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2005 DIGILAW 273 (CAL)

MAITHAN ALLOYS LTD v. UNION OF INDIA

2005-04-26

KALYAN JYOTI SENGUPTA

body2005
Kalyan Jyoti Sengupta ( 1 ) IN these two matters the petitioners brought a consignment of certain guantity of Manganese Ore and the same were booked for transport from the forwarding station Balaghat to Asansol involving transhipment at an intermediary station. There has been no dispute that the goods were loaded in the wagon and the Railway receipts do not show any statement nor any endorsement as to non-acceptance of the wright declared by the petitioners. The goods reached at the destination point and the same were delivered without any reservation whatsoever. However, it is contended that before delivery the reweighment of the goods were made by the Railway Authority. ( 2 ) ACCORDING to Mr. Gupta, learned lawyer appearing for one of the petitioners in W. P. No. 13158 (W)/2002, the goods were reweighed at the weighment bridge maintained by the Eastern Coal Field Limited not by the railway Authority. This weighment is not done in accordance with law by the Railway Authority and such weighment has no binding effect. The fact remains admittedly the goods were delivered without any reservation physically and after delivery of the same the alleged demand for payment of undercharges has been made. So far the petitioner in W. P. No. 294 (W)/ 2002 is concerned it has made part payment of the alleged undercharges. However, in the writ petition the prayer has been made for refund of the payment already made. On the facts and circumstances of the case and the grounds legality and validity of the aforesaid demand has been challenged. Mr. Gupta drawing my attention to the provisions of Section 65 of the Railways Act, contends that the Railway Receipts shall be prima facie evidence of the weight and the number. of packages stated therein. Had there been any doubt as to the weighment or number of packages then the endorsement to that effect could have been made in the Railway receipts itself. In all these Railway Receipts there has been no endorsement. Therefore, the correctness of the recording of the weights in the Railway Receipts shall have to be accepted. He further submits that the reweighment could have been done by the Railway Administration at any point either at the destination or at the intermediary station. In this case it has been done by the Eastern Coal Field Ltd. not by the Railway authorities. He further submits that the reweighment could have been done by the Railway Administration at any point either at the destination or at the intermediary station. In this case it has been done by the Eastern Coal Field Ltd. not by the Railway authorities. ( 3 ) HE further submits that it is open for the Railway Authorities to realise any charges including punitive charges for overloading of wagons but this can be done before delivery of the goods. In this case no such charges reached or demanded at the time of delivery of the goods. Delivery was effected without any reservation whatsoever. ( 4 ) MR. Pal, appearing for the petitioner in W. P. No. 294 (W)/2002 has accepted the argument of Mr. Gupta so far the position of law is concerned. He submits further that his client has paid partially as per demand of the railway Authority, but when under the law such payment is not required to be made the refund is a matter of course with interest apart from declaring that demand made by the Railway Authority is wholly illegal and dehors the provisions of the Railways Act. ( 5 ) MR. Banerjee, appearing for the Railway respondents submits that section 78 of the Railways Act, 1989 empowers the Railway Administration to remeasure, re-weigh or re-classify any consignment and further to recalculate the freight and other charges. The clauses mentioned in Section 78 is clear enough to override the provisions of Section 65 of the said Act. He further contends that Railway Authority has right to exercise lien under section 83 of the said Act even after delivery is effected. ( 6 ) HE says that it is an admitted position that weighment was done but such weighment was not accepted rather protested by the petitioners. Under good faith the goods were delivered without realising undercharges due to overloading of the goods in the wagon. ( 7 ) HAVING heard the respective contentions of the learned Counsel and having gone through the records of these two cases the point for consideration is as to whether after physical delivery of the goods the railway Authority has any right to recover the undercharges due to overloading of the goods in the wagon or not. Mr. ( 7 ) HAVING heard the respective contentions of the learned Counsel and having gone through the records of these two cases the point for consideration is as to whether after physical delivery of the goods the railway Authority has any right to recover the undercharges due to overloading of the goods in the wagon or not. Mr. Gupta contends that section 65 of the said Act makes it clear that the Railway Authority is not entitled to reopen the correctness of the weighment of the goods in question and there has been no endorsement or statement about the correctness of the weight declared at the forwarding station. According to him Section 65 (2) afford no chance to the Railway Authority to reopen under any circumstances. In this context it is appropriate to set out Section 65 in its entirely. Railway receipt- (1) 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 or the number of packages is not 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. " the contention of Mr. Gupta is ordinarily correct but I am of the view this has to be read with Section 78 of the said Act as pointed out by Mr. Banerjee. Section 78 is thus set out appropriately. 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) re-measure, re-weigh or re-classify any consignment; (ii) 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. 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) re-measure, re-weigh or re-classify any consignment; (ii) 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. ( 8 ) IT is clear from the language of Section 78 with the words "notwithstanding" that the effect of Section 65 (2) is overridden by Section 78. Section 65 (2) gives a presumption as to the correctness of the weight once it is accepted at the forwarding station, however, at any point before reaching the destination or at the destination point it is open for the Railway authority to reweigh if such situation arises. In this case the reweighment was done but whether such reweighment is acceptable or not is not decided by this Court at this stage as it does not call for, on this fact and circumstance of this case. ( 9 ) THE fact remains that the goods have been delivered without any reservation whatsoever. Section 73 of the said Act empowered the Railway authority to realise any charges including punitive charges of overloading a wagon and collect any amount calculated under Section 78 of the said act. However, the law is that all charges are to be realised before delivery of the goods. Section 73 in this context is reproduced hereunder. 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. ( 10 ) THE rewighment was protested by the petitioners and the Railway authority without detaining the goods allowed the goods to be removed from the Railway premises. As such it appears to me that at that stage the railway Authority had no objection or the reservation as to the correctness of the reweighment and the same was deemed to have been accepted by the Railway Authority. Accordingly, I hold that the demand for recovery of the alleged undercharges are not sustainable under the law as it is sought to be done in this case. I am not deciding the question whether this is otherwise recoverable or enforceable or not. The point precisely is as to whether the action taken by the Railway Authority in this case is the correct method to recover the same or not. I hold that this method is not correct in the facts and circumstances of this case. The demand made and the order passed are accordingly quashed and set aside. It would be open for the parties to take steps in this case in accordance with him. The payment already made by Mr. Pal's client shall be refunded within a period of one month from date or may be adjusted against any dues and that will be without prejudice to the rights and contentions of the parties in this case. Thus two writ petitions are disposed of without any order as to costs.