Karnataka High Court
M/S Mmtc Ltd.,, vs Union Of India on 21 October, 2013
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 22ND DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
WRIT PETITION No.6O961/2012 (GM-RES)
BETWEEN:
M/S.MMTC LTD.,
A GOVERNMENT OF INDIA ENTERPRISE
CORPORATE OFFICE; CORE-1
"SCOPE COMPLEX-7"
INSTITUTIONAL AREA, LODI ROAD,
NEW DELHI-110 003.
REGIONAL OFFICE:SATHYANARAYANA PET
BELLARY-583 103, REP. BY ITS
AUTHORISED SIGNATORY. ... PETITIONER
(BY SRI.SHIVARAJ C.BELLAKKI, ADV.)
AND:
1. UNION OF INDIA,
REPRESENTED BY MINISTRY OF RAILWAYS,
NEW DELHI
2. THE GENERAL MANAGER,
SOUTH WESTERN RAILWAYS,
OFFICE OF THE GENERAL MANAGER,
CLUB ROAD, HUBLI.
3. DIVISIONAL RAILWAY MANAGER,
HUBLI DIVISION,
SOUTH WESTERN RAILWAYS,
RAILWAY DIVISIONAL OFFICE, HUBLI.
2
4. SENIOR DIVISIONAL COMMERCIAL MANAGER,
HUBLI DIVISION,
SOUTH WESTERN RAILWAYS,
RAILWAY DIVISIONAL OFFICE, HUBLI.
5. CHIEF GOODS SUPERVISOR
KARIGANURU RAILWAY STATION,
SOUTH WESTERN RAILWAYS,
HOSPET TALUK,
BELLARY DISTRICT. ... RESPONDENTS
*ANURADHA
(BY SMT.ARUNA DESHPANDE, ADV.)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
*Corrected OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
v.c.o. dtd. RESPONDENTS TO REFUND RS.73,36,453/- ILLEGALLY
COLLECTED FROM THE PETITIONER-COMPANY TOWARDS THE
21.10.2013
PUNITIVE CHARGES ON THE BASIS THE WRONG WEIGHMENT
RESULTS SHOWN BY THE DAROJI IN MOTION WEIGHBRIDGE
ALONG WITH INTEREST.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has sought for a writ of mandamus directing the respondents to refund Rs.76,36,453/- illegally collected from the petitioner/company or in the alternative, to issue a writ of mandamus directing the respondents to consider the representations dated 16.11.2009 and 23.02.2010 (Annexures-D and G). 3
2. The facts leading to filing of this case are that the petitioner-firm is a registered partnership firm involved in the business of trading and exporting of iron ore, transportation etc. The petitioner depends on Indian Railways for the purpose of transportation of the iron ore. As all the loading stations have no weigh bridges, the Railway Officials conduct 'weight-volume ratio test' so as to fix the height upto which the wagons can be loaded. After the said test, petitioner was permitted to load the iron ore into the wagons in Kariganuru station and after ascertaining that the iron ore is loaded upto the prescribed height, the rake was allowed for onward movement.
3. Thereafter, the Rake was weighed in Daroji In- motion Weigh bridge being the nominated weigh bridge for that sector. The said weigh bridge showed erratic weighment and in fact was over and above the calibrated capacity of the said weigh bridge. Even in 4 respect of other rakes belonging to other companies or consignors, the said weigh bridge showed similar weighment errors. Upon coming to know this, the respondents immediately suspended the operation of the Daroji in-motion weigh bridge. Even though the petitioner and others had brought to the notice of the respondent-railways about the weighment error, the respondents compelled the petitioner to pay the punitive charges raised as against the rake on the basis of the wrong weighment shown at Daroji in-motion weigh bridge.
4. After suspending the operation in the said weigh bridge, respondents conducted their investigation and concluded that the Daroji in-motion weigh bridge has given wrong weights on the said dates. Thereafter, petitioner has given several representations to the respondents to refund the punitive charges of Rs.73,36,453/- collected illegally from the petitioner. 5 Despite these representations and so also despite coming to the conclusion that the weigh bridge had given wrong weighments, the respondents have neither refunded the punitive charges nor considered the representations of the petitioner. The action of the respondents is highly arbitrary. Hence, this writ petition.
5. Learned counsel for the petitioner submits that the weighment of excess loading is occasioned because of the faulty weigh bridge and the same cannot be attributed to the petitioner and for the error in weighment at the Daroji in-motion weigh bridge, no punitive charges could have been levied upon the petitioner. In this regard, he has sent letters addressed to the Senior Divisional Commercial Manager vide Annexures-D and G. It is further submitted that the petitioner also cannot approach the Railway Claims Tribunal under the Railway Claims Tribunal Act, 1987 6 (for short 'the Act') as there is no specific provision under the said Act to seek for repayment of the amount.
6. Learned counsel for the respondents/Railways by filing the statement of objections submits that the petitioner could have approached the Railway Claims Tribunal for recovery. She further submits that the case of the petitioner has been considered vide Annexure-R1. Hence, further consideration of the legal notice does not arise. The respondents are not empowered to refund the punitive charge recovered in the instant case as rules do not permit refunds unless the procedure is followed as per clause 2163 of Annexure-R2. The averment of the petitioner that he cannot approach either the Railway Claims Tribunal or Railway Rate Tribunal as either of them do not have the jurisdiction to adjudicate the present issue is misconceived and misleading. Unless he is the holder of railway receipt, the commodities could not be 7 transported to the distant place. Under these circumstances, the allegation of the petitioner of excessive collection does not arise since the railway receipts ensure the quantity of iron ore transported.
7. I have heard learned counsel appearing for the parties.
8. It is the case of the petitioner that the respondent/railway has collected excess payment on account of defective weighing machines. When all the materials like Annexures-D and G and also the receipt have been produced, the concerned railway authorities should have issued a speaking order. When he has referred all the particulars for having collected illegal fare, the respondents should have considered the same before issuing Annexure-R1 which does not meet the requirements of the materials produced along with this petition. Under these circumstances, this Court is of the opinion that it is just and proper to issue directions 8 to the Railway Department to pass a speaking order by considering the materials produced in this petition. The petitioner is directed to produce all the materials before respondent/Railway Authorities and the same is directed to be considered by the respondent/Railway Authorities.
9. Hence, the writ petition is allowed. Annexure-R1 endorsement issued to the petitioner is set aside. The respondent/Railway Authorities are directed to pass a speaking order within a period of three months from the date of receipt of copy of this order and the petitioner is directed to produce copy of this writ petition before the respondent/Railway Authorities within a period of 10 days from the date of receipt of copy of this order.
SD/-
JUDGE Jm/-