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2019 DIGILAW 47 (GAU)

Mahalaxmi India (P. ) Ltd. v. Union of India

2019-01-17

UJJAL BHUYAN

body2019
JUDGMENT : 1. Heard Mr. M. Choudhury, learned senior counsel assisted by Mr. A.J. Hazarika, learned counsel for the petitioners and Mr. A. Dasgupta, learned senior counsel assisted by Mr. S.C. Biswas, learned standing counsel, Railways for the respondents. 2. By filing this petition under article 226 of the Constitution of India, petitioners seek quashing of the weighment carried out at Jogighopa Weigh Bridge on 5.7.2011 and to charge freight to the petitioner on the basis of railway receipts issued at Lukwa Railway Station without taking into consideration the weighment made at Jogighopa Weighbridge. 3. Case of the petitioners is that they had booked a consignment of coal in one rake consisting of 40 BC and BCNA wagons in the railways from Lukwa in the State of Assam to Mandi Govindgarh in the State of Punjab. Booking in this regard was done on 4.7.2011. The coal was loaded on volumetric basis as per marked height in the presence of railway officials. Weighment was not done in the originating station, i.e., at Lukwa. Railways on the basis of recorded weight totalling 2,509 metric tons demanded railway freight for destination Mandi Govindgarh, which the petitioners paid, pursuant to which railway receipts were issued to the petitioners by the Station Master, Lukwa Railway Station, North-East Frontier Railway. 4. The rake left Lukwa on 4.7.2011. En route the rake was weighed by the Railways on 5.7.2011 at Jogighopa weighbridge. It is contended that such weighment was without the knowledge of the petitioners and that Jogighopa weighbridge was a defective one. Petitioners were later on informed about such weighment at Jogighopa after the rake reached destination on 9.7.2011. 5. Immediately on receipt of such information, petitioners lodged a written request before the railway authorities to re-weigh the rake at a properly functional weighbridge at the cost of the petitioners. But request for re-weighment was refused by the railways vide letter dated 10.7.2011. Hence, the writ petition seeking the reliefs as indicated above. 6. This court vide order dated 12.7.2011, had issued notice and passed an interim order directing the petitioners to submit fresh application before the railway authorities, i.e., respondent Nos. 8 and 9, for re-weighment of the coal rake at any weighbridge nearest to the destination Mandi Govindgarh railway station and that petitioners should execute a bank guarantee in favour of respondent No. 8. 8 and 9, for re-weighment of the coal rake at any weighbridge nearest to the destination Mandi Govindgarh railway station and that petitioners should execute a bank guarantee in favour of respondent No. 8. Further direction was that petitioner should bear the expenses of such re-weighment. 6.1 Relevant portion of the order dated 12.7.2011 is as under: “Considering the matter in its entirety, as an interim measure, the petitioners are hereby directed to approach the railway authority particularly, respondent Nos. 8 and 9 by submitting a fresh application to reconsider the prayer of the petitioner for re-weighment of the coal rake on condition that (1) the respondents would allow re-weighment of the petitioners' coal rake at any weighbridge nearest to Mandi Govindgarh Station in presence of respondent No. 4, i.e., the Chief Goods Supervisor, Mandi Govindgarh Railway Station, (2) the petitioners shall execute a bank guarantee to the satisfaction of the respondent-authorities in favour of respondent No. 8, i.e., the Divisional Railway Manager (Commercial) Northern Railway, Ambala Division, New Delhi. The execution of the bank guarantee would be a condition precedent for re-weighment as ordered. (3) all expenses for the re-weighment shall be borne by the petitioners. Upon such an application being filed by the petitioners before the respondent-authorities, the respondent-authorities would reconsider the prayer made by the petitioners considering the facts and circumstances of the case and shall do the needful for re-weighment accordingly.” 7. It is seen that following the interim order passed by this court, re-weighment was one at an electronic weighbridge, Bhatinda Railway Station. Re-weighment indicated excess weight of 52.89 metric tons. As per weighment done at Jogighopa excess weight of 119.88 metric tons was found. Referring to Circular No. 49 of 2006, petitioner was informed by the railway authorities vide letter dated 15.7.2011 that chargeable weight would be the first weighment, i.e., 119.88 metric tons excess and hence, an amount of Rs. 13,23,205.00 would be leviable. Petitioner was asked to pay the aforesaid amount at the time of delivery and also to pay demurrage and wharfage. 8. At that stage, petitioners filed an interlocutory application for a direction to the respondents not to give effect to the consequential letter dated 15.7.2011. 8.1 The interlocutory application was registered as Misc Case No. 2062 of 2011. Petitioner was asked to pay the aforesaid amount at the time of delivery and also to pay demurrage and wharfage. 8. At that stage, petitioners filed an interlocutory application for a direction to the respondents not to give effect to the consequential letter dated 15.7.2011. 8.1 The interlocutory application was registered as Misc Case No. 2062 of 2011. This court by order dated 21.7.2011 had issued notice on the interlocutory application and passed an interim order to the effect that petitioners should pay a sum of Rs. 6 lakhs to the railways and for the remaining amount petitioners should furnish bank guarantee. On such payment and furnishing of bank guarantee, order of placement shall be issued by the railway authorities so that the consignment can be released to the petitioners. It was further directed that on such payment and furnishing of bank guarantee, the previous bank guarantee should be released to the petitioners. Relevant portion of the order dated 21.7.2011 is extracted hereunder: “Having heard the learned counsel for the appearing parties and keeping in view the fact that after reweighment of the consignment at the request of the petitioners, 52.89 MT of excess weight was found to be carried, the petitioners shall pay a sum of Rs. 6,00,000 to the respondent-NF Railway and for the remaining amount of Rs. 7,23,205, the petitioners shall furnish a bank guarantee. On such payment and providing bank guarantee, order of placement shall be issued by the railway authority, so that the consignment can be released by the applicants. On making such payment and furnishing such bank guarantee in terms of the order passed today, the previous bank guarantee shall be released to the petitioners.” 9. Respondent Nos. 1 to 6 have filed a common affidavit. Stand taken in the affidavit is that in case there is no weighbridge at the starting station, the wagon may be weighed at a convenient weighbridge station en route which should as far as possible be the first weighbridge station. In case there is no weighbridge en route, the wagon may be weighed at the destination if weighbridge is available there. It is admitted that there was no weighbridge at Lukwa Railway Station and, therefore, the rake was weighed at Jogighopa weighbridge. Answering respondents have denied allegation of the petitioner that Jogighopa weighbridge was not working properly and that the weighbridge indicated faulty results. It is admitted that there was no weighbridge at Lukwa Railway Station and, therefore, the rake was weighed at Jogighopa weighbridge. Answering respondents have denied allegation of the petitioner that Jogighopa weighbridge was not working properly and that the weighbridge indicated faulty results. It has been asserted that the electronic in-motion weighbridge installed at Jogighopa Railway Station is regularly maintained with periodic calibration and testing. The weighbridge at Jogighopa Railway Station was examined by an Inspector of Legal Metrology Department, Bongaigaon on 4.8.2010 and it was certified by him that the weighbridge was in functional condition. The certificate had validity upto 3.8.2011. The weighment was done on 5.7.2011. Referring to sections 78 and 79 of the Railways Act, 1989, it is contended that railways acted rightly in carrying out the weighment at Jogighopa. Since in the re-weighment done following interim order of this court the excess weight of the rake was found lower than the excess weight found during the first weighment at Jogighopa; petitioners were charged on the basis of the excess weight found during the first weighment at Jogighopa. It is contended that as per Railway Board's Circular No. 49/2006 dated 1.6.2006, if the weight of the second weighment is less than the first weighment and the difference exceeds the prescribed limit, the weight of the first weighment would be the chargeable weight and necessary punitive charge shall be accordingly levied. Therefore, levy of charge would be on the basis of the first weighment. 10. Petitioners have filed reply affidavit to the affidavit filed by respondent Nos. 1 to 6. 11. Mr. Choudhury, learned senior counsel for the petitioner submitted that the weighment done at Jogighopa was without the knowledge of the petitioners. Such weighment was done in the absence of the petitioners. This is illegal. Regarding excess weight found on re-weighment following interim order passed by this court on the prayer of the petitioners, it is submitted that railways cannot refuse to accept the outcome of such re-weighment. In this connection, reliance has been placed on a Division Bench judgment of this court in the case of Raghu Forwarding Agency v. Union of India, (2006) 1 GLR 115. 12. Per contra, Mr. In this connection, reliance has been placed on a Division Bench judgment of this court in the case of Raghu Forwarding Agency v. Union of India, (2006) 1 GLR 115. 12. Per contra, Mr. Dasgupta, learned senior counsel for the respondents has referred to the provisions contained in sections 78 and 79 of the Railways Act, 1989, to contend that railway administration has every right to weigh the consignment before delivery and re-calculate the freight and other charges. Since after re-weighment, the weighment at Jogighopa was found to be in excess of permissible limit and much higher, railway administration had rightly taken the weighment measured at Jogighopa weighbridge and levied charges accordingly. Referring to the Railways (Punitive Charges for Overloading of Wagon) Rules, 2012, he submits that under rule 3 thereof in case of overloading of railway wagon, railway administration has the right to recover punitive charges from the consignor. 13. Submissions made by learned counsel for the parties have been duly considered. Also perused the materials on record. 14. After hearing learned counsel for the parties and considering the materials on record, it is evident that petitioners had booked their consignment at Lukwa Railway Station, which did not have weighment facilities. But the consignment (coal) was booked and loaded on volumetric basis as per marked height in the presence of railway officials. Accordingly, the freight was charged and paid. On transit, the consignment was weighed at Jogighopa Railway Station, but such weighment was done unilaterally by the railways without any intimation to the petitioners, and consequently in the absence of the petitioners or their representatives. This court vide interim-order dated 12.7.2011 had permitted the petitioners to move the railways for re-weighment and the respondents were directed to allow such re-weighment at any weighbridge nearest to the destination for which petitioners were required to execute a bank guarantee and to bear the expenses of re-weighment. Accordingly, re-weighment was carried out at Bhatinda Railway Station, which showed excess weight of 52.89 metric tons. This weighment was done by the railway authorities in the presence of the representatives of the petitioners. Accordingly, re-weighment was carried out at Bhatinda Railway Station, which showed excess weight of 52.89 metric tons. This weighment was done by the railway authorities in the presence of the representatives of the petitioners. However, relying on the Railway Board's Circular No. 49/2006, railway authorities declared that since the weighment at Jogighopa showed excess weight of 119.88 metric tons, which was higher than the excess weighment at Bhatinda Railway Station being 52.89 metric tons and beyond the chargeable weight, the first weighment of 119.88 excess metric tons would be taken as the excess weight and charged accordingly with demurrage and wharf age. 15. Considering that excess weight found on re-weighment was 52.89 metric tons, this court in the subsequent order dated 21.7.2011 had directed the petitioners to pay a sum of Rs. 6 lakhs and to furnish bank guarantee for the remaining amount of Rs. 7,23,205 out of the charged amount of Rs. 13,23,205 with the further direction that on such payment and furnishing of bank guarantee, order for placement should be issued by the railway authorities so that the consignment could be released to the petitioners and the earlier bank guarantee was directed to be released. 16. Section 72 of the Railways Act, 1989 (‘Railways Act’) provides that the gross weight of every wagon when it is loaded to its maximum carrying capacity shall not exceed the excess limit as may be fixed by the Central Government. Section 73 provides for punitive charges for overloading the wagon. It says that where a person loads goods in a wagon beyond its permissible carrying capacity 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 delivery of the goods. 17. Section 78 empowers the railway administration to measure, weigh, etc. It says that notwithstanding anything contained in the railway receipt, railway administration may, before the delivery of the consignment, have the right to re-measure, re-weigh or re-classify any consignee, recalculate the freight and other charges and correct any other error or collect any amount that may have been omitted to be charged. 18. It says that notwithstanding anything contained in the railway receipt, railway administration may, before the delivery of the consignment, have the right to re-measure, re-weigh or re-classify any consignee, recalculate the freight and other charges and correct any other error or collect any amount that may have been omitted to be charged. 18. As per section 79, 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 demurrage charges, if any. 19. A careful and conjoint analysis of the provisions contained in sections 72, 73, 78 and 79 of the Railways Act would show that the maximum weight of every wagon should not exceed the limit fixed. If there is overloading railway administration may in addition to freight and other charges, impose punitive charges upon the consignor or the consignee or the endorsee as the case may be. Before delivery of the consignment, railway administration has the right to re-weigh or to re-measure any consignment or re-classify any consignee and, thereafter, recalculate the freight and other charges. There is also provision for weighment of consignment on request of the consignee or endorsee, subject to the conditions provided in section 79. 20. While railway administration has every right to re-measure, re-weigh or re-classify any consignment prior to delivery of the consignment, it presupposes measurement, weighment or classification of the consignment at the first instance. Only if the consignment is measured or weighed or classified, then only the question of re-measurement, re-weighment or re-classification of the consignment will arise. In the instant case, there was no “weighment” of the consignment at the originating station, i.e., at Lukwa. The consignment was weighed for the first time at Jogighopa weighbridge. Therefore, being the first weighment, section 78 would not come to the aid of the railway authority. That apart, the weighment which was done for the first time at Jogighopa was in the absence of the petitioners or their representatives. No intimation was given to the petitioners or their representatives that the consignment would be weighed at Jogighopa. Therefore, being the first weighment, section 78 would not come to the aid of the railway authority. That apart, the weighment which was done for the first time at Jogighopa was in the absence of the petitioners or their representatives. No intimation was given to the petitioners or their representatives that the consignment would be weighed at Jogighopa. The second weighment or rather re-weighment was done at Bhatinda Railway Station as per order of the court in presence of the parties and on such re-weighment the excess weight found was 52.89 metric tons which was less than the excess weight found at Jogighopa, i.e., 119.88 metric tons. 21. In Raghu Forwarding Agency (supra), a Division Bench of this court held that once weighment or re-weighment was done in presence of the parties, in the absence of any plea or proof that such re-weighment was faulty or defective, the railways are duty bound to accept the results thereof in view of the provisions contained in section 79 of the Railways Act. In the instant case, the re-weighment was done at Bhatinda Railway Station in the presence of both the parties as per order of this court. It is, therefore, not open for the respondents-railway authority to take the plea that they would not accept the result of re-weighment at Bhatinda and since the excess weight found at Jogighopa was higher the charges would be levied on the basis of the weighment at Jogighopa. As already discussed above, the weighment at Jogighopa was done unilaterally by the railways without intimation to the petitioners and in the absence of the petitioners, which power is not available to the railways under section 78 of the Railways Act. Such weighment would, therefore, be of no legal consequence. It is the re-weighment at Bhatinda following the order of this court that would be binding on the parties. Since parties have not questioned the order of this court dated 21.7.2011, as extracted above, Court is of the view that it would meet the ends of justice if the petitioners are charged for the excess weight of 52.89 metric tons found on the basis of re-weighment for which this court had directed the petitioners to pay a sum of Rs. 6 lakhs. 22. It is submitted that petitioners had paid such amount. 23. 6 lakhs. 22. It is submitted that petitioners had paid such amount. 23. In the light of the above and in the facts and circumstances of the case, question of imposition of punitive charges on the petitioners does not arise. 24. That being the position, this writ petition is allowed by holding that weighment carried out at Jogighopa Railway Station would have no legal consequence and that petitioners were found to be carrying an excess weight of 52.89 metric tons as per re-weighment at Bhatinda Railway Station for which they have paid Rs. 6 lakhs to the railways. Consequently, bank guarantee for the amount of Rs. 7,23,205 shall be released by the railway authority to the petitioners. 25. This disposes of the writ petition.