JUDGMENT : K.S. Jhaveri, J. Heard Mr. Asok Mohanty, learned Senior Advocate for the petitioners and Mr. A.K. Mishra, learned Standing Counsel appearing for the Railway. 2. By way of this writ petition, the petitioners have prayed for the following relief: "It is therefore prayed that your Lordships would graciously be pleased to admit the writ petition, issue notice to the opposite parties to show cause as to why the writ petition shall not be allowed and upon their showing no cause or insufficient cause, allow the writ petition and issue a writ in the nature of mandamus or an appropriate writ quashing the impugned notices dt.12.09.2008 and 09.02.2009 under Annexures-3 and 8 and further direct the opposite parties to accept the indents from the petitioner Company and allow the movement of rakes, without asking the alleged punitive charges amounting to Rs.1,86,99,211/-." 3. Learned counsel for the petitioners has submitted a date chart which raising following contentions: "In the present writ petition, the Petitioners have challenged the notice dated 12.09.2008 under Annexure-3 and subsequent demand notice dated 09.02.2009 issued by Sr. Divisional Commercial Manager, East Coast Railway, Khurda Road wherein the Opp. Parties (Railways) have demanded punitive charges to the tune of Rs.1,86,99,211/- for allegedly over loading of wagons while transporting iron ore from Nimpura Yard to Paradeep Port. 16.06.2008 and 22.06.2008- During the month of June, 2008 the petitioner, having been allotted with rakes for transportation of iron ore started loading of iron ores from different Stations and after completion of loading, the Railway Authority issued two nos. of Railway Receipts (RR) on 16.06.2008 and 22.06.2008. Thereafter the Trains started its journey to the destination point. (Annexure-2) 06.07.2008 & 08.07.2008- The wagons reached the destination point i.e. Paradeep Port and unloaded the iron ore without any intimation about the over loading or otherwise. 12.09.2008-Notice dated 12.09.2008 was received from Traffic Inspector, Paradeep Port Trust Railway regarding imposition of punitive charges allegedly for over loading of wagons. (Annexure-3) 09.02.2009-Letter dated 09.02.2009 issued by Sr. Divisional Commercial Manager, East Coast Railway, Khurda Road demanding punitive charges to the tune of RS.1,86,99,211/- for allegedly over loading of wagons was received much after the delivery of the goods. (Annexure-8). -------It is humbly submitted that in view of Sections 73 and 78 of the Railways Act, 1989 the Opp. (Annexure-3) 09.02.2009-Letter dated 09.02.2009 issued by Sr. Divisional Commercial Manager, East Coast Railway, Khurda Road demanding punitive charges to the tune of RS.1,86,99,211/- for allegedly over loading of wagons was received much after the delivery of the goods. (Annexure-8). -------It is humbly submitted that in view of Sections 73 and 78 of the Railways Act, 1989 the Opp. Parties are not legally entitled to make the demand of punitive charges after delivery of the goods and as such the demand is without jurisdiction. -------Further, it is an admitted fact that the demand has been made after the delivery of the goods and therefore in view of the provisions specifically stipulating that punitive charges can only be imposed before delivery, the demand as made is bad in law and liable to be quashed. -------That the Opp. Parties in their counter affidavit at sub-para of Paragraph 21 have admitted the fact of delivery of the goods before raising the demand. The relevant portion of the counter affidavit runs as follows: "It is further humbly submitted that there was over loading of 5 rakes in the year 2008 from 01.01.2008 to 02.12.2008 and also demand notice dated 09.02.2009 for punitive charges by the Sr. Divisional Commercial Manager, Khurda Road Division is based on the weighment slips and also in terms of provision vide Section 73 of the Railways Act, 1989. It is worthwhile to mention here that if the consignor, the consignee or the endorsee fails to pay on demand any freight and other charges due to him in respect of any consignment, the Railway Administration may detain such consignment or part thereof of if such consignment is delivered, it may detain any other consignment of such person which is in or thereafter comes into its possession. Hence non-acceptance of indent by the Railway Administration is justified in the eyes of law in terms of Section 83 of the Railways Act, 1989." ------That in view of the admitted fact that the demand of punitive charges was made after delivery of the goods and as such there remains no dispute about the legal provision that as per Section 73 and 78 of the Railways Act, 1989, the demand of punitive charges cannot be made after delivery of the consignment at the destination point. 4. 4. Section 73 and 78 of the Indian Railways Act, which are relevant for the purpose of our discussion reads as follows: "73. Punitive charge for over-loading a wagon. - Where a person loads goods in a wagon beyond its permissible carrying capacity as exhibited under sub-section (2) or sub-section (3), or notified under sub-section (4) of section 72, a Railway administration may, in addition to the freight and other charges, recover from the consignor, the consignee or the endorsee, as the case may be, charges by way of penalty at such rates, as may be prescribed, before the delivery of the goods: Provided that it shall be lawful for the Railway administration to unload the goods loaded beyond the capacity of the wagon, if detected at the forwarding station or at any place before the destination station and to recover the cost of such unloading and any charge for the detention of any wagon on this account. 78. Power to measure, weigh, etc.--Notwithstanding anything contained in the railway receipt, the railway administration may, before the delivery of the consignment, have the right to- (i) re-measure, re-weigh or re-classify and consignment; (ii) recalculate the freight and other charges; and (iii) correct any other error or collect any amount that may have been omitted to be charged." 5. Learned counsel for the petitioners mainly contended that the impugned order is violative of the principles of natural justice and also in gross violation of Sections 73, 78 and 79 of the Indian Railways Act and there is nothing on record to show that before delivering the material the petitioners have acknowledged the weight which has been alleged in the impugned notices. He has strongly relied upon the decision of the Calcutta High Court in the case of Union of India & Anr. (E.Rly) v. Ultra Tech Cement Ltd. & Anr., (2011) AIR Calcutta 216, paragraphs-19, 20 and 21 of which read as under: "19. After considering the facts and materials placed before us and after scrutinizing the Sections of the Railways Act as well as the paragraphs of the manual we find that admittedly the demand notices were issued by the railways after the delivery of goods. 20. After considering the facts and materials placed before us and after scrutinizing the Sections of the Railways Act as well as the paragraphs of the manual we find that admittedly the demand notices were issued by the railways after the delivery of goods. 20. After considering Sections 73 and 83 it appears to us that the said two Sections govern the realization of the charges and from the said sections it appears to us that as has been held by the Hon'ble Single Judge in order to take punitive charge for overloading a wagon, the concerned parties must be given intimation of the overloading and once the goods have been booked after due weighment, such punitive charge cannot be levied unless the goods are re-weighed in the presence of the representatives of the parties concerned. The said principle has been laid down in the case of Union of India Vs. Agarwala (Supra) and further we have noticed that the conduct of the railways would show that the belated demand has been made subsequent to the delivery being effected and thereby it violates the instruction given in the railways manual to its officials to obtain payment prior to the release of the goods prescribed. 21. We noticed the paragraphs of the manual and in the light of the sections of the Railways Act, we find that the writ petitioners were not afforded a chance to exercise the right conferred on a consignee or a consignor under Section 79 of the Act. Therefore, we have no hesitation to hold that the steps taken by the railways are in violation of the said provisions of law, thereby is not sustainable in the eye of law." 6. We have heard the counsels for both the sides. However, learned counsel for the opposite parties made a statement that in one of the writ petitions, i.e., W.P.(C) No.7895 of 2009 part payment pursuant to demand is already made and he has assured that the balance amount will be paid to the petitioners therein. But in our considered opinion, in view of the language of Sections 73 and 78 of the Indian Railways Act, the impugned order not only suffers from violation of the principles of natural justice but also there is no material on record to establish that the impugned notice was issued before delivery of the alleged consignment. 7. But in our considered opinion, in view of the language of Sections 73 and 78 of the Indian Railways Act, the impugned order not only suffers from violation of the principles of natural justice but also there is no material on record to establish that the impugned notice was issued before delivery of the alleged consignment. 7. In that view of the matter, the impugned notices dated 12.09.2008 and 09.02.2009 are required to be quashed and set aside. Accordingly, the same are quashed and set aside. The matter is remitted back to the authority. Both the petitioners will appear before the authority on 4.2.2019 and after providing the relevant documents, it will be open for the authority to pass a fresh reasoned order after hearing the petitioners. The said exercise will be completed on or before 30.6.2019. 8. Refund of the amount, if any deposited, shall be subject to the order to be passed by the authorities after hearing the parties. With the above direction, the writ petition is disposed of.