Heard Mr. P. Deka, learned counsel for the petitioner. Also heard Mr. D.K. Dey, learned standing counsel for the Railways, appearing for all the respondents.

2. The case of the petitioner is that the petitioner had placed order with one Koteshwar Chem Food (P) Ltd, Chirai at Gujarat for supply of Refined Iodized Salt. M/s Koteshwar Chem Food (P) Ltd, Chirai booked an indent at Chirai with the respondent Railway authorities for one rake consisting of 42 wagons out of which, 32 wagons were earmarked for New Guwahati Goods Railway Station (NGC) and 10 for New Bongaigaon Railway Station (NBQ). Though 42 wagons were indented, the Railways made available only 41 wagons and because of such short supply of 1 wagon, 32 wagons were booked for NGC and 9 for NBQ against Railway Receipt bearing No. 212001777 dated 13.08.2008. Goods were accordingly loaded on 18.08.2008. When the petitioner had gone to unload the goods at NBQ, the respondent No.4 demanded payment of under charges amounting to Rs.2,79,078/- in view of the Circular No.C/486/RG/RPP/GM/PT(IV) dated 24.06.2008. Protest being made by the petitioner, 800 numbers of Refined Iodized Salt bags weighing 50kg each was detained and the remaining consignment was released.

3. By the aforesaid Circular dated 24.06.2008, the Policy Guidelines under the heading “Policy Guidelines-Freight Incentive Schemes and Transportation Products” was circulated. In the aforesaid Guidelines at Clause-5.3, it is provided that two point rakes can be loaded at trainload class rate under certain conditions, one of which (condition No.5) is that a minimum of 10 wagons should be loaded for each of the two destinations.

4. As noticed earlier, Koteshwar Chem Food (P) Limited had indented 42 numbers of wagons for two destinations, namely, NGC and NBQ. However, instead of 10 wagons for NBQ, 9 wagons were made available and accordingly, 9 wagons were loaded for NBQ and because of the aforesaid shortfall of 1 wagon, a sum of Rs.2,79,078/- was demanded vide letter dated 21.08.2008 as under charge.

5. By an order dated 09.01.2009, while issuing notice of motion, the respondent authorities were directed to release the detained articles in question subject to furnishing a bank guarantee of Rs.2,79,078/-. The writ petition came to be admitted on 05.04.2012. Till then, no affidavit was filed by the Railways, though at the time when notice was issued, standing counsel, Railways had accepted notice. Subsequently on 27.09.2012, noticing that no affidavit was still filed, the interim order dated 09.01.2009 was made absolute without requiring the petitioner to give bank guarantee.

6. Mr. Deka, learned counsel for the petitioner has submitted that it was because of the inability of the Railways to provide 10 wagons, as demanded, there was a shortfall of 1 wagon and, therefore, the condition enumerated at Condition No.5 of Clause-5.3 being fulfilled, trainload class rate would be applicable and in the aforesaid factual scenario, letter dated 21.08.2008 demanding under charge is not permissible in law.

7. It is submitted by Mr. Dey on the basis of Annexure-I document dated 13.08.2008 that minimum number of wagons required to be loaded for availing trainload benefit is 38 wagons and admittedly, in the instant case, 41 wagons had been made available to avail the benefit of two point rate. However, he has submitted that although there was a demand made by the consignor for 32 wagons for the destination NGC and 10 for destination NBQ, when only 41 wagons were made available, the consignor ought to have correspondingly adjusted wagons for each of the destination stations suitably so that minimum of 10 wagons were loaded for each of the destinations. It is his submission that if the Railways had failed to provide minimum of 38 wagons and goods were loaded in respect of both the destinations with minimum of 10 wagons, benefit of Clause-5.3 would have been admissible. However, as only 9 wagons were loaded for NBQ, Condition No