Jasbir Singh, J.

1. This order will dispose of two Civil Writ Petitions No. 10546 and 10647, both of the year 2009, as common question of law and facts is involved in both these cases. For facility of dictating order, facts are being taken from C.W.P. No. 10546 of 2009.

2. The petitioner - Company is engaged in the business of manufacture, sale and supply of iron and steel. It booked a consignment with Indian Railways for transportation of (total 57 Wagons) iron and steel in the form of M/s (Billets and Blooms) from Rourkela to its branch office at Mandi Gobindgarh. Part of the consignment was to be delivered to M/s Jai Ambey Enterprises, and M/s Adhunik Ispat Pvt. Ltd. at Mandi Gobindgarh. Material was booked against receipt dated July 11, 2009. The petitioner paid an amount of Rs. 69,00,000/- towards freight. After loading, consignment was weighed, under supervision of the Railway staff, on a Weigh Bridge at Bondamunda. On July 14, 2009, before the consignment reached at its destination, the respondents raised a demand of Rs. 41,94,249/- as penalty, on the ground of over-weight. The claim was raised on the basis of en-route weighment of the material on Weigh Bridge at Muri. Petitioner filed an application for re-weighment of the consignment, which was rejected vide letter dated July 15, 2009 (P-7). Hence this writ petition.

3. Besides making prayer to quash letter Annexure P-7, petitioner has prayed that the respondents be restrained from imposing penalty amount towards alleged overweight, demurrage, wharfage charges till such time consignment is reweighed.

4. On July 17, 2009, following order was passed by this Court :

"Counsel for the petitioner states that when material was loaded in the wagons at Rourkela, weighment was done at Railway weight bridge, under railway officials supervision. Weighment of the material was again done, during journey, and it is stated that material was overloaded. By stating that fact, additional amount to the tune of Rs. 41,94,249/- has been demanded by the Railway vide order Annexure P-4. Counsel for the petitioner states that as there is discrepancy in the weighment done by the Railway, at the first instance and during journey, the petitioner moved an application that material be reweighed at the cost of the petitioner. That application has been rejected vide order Annexure P-7. Notice of motion for 21.07.2009. On asking of the Court, Ms. Abha Rathore, accepts notice on behalf of the respondents. Counsel for the respondents is directed to get instructions: i) Whether material was weighed under the supervision of the railway official when it was loaded in the train ?

ii) When second weighment was done and whether for that there was consent of the petitioner or not ?

iii) What is the difficulty in getting the re-weighment done at petitioners cost ?

5. In response to notice issued by this Court, reply has been filed by the respondents. Petitioner has also filed replication, to the writtenstatement filed by the respondents. Counsel for the petitioner has argued with vehemence that the consignment was weighed on weigh bridge at Bondamunda under supervision of the Railway staff. Receipt (P-1) showing detail of the loaded material was also issued thereafter. In view of above, the respondents were not justified to again weigh the material, en-route, at Muri, for which no intimation was given to the petitioner. By making reference to the weighment receipts (P-1 to P-3), issued after first weighment and receipt Annexure R-4 , which was issued after second weighment at Muri, counsel states that tare weight of the wagons do not tally with each other and further that speed of the train, when consignment was weighed at both the weigh-bridges was approximately the same. It is contention of counsel for the petitioner that once material was weighed on Railway weigh-bridge and at that time there was no over-loading, the weight of the material will not increase en-route, as has been shown by the respond