FAO No.170 of 2013 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.170 of 2013 (O&M) Date of decision:
12. 09.2013 UOI ......Appellant(s) Versus M/s Ratan Coal TradeRs.Pura Mohalla, Bassi Pathana, Distt Fatehgarh Sahib (Punjab) ......Respondent(s) FAO No.251 of 2013 (O&M) UOI ......Appellant(s) Versus M/s Lall Chand Gupta & Sons Railway Mall Godown Road, Mandi Gobindgarh, Distt.
Fatehgarh Sahib(Punjab) ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr.Puneet Jindal, Advocate for the appellant.
Mr.Rakesh Gupta, Advocate for the respondent in FAO No.170 of 2013.
Ms.Meena Bansal, Advocate for the respondent in FAO No.251 of 2013.
Rakesh Kumar Garg, J.
CM No.842-CII of 2013 in FAO No.170 of 2013 Delay, if any, in making up the deficiency in court fee, is condoned.
CM stands disposed of.
FAO No.170 of 2013 (O&M) Saini Pushpinder 2013.09.17 16:17 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.170 of 2013 (O&M) 2 This order shall dispose of two appeals i.e.FAO Nos.170 and 251 of 2013 which have been filed on behalf of the appellants on similar facts and raising similar grounds.
Fact are being taken from FAO No.170 of 2013 for the sake of convenience.
The appellant is aggrieved by the order of Railway Claim Tribunal, Chandigarh Bench, Chandigarh passed on 12.9.2012 in O.A.III/10/2001 whereby claim application filed by the claimant-applicant has been allowed entitling him to recover a sum of Rs.13,28,486/- along with interest @ 6% per annum from the date of filing of claim application i.e.9.7.2001 within a period of two months.
Briefly stated, four consignments of Khasi Coal comprising a rake of 41 BCNs were booked through the appellant by the consignot at Rangiya Station of N.F.Railway to be carried and delivered to the consignee at Dhandari Kalan, Railway sided at Ludhiana.
At the time of entrustment of goods, the wagons were loaded by marking and no weighment of the consignment was conducted at the originating station.
The weight of consignment in various railway receipts dated 8.12.1998 was as under: “RR not Weight in Quintals 62670”
62670. 5856 62670”
62670. 6444 Railway receipts stipulate that a consignment is to be weighed enroute and due charges, if any, are to be collected at destination.
It is the case of the appellant that the wagons containing consignment in question were weighed enroute at Railway Weigh Bridge, Saini Pushpinder 2013.09.17 16:17 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.170 of 2013 (O&M) 3 Laksar on 16.12.1998 and was found containing 367.6 tones in excess and accordingly, the destination station was advised to collect undercharges amounting to Rs.13,28,446/- in the said four railway receipts.
According to the appellant, the said weighment was conducted in the presence of Vigilance Staff and the Weigh Bridge was working in a perfect condition and was certified by the Weights and Measurement Inspector which was valid from 8.5.1998 to 7.5.1999 and was operative on the day when the consignment in question was weighed.
The respondent filed the claim petition seeking refund of the aforesaid amount of Rs.13,28,486/- alleging that Weigh Bridge at Laksar was not showing correct weight.
In order to prove its case, the respondent relied upon two letters written by Sh.
Kanwar Bhan Jai Singh, the then Weights & Measures Inspector, Haridwar dated 24.8.1998 and AW-1 Ram Chander Gupta and AW-2 Sh.
Om Parkash Garg, Surveyor-cum-Assessor to prove the survey report submitted by it.
On the basis of the evidence on record, the Railways ClaiMs.Tribunal vide its judgment dated 12.9.2012 held as under: “It is pertinent to mention that admittedly functioning of the weigh bridge in India is governed by the Standards of Weights & Measurement (Enforcement) Act, 1985.
Senior Inspector, Weights& Measures, Haridwar was the competent authority so far as the functioning of the railway weigh bridge at Laksar was concerned and when the Senior Inspector, Weights & Measures vide his letter dated 24.8.1998 addressed to the S.S., Laksar has banned the use Saini Pushpinder 2013.09.17 16:17 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.170 of 2013 (O&M) 4 of the weigh bridge till the same is rechecked, it was not permissible for the respondent-railway to continue to use the same weigh bridge unless the same is rechecked by the competent authority.
It is very surprising to note that when the competent authority vide his letter dated 10.8.1998 has asked the S.S.Laksar to make arrangement for testing the weigh bridge, it is not clear as to why the railway authorities have not taken any action to get the weigh bridge tested.
So much so, the railway authorities have not taken any steps even after 24.8.1998 when the further weighment was stopped by the competent authority.
Even after this letter, railway authorities have not taken any steps to comply with the direction of the competent authority.
The respondent authorities have not challenged the order of competent authority before any Appellate Authority banning the use of weigh bridge at Laksar.
In view of this, we are of the considered opinion that the weighment done by the railway authorities on 16.12.1998 on the defective and obliterated weigh bridge is legally ultra vires and is not binding on the applicant and the penal freight to the tune of Rs.13,28,446/- recovered illegally from the applicant needs to be refunded to the applicant.
All these issues are decided in favour of the Saini Pushpinder 2013.09.17 16:17 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.170 of 2013 (O&M) 5 applicant.
Issue No.6 (Relief) We hold that the penal charges amounting to Rs.13,28,446/- are not legally recovered by the railway authorities from the applicant and the same needs to be refunded to the applicant with interest @ 6% per annum from the date of filing this claim application till realization, within a period of two months and this issue is decided accordingly.
ORDER
In result, the claim application is allowed and the applicant is held entitled to recover a sum of Rs.13,28,446/- along with interest @ 6% per annum from the date of filing this claim application i.e.9.7.2001 within a period of two months.
Memo of costs be prepared accordingly and file be consigned to the record room.”
Noticing the contentions raised, this Court passed the following order on 15.1.2013: Learned counsel for the appellant submits that as per cross examination of Weights and Measurement Inspector, his presence at the Laksar weigh bridge appears to be doubtful as it has been stated by him only that he has not visited Laksar weigh bridge during the alleged period.
Still, a finding has been given by relying Saini Pushpinder 2013.09.17 16:17 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.170 of 2013 (O&M) 6 upon the statement of the said Inspector.
Learned counsel also submits that after the inspection of the weigh bridge by the Senior Inspector and founding it to be defective, the certificate of fitness of weigh bridge is to be cancelled but it was not done.
Notice of motion for 20.02.2013.
Notice reg:stay as well.”
Learned counsel appearing on behalf of the respondent has referred to the record to submit especially the statement of Weights and Measurement Inspector where he has denied on the suggestion of the counsel for the appellant regarding his visit and inspection of the Weigh Bridge at Laksar and on the basis of the aforesaid statement has submitted before this Court that the submission made on behalf of the appellant on 15.1.2013 is contrary to the record.
Faced with this situation, counsel for the appellant has vehemently argued that Section 26 of the Standards of Weights & Measurement (Enforcement) Act, 1985 raises a presumption regarding the correctness of the Weigh Bridge at Laksar in favour of the appellant as a certificate of fitness issued for the Weight Bridge was valid.
However, learned counsel representing the respondent has disputed the aforesaid argument raised.
Section 26 (1)of the said Act reads thus: “Validity of weights or measures duly stamped.-(1) A weight or measure which is, or is deemed to be, duly verified and stamped under this Act shall be deemed to conform to the Saini Pushpinder 2013.09.17 16:17 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.170 of 2013 (O&M) 7 standards established by or under the Standards Act at every place with the State in which it is stamped unless it is found on inspection or verification that such weight or measure has ceased to conform to the standards established by or under the Standards Act.”
A perusal of the aforesaid Section would show that the presumption, as argued, is rebuttable.
Counsel for the respondent has brought to the notice of this Court that the letter written by the Weights and Measurement Inspector clearly shows that the said Weigh Bridge at Laksar was defective at the time of weighment of the consignment.
According to the counsel for the respondent, there is enough material on record to rebut the presumption, as raised.
Learned counsel appearing on behalf of the appellant could not show this Court any evidence/material on record to controvert the letters written by the Weighs and Measurement Inspector whereby he has pointed out the defects in the Weigh Bridge and had asked the appellant to take necessary exercise for making the Weigh Bridge correct.
At this stage, findings of the competent Authority may also be referred to wherein it has been mentioned that the Railway Authorities have not taken any steps to comply with the directions of the Competent Authority to get the Weigh Bridge tested and checked.
While decreeing the claim of the respondent, the Competent Authority has recorded a finding that weighment was done by the Railway Authorities on 16.12.1998 on the defective Weigh Bridge and was not binding on the respondent and the amount in question was recovered illegally and is liable to be refunded.
Saini Pushpinder 2013.09.17 16:17 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.170 of 2013 (O&M) 8 Finding no evidence in favour of the appellant to controvert the aforesaid findings, this Court has no option but to dismiss the instant appeals.
Dismissed.
September 12, 2013 (RAKESH KUMAR GARG) ps JUDGE Saini Pushpinder 2013.09.17 16:17 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.170 of 2013 (O&M) 9 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.251 of 2013 (O&M) Date of decision:
12. 09.2013 UOI ......Appellant(s) Versus M/s Lall Chand Gupta & Sons Railway Mall Godown Road, Mandi Gobindgarh, Distt.
Fatehgarh Sahib(Punjab) ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr.Puneet Jindal, Advocate for the appellant.
Ms.Meena Bansal, Advocate for the respondent.
Rakesh Kumar Garg, J.
For ordeRs.see FAO No.170 of 2013 titled as “UOI v.
M/s Ratan Coal Traders”.September 12, 2013 (RAKESH KUMAR GARG) ps JUDGE Saini Pushpinder 2013.09.17 16:17 I attest to the accuracy and integrity of this document High Court Chandigarh