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2010 DIGILAW 142 (MP)

MAHAVIR TRADERS v. DIVISIONAL RAILWAYS MANAGER

2010-02-03

K.S.CHAUHAN, R.S.GARG

body2010
JUDGMENT R. S. GARG, J. ( 1 ) THE petitioner being aggrieved by the demand notice dated 1-7-2006 (two in number) has filed the present petition on the ground that such demand is absolutely illegal and is based upon no evidence or is based upon alleged evidence which has been collected behind the back of the petitioner and the respondents have reached to a conclusion against the interest of the petitioner without providing him any opportunity of hearing. ( 2 ) THE short facts necessary for disposal of the present petition are that the petitioner for transportation of the coal from Akaltara bilaspur Division (Chhattisgarh) to Jhukehi in Satna Division (Madhya Pradesh) had booked certain Railway wagons. At least on eleven occasions the petitioner transported coal from Akaltara to Jhukeni. It is to be noted that at the place of loading of the coal, facility of weighbridge is not available with the railways and similarly, facility of weighbridge at Jhukehi is also not available. It appears that after the coal was loaded in the wagons, the wagons were weighed at chmapa where the railway authorities have facility of a weighbridge. It does not appear from the records that at the time of weighment of consignment any notice was given to the petitioner or his representatives that the entire consignment would be weighed at chmapa and on basis of the said weight, the charges/freight would be recovered from the petitioner. It appears that the consignment reached the destination right in time and the delivery was taken by the consignee. It also appears from the records that on 1-7-2006, the respondents issued two notices to the petitioner that on the weighment of consignment it was found that the weight of coal was more than what was shown in the railway receipt. The railway authorities, therefore, demanded a sum of Rs. 17,22,777/- in the first notice and a sum of Rs. 3,75,371/- in the second notice. Immediately after receiving the notices, the petitioner raised the dispute. The respondents thereafter supplied a copy of the weighing receipt to the petitioner and stood on their stand and confirmed the demand. The railway authorities, therefore, demanded a sum of Rs. 17,22,777/- in the first notice and a sum of Rs. 3,75,371/- in the second notice. Immediately after receiving the notices, the petitioner raised the dispute. The respondents thereafter supplied a copy of the weighing receipt to the petitioner and stood on their stand and confirmed the demand. The petitioner, thereafter, issued notice (Annexure-P/5) on 8-10-2006 and yet another notice dated 22-10-2006 (Annexure-P/6) and submitted that in absence of the weighbridge facility at a particular loading station, a party is entitled to fill the wagon up to the mark as appended inside the wagon and suh filling of the wagon is taken to be of that particular weight. His submission is that in the present matter, the petitioner was never informed prior to the weighment nor any notice of hearing was given to him and the authority straightway issued a notice for recovery. The submission in fact is that the entire action on the part of the railway authorities is ex parte, lopsided and is contrary to law. ( 3 ) SHRI Dharmadhikari, learned counsel for the petitioner submitted that from perusal of Section 65 and Section 73 of the Indian railways Act, 1989, it would clearly appear that a railway receipt shall be prima facie evidence of the weight and the number of packages referred to in the railway receipt. His submission is that in case the weighment is to be rechecked or the number of packages are to be recounted then a notice to the petitioner is required. Referring to Section 73 of the Act, it is submitted that if there is any dispute regarding the weighment and number of packages then in such a case the dispute should be resolved before the delivery of the goods. The submission is that in the present matter, the consignments were booked between 21-12-2005 and 11-5-2006, the consignments were eleven in number and within a period of 2/4 days the delivery of the goods were taken by the petitioner/consignee and, therefore, issuance of the notice on 1-7-2006 is absolutely illegal. The submission is that in the present matter, the consignments were booked between 21-12-2005 and 11-5-2006, the consignments were eleven in number and within a period of 2/4 days the delivery of the goods were taken by the petitioner/consignee and, therefore, issuance of the notice on 1-7-2006 is absolutely illegal. ( 4 ) SHRI N. S. Ruprah, learned counsel for the Railway Administration submitted that in absence of a facility for weighing the consignment either at Akaltara or at Jbukehi, the respondents were entitled to weigh the consignment at the first available opportunity at chmapa station and if in this case the consignment has been weighed at Chmapa railway station, the respondents cannot be held to be wrong. ( 5 ) SECTIONS 65 and 73 of the Indian Railways Act, 1989 read as under "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 form as may be specified by the Central Government. (2) A railway receipt shall be prima facie evidence of the weight and the number of packages stated therein : provided that in the case of a consignment in wagon-load or train-load and the weight or the number of packages is not checked by a railway servant authorized 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. 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) or section 72, a railway administration may, in addition to the freight and other charges, recover from the consignor, the consignee or the endorsee, as the case may be, charges by way of penalty at such rates, as may be prescribed, before the delivery of the goods : provided that it shall be lawful for the railway administration to unload the goods loaded beyond the capacity of the wagon, if detected at the forwarding station or at any. place before the destination station and to recover the cost of such unloading and any charge for the detention of any wagon on this account. " ( 6 ) FROM a fair reading and understanding of Section 65, it would clearly appear that a railway receipt shall be prima facie evidence on the weight and the number of packages stated in the railway receipt. The proviso appended to Section 65 provides 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 authorized in this behalf and a statement to that effect is recorded in such railway receipt by him, the burden of proving the weight or the number of packages stated therein, shall lie on the consignor, the consignee or the endorsee. ( 7 ) A fair interpretation of proviso to Section 65 would show that in case a railway servant so authorized makes a statement in the railway receipt that the goods have not been weighed or the packages have not been counted then the burden to prove the weight or to prove the number of packages would be upon the consignor, the consignee or the endorsee. ( 8 ) IN the present matter, the receipts which have been filed on record do not have such endorsement. In absence of endorsement, sub-section (2) of Section 65 of the Railways act, 1989 would come into operation and the railway receipt shall be taken to be prima facie evidence of the weight of the consignment. ( 9 ) SECTION 73 provides that the railway administration may recover additional charges and penalty, in case it is found proved that the consignment was more than the weight shown or so. However, such dispute is to be resolved before the delivery of the goods. ( 10 ) IN the present matter, undisputedly the delivery of the goods was taken at Jhukehi (Satna Division) much before such dispute was raised by the respondents. It is also not in dispute nor does it appear from the records that before issuing the demand notice dated 1-7-2006, any notice of hearing was given to the petitioner or any inquiry was made after giving due opportunity of hearing to the petitioner. It is also not in dispute nor does it appear from the records that before issuing the demand notice dated 1-7-2006, any notice of hearing was given to the petitioner or any inquiry was made after giving due opportunity of hearing to the petitioner. ( 11 ) ON the other hand, it appears that after issuance of Annexures-P/5 and P/6, the respondents had simply supplied copy of the weighment record to the petitioner. Undisputedly, every step was taken by the railways behind the back of the petitioner. The petitioner was never afforded any opportunity of hearing or to prove that he was not liable to pay the excess amount as demanded by the respondent/administration. ( 12 ) THE principles of audi alteram partem or the principles of natural justice require in the minimum that when an action or an order is likely to have civil and evil consequences then the person against whom such action is to be taken or such an order is to be passed, is issued a notice, is afforded an opportunity of hearing and only thereafter such order is passed. ( 13 ) IN the present matter, the respondents have violated the principles of natural justice and have recorded the findings to suit their own case and cause. ( 14 ) FOR the reasons stated above, we quash the demand notice (both dated 1 -7-2006) but however with liberty in favour of the railway administration that if they are still interested in demanding the money then they are obliged to issue notices to the petitioner, give him an opportunity of hearing and opportunity to lead evidence and only thereafter pass final order in the matter. ( 15 ) THE petition, to the extent indicated above, is allowed. There shall be no order as to costs. Order accordingly. .