^7 IN THE HIGH COURT OF JUDICATURE AT BILASPUR /CHHATTISGARH) .^^. WRIT PETITION NO." OF 2005 PETITIONER ^ y ^- .y ,^:y ^ ^ ^1. Ultra Tech Cement Limited, A Company incorporated Under the Companies Act, 1956, having its Registered Office at 'A'Wing, Ahura Centre, 1st Floor, Mahakall Caves Road, Andheri (E), Mumbai (Mahasrashtra), Having its Cement Plant at Hirmi Cement Works, Hirmi Dist. Raipur (Chhattisgarh) Through its Power ofAttorney Holder Jitendra Kumar, S/o Shri Vishwanath Pratap Singh, Aged about &oyears, Vice President, UltraTech Cement Limited, R/o Hirmi Cement Works, l-1irmi, Distt. Raipur (Chhattisgarh) VERSUS RESPONDENTS ^ / ^t , 1. Union of India through the Secretary, Ministry of Railways, Rail Bhawan, New Delhi. ^2. South East Centrat Raitway, through its Zonal Manager Bilaspur /3. Chief Commercial Manager, South East CentralRailway Old European Institute Building, Bilaspur 495 004 /4. Chief Goods Supervisor, UltraTech Cement Ltd, HCW, MHCH Siding, Hathbandh, SEC Rly., Distt. Raipur (CG) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN NATURE OF CERTIORARI. MANDAMUS PROHIBITION AND OTHER SUITABLE WRIT OR WRITS. DIRECTION OR DIRECTIONS. ORDER OR ORDERS: \, jj The petitioner, above-named most respectfully submits as under: t.0 a <- / ^F^ HIGH COURT OF CHHATTISGARH : BILASPUR t i 'i? il 9f; m PETITIONER RESPONDENTS WRIT PETITION N0.2548 OF 2005 Shree Nakoda Ispat Limited Versus Union of India & Others And W.P.Nos.3238, 3307, 3820, 5775, 5907, 6099 and 6436 of 2005, W.P. Nos. 677, 1796, 2262, 3238, 3480 and 5168 of 2006, W.P. (C) NQS. 98 & 1309 of 2007, W.P.(C) No.5126 of 2008 and W.P. No. 6142 of 2005. Post for pronouncement of the orders on the tf-' day of April, 2011 Sd/- Satish K. Agnihotri Judge B B?K t" j •i1'. t. K vs^. ,1f.'' I. M HIGH COURT OF CHHATTISGARH : BILASPUR WR11PEBTION N0.2548 OF 2005 PETITIONER RESPONDENTS PETITIONER RESPONDENTS PETITIONER RESPONDENTS PETITIONER RESPQNDENTS PETITIONER RESPONDENTS PETITIONER RESPONDENTS Shree Nakoda Ispat Limited Versus Union of India & Others WRIT PETITION N0.3238 OF 2005 M/s Drolia Electrosteel (P) Ltd. Versus Union of India & Others WRIT PETITION N0.3307 OF 2005 M/s Drolia Electrosteel (P) Ltd. Versus Union of India & Others WRIT PETITION N0.3820 OF 2005 Rashmi Sponge Iron Private Limited Versus Union of India & Others WRIT PETtTION N0.5775 OF 2005 Vandana Global Limited Versus South East Central Railway & Others WR!T PETITION N0.5907 OF 2005 Ultra Tech Cement Limited Versus Union of India & Others y PETITIONER RESPONDENTS PETITIONER RESPONDENTS PETITIONER RESPONDENTS PETITIONER RESPONDENTS PETITIONER WRIT PETITION N0.6099 OF 2005 Airan Steel and Power (P) Ltd. Versus The Union of India & Others WRIT PETITION N0.6436 OF 2005 Mangal Sponge Iron and Steel Private Ltd. Versus Union of India & Others WRIT PETITION N0.677 OF 2006 M/s Shree Nakoda Ispat Ltd. Versus Union of India & Others WRIT PETITION N0.1796 OF 2006 Shri Hare Krishna Sponge Iron (P) Ltd. Versus Union of India & Others WRIT PETITION N0.2262 OF 2006 Nova Iron & Steel Limited Versus RESPONDENTS Union of India & Others WRIT PETITION N0.3238 OF 2006 PETITIONER M/s Sunil Sponge Pvt. Ltd. Versus RESPONDENTS Union of India & Others :B@tir° ~°Wif"<" i" v PETITIONER WRIT PETITION N0.3480 OF 2006 Jindal SteelS Power Limited Versus RESPONDENTS South East Central Railway & Others WRIT PETITION (Q N0.5168 OF 2006 PETITIONER M/s Gagan Resources Private Ltd. Versus RESPONDENTS Union of India & Others WRIT PETITION (0 N0.98 OF 2007 PETITIONER G.R. Sponge & Power Ltd. Versus RESPONDENTS Union of India & Others WRIT PETITION (CT N0.1309 OF 2007 PETITIONER M/s Drolia Electrosteel (P) Ltd. RESPQNDENTS PETITIONER RESPONDENTS PETITIQNER RESPONDENTS Versus Union of India & Others WRIT PETITION (0 N0.5126 OF 2008 M/s Radha Madhav Industries (p) Ltd. Versus Union of India & Others AND WRIT PETITION N0.6142 OF 2005 M/s Hi-Tech Power & Steel Ltd. Versus Union of India & Others (Writ petitions underArticle 226/227 ofthe Constitution of India) Single Bench : Hpn'ble Shri Satish K. Agnihotri, J. y Present:- Shri Ashish Shrivastava, Shri Prafull Bharat, Shri Shashank Thakur, Shri G.S. Ahulwalia and Shri Harsh Wardhan, Advocates for the respective petitioners. Shri P.S. Koshy, Shri Abhishek Sinha.Ms.Naushina Afrin Ali and Shri Vivek Verma, Advocates for the respondent/ Railways. •> ^. (Delivered on this i-f- day ofAprit, 2011) 1. W.P. Nos.2548, 3238, 3307, 3820, 5775, 5907, 6099 and 6436 of 2005,W.P. Nos. 677, 1796, 2262, 3238, 3480 and 5168 of 2006, W.P. (C) Nos. 98 and 1309 of 2007, W.P.(C) No.5126 of 2008 and W-P. No.6142 of 2005, involve the same question of law i.e. asto whether the demand notices issued by the respondent Railway authorities to the petitioner companies to make payment of punitive charges on the ground of overloading is sustainable in the eyes of law because the impugned action has been taken by the Railway authorities only after delivery of the material at the last destination of consignment, thus, they are being considered and disposed of by this common order. 2. The facts, in nutshell, as projected by the petitioners, arethat the petitioner companies purchased various materials e.g. Iron Ore, Gypsm, eta. from various destinations and the same were booked through Raihway authorities. At the time of loading, the Railway officials as well as officials of the petitioner companies were present and accordingly, the Railway Receipts (RRs) were issued. Thereafter, the rakes begin their journey from the originating stations to reach its destinations of their delivery, However, according to the learned counsel appearing for the petitioners, the 3. reweighment of the rakes was done behind the back of the petitioners and even proper opportunity wasnot afforded to the petitioners. At the time of re-weighment, the railway authorities have not assigned any sufficient and cogent reasons under what circumstances, the re-weighment was done. Thereafter without taking any action, the material was delivered at the destinations. Before delivery of the material, some of the petitioners, after knowing about the re-weighment, made representations before thc respondent authorities. However, without taking any action on the representations of the petitioner companies, the material was delivered. Thereafter, all of a sudden, the impugned demand notices were issued and the petitioner companies were directed to make the payment of punitive charges of overloading of the material. The facts, in short i.e. date of loading, date of re-weighment of material and the date of issuance of demand notice in all the cases are : WP No.2548 of 2005 : 3661.200 MT Iron Ore was purchased and loaded in the Railway rakes vide RR No.E-347699 on 3-4-2005 at Banspani Railway Siding for delivery at Bhilai Goods Shed, Bhilai. Reweighment took place on 5-4-2005 at Maroda. Thereafter, on 6-4-2005 the petitioner made a representation for reweighment of the goods, but the same was not done and the delivery was made on 6-4-2005. Afterwards, the impugned demand notice dated 6-4-2005 was issued on the ground of overloading of 381.50 MT and the petitioner was directed to deposit an amount of Rs.21,75,081/-. WPNo.3238of2005: Vide RR No.347380 dated 5-1-2005 a rake of 58 BOX N was booked and loaded the material in the rakes at Ex. Banspani for delivery at Uslapur (Bilaspur). Reweighment was done at Champa and on 11-3-2005 demand notice for Rs.12,44,026/- was issued. WPNo.3307of2005: Vide RR No.347832 dated 25-5-2005, 58 rakes of iron ore was booked and loaded in the railway rakes at Banspani for delivery at Hath Bandh. Reweighment was done and a demand notice for Rs.12,37,009/- was issued on 20-6-2005. WPNo.3820of2005: 3635.90 MT Iron Ore was purchased and loaded in the railway rakes vide RR No.347830 on 8-6-2005 at Barbil for delivery at Bhilai Goods Shed, Bhilai. Reweighment todk place on 10-6-2005 at Champa. Afterwards the demand notice dated 11-6-2005 was issued on the ground of overloading and the petitioner was directed to deposit an amount of Rs.13,64,670/-. WP No.5775 of 2005 : 35193 MT Iron Ore was booked and loaded in the railway rakes vide RR No.E-347322 at Banspani on 23-10-2004. However, after delivery ofthe goods on 19-7-2005 a demand notice for Rs.9,84,005/- was issued on the ground of over loading and the same found at Champa during the course of reweighment. In fact, with regard to weighment no intimation was given to the petitioner. WPNo.5907of2005: 3618.80 MT Gypsm was purchased and loaded in the railway rakes vide RR No.907781-783 dated 6-4-2005 at Thaiyat Hamira. Reweighment was done on 8-4-2005 at Swaimadhopur. Material was delivered on 11-4-2005 and demandnotice was issued on 2-5-2005. WP No^099of 2005 : 3561.03 MT Iron ore was purchased and loaded in the railway rakes vide RR No.E-406793 dated 19-6-2005 a1 Barbil for delivery at Uslapur (Bilaspur). Reweighment was done at Champa and punitive charges of Rs.3,65,611/- was imposed. The impugned action has been taken only after delivery of goods. WP No.6436 of 2005 : 36721 MT Iron ore was purchased and loaded in the Railway rakes vide RR No.E40678 dated 23-6-2005 at Barbil for delivery at Uslapur (Bilaspur). Reweighment was done at Champa and punitive charges of Rs.6,84,521/- was imposed. The impugned action has been taken only after delivery of goods. WPNo.677of2006: Consignment was loaded vide RR No.346678 dated 27-12-2004 whereas the demand notice was issued foc. Rs.90,587/-. WP No.1796of2006: 36163 MT iron ore was purchased and loaded in the railway rakes on 30-8-2005 vide RR No.407238. Reweighment was done at Champa on 1-9-2005. Delivery was given at Hathbandh (Bilaspur) on 2-9-2005 and the impugned notice was given on 6-9-2005. Second consignment booked and toaded in the railway rakes vide RR No.407238 dated 30-8-2005. Reweighment was done at Champa on 1-9-2005. Delivery was given at Hathbandh (Bilaspur) on 2-9-2005 and the impugned notice was given on 25-10-2005. Third consignment booked and loaded in the railway rakes vide RR No.407236dated 24-8-2005. Reweighment was done at Champa on 26-8-2005. Delivery was given on 27-8-2005 and the impugned notice was given on 25-10-2005. WP No.2262 of 2006 : 3504 MT Iron ore was booked and loaded in the railway rakes on 15-3-2005 vide RR No.383196. Reweighment was done at Champa on 18-3-2005. Delivery was given at Uslapur (Bilaspur) on 18-3-2005 and the impugned notice wasgiven on 18-1-2006. WPNo.3238of2006: First consignment of Iron ore was booked and loaded on 23-8-2005 vide RR No.465628. Reweighment was done at Champa on 25-8-2005. Delivery was given at Hatbandh on 26-8-2005 and the impugned notice was given on 25-10-2005. Second consignment was booked and loaded on 21-10-2005 vide RR No.406890. Reweighment was done at Champa on 24-10-2005. Delivery was given at Hatbandh on 25-10-2005 and the impugned notice was given on 20-11-2005. WPNo.3480of2006: Iron ore was booked and loaded on 27-7-2005 vide RR No.413348. Reweighment was done at Champa on 30-7-2005. Delivery was given on 5-8-2005 and the impugned notice was given on 8-11-2005. WPNo.5168of2006: Iron ore was booked and loaded vide RR No.347839 dated 21-6-2005 carrying iron ore. Reweighment was dpne on 22-6-2005. Delivery was given on 23-6-2005 and the impugned notices were given on 5-7-2005 & 21-9-2005. WP (C) No.98 of 2007_; The material was booked and loaded in the railway rakes on 1-7-2005 vide RR No.268021. Reweighment was done on 3-7-2005 at Champa and delivery given. Demand notice was issued on 15-7-2005. 10 4. Second consignment was booked and loaded in the railway rakes on 25-3-2006 vide RR No.465199. Reweighment was done on 27-3-2006 at Champa and delivery given on 28-3-2006. Demand notice was issued on 15-5-2006. WP (QNo.1309 of 2007: Material was booked and loaded in the railway rakes on 22-4-2006 vide RR NO.E547072. Demand notice was issued on 27-9-2006 for Rs.6,09,524/-. WP(C)No.5126of2008 Material was booked and loaded inthe railway rakes vide RR No.268346, dated 9-6-2005. Demand notice was issued on 11-6-2005 forRs.2,99,851/-. WP No.6142 of 2005 : 58 rakes iron ore was purchased and loaded in the railway rakes vide RR No.383101 dated 20-12-2004 at Barbil. Reweightment was done on 21-12-2004. Material was delivered on 23-12-2004. Thereafter, the demand notice dated 25-10-2005 was issued and the petitioner was directed to deposit an amount of Rs.11.29.729/- on the ground of over loading. Shri Ashish Shrivastava, Shri Prafull Bharat, Shri Shashank Thakur, Shri G.S. Ahutwalia & Shri Harsh Wardhan, learned counsel appearing for the respective petitioners, would submit that the imposition of punitive charges of overloading is contrary to the provisions contained under Section 73 of the Railways Act, 1989 {for short 'the Act, 1989"). The railway authorities could not have WIT-IL'T-T=J">"TC" '""'W.IBT*'- .••^l3ES^ '"'~~»Kaa:ah Siff.<lttt'*in''i'dinuB>t'Bn»iinua!ra«n-J 11 }*- 6. imposed the punitive charges on the ground of overloading after delivery of material was taken by the petitioners companies. The petitioners companies have sought cross verification upon delivery in exercise of its right under Section 79 of the Act, 1989, the respondent authorities were duty bond to allow the re-weighment demanded by the petitioner. The respondent authorities have not at all appreciated the representations made by the petitioners, as a result of which the petitioner companies were seriously and adversely affected. Learned counsel would further submit that the respondent authorities have acted in a most unfair and arbitrary manner in making re-weighment without any information and notice. Even the respondent authorities are not allowing the petitioner companies to keep their representative present at the time of re-weighment. The impugned action of the respondent authorities became still unfair. The railway authorities have not at all appreciated the facts that at the originating point, the material was loaded and the weighment was done in presence of railway authorities and there was no complaint or defect, therefore, the exercise of re-weighment in between the originating point and the destination point, is not at all sustainable. Thus, these petitions. On the other hand, Shri P.S. Koshy, Shri Abhishek Sinha, Ms. Naushina Afrin Ali & Shri Vivek Verma, learned counsel appearing for the respondents/railways, in different petitions, would submit that the there was no weighment by the railways at the originating station and the weight and loading of rake, was not witnessed by the, railway staff. The re-weighment was done in accordance with 12 the provision of the Act, 1989. In fact, the representations made by the petitioners against the demand notice have been considered and decided by the railway administration upholding the demand notice after consideration of the relevant circulars, as the weighment at originating station was not witnessed by the railway authorities. Learned counsel would further submit that the petitioners have also failed todemonstrate before this Court any prejudice that may have been caused to them by raising the demand subsequent to delivery of the goods. There is no material placed on record with the writ petitions by the petitioners, which may indicate that the goods transported by them were less in weight than for what a demand had been raised by the railways administration. There is no prohibition or restriction on re-weighment and there is no embargo on weighment even, if the goods are weighed at the originating station or even if the weighment is supervised by the railway staff. . Leamed counsel would next submit that the provision of raising a demand under Section 73 of the act, 1989 before delivery of the goods deserves to be interpreted as directory and not mandatory as on being interpreted mandatory would defeat the purpose of the Act, 1989and render the other provisions of the Act, 1989, especially Section 83 of the Act, 1989, as redundant. The second weighment of the rakes was done on the basis of the report submitted by the vigilance and, as such, the circulars relied upon by the petitioners are not applicable to the facts of the cases on hand. Under these circumstances, the petitioners are not entitled for •Ew.S3-£..!:^StSs a^cw"s^mss~-^"»-^f.-?,sas.:^e!--:-. :• --'3W..,,., ,--»;^-sweV^t'.it;.... •-^.y,R- ^fwxwws:' W^WM-.. 13 waiver of punitive charges, which are compensatory in nature ofthe overloading done by the petitioners and cannot be equated with penalty, which may entail a right of hearing before imposition. 9. It was further submitted that in some cases the statutory authority i.e. Principal Director of Audit had made a check at Champa weighbridge and the weighment sheets were sent to their destination for crosschecking. While crosschecking, it was found that the weighment sheet had not arrived at Mandhar station previously. Then the under charge and punitive charge was raised by the Chief Station IVIaster, Mandhar (CSM/MDH) as per the weighment sheets and served to M/s. Ispat Godavri Ltd. to coordinate with its consortium member i.e. M/s Vandana Global Ltd and M/s. RaipurAlloys & Steel Ltd. for arranging the payment. 10. The punitive charges for overloading has been levied as per extant rules i.e. the Railways (Punitive Charges for Overloading a Wagon Rules, 2004) and Section 73 ofthe Act, 1989. Section 73 cannot be read in isolation, it is to be read in conjunction with Sections 78 and 83. Section 78 authorizes Railway to reweigh the consignment en-route and Section 83 stipulates that Railways has lien over the consignment to recover the freight and any other charges and in case delivery has been made then Railways has lien on any other consignment of such person. 11. It was next contended that the railway administration can levy and realize punitive charges even after delivery, as a creditor Railway can exercise lien for the under charges and punitive charge after delivery even if it is assumed as time barred debt. The consignor has not acted when its turn was there and the consignor could have 14 pre-empted the act of railways, which has taken place and could ask for action as contemplated under Sections 65 and 69 of the Railway Act. Actions of service provider are of commercial nature. If the railways as service provider enters into any kind of enquiries, then there is a risk of its service capacity getting hampered. Apart -i from rendering services it will get involved into a kind of adjudicatory process, which will mean diversion. Such diversion of the national services provider would be that its operating capacity will be put under jeopardy. 12. I have heard learned counsel appearing forthe parties, perused the pleadings and the documents appended thereto. 13. The impugned riotices are demand notices dated 6-4-2005, 11-3-2005, 20-6-2005, 11-6-2005, 15-12-2005, 19-7-2005, 2-5-2005, 10-6-2005, 28-6-2005, 23-7-2005, 28-9-2005, 28-9-2005, 9-3-2005, 25-10-2005, 25-10-2005, 6-9-2005, 18-1-2006, 25-10-2005, 25-11-2005, 8-11-2005, 5-7-2005, 21-9-2005, 15-7-2005, 15-5-2006, 27-9-2006, 11-6-2005 & 25-10-2005 wherein this Court by orders dated 3-2-2006, 27-5-2005, 29-11-2005, 24-11-2005, 12-12-2005, 21-12-2005, 13-4-2006, 3-5-2006, 5-7-2006, 5-10-2006, 5-1-2007, 8-3-2007 & 13-12-2005 has granted interim orders except in W.P.Nos.3307 & 3820 of 2005, W.P. Nos.677 & 3480 of 2006 and W.P. (C) No.5126 of 2008. 14. To the impugned demand notices the representations were made by the petitioners in W.P.No.2548 of 2005 on 11-4-2005 (Annexure - P/8), in W.P.No.3238 of 2005 on 18-3-2005 (Annexure - P/5), in W.P.No.3820 of 2005 on 16-12-2005 (page 67 of the petition), in r ^isas^ 15 W.P.No.5775 of 2005 on 3-10-2005 (Annexure - P/6), in W.P.No.5907 of 2005 on 27-10-2005 (Annexure - P/5), in W.P.No.677 of 2006 on 14-3-2005 (Annexure - P/2), in W.P.No.1796 of 2006 on 19-10-2005 (Annexure - P/8), in W.P.No.2262 of 2006 on 14-3-2006 (Annexure - P/3), in W.P.No.3238 of, 2006 on 2-3-2006 (Annexure - P/5), in W.P.No.5168 of 2006 on 18-8-2005 (Annexure - P/3), in W.P. No.98 of 2007 on 28-3-2006 (Annexure - P/5), in W.P.(C) No. 5126 of 2008 on 14-7-2005 (Annexure - P/3) and no representations were in made by the petitioners in W.P. Nos.3307, 6099, & 6436 of 2005, W.P.No.3480 of 2006, W.P. (C) No.1309 of 2007 and W.P.No.6142 of 2005. 15. Thus, the question for consideration before this Court is asto whether after delivery of consignment the demand can be raised without affording an opportunity of hearing of the consignees ? 16. It is useful to refer the following relevant provisions of the Act, 1989 to appreciate the dispute involved in these cases : "65. Railway receipt.-(l) A railway administration shall,- (a) in a case where the goods are to be loaded by a person entrusting such goods, on the completion of such loading; or (b) in any other case, on the acceptance of the goods by it, issue a railway receipt in such form as may be specified by the Central Government. (2) A railway receipt shall be prima facie evidence of the weight and the number of packages stated therein: Provided that in the case of a consignment in wagon-load or train-load and the weight 6r the number of packages is not 16 -> ~. checked by a railway servant authorised in this behalf, and a statement to that effect is recorded in such railway receipt by him, the burden of proving the weight or, as the case may be, the number of packages stated therein, shall lie on the consignor, the consignee or the endorsee. 73. Punitive charge for overloading 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. 74. Passirig of property in the goods covered by railway receipt—Theproperty in the consignment covered by a railway receipt shatl pass to the consignee or the endorsee, as the case may be, on the delivery of such railway receipt to him and he shall have all the rights and liabilities of the consignor. 78. Power to measure, weigh, eto.- Notwithstanding ahything contained in the railwayreceipt, the railway administration may, before the delivery of the consignment, have the right to— (i) (ii) re- re-measure, re-weigh or classify any consignment, re-calculate the freight and other charges; and (iii) correct any other error or collect any amount that may have been omitted to be charged. 79. Weighment of consignment on request of the consignee or endorsee—A nwiflaiiu 17 railway administration may, on the request made by the consignee or endorsee, allow weighment of the consignment subject to such conditions and on payment of such charges as may be prescribed and the demurrage charges if any: Provided that except in cases where a railway servant authorised in this behalf considers it necessary so to do, no weighment shall be allowed of goods booked at owners risk rate or goods which are perishable and are likely to lose weight in transit: Provided further that no request for weighment of consignment in wagon-load or train-load shall be allowed if the weighment is not feasible due to congestion in the yard or such other circumstances as may be prescribed. 83. Lien for freight or any other sum due-(1) If the consignor, the consignee or the endorsee fails to pay on demand any freight or other charges due from him in respect of any consignment, the railway admhistration may detain such consignment or part thereof or, if such consignment is delivered, it may detain any other consignment of such person which is in, or thereafter comes into, its possession. (2) The railway administration may, if the consignment detained under sub-section (1)is- (a) perishable in nature, sell at once; or (b) not perishable in nature, sell, by public auction, such consignment or part thereof, as may be necessary to realise a sum equal to the freight or other charges: Provided that where a railway administration for reasons to be recorded in writing is of the opjnion that it is not expedient to hold the auction, such consignment or part thereof may be sold in such manner as may be prescribed. (3) The railway adminisfration shall give a notice of not less than seven days of the public auction under clause (b) of sub-section (2) in one or more