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2012 DIGILAW 1641 (JHR)

Union of India v. Jyoti Enterprises

2012-11-22

JAYA ROY, N.N.TIWARI

body2012
Judgment The appellant Railways, asserting its claim to realise the charge on the basis of reweighment made en route without informing the petitioner (Respondent No.1 herein), which was endorsee consignee of M/s. Rani Salt Refinery Pvt. Limited and Bajaj Salt Industries, has challenged the judgment of the learned Single Judge passed on the writ petition of the Respondent No.1consignee. Learned Single Judge has rejected the claim of the Railways, holding that the demand made by them is contrary to the statutory provisions. 2. The short facts germane to the instant case is that the consignment of iodized salt was sent by M/s. Rani Salt Refinery Pvt. Limited and Bajaj Salt Industries from Chirai Railways Station, Gujarat to Tatanagar Railway Station. The consignment reached Tatanagar on 17th February, 2000 and was delivered to the petitioner. 3. The Railways claimed that wagon were reweighed en route and out of 57 wagons, 32 wagons were found overloaded; 9 wagons were beyond the tolerance limit and were attached; and 23 wagons were found to be loaded beyond carrying capacity for which penal charges were levied under Section 73 of the Railways Act. Out of those wagons, 19 wagons belonged to Respondent No.1Jyoti Enterprises. The Railways claimed that for overloading it is entitled to realise the penal charges at the time of delivery. 4. However, at the time of delivery or before the delivery no such claim was made by the Railways and even no information was given to the petitioners regarding reweighment of the consignment en route. 5. A demand was made by the Railways much after delivery of the wagon as penal charges, which, according to the Railways, was not paid by the petitioner. 6. According to the petitioner, other consignments of iodised salt were booked from Vivaniya Railway Station on 20th August, 2000 to be delivered at Tatanagar Railway Station. But out of 40 wagons only 37 wagons were allowed to be removed by the petitioner. 1478 bags, each containing 75 Kg. of iodised salt, were to be unloaded from the remaining wagons and were not delivered to the petitioner on the ground of realisation of penal freight and detention charges against earlier consignment received by the petitioner on 17th February, 2000. 7. The controversy arose between the parties. 1478 bags, each containing 75 Kg. of iodised salt, were to be unloaded from the remaining wagons and were not delivered to the petitioner on the ground of realisation of penal freight and detention charges against earlier consignment received by the petitioner on 17th February, 2000. 7. The controversy arose between the parties. The petitioner filed representation before the Railways Authorities, requesting them to release the subsequent consignments out of which two wagons were detained, but the Railways did not release the same. 8. The consignee Respondent No.1, thereafter, preferred writ petition, being CWJC No.3191 of 2000(R), which was disposed of by the impugned judgment in the manner as aforesaid. 9. The said claim was contested by the petitioner on the ground that the Railways never informed about reweighment of the consignment en route and overloading of any wagon. The petitioner never knew about the said development. Even at the time of delivery of the consignment, the petitioner was not informed about the alleged overloading on several wagons or regarding any liability to pay conditional charges. Any such claim according to the petitioner is arbitrary, illegal and wholly without jurisdiction and is violative of principle of natural justice. 10. According to the Railways (appellant herein), it has got right of reweighment en route of the consignment under Section 78 of the Railways Act and the Rules framed thereunder and it has right to realise the charges in case any overweight is found. It has been submitted that right of recovery has been specifically provided under Section 83 of the Railways Act even by detaining the other consignment of such person as a lien. According to them, reweighment has been done in accordance with the said legal provisions and the claim of recovery has been made under the aforesaid provisions of Section 83 of the Railways Act. 11. Learned Single Judge heard the parties and considered the facts and the provisions of law, including various sections of Railways Act and the Rules framed thereunder and came to the finding that the demand made by Railways after delivery of goods on the ground of alleged reweighment is arbitrary and is violative of principle of natural justice and by the impugned order allowed the writ petition filed by the respondents. 12. 12. After thorough discussion of the various provisions, learned Single Judge concisely recorded its finding in Para7 of the impugned judgment, which runs as follows: “7. By now, we have noticed that a number of safeguards in the form of Rules 1740, 1820, 1737 and of Section 65(2), instructions on the railway receipts giving a clear advice for reweighment before delivery etc. have not at all been followed by the respondents in the spirit in which they should have been followed. We have also found that how due to the lapses on the part of the respondents at every stage, right at the station of reweighment till the point of delivery of the goods, the negligence in complying those provisions have been glaring. We have also found that in the aforesaid circumstances, the verification of the claim of overloading became impossible and thus the claim is merely based on paper in the hands of the railways itself and thus became suspect and amounted to violation of the principles of natural justice. The lien as created under section 83 of the Railway Act (supra) is a statutory lien. “Statutory liens, however, have been looked upon which jealousy and generally will only be extended to cases expressly provided for by the statue, and then only where there has been a strict compliance with all the statutory requisites essential to their creation and existence (25 Anecyc 662”, quoted from Law Lexicon by P. Ramanatha Aiyer, 1997 Edition, page 734).” 13. The impugned judgment has been challenged by the Railways on the ground that learned Single Judge has erroneously interpreted Section 83 of the Railways Act contrary to its letter and spirit. 14. Mr. Mahesh Tewari, learned counsel, appearing on behalf of the appellant Railways, submitted that the scope of Section 83 is wide enough and it gives right to the Railways to realise freight and other charges from the person in respect of a consignment delivered even by detaining subsequent consignment coming into its possession. In exercise of that right, the Railways detained the subsequent consignment of the Respondent No.1 for realisation of freight charges due on account of overloading in several wagons of the earlier consignment. Since, there is a clear provision for such realisation of the charges, there is no application of principle of natural justice. In exercise of that right, the Railways detained the subsequent consignment of the Respondent No.1 for realisation of freight charges due on account of overloading in several wagons of the earlier consignment. Since, there is a clear provision for such realisation of the charges, there is no application of principle of natural justice. Learned Single Judge has erroneously interpreted the said section, holding that Railways have no right to make any demand after the consignment was delivered to the consignee or endorsee. 15. The thrust on the point by the appellants poses a question to be answered in this appeal as to whether the Railways were entitled to realise the freight charges for the alleged overloading found in en route weighing of the wagons, in absence of consignee or its endorsee, even after the consignment was delivered without informing the consignee regarding the same at the time of delivery of the consignment. 16. Learned counsel for the appellant submitted that in view of the specific provision made in Section 83 of the Railways Act, the appellant is entitled to recover the said charges from the consignee/endorsee by withholding the subsequent consignment, which comes into its possession, if the same is not paid on demand. 17. Learned counsel referred to and relied on a decision of the Hon'ble Supreme Court in the case of Jagjit Cotton Textile Mills Vs. Chief Commercial Superintendent, N. R. & Ors., reported in AIR 1998 SC 1959 , in support of his said submission. 18. Mr. M. K. Habib, learned counsel, appearing on behalf of the Respondent no.1, on the other hand, refuted the said contentions and submitted that there is no application of Section 83 of the Railways Act in the instant case, as at the time of delivery of the consignment the endorsee was not informed that there was any charge due from him in respect of any consignment. Learned counsel submitted that though Section 83(1) of the Railways Act provides for realisation of the charges by detaining subsequent consignment if the charges are not paid on demand by the consignee, the same can be done only in the case the demand is made at the time of delivery of the consignment. In the instant case, no demand was made and even no information was given to the consignee that any overloading was found after reweighment of the wagons en route. In the instant case, no demand was made and even no information was given to the consignee that any overloading was found after reweighment of the wagons en route. The consignee was deprived of right of inspecting the wagons or to claim reweighment in its presence or to make any other defence before the goods were offloaded and in view thereof learned Single Judge has rightly come to the conclusion that the subsequent demand made after delivery of consignment is arbitrary and violative of principle of natural justice. 19. Having heard learned counsel for the parties, we meticulously examined the records and various provisions of the Railways Act, including Section 83 of the said Act. We find substance in the submission made by learned counsel for the respondents. 20. Section 83 of Railways Act reads as under: “83(1) If the consignor, the consignee or the endorsee fails to pay on demand any freight or other charges due from him in respect of any consignment, the railway administration may detain such consignment or part thereof or, if such consignment is delivered, it may detain the other consignment of such person which is in or thereafter comes into its possession.” (Emphasis supplied) 21. On plain reading of the said provision, it is clear that if the consignor/consignee or endorsee fails to pay on demand any freight or other charges due from him in respect of any consignment then the Railways administration may detain such consignment or part thereof or if such consignment is delivered the Railways may detain the other consignment of a person which comes into its possession. 22. In the instant case, we find that there was no demand of any freight charge or other charge from the consignor/consignee or the endorsee before or at the time of the delivery of consignment, which was not paid. 23. No information was even given to the consignee Respondent No.1 that there was reweighment en route by the Railways and wagons were found overloaded and that he is liable for payment of freight charges of the overloaded wagons. 24. It is admitted that when the consignment was delivered, the Railways did not give any information to the consignee or the consignor or any body that there was any reweighment en route and some wagons were found overloaded and that any freight charge or other charge was payable against the consignment. 25. 24. It is admitted that when the consignment was delivered, the Railways did not give any information to the consignee or the consignor or any body that there was any reweighment en route and some wagons were found overloaded and that any freight charge or other charge was payable against the consignment. 25. Learned counsel for the appellants submitted that said fact could not be brought to the notice of the consignee at the time of giving delivery of the consignment because the statement of weighment etc. reached to the station some days thereafter. 26. Learned Single Judge has discussed the aspect and considered the appellants' claim in the light of several provisions of the Railways Act and Rules, including Rule 1740 of the Rules, which reads as under: “1740. The result of weighment or reweighment, whether found at the station or communicated to, it should be recorded in the connected invoices, unloading tally book, goods delivery book and machine prepared abstracts. In case of weighment at intermediate stations, the result should also be advised telegraphically to the destination station and Traffic Accounts Office if it entails recovery of the undercharge.” 27. Admittedly, the provisions of said Rule has also not been complied with by the Railways and the result of the weighment made at the intermediate station was not sent telegraphically to the destination station to entail recovery of the charges claimed by the appellants. 28. Learned Single Judge also noticed Rule 1820, which runs as follows: “1820. Recovery of railway dues before delivery of goods: Before delivery of goods, it should be seen that all railway dues and other charges have been paid. Wharfage and demurrage charges should be levied under tariff rules and recovered, from the consignee endorsee before the removal of goods from railway premises. Similarly, all undercharges noticed as a result of check of invoices, weighment of goods, etc. should be recovered from consignees' endorsee before delivery of goods. As regards, overcharges claimed at the time of delivery, the procedure indicted in Chapter XXI should be followed.” 29. In the case, in hand, the alleged due was not claimed from the consignee or anybody before delivery of goods. 30. should be recovered from consignees' endorsee before delivery of goods. As regards, overcharges claimed at the time of delivery, the procedure indicted in Chapter XXI should be followed.” 29. In the case, in hand, the alleged due was not claimed from the consignee or anybody before delivery of goods. 30. Learned Single Judge after due discussion and consideration of the facts and relevant provisions of law has held that the Railway was not entitled to detain the subsequent consignment in the name of realisation of the freight charges of the earlier consignment. 31. We are in agreement with the said finding. The legal requirements for claiming any such charges have not been fulfilled by the Railways. There was no demand of any charge from the consignee at the time of delivery of the consignment which can be said to be recoverable by detaining the subsequent consignment. 32. The Hon'ble Supreme Court in Jagjit Cotton Textile Mills' case (Supra) has interpreted Section 83 of the Railways Act and has held that the Railways has right to realise the freight charges or other charges due in respect of any consignment under Section 83 of the said Act and under the said provision Railways have even right to detain the subsequent consignment. There is no dispute on the said legal position and interpretation of Section 83 of the Railways Act. But in the instant case, the provision of Section 83 does not come into play as there was no demand of any charge at the time of delivery of consignment which the consignee or anybody failed to pay. 33. In view of the above discussion, we find no error in the judgment of the learned Single Judge, giving rise to any ground to interfere with the same. 34. This appeal is, accordingly, dismissed. No Cost. Appeal dismissed.