Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 306 (GAU)

Bansal Associates Ltd. v. Union of India

2004-05-04

RANJAN GOGOI

body2004
JUDGMENT Rajan Gogoi, J. 1. The grievance raised in these writ petitions being similar and the same being founded on more or less identical facts were heard together and are being disposed of by this common judgment and order. 2. Though the broad facts of all these cases are similar, a brief recital of the facts of each of the cases separately would be convenient and is, therefore, setout hereunder. 1. CR 3642/98 38 BCN Wagons were booked by the Petitioner for transporting coal purchased by the Petitioner from the Collieries of the North Eastern Coal Fields, Coal India Limited, Margharita. The coal was loaded at Ledo Railway Station and its destination was Bhatinda. At Ledo, the coal was weighed in an electronic-in-Motion Weigh Bridge in the presence of the representatives of the North Eastern Coal Fields, Coal India Limited and the representatives of the Railways. The Railway authority had issued difference circulars regarding loading and weighment of coal at various stations and circular No. 1/97 issued by the Respondent Railway was in force at the relevant point of time with regard to weighment of coal in the Electronic-in-Motion Weigh Bridge at Ledo. On the basis of the weighment of coal as aforesaid, Railway receipts were issued by the Railway authority and while the coal was in transit, on 5.6.98, the same was re-weighed at Laksar Railway Station. The result of such re-weighment was adverse to the Petitioner inasmuch as almost all the 38 wagons were found to be over loaded and such over loading was also found to be in excess of the maximum carrying capacity of the wagons. The aforesaid re-weighment was, however, without any notice to the Petitioner and in the course of such re-weighment the Petitioner or its representatives were not present. Thereafter, the 38 BCN Wagons booked by the Petitioner arrived at its destination i.e. Bhatinda. On such arrival, the Chief Goods Supervisor, Bhatinda, by a letter dated 5.6.98 required the Petitioner to deposit a sum of Rs. 9, 74,694.00 towards penal freight/over loading charge in respect of the 38 BCN Wagons. Thereafter, the 38 BCN Wagons booked by the Petitioner arrived at its destination i.e. Bhatinda. On such arrival, the Chief Goods Supervisor, Bhatinda, by a letter dated 5.6.98 required the Petitioner to deposit a sum of Rs. 9, 74,694.00 towards penal freight/over loading charge in respect of the 38 BCN Wagons. The Petitioner by letter dated 6.6.98 protested against the weighment done at Laksar and the demand for the penal freight stating that the initial weighment at Ledo was made under the supervision and control of the Railway authority and wagons including the coal transported were also all along in the custody of the Railways. Furthermore, it was stated by Petitioner, the re-weighment at Laksar was done without any intimation to the Petitioners and that there were some mechanical defects in the weigh Bridge at Laksar. In these circumstances, the Petitioner demanded a re-weighment On receipt of the aforesaid letter dated 6.6.98, the Chief goods Supervisor, Bhatinda made an endorsement on the body of the said letter to the effect that it was not within his power to order for any re-weighment and if the Petitioner, if so desired, may apply for re-weighment to the Divisional authorities of the Railways. Thereafter, it appears that on the same date i.e. on 6.6.98, the Petitioner paid the penal freight demanded i.e. Rs. 9,74,694.00. Contending that the same was paid under protest and in order to minimize the possible business losses, the instant writ petition has been filed. 2. CR 3644/98 The fact are largely similar with those of CR 3642/98, save and except, that in the present case the number of Wagons booked by the Petitioner were 40 and the re-weighment at Laksar Railway Station was done on 14.6.98. The amount of penal freight demanded by the Railway in the present case was Rs. 2,83,607.00 which was paid by the Petitioner on 15.6.98. In the present case, unlike in CR 3642/98 no written demand for re-weighment, alleged to have been made by the Petitioner, has been brought on record by the writ Petitioner. 3. CR 3645/98 In the present case 40 BCXN wagons were booked by the Petitioner for depatch of coal from Jogighopa Railway Station to Meerut city. In the present case, unlike in CR 3642/98 no written demand for re-weighment, alleged to have been made by the Petitioner, has been brought on record by the writ Petitioner. 3. CR 3645/98 In the present case 40 BCXN wagons were booked by the Petitioner for depatch of coal from Jogighopa Railway Station to Meerut city. As the Jogighopa Railway Station did not have an Electronic WeighBridge, wagons were loaded by the Petitioner in the presence of the Railway staff upto the limit of height of the wagons to which loading was permissible. It maybe mentioned here that the procedure for loading upto a particular height of the Wagons is an alternative mode of loading which is also governed by a separate circular issued by the Railway authority. The consignment of coal which is the subject matter of the present writ petition was loaded on 28.5.98 and was re-weighed enroute at Laksar Railway Station on 13.6.98. As in the other two cases, the result of the re-weighment at Laksar was again adverse to the Petitioner. On the basis of such weighment, penal freight to the extent of Rs. 15,96,093.00 was demanded from the Petitioner. It appears that the Petitioner made the aforesaid payment on 13.6.98/14.6.98. Contending that the said payment was made under protest and in order to enable the Petitioner to fulfil its commitment to its customers, the instant writ petition has been filed. 3. Mr. G.N. Sahewalla, learned Sr. Counsel appearing for the Petitioners in all the cases as well as Mr. S. Sarma, learned Standing Counsel, Railways, have been heard. 4. The arguments advanced on behalf of the Petitioners reduced in its essentials is that no penal charge could have been imposed on the Petitioners on the basis of the unilateral weighment done by the Railway authority at Laksar. The weigh Bridge at Laksar, it is contended on the basis of certain materials adduced, was defective whereas the Weigh Bridge at Ledo was a modern, scientific and electronic Weigh Bridge and weighment made at ledo was under the supervision of the Railway staff whereafter Railway Receipts were issued for transhipment of the coal. The weigh Bridge at Laksar, it is contended on the basis of certain materials adduced, was defective whereas the Weigh Bridge at Ledo was a modern, scientific and electronic Weigh Bridge and weighment made at ledo was under the supervision of the Railway staff whereafter Railway Receipts were issued for transhipment of the coal. Insofar as the loading at Jogighopa is concerned, it is contended that the loading was in accordance with the terms of the relevant circular in force permitting loading upto a certain height of the wagons and such loading at Jogighopa was also under the control and supervision of the Railway staff. It is further contended that even if a power is to be conceded to the Railway to carry out an unilateral re-weighment as has been done in the present case, the Petitioners in all the cases having demanded re-weighment, no penal freight/charge could have been imposed on the Petitioners without such re-weighment being carried out. The actions of the Railways are, therefore, contended to be arbitrary. 5. The contentions advanced on behalf of the Petitioners have been refuted by the learned Standing Counsel of Railways by contending that the writ petitions raise certain disputed question of facts, which cannot be effectively resolved in the exercise of the limited jurisdiction under Article 226 of the Constitution. Whether the weighment carried out at Laksar was correct and for that matter whether the Weigh Bridge at Laksar was defective, as contended by the writ Petitioners, are the questions that cannot be effectively decided in the present writ proceedings. The basis of imposition of penal freight/charge is the weighment carried out at Laksar in the Weight Bridge belonging to the Railways and the correctness of such weighment done at Laksar, which is disputed by the Petitioners, cannot be effectively resolved in exercise of power under Article 226 of the Constitution. That apart, the learned Standing Counsel for the Railway has contended that under the provisions of Section 78 of the Railways Act as interpreted by this Court in the case of Raghu Forwarding Agency and Ors. v. Union of India reported in 1999 (3) GLT 80, the Railways have an absolute right to re-weigh or re-measure any consignment before delivery of the same and while proceeding to re-weigh or re-measure a particular consignment, no notice to the consignee is necessary. According to Mr. v. Union of India reported in 1999 (3) GLT 80, the Railways have an absolute right to re-weigh or re-measure any consignment before delivery of the same and while proceeding to re-weigh or re-measure a particular consignment, no notice to the consignee is necessary. According to Mr. Sarma, it is in exercise of the powers under Section 78 of the Railways Act that the re-weighment was done at Laksar and on the basis of such re-weighment excess load beyond the permissible carrying capacity having been found, the imposition of penal freight/charge is authorized under Section 73 of the Railways Act read with relevant provisions of the Railway (Punitive charge of over loading of wagons) Rules, 1990. The learned Standing Counsel has further submitted that though the Petitioner in CR 3642/98 initially demanded a re-weighment, on being asked by the local Railway authority to pursue the matter with the higher authorities, the same was not done. In the other two cases, no demand for re-weighment was made. Instead in all the three cases, the Petitioners made payment as demanded by the Railway authority on the same day itself and took delivery of the goods. In such a situation no relief to the Petitioners is conceivable in the facts and circumstances of the case. The writ petitions are, therefore, devoid of merit and ought to be dismissed by this Court. 6. A consideration of the arguments and counter arguments advanced on behalf of the rival parties amply reveal that the core point arising for determination of the Court in the present batch of cases is one relating to the power and competence of the Railway authority to re-weigh/re-measure any consignment of goods in transit and on the basis of such re-weighment/re-measurement, to levy and realize penal freight/charge from the consignee. The question raised is no longer res integra. In a recent pronouncements of this Court in the case of Nirmal Traders v. Union of India reported in 2003 (2) GLT 175, the relevant provisions of the Railways Act and the several earlier pronouncement of this Court with regard to the questions raised has been elaborately considered. The propositions emanating from the decision in the case of Nirmal Traders (Supra) may be briefly enumerated as followed: (1) Under Section 78 of the Railways Act, the Railway authorities have an unfettered right to re-weigh/re-measure any consignment before delivery of the same. The propositions emanating from the decision in the case of Nirmal Traders (Supra) may be briefly enumerated as followed: (1) Under Section 78 of the Railways Act, the Railway authorities have an unfettered right to re-weigh/re-measure any consignment before delivery of the same. Such re-weighment/re-measurement need not be proceeded by any notice to the consignee. (2) Under Section 73 of the Railways Act. the Railway authorities have the power to impose penalty in case of over loading of wagons. However, the imposition of penalty must be proceeded by giving an adequate opportunity to the consignee to show cause. (3) Under Section 79 of the Railways Act, though a discretion is vested in the Railway authorities to allow or dis-allow a re-weighment sought by a consignee, any refusal to allow such re-weighment must be for good and sufficient reasons and such reasons must satisfy the Court in the event of a challenge being made. (4) If the reasons for refusal to allow re-weighment under Section 79 of the Railways act is found by the Court to be not tenable, the writ Court, may in an appropriate case, issue a mandamus directing the Railway authority to carry out such re-weighment. 7. The above propositions of law laid down in the case of Nirmal Traders (Supra) with which I am in respectful agreement, significantly reduces the dimensions of the present litigations. The re-weighment of the coal transported by the Petitioners, at Laksar, tested on the anvil of the above law cannot be faulted. The remedy of the Petitioners in each of the cases, therefore, was to seek a re-weighment under Section 79 of the Railways Act which recourse evidently was not adopted in at least two of the present cases, namely CR 3644/98 and CR 3645/98, in CR 3642/98 though such a request was made and the Petitioner was asked to approach the Divisional authorities of the Railways with the said request, it appears that the Petitioners in the case did not pursue the request/demand for re-weighment with the Divisional authorities. Instead, as already noticed in all the three cases, on the very day when the demand for the penal freight/charge was made by the Railway authority, the same was paid and delivery of the consignments were taken. In such a situation, naturally no question of re-weighment can legitimately arises at this stage. Instead, as already noticed in all the three cases, on the very day when the demand for the penal freight/charge was made by the Railway authority, the same was paid and delivery of the consignments were taken. In such a situation, naturally no question of re-weighment can legitimately arises at this stage. That apart, when under Section 78 of the Railways Act, the Railway authorities must be recognized to have an unfettered right of re-weighment/re-measurement of any consignment in transit, it will be difficult to hold that the re-weighment carried out at laksar cannot form the basis of imposition of penal freight/charge as has been done in the present cases. The contention of the Petitioner that the Railway Weigh Bridge at Laksar was defective obviously cannot be answered on the materials available. That the result of such weighment at laksar was not correct could only have been established on a re-weighment being done, a course of action that was not persisted with by the Petitioners who by their action of taking delivery of the consignments have also made the same an impossibility. 8. For the aforesaid reasons, I do not find any merit whatsoever in any of the writ petitions. All the writ petitions, therefore, shall stand dismissed. However, having regard to the facts and circumstances of the case, there shall no orders at to costs. Petition dismissed.