount of Rs. 72, 736/- will be refunded along with applicable interest. As the petitioner has suc ceeded in the writ petition, this Court directs that the refunded amount shall c arry interest of 6% per annum from the date of payment of the said amount by the petitioner till the date of refund. [20] [21] Writ petition accordingly stands allowed. No. cost.