( 1 ) THIS second appeal is by a plaintiff who has failed in both the Courts below. ( 2 ) MOST of the material facts are not in dispute. Eight consignments of Beedi leaves were sent to Mangalore Railway Station. The plaintiff which is a partnership firm was the consignee. At the despatching stations the goods were not weighed, but the Railways accepted the consignors' declarations of weight and collected the freight on that basis subject to the right of the Railways to weigh the goods either at the destination or at any intermediate junction and to collect under charges (the difference between the correct freight and the freight actually paid or entered in the Railway Receipts), if any. All these eight consignments arrived at mangalore Railway Station-seven consignments on 29-10-1964 and the other consignment a day earlier i. e. , 28-10-1964. These consignments were weighed by the Railways and the plaintiff was called upon to pay a total sum of Rs. 1879 as undercharges. The plaintiff asked for the goods being weighed or re-weighed by,the Railways in its presence. Its request in that behalf made to the Chief Goods Clerk, was referred to the Divisional commercial Superintendent at Olavakkot (hereinafter referred to as the DCS. ). The Railways received from the plaintiff a sum of Rs. 240 towards the charges for such re-weighment. By his letter dt. 1-11-1964 (Ext. A1) the Chief Goods Clerk intimated the plaintiff that its request for re-weighment had been rejected by the DCS. The letter also intimated the plaintiff that if it failed to take delivery of the goods, it would be liable to pay demurrage and wharfage. But the plaintiff neither unloaded the wagons nor removed the goods from the Railway premises. On the other hand, it sent a telegram to the DCS. requesting for reweighment and delivery immediately failing which legal proceedings would be taken to recover the excess freight and other charges demanded by the Railways. On 12-1. 1-1964 it sent a letter through its Advocate to the chief Commercial Superintendent at Madras (hereinafter referred to as the CCS ). making a similar request. On 2-12-1964 the CCS. sent a reply (Ext. A5) to the plaintiff's Advocate declining to grant the request for such re-weighment. ( 3 ) IN the meanwhile,, the Railways themselves got the wagons unloaded between 4-11-1964 and 11-11-1964. On 19-11-1964 the DCS. sent a letter (Ext. making a similar request. On 2-12-1964 the CCS. sent a reply (Ext. A5) to the plaintiff's Advocate declining to grant the request for such re-weighment. ( 3 ) IN the meanwhile,, the Railways themselves got the wagons unloaded between 4-11-1964 and 11-11-1964. On 19-11-1964 the DCS. sent a letter (Ext. A5) to the plaintiff's Advocate stating that there was no valid ground for such re-weighment, that if the goods were kept in the goods- shed and not removed by the plaintiff, it would be liable to pay wharfage, on 29-11-1964 the Chief Goods Clerk addressed a letter (Ext. A4) to the plaintiff intimating that its request for waiving demurrage and wharfage on these consignments was not agreed to by the DCS. and asking the plaintiff to take delivery of the goods immediately on payment 01 all the charges due to the Railway. In tnat letter there is a note to the effect that it was received by the plaintiff on 1-12-1964. On 1-12-1964 the plaintiff addressed a letter to the Chief Goods Clerk stating that it was taking delivery of consignments under protest after paying the excess freight, demurrage and wharfage and it took delivery of six consignments on that day and the remaining consignments on the next day i. e. , 2-12-1964. ( 4 ) ON 11-12-1964 the plaintiff's Advocate issued a notice to the general Manager, Southern Railway, calling upon the Railways to refund rs. 17,070-44 which the plaintiff had paid under protest towards undercharges, unloading charges, demurrage and wharfage. As that claim was not conceded by the Railway, the plaintiff instituted the present suit. ( 5 ) THE plaintiff has claimed that after removing the goods from the railway premises on 1-12-1964 and 2-12-1964 it got the goods weighed at the weigh bridge of Kanara Chamber of Commerce. But, even according to the plaintiff, no notice was issued to the Railway authorities asking them to be present at the time of suchweighment, nor were the Railway authorities present at such weighment. The particulars of the amounts collected by the Railways from the plaintiff are : ( 6 ) THE material questions that arise for determination in this appeal are : (i) Whether the Railways were bound to weigh or re-weigh the consignments in the presence of the consignee. The particulars of the amounts collected by the Railways from the plaintiff are : ( 6 ) THE material questions that arise for determination in this appeal are : (i) Whether the Railways were bound to weigh or re-weigh the consignments in the presence of the consignee. (ii) Whether the plaintiff is entitled to claim refund of the whole or any portion of the amount paid by it to the Railways ? on both these questions the Courts below have held against the plaintiff. ( 7 ) MR. Tukaram S. Pai, learned Counsel for the appellant (the plaintiff), did not dispute the right of the Railways to weigh or re-weigh the consignments and to collect under charges found due on such weighment or re-weighment. What he contended was that such weighment or re-weighment cannot be done behind the back of the consignee. According to him, before so weighing or re-weighing the Railways should give notice to the consignee or such weighment or re-weighment should be done in the presence of the consignee. On the other hand, Mr. H. C. Balakrishna, learned Counsel for the Railways, contended that there is no legal obligation on the Railways to weigh or re-weigh the goods in the presence of the consignee or to give him notice before such weighment or re-weighment. ( 8 ) I shall now set out the relevant provisions of the Railways Act, 1890, (hereinafter referred to as the Act) and the Rules. The word 'demurrage' has been denned in clause (d) of Sec. 46c of the Act as the charge levied after the expiry of the free time allowed for loading a wagon. The word 'wharfage' has been defined in Clause (h) of the same section as the charge levied on goods for not removing them from the railway premises after the expiry of the free time allowed for such removal. ( 9 ) SUB-SEC. (1) of S. 47 of the Railways Act empowers the Central government to make rules for the purpose of the Act. Clause (f) of that sub-section empowers such rules being made for regulating the terms and conditions on which the Railway administration will warehouse goods or retain goods or animals at any station on behalf of the consignee or owner. (1) of S. 47 of the Railways Act empowers the Central government to make rules for the purpose of the Act. Clause (f) of that sub-section empowers such rules being made for regulating the terms and conditions on which the Railway administration will warehouse goods or retain goods or animals at any station on behalf of the consignee or owner. ( 10 ) IN exercise of the rule making power under clauses (f) and (g) of S. 47 (1), the Central Government has made rules called the Rules for warehousing and Retention of Goods. Rule 1 of those Rules states that the actual wharfage and demurrage charges in force in different Railways may be ascertained on application made locally. ( 11 ) IN the book 'southern Railway Goods Tariff, Part I-A', it is stated that a free time of 5 working hours is allowed from the time at which the wagons are placed in position for unloading and that beyond such time demurrage will be levied if wagons are not unloaded. Like vase it is also stated therein that if goods are not removed from the Rail ways premises within the number of hours specified therein after th1 wagons are placed in position for unloading, wharfage will be levied. ( 12 ) IN the book styled 'goods Tariff General Rules' published unde, the authority of the Central Government Rule 118 reads :"118. Re-weighment of consignments at destination-Railways do not undertake to weigh consignments at a destination station as a matter of course. Such weighments at destination stations' can only be considered in exceptional cases when the condition of the consignment or package warrants this. " ( 13 ) IN the book, 'indian Railway Commercial Manual' published by the Ministry of Railways, Government of India, paragraph 1744 in chapter XVII reads :"1744. Re-weighment : at the request of owners:- (a) As laid down in the IRCA Goods Tariff, Railways do not undertake to weigh consignments at the destination station as a matter of course. Such weighments can only be considered in exceptional cases, when the condition of the consignment or package warrants this. (b) Requests for such re-weighments of goods booked in wagon loads should be referred to the Divisional Commercial Superintendent, who may permit the re-weighment at his discretion provided that facilities for re-weighment exist at the destination. Such weighments can only be considered in exceptional cases, when the condition of the consignment or package warrants this. (b) Requests for such re-weighments of goods booked in wagon loads should be referred to the Divisional Commercial Superintendent, who may permit the re-weighment at his discretion provided that facilities for re-weighment exist at the destination. " ( 14 ) IN Southern Railway Goods Tariff, Part I, Rule 16 reads : "re-weighment of wagons-Wagon loads of goods once weighed will not ordinarily be re-weighed at destination and the consignees are not entitled to ask for re-weighment as a matter of course. In exceptional cases e. g. , where there is prima facie, evidence of interference or tamperage of the consignment, re-weighment is permitted at the discretion of the Railway and if operational conditions permit of such re-weighment. This permission will be granted by the Divisional Superintendent subject td the following charges and conditions: conditions requests for re-weighment should be made to the Divisional Superintendent in writing through the Station Master or Chief Goods Clerk as the case may be, by the consignees holding railway receipts or other documents establishing their ownership of the goods. Collection of re-weighment charges and the re-weighment of wagons when permitted do not preclude demurrage being levied according to rules in force in regard to free time etc. , in the following manner: (a) In respect of wagons where re-weighment has been denied, the demurrage charges will be levied from the time they were originally placed in position, and (b) In resppect of wagons re-weighed the demurrage will be levied from the time they are placed in position after such re- weighment. ( 15 ) IT is not clear whether the Rule 118 of Goods Tariff General rules and Rule 16 in Southern Railway Goods Tariff, Part I, are statutory rules made under the Act or merely administrative rules made by the railway authorities. ( 15 ) IT is not clear whether the Rule 118 of Goods Tariff General rules and Rule 16 in Southern Railway Goods Tariff, Part I, are statutory rules made under the Act or merely administrative rules made by the railway authorities. Neither of those Rules nor paragraph 1744 in the indian Railway Commercial Manual expressly provides that weighment of a consignment which has been accepted on the basis of the consignor's declaration without weighment by the Railways, or re-weighment of consignments which had been weighed earlier by the Railways, should be done in the presence of the consignee or after notice to him; nor does it expressly provide that where such weighment has been made in the absence of the consignee or without notice to him, the Railways should, if demanded by the consignee, re-weigh the goods in his presence. ( 16 ) THE question whether there was any legal obligation on the railways to re-weigh the goods when demanded by the consignee, was considered by a Bench of the Calcutta High Court in BNRly. Co. Ltd. v. Reran Desal and Co. , AIR. 1932 Cal. 877. The facts of that case are somewhat similar to those of the present case. There, the weight of the consignment was shown in the railway receipt as 107 maunds and the freight was paid on that basis. When the goods arrived at the destination, the Railways intimated the consignee that on re-weighment the consignment was found to weigh 108 maunds and asked him to pay the under-charge. The consignee demanded re-weighment of the consignments in his presence; but the Railways refused to comply with his demand. Dealing with the question whether the Railways were justified in refusing the consignee's demand foe re-weighment, pearson, J. , who spoke for the Bench said at page 873:: 1. . " It was said in the argument before us that although no authority was forthcoming such a request for re-weighment on the part of the plaintiffs ,n a case such as the present one was eminently reasonable and as far as I can see, quite possibly would be the course which might well be adopted between two reasonable persons. The question here is not that but whether there was any legal liability upon the defendant company to comply with the demand of that kind made by the plaintiffs' firm. . . . . . . . The question here is not that but whether there was any legal liability upon the defendant company to comply with the demand of that kind made by the plaintiffs' firm. . . . . . . . " ( 17 ) HIS Lordship said that though re-weighment in the presence of the consignee would possibly be the course of action which might be adopted by two reasonable persons, there was no legal obligation on the railways to follow such course of action. But his Lordship did not consider whether such legal obligation, though not expressly provided by the Act or any rules, can be implied having regard to the consequences of such re-weighment. Weighment of a consignment which has been accepted merely on the basis of the consignor's declaration of weight or re- weighment of a consignment which had been weighed earlier, may result in thev consignee being called upon by the Railways to pay undercharges. Should not the Railways be required to adopt a fair procedure before they determine the actual weight of the consignment and demand undercharges from the consignee? The consignee will be adversely affected by such demand for undercharges if there is any error in such weighment or re-weighment on account of negligence, inefficiency or otherwise of the Railway official who weighs the consignment and records the weight or on account of any defect in the weighing instrument. When there is such possibility of error, should not the consignee who is called upon, to pay undercharges, have an opportunity of satisfying himself that the weighment or re-weighment by the Railways is correct? How can he have such opportunity unless, such weighment or re-weighment is done in his presence ? ( 18 ) IN Shri Bhagavan v. Ramachand, AIR. 1965 SC. 1767, Gajendragadkar, CJ. , who spoke for the Court said thus at page 1770 :"it is well known that even administrative bodies or authorities which are authorised to deal with matters within their jurisdiction in an administrative manner are required to reach their decisions fairly and objectively. . . . . . . . If it appears that the authority. or the body has been given power to determine questions affecting the rights of citizens, the very nature of the power would inevitably impose the limitation that the power should be exercised in conformity with the principles of natural justice. . . . . . . . If it appears that the authority. or the body has been given power to determine questions affecting the rights of citizens, the very nature of the power would inevitably impose the limitation that the power should be exercised in conformity with the principles of natural justice. " ( 19 ) IN State of Orissa v. Dr. Binapani Dei, AIR. 1967 SC. 1269, the Supreme Court considered the question whether the Government can enquire into the correctness of the-age of a Government servant, without notice to him. Shah, J. (as he then was), who spoke for the Court said at page 1272"it is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice, after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. " ( 20 ) IN A. K. Kraipak v. Union of India, AIR. 1970 SC. 150, Hegde, J. , who spoke for the Court, observed that the dividing line oetween administrative power and quasi-judicial power, is quite thin and is being gradually obhrerated, that for determining wnether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, and that the requirement of acting judicially is, in essence, nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. His Lordship quoted with approval the following observations of Lord parker, CJ. , in re PI. K. (An Infant) (1967 (2) QB 617 at page 630):"but at the same time, I myself think that even if an immigration officer is not acting in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the sub-section, and for that purpose let the immigrant know what his immediate impression is, bo that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and. to the limited extent that the circumstances of any particular case allow and within the legislative frame-work under which the administrator is working, to that limited extent do the so called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. " ( 21 ) FROM the above pronouncernents, it is clear that even if the rule providing for weighment or re-weighment of a consignment does not expressly require that such weighment or re-weighment should be done in the presence of the consignee or after notice to him, an obligation to weigh or re-weight in his presence or after notice to him, can be implied having regard to the consequences of such weighment or re-weighment on the consignee. ( 22 ) HOWEVER, Mr. H. G. Balakrishna, contended that the rules expressly provide that re-weighment cannot be demanded by the consignee as of right and that re-weighment can be granted only when there is interference or tampering of the consignment. ( 23 ) THOUGH the first part of Rule 16 of Southern Railway Goods tariff Part I-A, states that the consignees are not entitled to ask for re-weighmcnt as a matter of couise, the latter part of that Rule provides that in exceptional cases the DCS may permit re-weighment subject to certain conditions. The circumstances narrated in that rule as the ones in which such re-weighment can be granted, namely, interference or tampering of the consignment are only illustrative and are not, in my opinion, intended to be exhaustive. Where the Railways demand undercharges on weighment or re-weighment of a consignment and the consignee wants to satisfy himself as to the correctness of the weight on the basis of which undercharges are calculated, the DCS cannot be said to exercise his discretion veasonably if he declines to permit re-weighment in the presence of the consignee. ( 24 ) HOWEVER, Mr. ( 24 ) HOWEVER, Mr. Balakrishna submitted that very often the Railways may have to weigh or re-weigh consignments soon after they arrive at the destinations and that it may cause serious dislocation of work or delay if the Railways are required to postpone weighment or re-weighment until the consignees turn up and that it may not be reasonably practicable to issue notices to the consignees and to wait till they come. ( 25 ) EVEN if there are circumstances in which the Railways cannot postpone weighment or re-weighment of a consignment until the consignee is present, when he subsequently asks that the consignment weighed or re-weighed in his absence should be re-weighed in his presence and offers to pay the prescribed charges for such re-weighment, there is no reason why the Railways should not permit such re-weighment. ( 26 ) COMING to the facts of the present case, Mr. Balakrishna was not able to state what difficulty the Railways had in pci muting re-weighment of the consignments at Mangalore Railway Station when the plaintiff had deposited the re-weighment charges. The refusal by the Railways to permit such re-weighmtnt was arbitrary and unjustified. ( 27 ) I shall now examine the effect to such unreasonable refusal to re-weigh the consignments, on the several claims made by the plaintiff. Its (the plaintiffs) first claim is lor refund of undercharges collected from it. ft has produced the record of weights of these eight consignments when they weie weighed at the weigh-bridge of Kanara Chamber of commerce. Their total weight as recorded theie, was a little more than what the consignors had declared while booking them, but a little less than what the Railways had claimed on re-weigning them. ( 28 ) IT is not the case of the plaintiff that it had issued any notice to the railway authorities before getting these consignments weighed at the weigh-bridge of Kanara Chamber of Commerce or that any Riy. Officer was present at the time of such weignment. There is considerable force ia the contention of Mr. Balakrishna that the Railways had no opportunity to know whether the whole of the consignments had been weighed or whether some parts thereof had been kept away from weighment. There is no satisfactory proof that the whole of the consignments removed from the Railway premises was weighed there. There is considerable force ia the contention of Mr. Balakrishna that the Railways had no opportunity to know whether the whole of the consignments had been weighed or whether some parts thereof had been kept away from weighment. There is no satisfactory proof that the whole of the consignments removed from the Railway premises was weighed there. Thus, the plaintiff has not established that the total weight of the consignments, as claimed by the Railways on weighment or the amount collected as undercharges, was not correct. Hence, this part of the plaintiff's claim should fail. ( 29 ) WHEN the DCS intimated the plaintiff that its request for re-weighment could not be granted, there was no impediment for the plaintiff unloading the wagons and keeping the goods in the premises of railway until a reply was received from the CCS regarding re-weighment. Wagons should be kept moving and should not be detained longer than needed for loading or unloading. Clause (a) of the conditions in Rule 16 in Southern Railway Goods Tariff-Part I, also stated that in respect of wagons where re-weighment has been denied, the demurrage chaiges will be levied from the time they were originally placed in position. Hence, the plaintiff was not justified in not unloading the wagons on 1-11-1964 when the Chief Goods Clerk intimated it that its request for re-weighment was rejected by the DCS. So, the levy of demurrage by the Railways was justified and the plaintiff's claim for refund of the same, should fail. ( 30 ) AS the Railways had to unload the wagons on the failure of the plaintiff to unload them, the unloading charges of Rs. 58 claimed by the railways, cannot be said to be unreasonable. ( 31 ) BUT, the wharfage levied by the Railways stands on a different footing. As stated earlier, it was only on 29-11-1964 the CCS gave his decision declining to interfere with tne decision of the DCS refusing re-weighment. The entry in Ext. A4 indicates that that letter was received by the plaintiff on 1-12-1964. On that day itself it (the plaintiff) removed two of the consignments from the Railway premises and the remaining six consignments on the following day, i. e. , 2-12-1964. The entry in Ext. A4 indicates that that letter was received by the plaintiff on 1-12-1964. On that day itself it (the plaintiff) removed two of the consignments from the Railway premises and the remaining six consignments on the following day, i. e. , 2-12-1964. There was no unreasonable delay in removing these consignments from the Railway premises after the plaintiff received the intimation of the decision of the ccs rejecting the request for reweighment. ( 32 ) HOWEVER, Mr. Balakrishna, advanced a two-fold argument in support of the levy of wharfage. Firstly, he said that as early as on 1-11-1964 the DCS who was the authority to decide whether or not re-weighment should be permitted, refused to permit re-weighment, that his decision was promptly communicated to the plaintiff by the Chief Goods Clerk on that very day and that thereafter the plaintiff should have promptly removed the goods from the Railway premises. It was also argued by mr. Balakrishna that neither the Act nor the Rules provide for any appeal from the decision of the DCS to the CCS and that by merely making a representation to the CCS against the decision of the DCS who is the appropriate auhority, the plaintiff could not postpone taking delivery of goods beyond the free time allowed and escape the liability for wharfage as provided by the rules. According to Mr. Balakrishna, a mere demand for re-weighment of consignments would not suspend the operation of the rule levying wharfage. ( 33 ) IT is true that there is no express provision in the Act or the Rules pioviding ior an appeal from a decision of the DCS to the CCS. Even in the absence of any statutory provision, a higher officer in the hierarchy of authorities in the Railways, can ordinarily over-rule a decision of an officer lower in rank. In fact, in Ext. A5, the reply sent by the CCS to the plaintiff's Advocate, it was not stated that the decision of the DCS was final and could not be inteifered with by him (the CCS ). What was stated in Ext. A5 was that there was no justification to agree to the plaintiff's demand for re-weighment. When the reasonable request madia by the plaintiff for re-weighment, was arbitrarily turned down by the. DCS. What was stated in Ext. A5 was that there was no justification to agree to the plaintiff's demand for re-weighment. When the reasonable request madia by the plaintiff for re-weighment, was arbitrarily turned down by the. DCS. , it was not unreasonable for the plaintiff to appeal to the higher authority i. e. , the CCS. , who could be expected to take a more reasonable and just view of the matter. Though, the plaintiff's Advocate addressed a letter to the CCS on 12-11-1964, the decision of the latter was received by the former only on 1-12-1964. The plaintiff cannot be held responsible for this delay on the part of the CCS in communicating his decision. ( 34 ) SECONDLY, Mr. Balakrishna argued that there was no need for the plaintiff to keep the goods in' the Railway premises until the CCS gave his decision on the representation made by the plaintiff's Advocate and that the plaintiff should have removed the goods soon after the DCS declined to permit re-weighment and should have made its claim for refund of excess amount, if any, collected from it towards undercharges after getting the goods weighed elsewhere. ( 35 ) IF the plaintiff had removed the goods before the CCS gave his decision regarding re-weighment it would have been difficult for it (the plaintiff) to prove what the total weight of the consignment was, because the Railways would have contested the correctness of the weighment made by the plaintiff after the goods were removed from the Railway premises, as they have done in the present case. Hence, the conduct of the plaintiff in not removing the goods from the Railway premises, till it was intimated of the decision of the CCS cannot be regarded as unreasonable. ( 36 ) IN regard to the wharfage, Mr. Balakrishna was not able to point out any express provision in the rules similar to Clause (a) of the conditions in Rule 16 in the Southern Railway Goods Tariff Part I, which provides where re-weighment has been refused, demurrage will be levied from the time the wagons were ready for unloading. ( 37 ) IT was also contended by Mr. Balakrishna was not able to point out any express provision in the rules similar to Clause (a) of the conditions in Rule 16 in the Southern Railway Goods Tariff Part I, which provides where re-weighment has been refused, demurrage will be levied from the time the wagons were ready for unloading. ( 37 ) IT was also contended by Mr. Balakrishna that the refusal to re-weigh the goods, would not amount to refusal to deliver the goods, and that the plaintiff had no justification for not taking delivery of the goods, when the Railways were prepared to deliver the same and that hence the railways were justified in levving wharfage soon after the expriy of the free time for removing the goods from the Railway premises. ( 38 ) THE above contention overlooks that the Railways would not deliver the goods unless the plaintiff paid the undercharges demanded by the Railways. The plaintiff asked for re-wei^hment of the goods to satisfy itself that the undercharges demanded by the Railways were correct. There was no unconditional offer by the Railways to deliver the goods and there was a bona fide controversy as to the correctness of the undercharges demanded by the Railways. Hence, the plaintiff cannot be said to have unreasonably delayed in taking delivery of the goods. ( 39 ) THUS, in the circumstances of the case, the levy of wharfage on the plaintiff's goods by the Railways, was unjustified. As stated in the tabular statement annexed to the written statement a sum of Rs. 9,360-10 was collected as wharfage. The plaintiff's claim for refund of this amount should be upheld. ( 40 ) IN the result, I allow this appeal partly and in modification of the judgments and decree of the Courts below, I decree the suit for rs. 9,360-10 with interest thereon at 6 per cent per annum from the date of suit till the date of payment. ( 41 ) AS the plaintiff-appellant has partly succeeded and partly failed, i direct the parties to bear their own costs both in this Court and in the courts below. --- *** --- .