On 7.8.2012, request for urgent circulation of present petition was made, however, the request for circulation on the same day was not granted since this Court, as per the rules and practice, could not have granted such permission. Circulation of matter for urgent hearing on the same date can be made only with permission of the Hon'ble Chief Justice. Therefore, having regard to the exigency, learned advocate for the petitioner requested for permission for circulation for the next date.
Subsequently, the matter was circulated for hearing on the next date i.e. 8.8.2012.
2. On 8.8.2012, below mentioned order was passed:-
"1. Draft amendment is allowed. The amendment to be carried out forthwith.
2. Heard Mr. Kavina, learned Senior Counsel with Mr. Shah, learned advocate and Mr. Dave, learned advocate for the petitioner.
3. The petitioner has taken out present petition with the allegation that the weighbridge in Viramgam division is not working properly and there are defects in it, as a result of which incorrect reading are given out. Essential prayer which is prayed by the petitioner is that the authority may be directed to re-weigh entire consignment in other division or station of respondent's choice on any appropriate condition and the consignment may be released since the petitioner is heavily suffering by way of damages and future loss, which may be caused at the instance of the purchasers.
4. Having regard to exigency, let Notice be issued returnable on 9.8.2012. Direct service today is permitted to respondent No.2. The service to be effected on or before 3 p.m."
2.1 Vide above noted order, the office was directed to issue urgent notice, making it returnable on 9.8.2012.
3. On the next date, i.e. on 9.8.2012, Mr. Ramnandan Singh, learned advocate, appeared on behalf of the respondent - railway authorities and submitted that he would be entering his appearance on behalf of the respondent - railway authorities since he has instructions to appear for the respondent - railway authorities.
3.1 After hearing Mr. Kavina, learned Senior Counsel, for the petitioner and Mr. Ramnandan Singh, learned advocate for the respondent - railway authorities, below mentioned order was passed on 98.2012.
"In response to the order dated 8.8.2012 Mr. Ramnandan Singh learned advocate has appeared and submitted that he has received instruction to appear on behalf of the respondent. He has requested to file reply affidavit.
Mr. Kavina, Learned Senior Counsel for the petitioner requested for permission to make request to the Hon'ble the Chief Justice for hearing of present petition during holiday.
It is open to the petitioner to make appropriate request before the Hon'ble the Chief Justice."
3.2 Since Mr. Ramnandan Singh, learned advocate, requested for time to file reply affidavit, Mr. Kavina, learned Senior Counsel, requested for permission for hearing of the petition during holiday, as the next three days (i.e. 10th to 12th August, 2012) would be Public Holidays. Therefore, permission to make appropriate request to the Hon'ble the Chief Justice was granted.
4. Accordingly, request for circulation of the matter for hearing at residence during holiday was made before the Hon'ble the Chief Justice and by order dated 9.8.2012, the Hon'ble the Chief Justice granted the permission.
Accordingly, the matter is placed for hearing today, at residence.
5. Mr.
Devang Vyas, learned advocate for the petitioner, and Mr. Ramnandan Singh, learned advocate for the respondent - railway authorities are present.
6. Mr.
Ramnandan Singh, learned advocate has tendered vakalatnama and has entered appearance. He has also tendered reply affidavit, copy whereof has been served to Mr. Vyas, learned advocate for the petitioner.
6.1 On going through the reply affidavit, particularly with a view to reducing liability towards demurrages and further loss/damages, including the future and possible loss which may occur on account of the claims which may be made by the purchasers of the goods being transported by the petitioner, the petitioner has opted to avoid conflict and contentious issues with regard to the stand of the railway authorities with reference to alleged overloading.
6.2 Mr.
Vyas, learned advocate for the petitioner has, having regard to the fact that according to railway authorities there is excess load of 83.06 MT, agreed to off load equal amount of material / goods from one or two wagons out of the entire carriage and to shift material / goods from other wagons of the carriage into the emptied wagons, so as to bring the total load/weight of the complete carriage within permissible limits.
6.3 Mr.
Ramnandan Singh, learned advocate for the respondent -railway authorities has, on instructions from concerned officer, submitted that the railway authorities does not have any objection if they follow the said course of action and off load the excess weight equivalent to 83.06 MT which is found to be in excess over permissible limits. He has clarified, on instructions from concerned officer, that the railway authority would not have any objection if the petitioner takes out entire load out of one or two wagons and then shifts the excess weight from each of the carriage into the emptied wagon/s.
The petitioner is required to follow such course of action because, according to the petitioner, each of the wagons carries goods of different consumers/purchasers. There is also likelihood of complications regarding contains of each wagon from the excise authority if the goods from each of the wagons/carriage is removed, instead of following the aforesaid course of action.
7. In view of the fact that the respondent railway authorities do not have any objection to said suggestion made by the petitioner, the proceedings of present petition are, for the present, adjourned to 21.8.2012, at the request of learned advocate for the petitioner to enable the petitioner to file affidavit in rejoinder in response to reply affidavit filed by the railway authority.
7.1 In the meanwhile, the railway authorities will act as per the statement / stipulation made by Mr. Ramnandan Singh, learned advocate for the respondent - railway authority, on the instructions received from the concerned officer.
7.2 Mr.
Ramnandan Singh, learned advocate for the respondent, has further stipulated that after the railway authorities are satisfied that the petitioner has removed the excess weight so as to bring the weight of the entire carriage within permissible limits, the respondent permits the carriage and if so requested by the petitioner, weighment at Kankaria or Godhra as per the suggestion originally made by railway authorities, during the hearing on 9.8.2012, may be permitted by the railway authorities.
7.3 It is, however, clarified that the petitioner shall take steps as per the suggestions of the railway authorities to remove the excess weight so as to bring it within permissible limits and present order shall not be construed to mean that the petitioner is permitted to carry any excess weight which is not permitted by the railway authorities or permissible as per the rules.
7.4 It is also clarified that present order is made in view of the statement and stipulation made by Mr. Ramnandan singh, learned advocate for the respondent - railway authorities.
This Court has taken note of the fact that learned advocate for the respondent authorities has made the statement on instructions received by him from the concerned authority/officer.
7.5 Mr.
Ramnandan Singh, learned advocate for the respondent - railway authority, has also stipulated that after the excess weight/load is removed and the total weight is brought within the permissible limit, the respondent - railway authorities will permit the carriage to proceed to its destination.
Direct Service is permitted today.
[K.M.Thaker, J.]