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2007 DIGILAW 892 (CAL)

UNION OF INDIA v. Agarwala And Co

2007-12-19

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2007
JUDGMENT:- (1). THIS mandamus appeal is at the instance of the Union of India and is directed against the order dated December 20, 2006 passed by a learned Single Judge of this Court by which His Lordship allowed the writ application filed by the private respondent before us, by quashing the demand of the appellants dated October 29, 1991 being Annexure e to the writ application and the communications being Annexures e-1, e-2 and e-3 with further direction upon the appellants to refund the security deposit of the private respondent within six weeks from the date of communication of the order. The appellants were further directed to refund the sale proceeds of the off-loaded goods in question to the writ petitioners within six weeks from the date of communication of the order. (2). THE private-respondent before us filed a writ application thereby praying for the following relief: " (a) Writ of and/or in the nature of mandamus commanding the respondents to cancel the memoranda of demand being Annexure e to e-3 to the writ petition and to forbear them from enforcing realisation of the impugned demand in any manner whatsoever; (b) Writ of and/or in the nature of mandamus commanding the respondents from detaining the Salt Consignments under the invoice Nos. 14, 18, 19 and 28 dated 7/8 October, 1991 against the Railway receipt Nos. C-449102, c-449106, C-449107 and C-449116 on the ground of non-payment of impugned demand; (c) Writ of and/or in the nature of certiorari directing the respondent Nos. 14, 18, 19 and 28 dated 7/8 October, 1991 against the Railway receipt Nos. C-449102, c-449106, C-449107 and C-449116 on the ground of non-payment of impugned demand; (c) Writ of and/or in the nature of certiorari directing the respondent Nos. 3, 4 and 5 to produce the records relevant to the alleged enroute weighment of the relevant Salt Consignment and determination of the alleged excess weight as well as raising the impugned demand being Annexures e to e-3 to the writ petition after authentication and certification so that on perusal of the same and after hearing the parties a conscionable justice may be done by quashing the memoranda of demand being Annexures e to e-3 of the writ petition; (d) Writ of and/or in the nature of mandamus commanding the respondents and their agents and servants to weigh the consignments by beam scale which are subjected to under charges on demand by the consignee concerned and to forbear them from refusing to affect delivery of the Salt Consignments subjected to undercharges on weighment by beam scale; (e) Writ of and/or in the nature of mandamus commanding the respondents to provide for special allowance for the Salt Consignments in the line as provided under Rule 117 (3) of the Indian Railway Goods Tariff No. 3 7, part-I, Volume-1; (f) Rule Nisi in terms of prayer (a) to (e) above; (g) An order directing the respondents to deliver the Salt Consignments booked under invoice Nos. 14, 18, 19 and 28 dated 7/8 October, 1991 and against Railway receipts Nos. C449102, C-449106, C-449107 and C-449116 in Wagon Nos. ER-22790, ER-27336, CR92756 and CR-87671 on weighment by weighing machine and/or on assessment delivery basis without requiring the petitioners to pay the impugned demand as contained in the memoranda being Annexures e to e-3 to the writ petition and to grant short certificate in case of shortage of the said consignment; (h) Ad interim order in terms of prayer (g) above; (i) Costs of and incidental to this application be ordered to be paid by the respondents to the petitioners; (j) Such other and/or further order or orders as this Honble Court may deem fit and proper," (3). THE case made out by the writ petitioners may be summed up thus: (a) On October 8, 1991, M/s. Hari Trading Co. and M/s. Laxmi Trading co. THE case made out by the writ petitioners may be summed up thus: (a) On October 8, 1991, M/s. Hari Trading Co. and M/s. Laxmi Trading co. dispatched iodized salt consignments from Chirai, Gujrat to berhampur (West Bengal) in 30 wagons against bills for rs. 3,20,205/- and Rs. 2,42,831/-respectively. The Railway authority at Chirai issued receipts against the loading of such consignments containing endorsements as follows: "senders weight accepted SM enroute to weigh and advice jointly destination to weight before delivery". The senders engaged J. B. Boda surveyors Pvt. Ltd. for supervision of crushed salt in bags for human consumption in E. G. Wagons and for weighment of the bags at random. (b) 24 wagons out of the aforesaid 30 wagons reached the destination station at Berhampur Court when shortage of 1141 bags of salt were detected and short certificates were issued to that effect. The writ petitioners were informed by the Station Superintendent, Berhampur Court, eastern Railway as per his communication issued under memo dated october 29, 1991 that an amount of Rs. 52,938/- was chargeable as weighment charge as per weighment order dated October 12,1991 and october 14,1991 against the aforesaid weighment. The writ petitioners were, consequently, asked to pay the aforesaid amount to clear the outstanding dues as well as to enable the office to deliver the balance consignment of the salt. (c) On October 30, 1991, the writ petitioners submitted representation to the respondent Nos. 2 to 4 with request for reweighment of the consignment and/or the alleged excess weighed salt bags in their presence as per provisions of paragraph 1744 of the Indian Railway commercial Manual-II. The Railway authority, however, did not pay any heed to that representation. Hence, the writ application. (4). THE aforesaid writ application was contested by the Railway authority and according to the Railway authority, the onus was upon the writ petitioners to prove the correctness of the weight furnished by the writ petitioners and that it was not open for the Writ Court to interfere with the disputed questions of fact. Hence, the writ application. (4). THE aforesaid writ application was contested by the Railway authority and according to the Railway authority, the onus was upon the writ petitioners to prove the correctness of the weight furnished by the writ petitioners and that it was not open for the Writ Court to interfere with the disputed questions of fact. It was contended on behalf of the Railway that in order to maintain the safety, the Railway authority is empowered to maintain the maximum carrying capacity of the wagons and it was open to the consignee to ask for reweighment of the consigned goods before taking delivery; but in this case, the writ petitioners took delivery of the goods on October 22,1991 even after detecting the shortage of bags without asking for reweighment and without any objection. The Railway further contended that although the writ petitioners made representation on October 30, 1991, the matter being sub judice in the High court, such representation could not be disposed of. (5). THE learned Single Judge, on consideration of the provisions contained in section 79 of the Railways Act, 1989 read with the provisions of paragraph 1744 of the Indian Railway Commercial Manual-II, came to the conclusion that in this case, it was a mistake on the part of the Railway authority in demanding the aforesaid amount without complying with the formalities enjoined by law and consequently, allowed the writ application to the extent indicated earlier. (6). BEING dissatisfied, the Railway has come up with the present mandamus appeal. (7). MR. R. N. Das, the learned Senior Advocate assisted by Mr. Gayen, appearing on behalf of the Railway has vehemently attacked the findings recorded by the learned Single Judge and has contended that the order impugned was passed by overlooking the provisions contained in section 79 of the Railways act read with the provisions of paragraph 1744 of the Indian Railway commercial Manual. According to Mr. Das, the provisions of re-weighment was not a matter of right and the Railway authority rightly unloaded the excess loaded amount as provided in the Rules. He further contends that excess amount was loaded at the entry point and at that time, the Railway accepted the declaration as to weight given by the sender without weighing the consignments on condition that the goods would be weighed at the destination. Mr. He further contends that excess amount was loaded at the entry point and at that time, the Railway accepted the declaration as to weight given by the sender without weighing the consignments on condition that the goods would be weighed at the destination. Mr. Das points out that the writ petitioners without any complaint removed the goods on october 22, 1991 with full knowledge of the shortage of goods and at that time, never prayed for re-weighemnt. He, therefore, contends that the subsequent prayer for re-weighment of goods would not serve any purpose for determining whether the goods initially booked were overweighed or not. In support of his contention, he relied upon two decisions, one of the Supreme Court in the case of jagjit Cotton Textile Mill vs. Chief Commercial Superintendent, reported in air 1998 SC 1959 and other, an unreported decision of a learned Single Judge of this Court in the case of Biswanath Agarwal vs. Union of India, W. P. No. 376 (W) of 2001 disposed of on September 14, 2001. He, therefore, prays for setting aside the order passed by the learned Single Judge and for dismissal of the writ application. (8). MR. Samanta, the learned Advocate appearing on behalf of the writ petitioners/respondents has, on the other hand, supported the order passed by the learned Single Judge and has made the following submission: (i) The memorandum of undercharges dated 29th October, 1991 was a nullity as the alleged enroute weighment at Kankaria Station forming the basis of purported determination of the alleged excess weight and off-loading of 683 salt-bags at Kankaria was done without mentioning the name of the enroute weighment station on the Railway receipt in violation of the procedure laid down in paragraph 1423 of IRCM to the deprivation of the statutory right of the consignor and the consignee under the proviso to section 65 (2) of the Indian Railways Act. (ii) Further, in the present case, the writ petitioners were served with memo of undercharges dated October 29,1991 for Rs. 52,938/-on 29 October, 1991 on the basis of purported determination of the alleged excess weight of salt at Kankaria Station in violation of the mode and procedure of enroute weighment as laid down in paragraph 1423 of the Indian railway Commercial Manual in the absence of the consignor and consignee. 52,938/-on 29 October, 1991 on the basis of purported determination of the alleged excess weight of salt at Kankaria Station in violation of the mode and procedure of enroute weighment as laid down in paragraph 1423 of the Indian railway Commercial Manual in the absence of the consignor and consignee. The 683 number of the alleged excess salt bags which were unloaded at Kankaria Station on 12 and 14 October, 1991 were not reweighed in the presence of the petitioner and/or the consignor and at the same time, the Railway authority had not disclosed anything about the disposal of the said unloaded 683 salt bags which were undisputedly valued at Rs. 40,980/- and the sale-proceed therein should have been adjusted as per rule after obtaining instruction from senders in terms of the procedure laid down in paragraph 1877 (B), IRCM. Moreover, the petitioners representation dated 30 October, 1991 for re-weighment of the excess weight of 683 salt bags in their presence was not at all disposed of. Mr. Samanta, therefore, prays for dismissal of the appeal. (9). THEREFORE, the question that falls for determination in this appeal is whether the learned Single Judge was justified in allowing the writ application by passing the direction impugned in this appeal. (10). IN order to appreciate the points involved in this mandamus appeal, it will be profitable to refer to the following provisions of the Railways Act and the Railways Manual: "65. 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 from 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. 72. as the case may be, the number of packages stated therein, shall lie on the consignor, the consignee or the endorsee. 72. Maximum carrying capacity for wagons and trucks.-(1) The gross weight of every wagon or truck bearing on the axles when the wagon or truck is loaded to its maximum carrying capacity shall not exceed such limit as may be fixed by the Central Government for the class of axle under the wagon or truck. (2) Subject to the limit fixed under sub-section (1), every Railway administration shall determine the normal carrying capacity for every wagon or truck in its possession and shall exhibit in works and figures the normal carrying capacity so determined in a conspicuous manner on the outside of every such wagon or truck. (3) Every person owning a wagon or truck which passes over a Railway shall determine and exhibit the normal carrying capacity for the wagon or truck in the manner specified in sub-section (2 ). (4) Notwithstanding anything contained in sub-section (2) or sub-section (3), where a Railway administration considers it necessary or expedient so to do in respect of any wagon or truck carrying any specified class of goods or any class of wagons or trucks of any specified type, it may vary the normal carrying capacity for such wagon or truck or such class of wagons or trucks and subject to such conditions as it may think fit to impose, determine for the wagon or truck or class of wagons or trucks such carrying capacity as may be specified in the notification and it shall not be necessary to exhibit the words and figures representing the carrying capacity so determined on the outside of such wagon or truck or such class of wagons or trucks. 73. 73. Punitive charge for over-loading 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 proscribed, 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. Passing of property in the goods covered by Railway receipt.-The property in the consignment covered by a Railway receipt shall 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, 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. 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 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 trainload shall be allowed if the weighment is not feasible due to congestion in the yard or such other circumstances as may be prescribed. Regulation 1422. Regulation 1422. Weighment of outward goods.- (a) Outward goods should be weighed as indicated below, the particulars of weighment being entered on the forwarding note in the place provided for the purpose: (i) Consignments in small lots.-All consignments should be weighed in full at the forwarding station. (ii) Consignments in wagon loads.-(1) In the case of consignments of grain, salt, seeds, sugar, pressed cotton or other staples, in bags or bales of uniform size and weight, the weight declared by the consignor may be checked by weighing a proportion of the number of bags or bales of uniform size and averaging their weight. If the bags or bales are not of uniform size and weight, those of uniform size and weight, should be grouped separately, each lot being treated for the purpose of weighment as a separate consignment and weighed as such. The remainder of the consignment of bags or bales or other commodities not of uniform size should be weighed in full. The proportion weighed should not be less than 10 per cent at stations where the traffic is large and 20 per cent at other stations. (2) Goods, loose, bulky goods or goods in bulk such as sand, stone, timber, etc., which cannot be weighed on the ordinary weighing machine provided at stations should be weighed on a wagon weighbridge at the forwarding station, if one is provided there. If there is no weighbridge at the starting station, the wagon may be weighed at a convenient weighbridge station on route, which should as far as possible, be the first weigh bridge station. In case there is no weighbridge enroute the wagon may be weighed at destination, if a weighbridge is available there. (b) Names of stations provided with weighbridge are notified by Railways in their Supplementary Goods Tariffs. 1424. (a) At weighbridge stations, where the wagons are required to be weighed, the Station Masters should ensure that such weighment is done and that the wagons are not pushed on without weighment. (b) The result of weighment should be recorded in the weighment registers in Form Com. /w-4, which should be written in duplicate by carbon process, separately for local and through traffic. The pencil copy of the register should be retained as station record and the carbon copy submitted monthly to the traffic Accounts Office along with the returns. (b) The result of weighment should be recorded in the weighment registers in Form Com. /w-4, which should be written in duplicate by carbon process, separately for local and through traffic. The pencil copy of the register should be retained as station record and the carbon copy submitted monthly to the traffic Accounts Office along with the returns. (a) The result of weighment should also be recorded by the weighbridge station staff on the wagon labels and invoices. The latter should, after being stamped with the name of the weighbridge station, be sent forward to the destination for accountal and recovery of charges due. 1425. In addition, a separate telegraphic advice of the net weight found on weighment should be sent, together with the booking particulars, to the forwarding and destination stations and to the Traffic Accounts Office of the destination station. The destination station should, in all cases, paste the telegraphic weighment advice on the relevant page of the delivery book, the result of weighment, as also the particulars of the weighment advice, being recorded against the connected entry in the delivery book. 1426. Stations unable to weigh consignments due to weighing machine being out of order.-Where consignments, referred to in paras 1422 (a) (i) and (ii) (1) cannot be weighed at the forwarding station, owing either to the absence of a weighing machine or to its having gone out of order, the weighment should be done by the destination station in accordance with the instructions contained in these paras. A suitable remark should be given on the invoice and Railway receipt, by the forwarding stations thus:-weighing machine out of order. Consignment to be weighted at destination. " 1431. Testing of weighbridges by Weighbridge Inspector.-All weighbridges will be tested half yearly by an Inspector of Mechanical department. After testing, he should furnish a certificate for each weighbridge showing that it has been adjusted and tested. This certificate must be displayed in the weighbridge house until the next inspection and the issue of a fresh certificate. The date of each testing should also be painted on the weighbridge. 1442. Preparation of invoices.-(a) After the goods have been carefully checked, counted, weighed and examined as to compliance of the packing condition, etc. and freight and other charges have been calculated and entered in the forwarding note, invoices should be prepared. The date of each testing should also be painted on the weighbridge. 1442. Preparation of invoices.-(a) After the goods have been carefully checked, counted, weighed and examined as to compliance of the packing condition, etc. and freight and other charges have been calculated and entered in the forwarding note, invoices should be prepared. (b) The invoice form contains separate columns/boxes for most of the information required to be entered therein, viz. , chargeable distance, handled by wagon owner and number, type of wagon, carrying capacity/area, tare, total number of the wagons loaded, forwarding note number, risk rate, invoice number, date, station from with (numerical code) and to, charged via, carried via, name and address of the sender and consigned, number, description, marks, measurement, actual weight and charged weight of packages, class of rate chargeable, rate per quintal, freight charges, other charges total to-pay/paid and remarks regarding defective condition of packing/consignment. Columns for receding undercharges and overcharges detected at destination station have also been provided in the form. Any further particulars, required to be recorded on the invoice, affecting the rate or condition of carriage, viz. , particulars of permit, pass or licence under which the consignment is booked, the remarks recorded by the sender on the forwarding note regarding election of route, election of Railway risk, when an alternative owners risk rate exists, or for dispatch of the consignment in an open wagon instead of a covered wagon, etc. , should be entered in the space available on the invoice. The particulars of credit note, if any, tendered in lieu of freight charges, should also be recorded on the invoice. (a) Under the provisions of section 65 of the Railways Act, 1989: (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 loadings; 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 entered 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 be on the consignor, the consignee or the endorsee. 1451. Grant of receipt foil of invoice to consignors.- (a) As soon as an invoice is prepared and the freight and other charges, if any due, have been collected, the receipt foil of the invoice should be given to the sender, who will forward it to the consignee at destination station. (b) Railway receipts (i.e. receipt foils of invoices) should not be granted till goods tendered or dispatch have been correctly examined and weighed. When senders are required to load their consignments, the Railway receipts should not be given until the loading has been completed to the satisfaction of the railway. (c) There should be no undue delay in the issue of Railway receipts to consignors. These must be made over to them on the very day the consignments are accepted for booking or in the case of consignments required to be loaded by the consignors, on the day the consignments are loaded. At large stations, however, where it is not feasible to do so, the divisional Commercial Superintendent may permit the issue of the Railway receipts not later than the day following the day of acceptance or of loading of the goods, as the case may be. 1745. When the request of a consignee or a endorsee for reweighment of wagon load consignments at destination station is accepted on merits of each cash by the Divisional Commercial Superintendent, the charges notified in the Supplementary Goods Tariff of the Railway should be collected and a separate money receipt, in Form Com. /m-2 issued for each reweighment. In addition, demurrage charges due under the rules should also be recovered if the request for reweighment is received after placement of the wagon for unloading. The reweighment charges should be accounted for as a special debit in the station books and balance sheet. 1811. /m-2 issued for each reweighment. In addition, demurrage charges due under the rules should also be recovered if the request for reweighment is received after placement of the wagon for unloading. The reweighment charges should be accounted for as a special debit in the station books and balance sheet. 1811. Responsibility of stations for undercharges.- (a) Receiving stations are held responsible for recovery of undercharges on goods traffic, both local and through, whether paid or to pay except in the following cases, which are debitable to the forwarding stations: (i) in all cases where repayment of freight is compulsory; (ii) undercharges of and under, one rupee in freight paid by credit note; and (iii) percentage charge due on animals, birds and goods containing valuable articles. (b) The above exceptions, however, do not relieve the receiving station of the responsibility for checking the invoices. Undercharges in the excepted items detected at receiving stations should be reported to the Traffic Accounts office and to the forwarding station. In the event of no such report having been made by the receiving station, it will be held responsible for such undercharges if, when debited by the Traffic Accounts Office to the forwarding stations, they are declared to be irrecoverable. (c) Under the provisions of section 78 of the Railways Act, 1989 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-weight 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. 1877. Disposal of excess off-loaded consignments.-(a) When, as a result of weighment, a wagon is found to be overloaded beyond the permissible limits, the Railway reserves the right to have the excess weight removed. A separate record should be maintained whenever excess weight is off-loaded. (b) The Railway administration may dispose of such excess weight if offloaded, by public auction after following the prescribed procedure. Sale, proceeds will first be adjusted against Railway dues which may include the freight due on the off-loaded consignment upto the point of off-loading, cost of detention of wagon and expenses incurred on off-loading of the excess consignments and its auction, and the balance, if any, may be paid to the consignor/consignee/endorsee entitled thereto. Sale, proceeds will first be adjusted against Railway dues which may include the freight due on the off-loaded consignment upto the point of off-loading, cost of detention of wagon and expenses incurred on off-loading of the excess consignments and its auction, and the balance, if any, may be paid to the consignor/consignee/endorsee entitled thereto. (c) Whenever the Railway administration does not off-load the excess weight on operational considerations and to save detention to wagons or for other reasons, and allow the wagon to move to destination as it is, it will be within its right to recover penal charge for excess loading as provided in the Goods tariff. (d) Immediately after unloading the excess weight, the senders instructions regarding its disposal should be obtained through the Station Master of the booking station. For this purpose, the woigh-bridge station should send to the booking station a statement in the profonna appearing at Appendix xviii/f. in a sealed cover booked under a free service way bill. A copy of the statement should also be sent to the destination station for informing the consignee/endorsee. (e) The booking station, on receipt of the statement referred to in clause (d)above, should serve a notice on the sender in the proforma appearing at appendix XVIII/ G and obtain his acknowledgement, which should be preserved at the booking station. The date of acknowledgement of the notice served on the sender should be intimated to the weigh-bridge station. (Emphasis supplied) (11). AFTER hearing the learned Advocate for the parties and after going through the materials on records, we find that the goods were loaded at Chirai, Gujrat and the Railway authority issued receipts against loading of the consignments admitting that the senders declared weight was accepted with the instruction to the SM enroute to weigh jointly at the destination before delivery. However, at the destination, initially no intimation was given to the writ petitioner complaining that the wagons were overloaded, and that as a result, a total number of 683 bags was unloaded. All that was informed was that there was short-delivery by specifying the number of short-delivered bags but reason for short-delivery was not disclosed and consequently, the writ petitioners removed the specified short-delivered goods on October 22, 1991 expecting further delivery in future. At any rate, he was bound to remove the goods otherwise he would be subjected to demurrage. All that was informed was that there was short-delivery by specifying the number of short-delivered bags but reason for short-delivery was not disclosed and consequently, the writ petitioners removed the specified short-delivered goods on October 22, 1991 expecting further delivery in future. At any rate, he was bound to remove the goods otherwise he would be subjected to demurrage. Subsequently, on October 29, 1991, demand for penal charge for overloading was made for the first time alleging excess loading and immediately thereafter, on October 30, 2007, the writ petitioners raised dispute against the allegation of overloading and demanded reweighment of the off-loaded goods. In our view, Mr. Samanta, the learned Advocate appearing on behalf of the writ petitioners/respondents was quite justified in contending that once a receipt is given by "accepting the senders declaration of weight", the burden is upon the Railway to show that the declaration of weight mentioned in the receipt was not correct. In the case before us, there is no endorsement in terms of the proviso to section 65 of the Railways Act that the weight or the number of packages was "not checked" for any reason, such as, "weighing machine was out of order" or "not available"; on the other hand, the declaration of the weight given by the sender was accepted as it appears from the endorsement, of course, with the instruction that the goods should be reweighed at the destination. (12). IN order to take punitive charge for overloading a wagon, the concerned parties must be given intimation of the overloading and once the goods have been booked after due weighment, such punitive charge cannot be levied unless the goods are reweighed in the presence of the representatives of the parties concerned. As provided in para 1451 of IRCM, the Railway receipts should not be granted till the goods are correctly examined and weighed and when the senders are required to load their consignments, the Railway receipts should not be given until loading has been completed to the satisfaction of the Railway. (13). As provided in para 1451 of IRCM, the Railway receipts should not be granted till the goods are correctly examined and weighed and when the senders are required to load their consignments, the Railway receipts should not be given until loading has been completed to the satisfaction of the Railway. (13). WE are quite conscious that there may be mistakes in the measurements due to various reasons including the fault in the weighing machines and in such a situation, if such mistake is subsequently detected, the Railway authority is always at liberty to rectify the mistake by reweighing the goods in the presence of the representatives of the party who booked the consignments. (14). THEREFORE, without reweighment of the consignment in the presence of the representatives of the parties concerned, there was no scope of claiming punitive charges on the alleged ground of overloading. Moreover, even in case of overloading, as provided in para 1877 of IRCM, the excess goods are sold and the price thereof is adjusted against the freight charge and the penalty and the balance is refunded to the representatives of the sender. (15). IN this case, no further notice was given to the sender or his representatives before unloading disclosing that through mistake the senders declaration was accepted and that the consignment was overweighed. The alleged overweighed goods were unloaded without notice to the sender or its representatives and it was disclosed for the first time at the place of destination one week after the short-delivered goods were permitted to be removed. (16). NOW the question that falls for determination before us is, if the writ petitioners, the representative of the sender, in spite of specific knowledge of short-delivery, decides to accept the same without any protest, whether it can, a week after the acceptance of the goods to its custody, pray for reweighment of the goods by disputing the allegation of overloading for the first time when further charge of overloading was sought to be imposed. (17). (17). IN our view, if the Railway authority specifically declares short-delivery at the destination to the representative of the sender without disclosing the reason of short-delivery, the acceptance of such short-delivered goods cannot create estoppel against the sender or his representative in claiming the balance amount of goods or compensation for the loss in future within the period of limitation because the shortage is admitted by the Railway authority and for non-removal he would be liable to demurrage. (18). THE position, however, would be different if at the time of declaration of shortage of the goods at the destination to the senders representative, the railway authority also alleges overweight and discloses that unloading of the excess goods was the reason of shortage. In such a case, if in spite of such discloser, the representative of sender decides to take into custody any amount of the short-delivered goods without protest and without praying for reweighment of the entire goods i. e. the short-delivered goods and the goods unloaded behind his back disputing the allegation of overloading, he should be precluded from raising such dispute in future when the penal charge of overloading is imposed. The moment the senders representative takes into custody any part of the short-delivered goods without protest, it will be impossible to verify in future whether there was really the excess loading than the permitted amount at the time of booking. (19). IN this case, the Railway authority having failed to disclose any reason for short-delivery and having permitted the writ petitioners to remove the goods without any allegation of overloading, it acted illegally in demanding the penal charge for overloading after one week from the date of removal. (20). WE, therefore, find no substance in the contention of Mr. Das, the learned counsel appearing on behalf of the Railways that the writ petitioners, having removed the short-delivered goods without protest in the absence of any allegation of overloading, is precluded from disputing the correctness of allegation. (21). WE, at the same time, find substance in the contention of Mr. Samanta, the learned Counsel appearing on behalf of the writ petitioners that the amount of sale-proceeds received from selling the unloaded goods should be given back to the writ petitioners as those consignments admittedly belonged to the writ petitioners. (22). WE now propose to deal with the decisions cited by Mr. Das. (23). Samanta, the learned Counsel appearing on behalf of the writ petitioners that the amount of sale-proceeds received from selling the unloaded goods should be given back to the writ petitioners as those consignments admittedly belonged to the writ petitioners. (22). WE now propose to deal with the decisions cited by Mr. Das. (23). IN the case of Jagjit Cotton Textile Mill (supra), the question was whether the Railway authority can realize the penal charge of overloading of wagon from the consignee instead of the delinquent consignor and whether such provision enabling the Railway to realize the same from the consignee was violative of Article 14 of the Constitution of India. The Apex Court answered the question in favour of the Railway. In the case before us, the writ petitioners did not dispute the authority of the Railway to realize the penalty from the consignee in an appropriate case but his grievance was that without giving him an opportunity of reweighment, no penalty could be levied when the invoice indicated that the weight mentioned therein was not in excess of the upper limit. We, therefore, find that the said decision does not help the appellants in any way. (24). IN the case of Biswanath Agarwal (supra), the consignment was booked at the owners risk without actual weighment and ultimately, overloading was detected at Andal Station. The petitioners although disputed the demand, did not apply for reweighment as would appear from page 28 of the judgment and at the same time, did not agree to reweighment offered by the Railway as would appear from its letter dated 22 February, 1991 as indicated in page 27 of the judgment. In such a case, His Lordship upheld the right of the Railway to demand penal charge for excess amount of consignment. In such a case, His Lordship upheld the right of the Railway to demand penal charge for excess amount of consignment. In the case before us, the writ petitioners were permitted to remove the short-delivered goods without making any allegation of overloading and such allegation was made one week thereafter and when the writ petitioners claimed reweighment on the very next day the penal charge was demanded, such prayer remianed unheeded and when the writ petitioners claimed reweighment on the very next day the penal charge was demanded, such prayer remained unheeded and at the same time, no opportunity was given to him for reweighment although in the Railway receipt, the weight declared by the sender had been accepted and it was not indicated that the consignment was not weighed at the time of booking for any reason. Therefore, the said decision does not come in aid of the appellants. (25). ON consideration of the entire materials on record, we, therefore find that the learned Single Judge rightly passed the order impugned and we find no reason to interfere with the order passed by His Lordship. (26). WE, thus, find no merit in this appeal and the same is dismissed with costs, which we assess at 300 Gms. Appeal dismissed.