Court No. - 39
Case :- WRIT - C No. - 45840 of 2007 Petitioner :- M/S V.P. & Company Respondent :- Union Of India & Others Counsel for Petitioner :- R.B. Singhal,A.B.Singhal,Ram Dular Counsel for Respondent :- Govind Saran,S.C.,S.K. Anwar,Santosh Kumar Tiwari
Hon'ble B. Amit Sthalekar,J. Hon'ble Piyush Agrawal,J.
The petitioner in the writ petition is seeking quashing of the order dated 07.06.2007 whereby overloading charge of Rs.4,19,779/- has been sought to be recovered from the petitioner.
Briefly stated the facts of the case are that the petitioner is a dealer dealing in sale and supply of steel including sponge iron. A consignment of sponge iron weighing 2069.435 metric tonnes was purchased from Sri Mahaveer Ferro Alloys Private Ltd., Jiya Behal, Kalling, Rourkela, Orrisa and Sri Govindam Projects Pvt. Ltd. Rourkela, Orissa through different invoices. This consignment was booked by the petitioner with the Respondent-Railway and 33 Railway Wagons for delivery was booked at Rourkela Station to its destination Station Muzaffarnagar, U.P. A due railway receipt was received by the petitioner from the Railway, copy of which has been filed at Annexure-2 to the writ petition. The petitioner paid the freight charges of Rs.29,35,083/- and other charges of Rs.1,76,105/-, total Rs.31,11,189/-. The goods were delivered to the petitioner on 18.03.2007 as stated in paragraph 17 of the writ petition. After three months the impugned order dated 07.06.2007 was issued to the petitioner informing him that the weight actually carried was in excess by 70.28 metric tonnes for which the additional charges of Rs.4,19,779/- has been sought to be recovered from the petitioner.
The submission of the learned counsel for the petitioner is that he had booked the consignment and received a due railway receipt for a total consignment weighing 2069.435 metric tonnes and paid due charges of Rs.31,11,189/- and at that point of time he was never informed before delivery of consignment to him that the consignment weight was in excess by 70.28 metric tonnes and it is long after the consignment was also delivered to the petitioner on 18.03.2007 that the impugned order was passed.
Learned counsel for the petitioner has referred to Section 79 of the Railways Act, 1989 (hereinafter referred to as the Act, 1989) which provides that the 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 also charge demurrage.
Section 79 of the Act, 1989 reads as under:
"79. Weighment of consignment on request of the consignee or endorsee- A railway administration may, on the request made by the consignee or endorsee, allow weighment of the consignment subject to such conditions and on payment of such charges as may be prescribed and the demurrage charges if any:
Provided that except in cases where a railway servant authorised in this behalf considers it necessary so to don no weighment shall be allowed of goods booked at owner's risk rate or goods which are perishable and are likely to lose weight in transit:
Provided further that no request for weighment of consignment in wagon- load or train-load shall be allowed if the weighment is not feasible due to congestion in the yard or such other circumstances as may be prescribed."
In this context the learned counsel for the petitioner submitted that the petitioner had no reason to believe that the consignment loaded would be in excess and if at that point of time he had been informed that there was excess weight he could have applied for reweighment at the time of delivery or even prior to that but after delivery of the consignment it is not possible for him now to seek reweighment and in this respect he had been denied a valid opportunity which the law made available to him under Section 79 of the Act, 1989.
Learned counsel for the Railways, on the other hand, submitted that the reweighment was done at Muri Station and during reweighment it was discovered that the weight of the consignment was in excess of that mentioned in the Railway receipt by 70.28 metric tonnes and therefore, the petitioner would be liable for payment of the additional charges for the extra weight.
We have heard Sri Aditya Bhushan, learned counsel for the petitioner, Sri Santosh Kumar Tiwari, learned counsel for the respondents and perused the documents on records.
What we find is that the petitioner in paragraph 17 of the writ petition has made a categorical averment that the goods were delivered to him on 18.03.2007 and thereafter the same was disbursed to the various traders. The averments in paragraph 17 of the writ petition have not been denied in paragraph 21 of the counter affidavit.
On the other hand, the respondents have sought to put the blame on the petitioner by stating that the petitioner should have been watchful regarding the weighment of the wagons. In the same paragraph it is also stated that the respondents office came to know about the reweighment and additional weight carried out at Muri weigh bridge only after receipt of the weighment advice on 10.04.2007.
In paragraph 15 of the counter affidavit it is stated that the weighment was done on 16.03.2007. It is not disputed that at the time of reweighment no communication had been given by the respondent-railway administration to the petitioner nor even an advisory was issued to him not to disburse the consignment and in fact a smooth delivery of the consignment was made to the petitioner on 18.03.2007 and after three months thereafter the impugned order was passed informing him that there was excess weight of 70.28 metric tonnes.
In the circumstances, we find that the entire action has been carried out behind the back of the petitioner without giving him any opportunity of hearing and in paragraph 7 of the counter affidavit it is also admitted by the respondents that the weighment was done on 16.03.2007 under the supervision of the Electronic Motion Weigh Bridge Incharge, South Eastern Railway, Muri.
At this stage, we may also advert to the provisions of Section 73 of the Act, 1989 which provides for punitive charge for overloading a wagon and provides 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. The language of Section 73 is quite clear and in unambiguous terms provides that if goods/consignment in the railways are found to be beyond the capacity of the wagon by weight and if detected at the forwarding station or at any place 'before' the destination station the cost of such overloading and other charges may be recovered.
Section 73 of the Act, 1989 reads as under:
"73. Punitive charge for overloading a wagon.—Where a person loads goods in a wagon beyond its permissible carrying capacity as exhibited under sub-section (2) or sub-section (3), or notified under sub-section (4), of section 72, a railway administration may, in addition to the freight and other charges, recover from the consignor, the consignee or the endorsee, as the case may be, charges by way of penalty at such rates, as may be 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."
As we have already noted above in the present case the reweighment was done at Muri Station on 16.03.2007 and reached the destination station, namely, Muzaffarnagar, U.P. on 18.03.2007 and thereafter the consignment was delivered to the petitioner and has already been disbursed. Thereafter the Railway Administration woke up and sent a demand for additional charges by the impugned order dated 07.06.2007.
In this view of the matter, we find that the demand is in violation of the mandatory provisions of Section 73 of the Act, 1989 and in addition it takes away the right of the petitioner to seek reweighment as contemplated under Section 79 of the Act, 1989. Therefore the impugned order dated 07.06.2007 is absolutely illegal and arbitrary and is accordingly quashed.
The writ petition stands allowed.
Order Date :- 28.11.2018 N Tiwari