1. In this application under Article 226 of the Constitution, the petitioners have sought for a direction on the respondents to refund the punitive charges of Rs. 9,50,114 recovered from the petitioners for carrying goods in wagons beyond the permissible capacity and for directing the respondents to withdraw the demand of warfage and demurrage charges and to release the five wagons of coal detained by the respondents for the purpose of realising the said demurrage and wharfage charges.
2. The facts briefly are that the petitioner No. 1 registered an indent for a rake for despatch of coal from Jogighopa Railway Station. Pursuant to such registration of indent, a rake was placed and the petitioner No. 1 loaded Nangal Dry Coal in 35 wagons on 26.1.1997 Since no weigh-bridge was available at Jogighopa Railway Station, the coal was loaded in the said wagons without weighment and a certificate dated 26.1.97 was issued by the Railway-authorities of Jogighopa Railway Station to the effect that measurement of the loaded wagons could not be taken by the supplied measurement rod due to insufficient space inside the wagons between the loadable height and roof of the wagons, but on visual check, wagons were found correctly loaded upto the permissible loading height, marked inside the wagons under the supervision of the Chief Goods Superintendent (for short, “the CGS”). In/the R.Rs issued by the Railway-authorities of Jogighopa Railway Station, however, endorsements were made that the wagons were to be weighed at the weigh-bridge Station enroute or at destination. The 35 wagons were thereafter despatched and at the Station Laksar the wagons were weighed on the weigh-bridge and it was found that most of the 35 wagons were over-loaded beyond the permissible limit. Thereafter, when the wagons arrived at the destination Station Rohtak in Haryana on 1.2.1997, the CGS, Rohtak intimated the petitioner No. 2, the consignor of the coal, to deposit Rs. 12,23,860 as undercharges at the time of delivery by his letter dated 1.2.1997 In reply, the petitioner No. 2 wrote to the CGS, Northern Railway, Rohtak inter alia, that before issuing the R.Rs the authorities of the Forwarding Station checked the loaded height of the coal according to their specification and then issued, the R.Rs after endorsing on each R.R that the coal was loaded within the permissible height. In the said letter dated 1.2.1997, the petitioner No. 2 stated that on these facts the question of any under-charges for over-loading did not arise and it should be presumed that the weigh-bridge where the wagons were weighed was not in working order. In the said letter dated 1.2.1997, the petitioner No. 2 further requested the CGS to check the loading mark of each loaded wagon and to send the rake for re-weighment as the petitioner No. 2 was not ready to accept the excess weight. But the CGS, Rohtak Railway Station informed the petitioner No. 2 in his letter dated 2.2.1997 that the coal rake containing 35 wagons were weighed by the vigilance team at Laksar and on the basis of such weighment punitive charges amount to Rs. 9,50,114 were raised and requested the petitioner No. 2 for arranging payment before taking delivery of the same. The petitioner No. 2 then wrote to the CGS, Rohtak Railway Station that they would furnish a Bank Guarantee for Rs. 9,50,114 for the under-charges at the time of delivery and requested him to issue a certificate of coal height in each wagon before unloading the rake. But the said request of the petitioner No. 2 was not accepted and the CGS, Rohtak Railway Station again requested the petitioner No. 2 to pay the punitive charges in his letter dated 2.2.1997 The petitioner No. 2 thereafter made a request to send the rake of coal for re-weighment at the nearest weigh-bridge in their presence and that they were willing to pay the amount of re-weighment and haulage charges on demand. The petitioner No. 2 was thereafter informed on 4.2.1997 that re-weighment of coal rake had been permitted and that they should deposit re-weighment and haulage charges amounting to Rs. 94,080. The petitioner No. 2 then deposited the said re-weighment and haulage charges of Rs. 94,080 and the coal rake was thereafter sent to Panipat Thermal Power Station for re-weighment. On such re-weighment at the Panipat Thermal Power Station it was found that there was a big difference between the weighment at the Station Laksar and the weighment at the Panipat Thermal Power Station and that as per the weighment at the Panipat Thermal Power Station, the wagons were not loaded beyond the permissible limit and the petitioners were not liable for any punitive charge for over-loading. The said weighment at the Panipat Thermal Power Station, however, was not accepted by the respondents who continued to demand the punitive charges of Rs. 9,50,114 on the basis of weighment made at the Station Laksar as well as demurrage and wharfage charges. In the circumstances, the petitioners paid the punitive charges of Rs. 9,50,114 on 8.2.1997 under protest and took delivery of 30 wagons of coal, but the remaining 5 wagons of coal were detained by the respondents for realising of demurrage and wharfage charges. Aggrieved, the petitioners filed the present writ petition for appropriate relief.
3. When the writ petition was moved before this court on 27.2.1997, this court while issuing Rule passed an interim order directing that on the petitioners' furnishing a Bank Guarantee for the full amount of demurrage and wharfage charges as indicated in the order dated 20.2.1997 of the respondent No. 7, a copy of which has been annexed to the Additional Affidavit filed by the petitioner, the respondents would deliver the 5 wagons of coal to the petitioners. Pursuant to the said interim order passed on 27.2.1997, it appears that the petitioners furnished a Bank Guarantee for the full amount of demurrage and wharfage charges indicated in the order dated 20.2.1997 of the respondent No. 7 and took delivery of the remaining 5 wagons of coal.
4. At the hearing, Mr. S.K Ghose and Mr. G.N Sahewalla, learned counsel for the petitioners, submitted that the weighment of coal rake enroute at Laksar Railway station was made without issuing any notice to the petitioners and in the absence of the petitioners and hence the principles of natural justice had been violated. Thus, the punitive charges calculated on the basis of the said weighment could not be levied on the petitioners under section 73 of the Railway Act, 1989, (for short, “the Act 1989”). in support of the aforesaid submission, Mr. Ghose and Mr. Sahewalla cited the decision of a Division Bench of this Court in Union Of India… v. Salt Marketing Centre…., 1995 (III) GLT 548. They also cited the decision of the Supreme Court in Jagjit Cotton Textile Mills v. Chief Commercial Superintendent, Northen Railway (1998) 5 SCC 126 : AIR 1998 SC 1959, in which the Supreme Court has explained the purposes of section 73 of the Act, 1989.
5. Mr. BK Sharma, learned counsel appearing for the respondents, on the other hand, contended that there is no provision in the Act, 1989 for serving any notice to a party before weighment at a Railway Station enroute. He further contended that in any case it was not reasonably practicable to serve such notice to a party before weighment at a Railway Station enroute. He also cited the decision of another Division Bench of this court in Union of India v. Murli Manohar Enterprise, 1997 (III) GLT 257, in which it was held that the rights and obligations between the Railways and its customers were governed by the terms and conditions of the contract between the parties and that the principles of natural justice could not be pressed into service to alter or modify the express terms of the contract between the parties. In the said decision of the Division Bench in the case of Murli Manohar Enterprise (supra) Mr. Sharma pointed out, the earlier decision of this Division Bench in Union Of India… v. Salt Marketing Centre…. (supra) was noticed but it was held that the said decision was given per incuriam.
6. Section 73 of the Act, 1989 which provides for punitive charges for overloading of wagons and section 78 thereof which provides for power of the Railways to measure, weigh, etc., are quoted hereinbelow:
“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) of 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) remeasure, re-weigh or re-classify any consignment.
(ii) recalculate the freight and other charges; and
(iii) correct any other error or collect any amount that may have been omitted the charged.”
A bare reading of section 73 quoted above would show that no notice is required to be given to the consignor, the consignee or the endorsee before making any weighment of a wagon for determining as to whether the wagon has been loaded beyond its permissible carrying capacity for the purpose of levying punitive charges for overloading of wagon. The proviso to section 73, on the other hand, clearly stipulates 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. On an interpretation of section 73 of the Act, 1989, the Supreme Court in Jagjit Cotton Textile Mills v. Chief Commercial Superintendent, Northen Railway, (supra), ((1998) 5 SCC 126 : AIR 1998 SC 1959), held that one of the purposes of the aforesaid section 73 was to see that the gross weight at the axles was not unduly heavy so that accidents on account of the axles breaking done could be prevented. An emergency power has therefore been vested in the railway administration to unload the goods loaded beyond the capacity of the wagon as soon as it is detected and by implication therefore section 73 has ruled out the requirement of issuing any notice to the consignor, the consignee or the endorsee before weighment of wagon carrying the goods. Again, a reading of section 78 of the Act, 1989 quoted above would show that the railway administration has been vested with the right to re-weigh any consignment and there is no stipulation in section 78 that such re-weighment has to be made after giving notice to the consignor, consignee or the endorsee or in present of such party. Thus, there is no provision either in section 73 or section 78 of the Act, 1989 for weighment of goods enroute in presence of a party. No other provision of the Act, 1989 or the Rules made thereunder or any Executive Instruction has been brought to the notice of the court to show that weighment can be made by the railway administration enroute only after serving a notice on a party or in presence of such party.
7. In Union Of India… v. Salt Marketing Centre…. (supra), (1995 (III) GLT 548), cited by Mr. Sahewalla, the Division Bench has not held that re-weighment can be done by the railway administration only after notice to the party or in presence of such party but has only held:
“… when it comes to the question of levying penalty on the basis of reweighment which has been done in the absence of the consignor/consignee/endorsee… the penalty can be levied only after issuing show cause to the person from whom the penalty is sought to be recovered and after affording him reasonable opportunity of placing his case before the competent authority who is going to levy the penalty.”
In the said decision, the Division Bench further held that the punitive measure of realising the actual penalty could be exercised by the authority only after following the principles or natural justice and not on the basis of any evidence which might have been collected by the Railway ex parte at the back of the consignor/consignee/endorsee. In the instant case, the petitioner No. 2. The consignee, was duly informed by letter dated 2.2.1997 of the railway administration, copy of which has been annexed to the writ petition as Annexure-VII, that the coal rake containing 35 wagons was re-weighed by the Vigilance team at Laksar Railway Station and on the basis of such re-weighment punitive charges amounting to Rs. 9,50,114 had been raised against the petitioners. The petitioner No. 2 therefore was intimated of the evidence or material on the basis of which the punitive charges under section 73 of the Act 1989 we sought to be recovered from the petitioners and thereafter the petitioner No. 2 had their say before the railway administration finally took a decision to recover the said punitive charges. Principles of natural justice had therefore been complied with and the contention of the petitioners that recovery of punitive charges from the petitioners under section 73 of the Act, 1989 was violative of the principles of natural justice has no merit.
8. It was next submitted by Mr. Ghose and Mr. Sahewalla, learned counsel for the petitioners, that the railway administration once having permitted re-weighment at the request of the petitioner No. 2 by order dated 4.2.1997 was bound by the principles of estoppel to accept the result of re-weighment made pursuant to the said order of re-weighment. Mr. Ghose and Mr. Sahewalla referred to the provisions of section 79 of the Act, 1989 which provides for weighment or consignment on request of the consignee or endorsee and contended that once the railway administration allowed re-weighment of the request made by the consignee or endorsee, the result of such weighment had to be accepted by the railway administration. In the instant case, they pointed out, re-weighment at the request of the petitioner No. 2 permitted by order dated 4.2.1997 under section 79 of the Act, 1989 was done at the Panipat Thermal Power Station and the result of the re-weighment would show that there was no overloading in most of the wagons. In some wagons, however, difference between the invoiced weight and the weight on re-weighment did not exceed 2%. They referred to the provisions of paragraph-117 of the Indian Railway Commercial Manual to show that differences between the invoiced weight and the weight on re-weighment was to be neglected if the differences did not exceed 2%. According to Mr. Ghose and Mr. Sahewalla, therefore, the petitioners were not liable for any extra charges than what was paid by them when the coal rake was despatched for Jogighopa Railway Station.
9. Mr. BK Sharma learned counsel appearing for the respondents, relying on the averments in the affidavit-in-opposition filed on behalf of the respondents submitted that the coal rake in the instant case was booked at the owner's risk and the proviso to section 79 of the Act, 1989 stipulated that no weighment would be allowed of goods booked at owner's risk rate except in cases where a railway servant authorised in that behalf considered it necessary to do so. According to Mr. Sharma, it is not clear in the present case as to whether the railway servant who permitted re-weighment under section 79 was authorised to allow re-weighment of the goods booked at the owner's risk rate. Mr. Sharma further contended that in any case the Executive Instructions contained in the Indian Railway Commercial Manual provide for weighment and re-weighment only in railway weighbridges and not in other weigh-bridge and since the difference in the results of the weighment made in the railway weigh-bridge enroute at Laksar Railway Station and made at the weigh-bridge at Panipat Thermal Power Station were glaring, the railway administration did not accept the weighment results held at the Panipat Thermal Power Station. He relied on the decision of the Division Bench of this court in Kamrup Forwarding Agency v. Union of India, 1997 (III) GLT 106, in support of his submission that the Executive Instructions contained in the Indian Railway Commercial Manual provide for weighment only in a weigh-bridge maintained by the Railways and not in a private weigh-bridge and that such Executive Instructions are applicable with regard to weighment and re-weighment as the statutory provisions are silent. According to Mr. Sharma therefore the railway administration was entitled to recover the punitive charges from the petitioners on the basis of weighment done enroute in the railway weigh-bridge at Laksar Railway Station.
10. The order dated 4.2.1997 permitting re-weighment of the coal rake at the request of the petitioner No. 2, a copy of which has been annexed to the writ petition as Annexure-X is quoted hereinbelow:
“NORTHERN RAILWAY No. 10.CGS/ROK/97Dt. 4.2.1997
Vijay Coal Co.
Anaj Mandi, Rohtak
Sub: Payment of Reweighment & Haulage charges Rs. 94080
As per coml CNL Messages No. 675.CC/9706 dt. Reweighment of coal Rake permitted. So PL deposit the reweighment charges & haulage charges as cited above before reweighment.
Sd/- Illegible
Mukhya Mal Parzabekshak.
A reading of the said order dated 4.2.1997 permitting re-weighment at the request of the petitioner No. 2 would show that there was no representation held out in the said order by the railway administration that the result of the re-weighment would be accepted by the railway administration in case re-weighment and haulage charges were deposited by the petitioner No. 2 for such re-weighment and haulage. The petitioners have also not pleaded anywhere in the writ petition that the railway administration made any other representation to the petitioners that the result of re-weighment at the request of the petitioner No. 2 pursuant to the offer dated 4.2.1997 was to be accepted by the Railways. The contention of Mr. Ghose and Mr. Sahewalla therefore that the railway administration was bound by the principles of estoppel to accept the result of there-weighment permitted by order dated 4.2.1997 is not correct.
11. Section 79 of the Act, 1989 on which great reliance was placed by the counsel for both the petitioners and the respondents is quoted hereinbelow:
“79. WEIGHMENT OF CONSIGNMENT ON REQUEST OF THE CONSIGNEE OR ENDORSEE.— A 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 owner's 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.
The aforesaid section 7,9 nowhere states that when a railway administration allows weighment of the consignment on the request of the consignee or the endorsee, the result of such weighment of the consignment is binding on the railway administration. It further appears from section 79 that the railway administration may on the request made by the consignee or the endorsee allow weighment of the consignment subject to such conditions as may be prescribed. Sub-sec. (2)(g) of section 87 of the Act, 1989 is to the following effect:
“87(1). Power to make rules in respect of matters in this Chapter.-The Central Government may, by notification, make rules to carry out the purposes of this Chapter.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters namely:
(a) … …
(g) the conditions subject to which and charges payable for allowing weighment and circumstances for not allowing weighment of consignment in wagon-load or train-load under section 79;…”
Sub-section (2)(g) of section 87 of the Act, 1989 thus provides that the Central Government may make rules providing for the conditions subject to which weighment is to be allowed or not allowed under section 79. No such rule appears to have been made as yet by the central Government under section 87(2)(g) prescribing the conditions subject to which weighment is to be allowed under section 79 of the Act, 1989. In Kamrup Forwarding Agency v. Union of India (supra), a Division Bench of this court held that where the statutory rules are silent; the Executive Instructions contained in the India Railway Commercial Manual relating to weighment and re-weighment will apply. After detailed examination of the relevant Executive Instructions contained in the Indian Railway Commercial Manual, the Division Bench has also held in the said case of Kamrup Forwarding Agency v. Union of India (supra), that the said Executive Instructions provide for weighment or re-weighment in a railway weigh-bridge and do not provide for weighment or re-weighment in a private weigh-bridge in the absence of weighment facility at the destination station. In my considered opinion, therefore, until Rules are made by the Central Government under section 79 section 87(2)(g) of the Act, 1989 to the contrary, even where weighment or re-weighment is allowed under section 79 of the Act, 1989 at the request of the consignee or the endorsee, the result of such weighment or re-weighment at a weigh-bridge other than a railway weigh-bridge cannot be held to be binding on the railway administration.
12. This is not to say that weighment or re-weighment made in a railway weigh-bridge cannot be disputed at all by a party and that a party has to pay under-charges to the railway administration on the basis of a weighment or re-weighment made in a railway weigh-bridge however defective such railway weigh-bridge may be. In a given case if the court comes to the conclusion on the basis of the material before it that the weighment or re-weighment made in a railway weighbridge is not correct on account of the fact that the railway weighbridge was defective, the court can always grant appropriate relief to the said party. In the instant case, an allegation has been made in para-14 of the writ petition that the weigh-bridge at Laksar Rly. Station was out of order as per the affidavit filed by the Railways on 16.1.97 in Writ Appeal No. 10/97. But the said allegation has been disputed in paragraph-13 of the affidavit-in-opposition filed on behalf of the respondents in the present writ petition and it has been stated therein that no consignment can be weight in a weigh-bridge which is out of order, and that weighment was done in presence of different agencies and by the staff deployed for that purpose. In the present case, therefore, there is no definite material or proof before the court to show that the weigh-bridge at Laksar Railway Station was out of order or defective and that the result of the weighment at the said weigh-bridge was incorrect. All that is available before the court is a different result of weighment carried out at the weigh-bridge at Panipat Thermal Power Station pursuant to order dated 4.2.97 of the railway administration. It is difficult for this court to make an enquiry under Article 226 of the Constitution as to which out of the two results of weighment is correct and record a finding. For this reason, I am not inclined to hold that the punitive charges of Rs. 9,50,114 recovered by the Railways from the petitioners on the basis of weighment enroute at the weigh-bridge at Laksar Railway Station was illegal and, therefore, no direction as such can be given to the railway administration in this writ petition to refund the said sum of Rs. 9,50,114 to the petitioners. It will however be open for the petitioners to institute and pursue any alternative remedy for the aforesaid purpose.
13. But so far as the demand for wharfage and demurrage is concerned, I find that this was not a fit case in which wharfage and demurrage should have been demanded from the petitioners. The whole lot of correspondences annexed to the writ petition would show that there was a bona fide dispute with regard to weighment at the Laksar Railway Station and that on account of such a bona fide dispute the railway administration itself permitted re-weighment of the coal rake at the request of the petitioner No. 2 by order dated 4.2.1997 Further, when re-weighment was done as permitted by the railway administration by the said order dated 4.2.1997 results of the re-weighment turned out to be in favour of the petitioners and hence the petitioners continued to resist the demand of punitive charges of Rs. 9.50,114 made by the railway administration until the railway administration refused to accept the result of such re-weighment. The petitioners thereafter paid the entire sum of Rs. 9.50,114 on 8.2.1997 and the railway administration allowed delivery of 30 wagons of coal to the petitioner but detained the remaining 5 wagons of coal for realising of wharfage and demurrage charges. The petitioner then approached this court in the present writ petition and an interim order was passed by the court on 27.2.1999 directing that on the petitioners' furnishing a Bank guarantee for the full amount of wharfage and demurrage charges, the respondents would deliver the 5 wagons of coal. Pursuant to the said interim order, the petitioners furnished Bank Guarantee and took delivery of the remaining 5 wagons of coal. Therefore, the delay in making payment of Rs. 9,50,114 and taking delivery of the coal was not entirely on account of the petitioners and the demand of wharfage and demurrage for taking delayed delivery of the goods was not justified in the facts and circumstances of the case.
14. In the result. I am not inclined to direct the respondents to refund the punitive charges of Rs. 9.50,114 recovered form the petitioners for over-loading of the wagons but 1 direct the respondents to release the Bank Guarantee furnished by the petitioner towards the demand of wharfage and demurrage as the same is not payable by the petitioners.
15. The writ petition is partly allowed. However, considering the entire facts and ??? of the case, the parties shall bear their respective costs.
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