Honble KOTHARI, J.—This writ petition has been filed by the Rajasthan State Mines and Mineral Limited, a Government of Rajasthan Enterprises, RSMM, for short, against the Railway Administration challenging the vires of Railways (Punitive Charges for Over-riding of Wagons) Rules, 2004 framed under the provisions of Section 73 of the Railways Act, 1989 and framed in supersession of earlier Rules of 1990 prevailing in this regard. (2). The petitioner had initially laid a challenge to the provisions of Section 73 of the Railways Act, 1989 also, but that challenge was given up before the Division Bench of this Court on 26.9.1997 and challenge was restricted to the validity of aforesaid Rules of 2004 and thus, the matter was remanded to the Single Judge. However, prior to that, on 6.12.2006, the Division Bench had passed the following interim order in the matter : HONBLE MR. JUSTICE RAJESH BALIA HONBLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. M.R. Singhvi, for the appellant. Mr. Kamal Dave, Mr. J.P. Joshi, for the respondents. Learned counsel for the respondents wants time to file reply to the writ petition. Four weeks time is allowed as prayed. Meanwhile the respondent - Railways, if were to raise any demand by way of penal rate of freight after accepting goods from the petitioner for carriage at destination or mid way, the same may not be enforced against the petitioner or his consignee until further orders. However, the same shall be intimated to the petitioner and on receipt of intimation, the petitioner shall furnish adequate security for its payment, in case writ petition fails, to the satisfaction of the DRM, North- Western Railway, Jodhpur. Meanwhile, the pleading may be completed before next date. Put up on 22.1.2007 along with SAW No.867/2006 as prayed. (Gopal Krishan Vyas) J. (Rajesh Balia) J." (3). That while sending the matter to Single Judge, the Division Bench passed the following order on 26.9.2007: HONBLE MR. JUSTICE P.B. MAJMUDAR HONBLE MR. JUSTICE DEO NARAYAN THANVI Mr. M.R. Singhvi, for the petitioner. Learned counsel Mr.M.R.Singhvi appearing on behalf of the petitioner submitted that the petitioner is giving up the challenge regarding constitutional validity of Section 73 of Railways Act, 1989. JUSTICE P.B. MAJMUDAR HONBLE MR. JUSTICE DEO NARAYAN THANVI Mr. M.R. Singhvi, for the petitioner. Learned counsel Mr.M.R.Singhvi appearing on behalf of the petitioner submitted that the petitioner is giving up the challenge regarding constitutional validity of Section 73 of Railways Act, 1989. He has submitted that the petitioner is now challenging only the validity of concerned Rules of 2004, therefore, the matter is required to be decided by the learned Single Judge as challenge to validity of Section 73 is giving up. Learned counsel Mr. M.R.Singhvi submitted that mistake in the prayer clause, instead of mentioning Section 73, Section 78 has been mentioned. Considering the said aspect of the matter, the Registry is directed to list the matter before the learned Single Judge taking up such matters. (Deo Narayan Thanvi) J. (P.B.Majmudar) J." (3). The petitioner - company is engaged in mining activities and marketing of excavated minerals and one of its mining operations are located in Jaisalmer within the State of Rajasthan where limestone is excavated which is called Low Silica High Graded Limestone. It is used by the Steel producing companies like Steel Authority of India situated at Durgapur, Bihar. For transportation of such limestone from Jaisalmer to Durgapur, on the request of the petitioner company, the Railway Administration provides railway wagons to the petitioner - company in the form of Rake and such train loads loaded with lime stone are transported by the Railways from Jaisalmer to Durgapur, Bihar. The system of weighing goods at Jaisalmer is volumetric system, under which wagons are supposed to be filled up upto the marked lines in wagons, upon which the Railway receipts are issued to the petitioner - company. Since there is no weigh bridge at Jaisalmer itself, but such weigh bridges are installed at Merta Road, which is enroute from Jaisalmer to Durgapur within the State of Rajathan. Since there is no weigh bridge at Jaisalmer itself, but such weigh bridges are installed at Merta Road, which is enroute from Jaisalmer to Durgapur within the State of Rajathan. There weight load of each of the wagons is ascertained and computerised print out of such weight load is available and on the basis of such computerised print out, excess weight or load is determined by the Railway Authorities and such excess weight printouts are sent with consignment to the destination where on the basis of excess weight load under the aforesaid Punitive Charges Rules of 2004, punitive charges are recovered from the consignee of the goods which in turn is deducted from the bill amount of the petitioner - Company and thus, the petitioner company has to bear such excess load punitive charges. (4). The grievance of the petitioner - company in the present case is about such punitive charges and illustratively the petitioner - company has produced a schedule with the writ petition which indicates that for the period October, 2004 to June, 2005, punitive charges to the extent of 3.90 crores was realized from the consignee of the petitioner - company by the respondent - Railway Administration. (5). Unfurling his arguments, Mr. M.R. Singhvi raised following contentions before this Court: (a) The penalty or punitive charges which are levied under the aforesaid Rules of 1990 or 2004 prevailing during the relevant time which Rules have been amended and substituted almost every year and Rules of 2005, 2006 and 2007 have come into force later on, all such Rules having been framed in accordance with Section 73 and under the powers conferred on the Central Government under Section 87 of the Act are ultra vires because no guidelines have been provided in the relevant provisions of Section 73 and quantum of penalty, according to the learned counsel for the petitioner, is extremely excessive, arbitrary and confiscatory. He pointed out that under the Rules of 2004, if excess load is over one ton, the penalty, was six times of fare applicable to the highest class of goods. The said six times was reduced to 3 times in the Rules of 2007. He pointed out that under the Rules of 2004, if excess load is over one ton, the penalty, was six times of fare applicable to the highest class of goods. The said six times was reduced to 3 times in the Rules of 2007. The goods are classified in different categories by the Railways, which classification has been placed on record as Annex.4 and limestone falls under Class 140 (page 84 of the paper-book), whereas the commodities like acids and alcohols fall under Class 240 (page 77 of the paper book). Of course different fares are applicable to different kind of commodities and the aforesaid punitive charges are computed for maximum fare applicable to highest class as aforesaid. (b) While such goods are loaded at Jaisalmer, the goods are filled up to the line marking given in the wagons and the Railway receipts are issued to the petitioner - company and since such Railway receipts bears the endorsement "senders weight accepted", according to the learned counsel for the petitioner, the Railway Administration cannot later on say that there is any excess weight. Further he submitted that when the goods are weighed on the weigh-bridge at Merta Road, the petitioner - company is neither given any notice nor any representative of the petitioner - company is available there and therefore, exparte weighment on weigh-bridge cannot be made basis for levying of punitive charges by the Railway Administration. In other words, the process of levy of punitive charges is in breach of principles of natural justice, according to the learned counsel for the petitioner. (c) According to the petitioner, since the entire train load is made available to the petitioner - company, unless Railway Administration makes out a case that total rake load or train load has exceeded, which according to the petitioner is 3600 metric tonnes, the Railway Administration cannot levy any penalty. (d) The learned counsel for the petitioner also urged that since overloading if any found at Merta Road, the Railway Administration is free to offload such excess load, which it does some times, actually no excess load is carried by the Railway Administration upto the destination point at Durgapur, Bihar and therefore, levy of penalty for fare applicable to the highest class of goods for entire distance is illegal because excess load is not even carried upto the destination point. Added to this, the learned counsel submitted that Section 73 proviso permits only imposition of cost of such unloading and any charge for the detention of any wagon on this account, only such unloading charges and detention charges can be charged from the petitioner and no other punitive charges can be levied. (e) It was also argued from the side of the petitioner that Section 73 uses the words "may" in substantive part of Section 73 and thus, the Railway Administration "may" recover such charges by way of penalty at such rates as may be prescribed, but by the Rules of 1990 and 2004 in this regard, no discretion is left to the Authorities of the Railway Administration and such penalty is invariably and mandatorily recovered from the consignee of the goods without even any adjudication process or affording an opportunity of hearing to the consignee or consignor and thus, the discretion vested in the authorities by Section 73 of the Act whether to impose penalty or not to impose penalty is rendered meaningless by the Rules framed under a delegated legislation by the Central Government. (f) It was also argued that Section 78 of the Act gives power to the Railway Administration to re-measure or re-weigh or reclassify any consignment before delivery of consignment, the Railway Administration could not re-weigh the goods in the present case, but could only re-measure such goods because goods are loaded at the forwarding station at Jaisalmer under volumetric system by filling up wagons upto the marked lines for limestone and since three different words have been deliberately used by the legislature, i.e. re-measure, re-weigh or re- classify, such words have to be read in sequence and what was done at the original forwarding station could only be done en- route the transit and not vice versa. (g) On the issue of availability of alternative remedy by way of raising dispute by way of a complaint under Section 36 and 37 of the Act before the Railway Rates Tribunal, the learned counsel for the petitioner submitted that Railway Rates Tribunal had no jurisdiction to deal with the issue raised in the present writ petition including question of vires of Rules of 1990 or 2004 and therefore, such remedy was inefficacious in the present case. (h) Referring to Circular dtd.19.9.2005 Annex.A (Page 139 of the paperbook) issued by the Sr. (h) Referring to Circular dtd.19.9.2005 Annex.A (Page 139 of the paperbook) issued by the Sr. Divisional Commercial Manager, Norther-Western Railway, Jodhpur, the learned Counsel for the petitioner argued that since by said circular, all the concerned staff of the forwarding station were strictly warned to be more careful and vigilant while loading and ensure that no overloading was done at forwarding station in future. If overloading is detected en-route, the staff of station who supervises the loading will be taken up. In view of this circular, the learned counsel submitted that it was not the responsibility of the petitioner - company, if there was any overloading, but on the contrary, it was the responsibility of the concerned staff of the Railways and they were to be held responsible in this regard and therefore, no penalty could be imposed on the petitioner. Added to this was the contention based on definition of "Railway Receipt" given in Section 65 of the Act, Sub-section (2) of which stipulated that a railway receipt shall be prima facie evidence of weight and the number of packages stated therein, therefore, it was submitted that since Railway receipt was issued to the petitioner - company on the basis of weight indicated in the Railway receipt, the Railway Administration was not entitled to charge anything beyond the weight indicated in the Railway receipt. 5. The learned counsel for the petitioner relied upon the following judgments in support of his submissions: A. In Jindal Stainless Ltd. and anr. vs. State of Haryana and ors. reported in ( 2006(7) SCC 241 , the Honble Supreme Court while dealing with the case of compensatory tax in the form of entry tax held as under: "The concept of compensatory tax is not there in the Constitution but is judicially evolved in the seven-Judge case of Automobile Transport, 1963 (1) SCR 491 , as a part of regulatory charge. The fallout is that compensatory tax becomes a sub-class of fees. A compensatory tax is levied on an individual as a member of a class, whereas a fee is levied on an individual as such." "For a tax to be compensatory, there must be some link between the quantum of tax and the facilities/services. Every benefit is measured in terms of cost which has to be reimbursed by compensatory tax or in the form of compensatory tax. Every benefit is measured in terms of cost which has to be reimbursed by compensatory tax or in the form of compensatory tax. In other words, compensatory tax is a recompense/ reimbursement. (para 42)" B. In Krishna Mohan Pvt.Ltd. vs. Municipal Corporation of Delhi and ors. reported in AIR 2003 (SC) 2935 , the Honble Supreme Court while dealing with vires of Section 116(3) of the Delhi Municipal Corporation Act relating to rateable value for valuation of land/building for imposition of property tax, held as under: "Section 116(3) is invalid for excessive delegation of legislative powers as it vests arbitrary and unguided discretion in the Commissioner to declare any machinery situated in or upon a land or building to be deemed to form part of the land and building for the purpose of determining the rateable value thereof. The contention of the Municipal Corporation that the statute indicates the guidelines, namely, that the Commissioners power to notify under S.116(3) is only in respect of things which are of the same nature as would fall within the ambit of expression "land", as defined under S.2(24) is a classic case of post hoc ergo propter hoc. Obviously, the power given to the Commissioner under sub-sec. (3) of S.116 intended to be exercised only in a case where the plant or machinery does not fall within the ambit of the expression "land" or "building" as defined in the Act. It is only in such cases that the question of exercise of the discretion on the part of the Commissioner arises. Thus, the so called guideline is wholly chimerical. There are no legislative guidelines on which Commissioners power under S.116 (3) could be exercised. The vice discovered by Supreme Court in Rule 7(2) of the BPMC Act, 1949 in New Manek Chowk AIR 1967 SC 1801 , equally invalidates S. 116(3) of the D.M.C. Act. (Paras 45, 47, 52) Apart from there being no guidelines in the statute, the exercise of discretion by the Commissioner is not subject to any appeal to a higher authority. It is true that the discretion can be exercised by Commissioner only with the approval of the Standing committee and, secondly, that the rateable value is subject to an appeal under the statute. It is true that the discretion can be exercised by Commissioner only with the approval of the Standing committee and, secondly, that the rateable value is subject to an appeal under the statute. But, there is no provision in the statute for an appeal against inclusion of any plant of machinery within "land" or "building" for determination of the rateable value." C. On the question of quantum of penalty under Section 11AC of the Central Excise Act, 1944, the Division Bench of this Court in the case of Commissioner of C.Ex., Jaipur vs. Banswara Syntex Ltd. reported in 2007(212) E.L.T., 171 (Raj) = RLW 2007(3) Raj. 1764) held that it was not necessary to impose maximum penalty only. Para 29 and 30 in this regard are extracted below : "29. It is also clear from the amendment brought in Section 11AC by way of inserting second proviso that where the duty determined under sub-section (2) of Section 11A along with interest thereon is paid within thirty days from the date of notice of demand, the amount of penalty has to be reduced to 25% of the duty levied. Thus, prescribing minimum leviable penalty, since amendment under Section 11AC, to 25% of the duty on deposit of the amount for which demand has been created along with interest within prescribed time and waived amount over and above it. Therefore, keeping in view this provision, we are persuaded to hold that where show cause notice under Section 11AC as well as 173Q has been issued for the same defaults, the assessing officer cannot overlook the provisions of Rule 173Q for the purpose of levying maximum penalty only using his discretion to levy penalty under Section 11AC without considering the provision of Rule 173Q. If he has discretion to use, and case is made out for imposing lesser penalty, he cannot use his discretion not to invoke the provisions of Rule 173Q at all and insist on levying maximum penalty only. 30. If he has discretion to use, and case is made out for imposing lesser penalty, he cannot use his discretion not to invoke the provisions of Rule 173Q at all and insist on levying maximum penalty only. 30. The two provisions read together make it fairly clear that the limit of penalty provided under section 11AC serves as a maximum limit upto which penalty could be levied but the assessing officer in his discretion may levy lesser penalty." D. While dealing with the question of alternative remedy under the Railways Act, 1890, the Constitution Bench of the Honble Supreme Court in the case of Rai Chand Amulakh Shah vs. Union of India reported in AIR 1964(SC) 1268 held as under: "(9) Let us now see whether remedy is provided by the Act for an aggrieved party to ask for a refund of the charges collected on the ground mentioned in the plaint. The Tribunal constituted under S. 34 of the Act has jurisdiction to decide whether the charges levied by the railway administration other than the standardised terminal charges were unreasonable. The Act does not provide for any remedy for an aggrieved party to approach the Tribunal for a refund of the amount collected by the railway administration by way of wharfage and demurrage on the ground that the rules governing the said administration to do so are ultra vires or that the amounts so collected are in excess of wharfage or demurrage leviable under the rules. If the impugnd charges are standardised terminal charges, the dispute in regard thereto falls outside S.41 of the Act. If they are charges other than the standardised terminal charges, the jurisdiction of the Tribunal is confined only to the question of its reasonableness. It has no jurisdiction to decide whether the rules empowering the railway administration to levy a particular charge are ultra vires or whether the railway administration collected amounts in excess of the charges which it can legally levy under a rule. If so, it is clear that no provision has been made under the Act giving a remedy to an aggrieved party to ask for a refund of amounts, such as those alleged to have been collected from the appellants. Section 26, therefore, cannot be a bar against the maintainability of the suits filed by the appellants." (6). If so, it is clear that no provision has been made under the Act giving a remedy to an aggrieved party to ask for a refund of amounts, such as those alleged to have been collected from the appellants. Section 26, therefore, cannot be a bar against the maintainability of the suits filed by the appellants." (6). On the basis of aforesaid contentions, the learned counsel for the petitioner urged that the impugned levy and recovery of punitive charges from the petitioner company or its consignee was illegal and Rules of 1990 and 2004 in this regard were ultra vires and therefore, the same deserved to be struck down by this Court. (7). On the side opposite, Mr. Kamal Dave learned counsel appearing for the Railway Administration opposed all the aforesaid submissions and he submitted that as a matter of fact all these issues raised by the petitioner in the present writ petition stand answered and concluded by the decision of the Apex court in the case of Jagjit Cotton Textiles Mills reported in 1998(5) SCC 126 . He heavily relied upon the said decision besides the Division Bench decision of this Court in the case of Straw Products Ltd. and ors. vs. Union of India and ors. reported in 1995(2) Western Law Cases 720 = RLW 1995(1) Raj. 42 and a Single Bench decision of this Court in the case of J.K. Cement Works vs. Union of India (S.B. Civil Writ petition No.1813/2005 decided on 6.4.2005) in which while raising similar issues, another company M/s J.K. Cement had withdrawn its writ petition and the Court permitted the said withdrawal with the liberty to the petitioner to approach Railway Rates Tribunal, Chennai. The learned counsel for the respondents also relied upon a Single Bench decision of J & K High Court in the case of Darshan Kumar Mahajan vs. Station master, Railway Station and ors reported in AIR 1986 (J &K ) 74. He submitted that therefore, the writ petition deserves to be dismissed not only on the ground of alternative remedy, but challenge to the vires of Rules of 1990 or 2004 also deserves to fail in view of aforesaid decisions. (8). Further elaborating his submissions, the learned counsel for the respondents Mr. He submitted that therefore, the writ petition deserves to be dismissed not only on the ground of alternative remedy, but challenge to the vires of Rules of 1990 or 2004 also deserves to fail in view of aforesaid decisions. (8). Further elaborating his submissions, the learned counsel for the respondents Mr. Kamal Dave submitted as under :-- (a) The Railway Administration had ample statutory power under Section 78 of the Act to re-measure or re-weigh or reclassify any consignment before delivery of consignment and thus, re-weighment at weigh-bridge at Merta road could not be challenged by the petitioner. (b) The Railway receipts issued to the petitioner - Company at forwarding Station at Jaisalmer clearly indicates that "senders weight accepted", therefore, the Railway Administration had issued such railway receipt only subject to further verification of load at weigh-bridge at Merta Road because that cannot be installed at every Railway Station and there was no reason to disbelieve the weight of wagons taken at Merta Road, through a fully efficient and accurate computerized system and punitive charges in question could be levied under the relevant statutory provisions of the Rules. (c) The learned counsel for the petitioner also urged that these punitive charges was in fact not penalty, but were compensatory in nature as held by the Honble Supreme Court in J.C. Cotton Mills case and that was for putting extra load on the axel of wagons, bridges, rail roads etc. and therefore, it was commercial charge in nature which did not require any adjudication process and the same was levied in accordance with the Rules amended from time to time and there was nothing illegal in the same. (d) He also urged that since subsequent Rules of 2005, 2006 and 2007 are not even under challenge in the present case, the Railway Administration was free to recover such charges from the petitioner - company and by the interim order granted by this Court, the same precluded the Railway Administration from charging such punitive charges from the petitioner - company or its consignee and huge demand has been accumulated against the petitioner - company in this regard. He, therefore, pleaded on the ground of stake of huge public revenue involved in the matter. He, therefore, pleaded on the ground of stake of huge public revenue involved in the matter. (e) Analysing the provisions of Section 73 of the Act, the learned counsel for the respondents urged that the said provision inter alia provided recovery of such punitive charges from either of consignee or consignor or endorsee as the case may be and therefore, the recovery from the consignee could not be assailed by the petitioner - company. (f) The provisions of the Act including Section 65 defining "Railway receipt" clearly indicates that the Railway receipt was only a prima facie evidence of weight and number of packages stated therein and proviso to Section 65 clearly states that where weight and number of packages is not checked by the Railway servant authorised in this behalf and statement to that effect is recorded in such railway receipt by him, the burden of providing the weight or , as the case may, the number of packages stated therein, shall lie on the consignor, the consignee or the endorsee. Referring to Section 79 of the Act, the learned counsel also urged that Railway Administration may on the request by the consignee or endorsee, allow reweighment of the consignment on payment of such charges if the consignee objected to the weighment according to weighbridge slips. He submitted that in none of the cases, consignee had refused to take delivery of the entire load including the excess load in the present case and had used the commodity consigned to him for his business and therefore, no demur could be raised later on from the side of the consignor or the consignee. (g) As far as vires of the Rules is concerned, the learned counsel for the respondents urged that since similar Rules in the form of Rule 161A framed under the erstwhile Railways Act, 1890 has already been upheld by the Apex Court in which almost all the contentions raised by the petitioner in the present case have been dealt with and even referring to Rules of 1990, the Honble Supreme Court has negatived any such challenge, it is no more open to the petitioner to lay any challenge to such Rules and therefore, the writ petition is wholly devoid of merit. (h) He also submitted that offloading of goods at Merta Road was done, only if load was beyond maximum carrying capacity for which proviso of s.73 of the Act would apply, whereas aforesaid punitive charges were levied only for excess load beyond permissible carrying capacity and below maximum carrying capacity of the wagons. (i) Lastly, the learned counsel for the respondents urged that if the petitioner feels aggrieved about the extent or quantum of punitive charges, the only remedy available to him was to approach Railway Rates Tribunal as disputed questions of facts about rates are involved in the matter which could not be determined in the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India and, therefore, the writ petition deserves to be dismissed on the ground of alternative remedy as well. (9). I have heard the learned counsel for the parties at length and given my thoughtful consideration to the entire matter and have perused the case laws cited at the bar. (10). A closer study of the judgment of the Honble Supreme Court in the case of Jagjit Cotton Textile Mills vs. Chief Commercial Superintendent, N.R. And ors. (supra) is considered to be of great relevance in the present matter and following extracts from the said judgment would throw light on the rival contentions raised in the present matter. Therefore, the following extracts from the said judgment are reproduced hereunder: "While Section 53(1) prohibits overloading in excess of the maximum carrying capacity, Rule 161-A permits loading beyond the permissible carrying capacity and the charging therefor. Obviously the contention is based upon a misconception of equating the permissible carrying capacity with the maximum carrying capacity. Rule 161-A does not enable the consignors, as wrongly thought by the petitioners, to load the wagon beyond the maximum carrying capacity. The penal charges under Rule 161-A are attracted if the weight goes above the permissible carrying capacity which is always below the maximum carrying capacity envisaged under Section 53(1). (Para 19)" "Section 73 of the Railways Act, 1989 gives power to the Railways to levy and collect penal charges from the consignor, consignee or the endorsee, as the case may be, if the goods are overloaded beyond the "permissible carrying capacity. The words "as the case may be" occurring in Sections 73 and 74 have also to be explained. (Para 19)" "Section 73 of the Railways Act, 1989 gives power to the Railways to levy and collect penal charges from the consignor, consignee or the endorsee, as the case may be, if the goods are overloaded beyond the "permissible carrying capacity. The words "as the case may be" occurring in Sections 73 and 74 have also to be explained. The "consignor" shall be liable for the penal charge even at the stage of delivery of goods at the destination if he has booked the goods for "self". The "endorsee" will be liable if the delivery is applied for at the destination by the endorsee. The "consignee" will be liable if the delivery is applied for at the destination by the consignee. (Paras 35 & 37) Moreover under Section 74, once the railway receipt is delivered to the consignee, not only the rights of the consignor but also the liabilities of the consignor pass on to the consignee. The word "liability" in Section 74 includes the liability of the consignor to pay the penal charges under Section 73 in respect of the overloaded goods covered by the railway receipt. (Para 37)" RULE "161-A. Penalty for loading coal beyond permissible carrying capacity of the wagons:-(1) In loading coal, consignors are required not to exceed the permissible carrying capacity of the wagon used or any reduced carrying capacity that may be required in the circumstances referred to in Rule 163. Should overweight be discovered at the booking point or en route or at destination, such overweight beyond permissible carrying capacity of the wagon used will, notwithstanding anything contained in this Tariff or in any other Rules of instructions, be charged at the normal wagon load rate if the overweight is more than one tonne, for the entire distance from the booking point to the destination. (2) The Railway Administration may issue separate instructions in regard to limits of weight beyond which overloaded wagons should not be carried. Such instructions may also specify the charges, penalties and other consequences that would ensue from loading beyond such limits." The question was whether under Rule 161-A of the IRCA Rules, the Railways could collect penal charges from the consignee. Such instructions may also specify the charges, penalties and other consequences that would ensue from loading beyond such limits." The question was whether under Rule 161-A of the IRCA Rules, the Railways could collect penal charges from the consignee. The consignee - appellants/ petitioners contended that the "delinquent" in respect of overloading of wagons was the consignor and not the consignee and that, therefore, the provision in Rule 161-A of the IRCA Rules or Section 73 of the Railways Act, 1989 were violative of Article 14. Rejecting these contentions, the Supreme Court held , "Rule 161-A of the IRCA rules is in two parts. The first part prohibits the "consignors" from exceeding the permissible carrying capacity of the wagon. The second part of the Rule speaks of discovery of the overweight at the booking point or en route or at the destination and recovery of the penal charge therefor for the entire distance from the booking point to the destination. The rule-making authority must, be deemed to have been aware that title in the goods might have passed to the consignees in several cases after the loading or after the weighment and before the actual delivery of the goods to the consignee such as where the railway receipt is delivered to the consignee against the receipt of price. The second part of Rule 161-A is quite wide and unrestricted and can be treated as permitting recovery of the penal charges "from the consignor or consignee or the endorsee, as the case may be", though these words are not expressly used in Rule 161-A. That is how the Railways becomes entitled to recover the penal charges from the consignee also even under the Act of 1890. (Para 40) Section 73 of the new Act and Rule 161-A of the old Rules permit loading in excess of the permissible carrying capacity without any penal charges, now up to a limit of 2 tonnes. (Earlier it was up to 1 tonne). What is now subjected to a penal charge is the excess over and above permissible level which is always below the maximum limit. This levy under Section 73 of the new Act and the old Rule 161-A is intended for dual purposes - one is to see that the gross weight at the axles is not unduly heavy so that accidents on account of the axles breaking down, could be prevented. This levy under Section 73 of the new Act and the old Rule 161-A is intended for dual purposes - one is to see that the gross weight at the axles is not unduly heavy so that accidents on account of the axles breaking down, could be prevented. The other reason behind the collection is that, inasmuch as the wagon has carried such excess load up to destination point at the other end, the replacement cost of the coaches, engines or rails or of repairs to the bridges be recovered. The extra rate is a higher rate, i.e. something like a surcharge for the excess load, to meet the said expense. No principle of "delinquency" is ingrained in this levy as in the case of breach of civil obligations under the FERA or Customs Act or the Employees Provident Funds Act. Obviously the Railway Board has kept these aspects in mind while collecting these charges. There is therefore no violation of Article 14." "42........ Further the question of reasonableness of the quantum of any such extra rate cannot be challenged before us and the appropriate forum therefor is the Railway Rates Tribunal. Rule 161-A can, therefore, be resorted to for collecting these penal charges from the consignee also. After all, the consignee has received delivery of the overloaded goods and used the same for their business, commercial or industrial purposes. For the above reasons, a statutory provision like Section 73 or Rule 161- A which permits levy on such a consignee cannot, in our view, be said to be arbitrary or unreasonable in the context of Article 14." "37. There are two answers to the contention of the appellants/petitioners. Firstly, Section 73 clearly states that the penal charges can be collected from the consignor, consignee or the endorsee, as the case may be. The words "as the case may be" occuring in Section 73 and 74 have also to be explained. The "consignor" shall be liable for the penal charge even at the stage of delivery of goods at the destination if he has booked the goods for "self." The "endorsee" will be liable if the delivery is applied for at the destination by the endorsee. The "consignee" will be liable if the delivery is applied for at the destination by the consignee. The "consignee" will be liable if the delivery is applied for at the destination by the consignee. Thus, the above section, therefore, expressly permits legal these penal charges to be collected from the consignee also. Secondly, under Section 74, once the railway receipt is delivered to be consignee, not only the rights of the consignor but also the liabilities of the consignor pass onto the consignee. In our view, the word "liability" in Section 74 includes the liability of the consignor to pay the penal charges under Section 73 in respect of the overloaded goods covered by the railway receipt." "40. It is to be noticed that the second part of Rule 161-A speaks of discovery of the overweight at the booking point or en route or at the destination and recovery of the penal charge therefor for the entire distance from the booking point to the destination. The rule-making authority must, in our opinion, be deemed to have been aware that title in the goods might have passed to the consignees in several cases after the loading or after the weighment and before the actual delivery of the goods to the consignee such as where the railway receipt is delivered to the consignee against the receipt of price. In our view, the second part of Rule 161-A is quite wide and unrestricted and can be treated as permitting recovery of the penal charges "from the consignor or consignee or the endorsee, as the case may be", those these words are not expressly used in Rule 161-A. That is how the Railways becomes entitled to recover the penal charges from the consignee also even under the Old Act." 11. In Straw Products Ltd. and ors. v/s Union of India reported in 1995(2) WLC (Raj.) 720, decision rendered prior to the aforesaid Apex Court judgment in the case of Jagjit Cotton Mills in the year 1995, the Division Bench of this Court had also negatived the challenge to Rule 161A, which is akin to the subsequent Rules contained in Rules of 1990 and Rules of 2004, which are in challenge in the present matter and it was held in para 11 to 15 of the judgment as under: "11. In the decision given by the High Court of Allahabad, it was held that there was no conflict between Rule 161-A and the provisions contained in Sections 53 and 54 of the Indian Railways Act. The inconsistency sought to be demonstrated was not there. The learned Judges further observed that the instructions against overloading were obviously aimed and designed for the reasons of safety and Rule 161-A was designed to achieve the object of prohibition against excess loading and ensure safety as would be evident from the existence of stipulation in the rule with regard to penalty for violation of prohibition against the loading of a wagon beyond its carrying capacity. The learned Judges further noticed that the Act has been repealed in its entirety by Section 200 of the Railways Act, 1989 which came into operation with effect from 1.7.1990 in the Indian Railway Act of 1890 and Section 53 whereof is being attacked by the petitioners no longer exists on the statute book and as such Rule 161-A under reference cannot be held to be inconsistence or in conflict with Section 53 of the aforesaid Act after 1.7.1990, the date of enforcement of the Indian Railways Act, 1989. 12. We have also carefully and minutely perused the judgment given by the Calcutta High Court and the learned Judge has exhaustively dealt with each and every point which has been raised in these writ petitions. The petitions and the points raised here are totally identical with the points raised, debated and dealt with in the judgment of the Calcutta High Court. ........ 13. Now dealing with the other arguments raised by the learned Counsel appearing for the petitioners towards the attack on Annex.5, it may be made clear that Annex.5 is only a reproduction of the letter dated 2.4.1984 of the Chief Commercial Officer and it is wrong to argue that the Assistant Claims Officers has no jurisdiction to take a decision of that kind. A reading of the letter shows that it was after noticing that the claims pertaining to coal wagons above the permissible weight that the penalty of overcharging was being refunded alongwith cost of the coal and the proportionate freight. It was under these circumstances it was decided that since the overloading above the permissible weight was done by the consignor the Railway Administration was not liable to refund POL Charge. It was under these circumstances it was decided that since the overloading above the permissible weight was done by the consignor the Railway Administration was not liable to refund POL Charge. It was under these circumstances, it was decided that only proportionate freight will be paid and no part of the penalty or overloading the charge will be refunded. The arguments raised by the learned counsel for the petitioners is, thus, misconceived. There is no occasion for amending the rules on the subject and if there be any it is for the respondents to consider. No attack has been made on the rule and authority of the Chief Commercial Officer who has handed down these directions. 14....... 15. We are in respectful agreement with the three decisions noticed above and no case has been made out to persuade us to take a different view in the matter. We are clearly of the opinion that these writ petitions have no force and are hereby dismissed with no order as to costs." (12). In Darshan Kumar Mahajans case (supra), the learned Single Judge of Jammu and Kashmir High Court dealing with the similar controversy held in para 7 as under: "Since the consignor bound by Railway Goods Tariff under a private contract too should avoid overloading the wagons, he could not resist the Railways claim at penal rate in case of breach on the ground that the Rules were ultra vires the Railways Act and the Constitution or that principles of natural justice were not observed. (13). Then in Division Bench decision in the case of Darshan Kumar vs. Union of India reported in AIR 1988 (J & K) 28, the Division Bench of J & K High Court held that vires of Rule 161A could not be attacked by the petitioner and said Rule did not impose any ban or restriction on the movement and was, therefore, not violative of Article 19(1)(g) of the Constitution of India and the remedy under writ jurisdiction was not appropriate remedy. Relevant portion of Division Bench judgment of J & K High Court is reproduced hereunder: "To attack the vires of R. 161-A, nothing substantial could be pointed out in support of the arguments that the provisions providing penalty for over-loading of coal wagons in any way violates any provision of the Constitution. Relevant portion of Division Bench judgment of J & K High Court is reproduced hereunder: "To attack the vires of R. 161-A, nothing substantial could be pointed out in support of the arguments that the provisions providing penalty for over-loading of coal wagons in any way violates any provision of the Constitution. Moreover, once the petitioners enter into a contract to use the railway Wagons for loading of coal incorporating therein all the rules of Railways tariff as one of the conditions it becomes obligatory on the part of the petitioners to strictly follow the conditions of the contract, failure of which is not justiceable in the writ petitions, as the same becomes pure and simple part of the contract for which the proper forum is not the writ petitions under Art. 226 of the Constitution, but lies elsewhere under the provisions of the Railways Act. The High Court cannot in a writ petition enter into the controversy based on disputed questions of fact regarding over-loading, as the imposition of penalty is closely connected with over-loading, which is made penal for which who is responsible, either the Railway Staff or the petitioners can hardly be said to be a dispute to be determined in writ petition. It is well settled that if the restrictions are imposed in such a manner, which do not impose total ban on transport of coal by coal merchant, the same cannot be said to be violative of Art. 19(1)(g) of the Constitution. In fact, in the instant case by incorporating the provisions of heavy penalty on overloading under R.161-A of the Goods Tariff, the Railway authorities have not imposed any ban on the coal merchants, the provision is in fact meant to restrict the over-loading, the violation of which is made penal which by no stretch of imagination can be said to be a ban or restriction on movement. Similarly when the coal merchants while engaging the coal wagons enter into a contract accepting the goods tariff as part of the contract, it loses its statutory character and cannot be assailed on the ground that any such condition is ultra vires the provisions of the Constitution. Rules of 1990 to the relevant extract are quoted below: "3. Similarly when the coal merchants while engaging the coal wagons enter into a contract accepting the goods tariff as part of the contract, it loses its statutory character and cannot be assailed on the ground that any such condition is ultra vires the provisions of the Constitution. Rules of 1990 to the relevant extract are quoted below: "3. Punitive charges for overloading:- Where goods are loaded in a wagon or truck beyond the permissible carrying capacity, the Railway administration may, in addition, to normal freight and other charges, recover for the distance between the forwarding station and the destination station, charges by way of penalty as specified in Part I of the Schedule in the case of goods loaded in a loose condition excluding Box wagons and part II of the Schedule in the case of goods other than those loaded in a loose condition and part III of the Schedule in the case of goods loaded in loose condition in Box wagons from the consignor, the consignee or the endorsee, as the case may be." (14). From the aforesaid, it would transpire that there is not much force in the challenge to validity of Rules of 1990 and 2004 or even subsequent Rules though not specifically challenged in the present writ petition because the said Rules are in sum and substance similar to Rule 161-A which was specifically considered by the Apex Court in Jagjit Cotton Textile Mills case and challenge to the validity of those Rules was negatived. Therefore, this Court finds no ground to sustain the challenge to the validity of Punitive Charges Rules of 1990 or 2004 and such challenge is thus negatived in light of the aforesaid ratio of the Honble Supreme Court in the case of Jagjit Cotton Textile Mills. The said Rules are perfectly intra vires and not violative of Article 14 of the Constitution of India in any manner. (15). As far as question of excessiveness or unreasonableness of punitive charges is concerned, obviously alternative remedy by way of a complaint to the Railway Rates Tribunal is available to the petitioner in the present case. The contention of the learned counsel for the petitioner that the said issue does not fall within the ambit and scope of jurisdiction of Railway Rates tribunal is misconceived and incorrect. The contention of the learned counsel for the petitioner that the said issue does not fall within the ambit and scope of jurisdiction of Railway Rates tribunal is misconceived and incorrect. The provisions of Sections 36 and 37 of the Railways Act in this regard are reproduced hereunder: "36. Complaints against a railway administration:- Any complaint that a railway administration: (a) is contravening the provision of Section 70; or (b) is charging for the carriage of any commodity between two stations at a rate which is unreasonable; or (c) is levying any other charge which is unreasonable, may be made to the Tribunal, and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this Chapter." "37. Matters not within jurisdiction of the Tribunal : Nothing in this Chapter shall confer jurisdiction on the Tribunal in respect of- (a) classification or re-classification of any commodity; (b) fixation of wharfage and demurrage charges (including conditions attached to such charges); (c) fixation of fares levied for the carriage of passengers and freight levied for the carriage of luggage, parcels, railway material and military traffic; and (d) fixation of lump sum rates. (16). A perusal of aforesaid provisions clearly shows that question as to the excessiveness or unreasonable demand of such charges is clearly within the domain and jurisdiction of Railway Rates Tribunal. Apparently and undisputably, disputed questions of facts are involved in the matter as to whether there was actual overloading or not; whether weight taken on the weigh bridge at Merta road can be made the sole basis for imposition of punitive charges or not; what is effect and truthfulness of such weigh-bridge slips issued at Merta Road; what is effect of volumetric system of loading of wagons at Jaisalmer, its subsequent re-weighment at Merta Road etc. are all questions of facts, which cannot be gone into under writ jurisdiction by this Court. As a matter of fact, each and every transaction is required to be looked into by fact finding body which body in the present case is only the Railway Rates Tribunal constituted under the Act. are all questions of facts, which cannot be gone into under writ jurisdiction by this Court. As a matter of fact, each and every transaction is required to be looked into by fact finding body which body in the present case is only the Railway Rates Tribunal constituted under the Act. It is true that no adjudication process is undertaken before levy and recovery of punitive overloading charges from the consignee and therefore, such charging is not wholly in consonance with the principles of natural justice because as rightly contended by the learned counsel for the petitioner, at the time of weighment of wagons at weigh bridge at Merta Road, neither any notice is given to the petitioner nor such weighment is done in presence of any of the representatives of the petitioner - company and Railway authorities. Therefore, such unilateral action on the part of the Railway Authority can be made basis for imposition of punitive charges or not is a question, which is required to be determined by the Railway Rates Tribunal on the basis of facts obtaining before it and the evidence led in the matter. At the same time, there is no reason to disbelieve and ex- facie reject the evidence in the form of reweighment slips generated at weigh bridge at Merta road, where weight of each wagon is calculated through computerised system. No allegation of any malafide or defect in the computerized system of weigh bridge has either been made in the present case nor argued nor it can be entertained so easily. The burden to prove that there was overloading beyond permissible carrying capacity is on the Railway Authorities. Therefore, it would be only appropriate that the petitioner company is relegated to the alternative remedy by filing its complaint before the Railway Rates Tribunal for raising the dispute of the punitive charges. The questions relating to off loading of excess load at Merta Road over the maximum carrying capacity at Merta Road and thus, such extra load not being carried up to the destination; imposition of punitive charges with reference to different class of goods, other than the goods actually carried and imposing 6 times or 3 times punitive charges with reference to such highest class of goods etc. are also questions which are open to be determined by the Railway Rates Tribunal. are also questions which are open to be determined by the Railway Rates Tribunal. The jurisdiction of the Railway Rates Tribunal is wide enough to cover entire dispute sought to be raised in the present writ petition. The exclusion clauses of Sec.37 of the Act are not applicable in the present case. Of course, the challenge to the validity of rules could not have been examined by the Railway Rates Tribunal, but having found no force in such a challenge, this Court will stay its hands at that and for determination of questions of facts and other relevant issues, the remedy open to the petitioner is before the Railway Rates Tribunal and not before this Court in extraordinary jurisdiction. (17). The learned counsel for the respondents Mr. Kamal Dave fairly conceded on this issue that alleged excessiveness of punitive charges is the question, if raised by the petitioner company, would fall within the domain of Railway Rates Tribunal and as a matter of fact, such cases are being entertained by the Railway Rates Tribunal. (18). The difficulty in availing such alternative remedy of approaching Railway Rates Tribunal, which learned counsel for the respondents informs is working only at Chennai of course is there. The Tribunal constituted under the Railways Act, 1989 for exercising such jurisdiction for entire country ought to have at least one Bench in every State to make such remedy adequate ,effective and meaningful for the complainants spreading throughout the country. It is only in consonance with the judgment of Honble Supreme Court in the case of S.P. Sampath Kumar vs. Union of India reported in (1987) 1 SCC 124 . While upholding the provisions of Administrative Tribunals Act, 1985, the Honble Apex Court held as under: "8. I may also add that if the Administrative Tribunal is to be an equally effective and efficacious substitution for the High Court on the basis of which alone the impugned Act can be sustained, there must be a permanent or if there is not sufficient work, then a circuit bench of the Administrative Tribunal at every place where there is a seat of the High Court. I would, therefore, direct the government to set up a permanent bench and if that is not feasible having regard to the volume of work, then at least a circuit bench of the Administrative Tribunal wherever there is a seat of the High Court, on or before March 31, 1987. That would be necessary if the provisions of the impugned Act are to be sustained. So far as rest of the points dealt with in the judgment of Rajasthan Misra, J. are concerned, I express my entire agreement with the view taken by him." (19). To make such remedy effective and meaningful under the relevant Rules, the Railway Rates Tribunal should have a Bench in every State, at the place where High Court has the seat. However, since it is within the domain of the Central Government to constitute the benches of the said Tribunal, this Court expresses its sanguine hope that in accordance with the aforesaid directions of the Honble Supreme Court in S.P. Sampath Kumars case, the Central Government will consider this aspect of the matter and shall try to provide a bench of Railway Rates Tribunal in all States and at least start with the camp sitting of such Tribunal so that such disputes which come before the Railway Rates Tribunal from all corners of the country are decided expeditiously and at a place which is more convenient and practicable for litigants. The concept of justice at door steps is the objective for which the aforesaid observations were made by the Honble Apex Court. (20). With the aforesaid observations, this writ petition is disposed of with the following directions :-- "(i) Challenge to the validity of Rules of 1990 and 2004 and even subsequently amended and substituted Rules in regard to overloading providing for charging punitive charges under Section 73 of the Act is negatived and said Rules are held to be intra vires and constitutionally valid. (ii) For determination of questions of facts including unreasonableness of punitive charges charged from the petitioner - company or its consignee and other allied questions of facts or even mixed questions of facts and law, the petitioner - company would be free to approach the Railway Rates Tribunal. If such complaint is filed within a period of two months from today, the Railway Rates Tribunal is expected to decide the same on merits without raising objection as to the limitation. If such complaint is filed within a period of two months from today, the Railway Rates Tribunal is expected to decide the same on merits without raising objection as to the limitation. (iii) Since this is a matter pending in this Court for two years and high revenue stakes are involved in the matter, the Railway Rates Tribunal is requested to decide the complaint of the petitioner - company, if so filed before it within two months from today, expeditiously preferably within a period of six months from today. (iv) As far as interim order passed by this Court quoted above on 6.12.2006 is concerned, the same shall continue for a period of three months from today within which period, the petitioner can move the Railway Rates Tribunal for interim relief and parties would thereafter abide by the directions of the Railway Rates Tribunal in this regard. However, for a period of three months from today only, the said interim relief shall continue. With the aforesaid observations, this writ petition is disposed of. No order as to costs.