Madhya Pradesh High Court
S.Goenka Lime & Chemcals Ltd. vs Union Of India on 17 November, 2015
Equivalent citations: AIR 2016 MADHYA PRADESH 70, (2016) 2 ACC 353, (2016) 1 MPLJ 89, ILR 2016 MP 12
Bench: A. M. Khanwilkar, Sanjay Yadav
W.P.No.2737/2008
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
W.P.No.2737 of 2008
S. Goenka Lime & Chemicals Limited .....Petitioner
Versus
Union of India and anr. ....Respondent
=============================================
Coram:
Hon'ble Shri Justice A. M. Khanwilkar, Chief Justice
Hon'ble Shri Justice Sanjay Yadav, J.
Whether approved for reporting : Yes
=============================================
Shri Umesh Trivedi, Advocate for the petitioner.
Shri Atul Choudhary, Advocate for the respondents.
=============================================
Reserved On : 30.10.2015
Date of Decision : 17.11.2015
JUDGMENT
{17.11.2015 } Per: A.M. Khanwilkar, Chief Justice:
The petitioner company is engaged in the business of limestone, in Katni District of State of Madhya Pradesh. The petitioner is required to transport limestone through Railways to Bokaro. The loading of limestone is done at the Railway Station Nanhwara, District Katni. The petitioner booked two racks of 58 W.P.No.2737/2008 2 wagons each for transporting limestone. The first rack containing 58 open wagons was loaded on 28.6.2006 and the second of the same capacity was loaded on 30.6.2006 at Nanhwara Railway Station. The loading was done under the supervision of a private company, which has been approved for that purpose by the Government known as "Superintendence Company of India (Private) Limited" (hereinafter referred to as SCIL, for the sake of brevity). There is no weighing facility of wagons at Nanhwara Railway Station. The said SCIL issued certificate in favour of the petitioner for having loaded the wagons. According to the petitioner, loading was done strictly as per the Rules and the requirement specified in that behalf by the Railways. The Railways also issued receipts, which mention that the wagons are not weighed at the forwarding Station, hence, weighment may be done at en route or destination to detect overloading, if any, and levy the punitive charges before delivery.
2- According to the petitioner, as no weighing facility was available at Nanhwara Railway Station or the nearest Railway Station at Jhukehi en route Bokaro, could have been forwarded to Maiher and Satna, but, instead the racks were taken to New Katni Junction (NJK), which is in the opposite direction to Bokaro. The W.P.No.2737/2008 3 distance from Nanhwara to Jhukehi is about 20 k.m. and from Jhukehi to NKJ, Katni is about another 20 k.m. Further, between 30.6.2006 and 1.7.2006 due to heavy rains the limestone, which was being carried in open boxes was bound to be filled with water. For the same reason, the weighbridge at Katni could not have depicted the correct weight of limestone. The petitioner is relying on the certificate Annexure-P/4 issued on 7.7.2006 that on the days of weighment of wagons at Katni it was raining heavily. 3- According to the petitioner, before the weighment of wagons was done at Katni, no prior notice was given to the petitioner and the entire exercise was carried out behind the back of the petitioner. During the said weighment at Katni, the first rack of limestone loaded by the petitioner is said to have found overloaded to the extent of 331.90 tons of limestone, as is noticed from the memo Annexure-P/5 dated 3.7.2006 issued by the Divisional Railway Manager. On that basis, the Railways demanded punitive charges of Rs.10,50,260/- from the petitioner and detention charges Rs.52,200/- i.e. total Rs.11,02,460/-, vide Annexure-P/6. A demand notice was also issued by the Superintendent in that behalf Annexure-P/7 dated 13.7.2006. In respect of the second rack of limestone loaded by the petitioner on 30.6.2006, it was found by W.P.No.2737/2008 4 the Authorities that at Katni 29 boxes, 59.74 tons of limestone was overloaded. As a result, demand notice Annexure-P/8 dated 3.10.2006 was issued to the petitioner demanding Rs.1,73,790/- as punitive charges and Rs.13,050/- as detention charges i.e. total Rs.1,86,840/-. However, no details or chart of overloading was supplied to the petitioner in respect of this demand notice. 4- The petitioner objected to the demand notices and denied its liability to pay any punitive or detention charges. The petitioner relied on the certificate issued by Weighbridge Expert Annexure-P/9 dated 10.4.2005, indicating that if water is accumulated, the Weighbridge may not give correct weight. Inspite of objection, the Railway Authorities insisted for payment of the charges as demanded; and because of the arm twisting method adopted by the Railways, the petitioner was forced to deposit Rs.2,44,046/- as punitive charges on 16.2.2007 and thereafter on 27.2.2007 further amount of Rs.4 lakh. The petitioner asserts that the Railways has illegally adjusted Rs.4,76,451/- by letter dated 12.10.2007 and also called upon the petitioner to submit its willingness. The petitioner company, however, has not given its willingness as sought. Since the petitioner company was being harassed and was unable to transport its goods to other destination, W.P.No.2737/2008 5 eventually filed the present writ petition on 29.2.2008. 5- The petitioner besides referring to the above facts, has also mentioned that the classification done by the Railways of the goods (limestone) sent by the petitioner is also incorrect and for which reason penalty imposed on that basis is unjust and illegal. According to the petitioner, the responsibility of the Railways was not only to exhibit the normal carrying capacity on every wagon by providing permanent marking at a conspicuous place on the wagon, but, also to weigh the goods loaded for transportation at the originating Station itself. Having failed to provide that facility at the originating Station at Nanhwara, the Railways cannot make the petitioner responsible who has acted in good faith and moreso having loaded the wagons under the supervision of the Agency appointed by the Railways. The demand made by Railways amounts to exploiting the unwary consignor, who acts in good faith. Further, Rule 3 of the Railway (Punitive Charges for Overloading of Wagons) Rules 2005 was violative of Article 14 the Constitution of India as it does not provide for any guidelines for determination of punitive charges. In any case, the punitive charges are excessive and hit by Article 14 of the Constitution of India. The petitioner asserts that section 73 of the Railways Act 1989 and Rule 3 of the W.P.No.2737/2008 6 Rules of 2005 are arbitrary and violative of Article 14 of the Constitution of India. For, no justification is given as to why three times of the highest class charges can be recovered from the originating Station to the destination Station. The said provisions are also violative of Article 21 of the Constitution of India, which provides for right to live and include the right to livelihood. The said provisions are violative of Article 300A of the Constitution, as the action of imposing punitive charges tantamounts to confiscation of the property. Because, the Constitution guarantees that no person can be deprived of his property save by authority of law. The impugned action of the Railway Authorities is also questionable for not giving fair opportunity to the petitioner before imposing punitive charges, by issuing show-cause notice in the first place before resorting to weighment at a location other than en route Station and again before determination of punitive charges. The Railways cannot be allowed to become Judge of its own cause that too having failed to provide for weighing facilities at the originating Station, more so, when the loading was completed under the supervision of the Agency appointed by the Railways at the originating Station. In any case, punitive charges cannot be levied from the petitioner as it had taken steps to unload the excess load at Katni. At best, the penalty can be imposed for transportation W.P.No.2737/2008 7 of goods loaded by the petitioner from the originating Station till Katni Junction where the excess load was removed. It was not permissible for the Railways to impose penalty from the point of originating Station to destination Station and that too by applying tariff applicable to superior class of goods.
6- In this backdrop, the reliefs claimed by the petitioner is to declare that section 73 of the Railways Act and Rule 3 of the Rules of 2005 are ultra vires; and further to quash the demand notices Annexures-P/5, P/7 and P/8 respectively. The petitioner has also prayed for further relief of declaration that the respondents cannot demand any punitive charges and detention charges from the petitioner and the amount recovered by the Railways in that behalf be directed to be refunded to the petitioner along with interest @ 18% per annum thereon.
7- The respondents have filed reply to resist this writ petition. It is stated that the questions raised by the petitioner in the writ petition are purely academic questions. The Rules of 2005 have been framed on the basis of the mandate contained in section 73 of the Act. The Rules empower the Railway Administration to impose and recover punitive charges as prescribed, if the goods are overloaded in the railway wagons. No arbitrary action is taken by W.P.No.2737/2008 8 the Railway Administration much less in the present case. According to the respondents, the main relief claimed by the petitioner for refund of the amount wrongly recovered from the petitioner can be pursued by the petitioner by way of a civil suit or an application under section 13 of the Railway Claims Tribunal Act,1987 before the Railway Claims Tribunal. In that, punitive charges are considered as part of the freight and the penalty is determined as per the Rules of 2005, if any overloading is found in the concerned wagon. The issue raised by the petitioner about the correctness of the approach of the Railway Administration can also be pursued by the petitioner by way of action under section 36 of the Railways Act. The issues raised by the petitioner are based on disputed questions of facts, which can be effectively adjudicated in such proceedings. As regards the challenge to section 73 of the Railways Act and Rule 3 of the Rules of 2005, it is stated that same is devoid of merits. The challenge is based on ignorance of the legal position that the onus is on the owner of the goods who is made responsible for loading and unloading. Rule 133 of the Goods Tariff No.41 Part-I (Volume 1), is pressed into service to buttress this contention, the same reads thus :
"133-Responsibility of owners in loading and unloading:- In all cases W.P.No.2737/2008 9 where the owners of goods are required to do the loading and unloading, as the case may be, the risks attending these operations shall be borne by the owners."
8- Reliance is also placed on rule 1402 of the Indian Railway Commercial Manual Volume II, which reads thus :
"1402- Execution of forwarding notes:
(a) Every consignment of goods, when brought to a station, city booking office, out-agency, etc., for despatch by goods train, should invariably be accompanied by a forwarding note in the appropriate form, which must be signed by the consignor, and must contain a declaration of the number, weight and description of the articles (sufficient to determine the rate chargeable) as also the private marks (except in the case of goods loose and/or in bulk), the name and address of the consigner and consignee, the destination stations (together with name of the railway on which it is situated) and the route by which the goods are to be booked.
All other entries in the form must also be clearly and legibly filled in."
9- Respondents have also relied on section 64 of the Railways Act, which reads thus :
"64. Forwarding note:- (1) Every person entrusting any goods to a railway administration for carriage shall execute a forwarding note in such form as may be specified by the Central Government; Provided that no forwarding note shall be executed in the case of such goods as W.P.No.2737/2008 10 may be prescribed.
(2) The consignor shall be responsible for the correctness of the particulars furnished by him in the forwarding note.
(3) The consignor shall indemnify the railway administration against any damage suffered by it by reason of the incorrectness or incompleteness of the particulars in the forwarding note.
10- Further, reliance is placed on Rule 123 of the Goods Tariff No.41 Part-I, Volume-I containing The General Rules for acceptance, carriage and Delivery of Goods. The same reads thus :
"123- Declaration of goods:-
(1) Every consignment of goods when handed over to the Railway for despatch must be accompanied by a Forwarding Note, which must be signed by the sender or his authorized agent, and must contain a declaration of the weight, description in accordance with Section 66 of the Railways Act 1989 and destination (Station and Railway on which situated) of the gods consigned, and indicate in the column provided for this purpose the route by which the goods are to be booked, as provided for in Rule 125. In the absence of any such instructions as to the route by which the goods are to be booked, the goods will be despatched by the correct route according to the rules for the routing of goods for the time being in force.
(2) Printed forms of the Forwarding Note are available at all goods booking stations on application to the Station Masters or Goods Clerks. The forms of Forwarding Notes specified by the Central Government in accordance with Section 64 of the Railways Act 1989 are shown in Annexure 'A'.W.P.No.2737/2008 11
(3) Merchants and traders must satisfy themselves that their packages are properly addressed and their Forwarding Notes correctly written out, as the Railway accepts no responsibility as to accuracy in either case and will hold senders liable for any mistake or misdeclaration."
11- As regards the argument that the Railway Administration could not have taken the goods to Katni Junction and the weighbridge thereat was defective, it is stated that the weighbridge at New Katni Junction is periodically checked by the measurement Department. As per rule 1422 of the Indian Railways Commercial Manual Volume II, the rack could be weighed at New Katni Junction weighbridge. The said rule reads thus :
"1422. Weighment of outward goods:- (a) Outward goods should be weighed as indicated below, the particulars of weighment being entered on the forwarding note in the place provided for the purpose -
(i) Consignments in small lots. All consignments should be weighed in full at the forwarding station.
(ii) Consignments in wagon loads. (1) In the case of consignments of grain, salt, seeds, sugar, pressed cotton or other staples, in bags or bales of uniform size and weight, the weight declared by the consignor may be checked by weighing a proportion of the number of bags or bales of uniform size and averaging their weight. If the bags or bales are not of uniform size and weight, those of uniform size and weight, should be grouped separately, each lot being treated for the purpose of weighment as a separate consignment and weighed as such.W.P.No.2737/2008 12
The remainder of the consignment of bags or bales or other commodities not of uniform size should be weighed in full. The proportion weighed should not be less than 10 per cent at stations where the traffic is large and 20 per cent at other stations.
(2) Goods loose, bulky goods or goods in bulk such as sand, stone, timber, etc., which cannot be weighed on the ordinary weighing machine provided at stations should be weighed on a wagon weighbridge at the forwarding station, if one is provided there. If 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 weigh bridge station. In case there is no weighbridge en route the wagon may be weighed at destination, if a weighbridge is available there."
12- According to the respondents, the onus is on the owner of the goods as per the scheme of the Act and the Rules regarding loading or unloading. The Volumetric method adopted is the responsibility of the consigner. The weighment done at the weighbridge is meant to be authentic and any action of overloading arising in, is the responsibility of the consigner. As per section 87 of the Railways Act, the Rules of 2005 have been framed. Rule 3 of the Rules of 2005 provides for punitive charges for overloading the wagon. This provision is to prevent any foul play being committed by the consigner/owner. For that reason, the Railway Administration, scrupulously checks all railway wagons to detect any mischief. If W.P.No.2737/2008 13 the weighment is done at the originating Station and if overloading is noticed, the owner/consigner can be given option to unload the excess weight. However, when such weighing facility is not available at the originating Station, the responsibility is that of the consigner/owner to ensure that no overloading takes place and if such overloading is detected en route or at the destination Station, the consigner/owner is made liable to pay punitive charges and other charges as the case may be.
13- On facts of the present case, it is stated that the grievance of the petitioner is founded on surmises and conjectures. Whereas, the punitive charges and other charges levied on the petitioner are on the basis of the actual weight detected en route, in accordance with the prescribed norms. The action of the Railways is strictly in conformity with the provisions of the Act and Rules made thereunder. The respondents have prayed for dismissal of the writ petition.
14- During the course of hearing, the grounds urged by the parties in their respective pleadings have been reiterated. Counsel for the petitioner relied on the decisions of the Supreme Court in the case of Government of Andhra Pradesh and others vs. P.Laxmi Devi W.P.No.2737/2008 14 (Smt)1 and Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat and others2. Respondents, however, relied on the decision of the Supreme Court in the case of Jagjit Cotton Textile Mills vs. Chief Commercial Superintendent, N.R. and others3 to contend that the relevant provisions have been construed by the Supreme Court, including the question of validity of section 73 of the Act on the touchstone of Article 14. That has been negatived. 15- Having considered the rival submissions, we may first deal with the challenge to the validity of section 73 of the Act and Rule 3 of the Rules of 2005. The purport of section 73 of the Act of 1989 has been considered by the Supreme Court in the case of Jagjit Cotton Textile Mills (supra). The Supreme Court has opined that the provisions of the Act and the Rules made thereunder, empower the Central Government to fix the maximum and minimum rates. The expression "rate" is wide enough to encompass the amount towards penal charges, being other payment. The stipulation in section 73 was earlier engrafted in Rule 161A of IRCA Rules. The Supreme Court further noted that section 73 of the Act 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 1 (2008) 4 SCC 720 2 (2008) 5 SCC 33 3 (1998) 5 SCC 126 W.P.No.2737/2008 15 goods are overloaded beyond the "permissible carrying capacity". The provisions in question, not only prohibit the "consignors" from exceeding the permissible carrying capacity of the wagon, but, also empower the Railway Administration to recover penal charges in the event of discovery of overweight at the booking point or en route or at the destination station, for the entire distance from the booking point to the destination station. It is held that the second part of the provision is quite wide and unrestricted and can be treated as permitting recovery of the penal charge from the consignor or consignee or the endorsee as the case may be, though these words are not expressly used in Rule 161-A. In para 42 of the judgment while specifically dealing with the challenge to the relevant provisions including section 73 of the Act, the court observed thus :
"42. In our view, these contentions are not tenable. As has been noticed in our discussion on Points 1 and 2, the railway statutes define "maximum carrying capacity; "normal carrying capacity" (to be marked on the wagon); and the "permissible carrying capacity". No wagon can be loaded beyond the maximum carrying capacity. The wagon could not ordinarily be loaded beyond the normal carrying capacity or up to any upward variation thereof and this limit is called the permissible carrying capacity. 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 W.P.No.2737/2008 16 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 the permissible level above stated which is always below the maximum limit. In our view, 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 the destination point at the other end, the replacement cost of the coaches, engines or rails or of repairs to be bridges be covered. In our view, the extra rate is a higher rate i .e., something like a surcharge for the excess load, to meet the said expense. Therefore, we do not think that any 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 Fund Act. Those cases involved penalties for breach of the Acts and were not concerned with charging a person for services rendered nor with an extra charge for services which involved extra strain to the property of the bailee who had rendered the service. Obviously the Railway Board has kept these aspects in mind while collecting these charges. There is therefore no violation of Article 14. 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 had 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."
(emphasis supplied) W.P.No.2737/2008 17 16- Section 73 of the Act reads thus :
"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."
17- Rule 3 of the Rules of 2005 reads thus :
"3. Punitive charges for overloading - Where the commodities are over-loaded in a 8 wheeled wagon, the railway administration shall recover punitive charges as provided in parts I, II and III of the situation 'A' & 'B' of the Schedule, from the consignor, the consignee or the endorsee as the case may be, for the entire weight of the commodities loaded beyond the permissible carrying capacity for the entire distance to be traveled by train hauling the wagon from the originating station to the destination point, irrespective of the point of detection of overloading: provided that no punitive charges will be levied if the customer carries out load adjustment at the originating station itself in case of detection of overloading at originating point."
(emphasis supplied) W.P.No.2737/2008 18 18- Section 73 postulates that if a person has loaded the goods in excess of the permissible limit, the Railway Administration is empowered to recover penalty charges at the prescribed rates in addition to freight and other charges before the delivery of the goods. The proviso to section 73 makes it 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 cost of such unloading and any charge for the detention of any wagon on this account. Rule 3 as framed, empowers the Railway Administration to recover prescribed punitive charges for the entire weight of the commodities loaded beyond the permissible carrying capacity for the entire distance to be traveled by train hauling the wagon from the originating station to the destination point, irrespective of the point of detection of overloading. Rule 3 also envisages that if the customer carries out load adjustment at the originating station itself in case of detection of overloading "at originating point", may not be liable to pay punitive charges.
19- The question is: whether the provision such as section 73 and Rule 3 of the Rules of 2005 can be said to be unreasonable and W.P.No.2737/2008 19 investing unguided power in the Railway Administration? Indubitably, the Railways have power to decide about the charges to be borne by the consigners for transportation of the goods by Railways. As observed by the Supreme Court, punitive charges are also part of the prescribed charges. Further, as section posits that the penalty can be recovered at such rate as may be prescribed and since the penalty rates are also prescribed, it is not open to contend that the Authority is invested with unguided power. The punitive charges are prescribed in the Rules of 2005 as provided in Part I, II and III of the situation 'A' & 'B' of the Schedule. Considering the fact that there is dual purpose for empowering the Railway Administration to recover the punitive charges, namely, to ensure that the gross weight at the axles is not unduly heavy so that accidents on account of the axles breaking down, could be prevented; and secondly that the wagon has carried such excess load up to the destination point at the other end, the replacement cost of the coaches, engines or rails or of repairs to the bridges be covered. The Supreme Court in para 42 of the judgment has observed that the extra rate is a higher rate, i.e., something like a surcharge for the excess load, to meet the said expenses. Understood thus, it is not open to contend that the stipulation in section 73 read with Rule 3 is unjust or unreasonable. In any case, W.P.No.2737/2008 20 after the judgement of the Supreme Court, it is not open to examine the constitutionality of section 73 of the Act. For, the Supreme Court has rejected the argument that it is violative of Article 14 of the Constitution.
20- The argument then proceeds that if the overloaded goods were removed after being detected en route, the Railway Administration cannot be allowed to recover any amount in the name of penalty for the distance between the originating station and the destination station. This argument though attractive at the first blush, deserves to be stated to be rejected. Section 73 empowers the Railway Administration to collect penalty charges at the prescribed rate and as per Rule 3, the person becomes liable to pay such rates for the entire weight of the commodities loaded beyond the permissible carrying capacity for the entire distance to be traveled by train hauling the wagon from the originating station to the destination point, irrespective of the point of detection of overloading. This provision may appear to be harsh for levy of penalty charges, after the unloading of the wagon at the point en route where the overloading was detected. However, keeping in mind the purpose underlying section 73 - is not only to recover extra charges for dual purposes, but, also to discourage the consignor from overloading W.P.No.2737/2008 21 the wagons beyond permissible limits which inevitably results in damage to the coaches, engines or rails or of repairs to the bridges. It cannot be overlooked that damage is bound to be caused due to overloading of wagons; and any accident on that account inevitably affects the rolling stock of the Railways. The fact that such accident in fact did not take place, can be no argument to extricate the consignor/owner. For, the damage due to overloading is inevitable. Further, the cascading effect of any such damage in the given situation, may be much more than the amount of the prescribed penalty to be recovered because of the overloading of wagons. 21- Considering the other provisions on which reliance has been placed by the Railway Administration, it is amply clear that the entire responsibility is on the consignor to ensure that no overloading is done at the originating station itself. It is also not open to the consignor to contend that weighing facility was not available at the originating station. It is not the responsibility of Railways to ensure that no overloading is done at the originating station. Nevertheless, the Railway Administration has appointed Agency to supervise that no overloading takes place at the originating station itself. But, failure of that Agency will be of no avail, much less to extricate the consignor from the responsibility of W.P.No.2737/2008 22 loading the wagon only upto the permissible limits. If the consignor does any act which contravenes the mandate of law, including being misled by the supervising Railway Agency, is free to proceed against the said Agency. But, in no case, the consignor is extricated from the liability of strict compliance of the norms regarding the loading of the wagon within the permissible limits. 22- The argument of the petitioner that Section 73 and Rule 3 are violative of Article 21 read with 300A of the Constitution of India also does not commend to us. Article 21 does not create any absolute right. It only guarantees that no person shall be deprived of his life or personal liberty except according to the procedure established by law. If the law under which penalty charges are levied is held to be constitutional and valid, it is not open to challenge the action taken by the Authority under such provision, on the touchstone of Article 21 or Article 300A, as is contended. 23- The next contention of the petitioner that no opportunity of hearing was given to the petitioner nor any notice was given before the wagon was taken to NKJ Katni and the wagon was weighed in the absence of petitioner, also does not commend to us. The provision of section 73 of the Act read with Rule 3 of the Rules, on the other hand, empowers the Railway Administration to check the W.P.No.2737/2008 23 weight of wagon at any point before the delivery of the goods to ascertain whether the loading of goods was within the permissible limits. Giving prior notice before taking such surprise action, would be counterproductive. If the aggrieved person has any dispute about the correctness of the weighment done by the Railway Administration en route before delivery of goods to the consignee, is free to question the same by way of appropriate proceedings including statutory remedy provided under the Railways Act. The aggrieved person must substantiate his claim in the said proceedings to succeed in questioning the assessment made by the Railway Administration.
24- The argument of the petitioner that the weighment of the wagon could not have been done at NKJ Katni is also devoid of merits. We find that the Rules permit the Railway Administration to take the wagon to NKJ, Katni for verification of the weight of the goods loaded therein. That has been done in furtherance of the enabling provision, on which reliance has been placed by the Railways.
25. It was argued that the weighing machine at NKJ, Katni was defective and could not have projected the correct weight of the goods or aggregate weight along with the wagon weight. This being W.P.No.2737/2008 24 a disputed question of fact can be agitated by the petitioner by way of statutory remedy provided under the Railways Act or by filing a suit and ask for appropriate relief, if so advised. We do not intend to examine that controversy in the present petition. 26- Counsel for the petitioner no doubt relied on the decisions of the Supreme Court in Government of Andhra Pradesh and ors. vs. P. Laxmi Devi (supra) and Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat and others (supra). These judgments, however, will be of no avail to the petitioner. In the case of P.Laxmi Devi (supra) the challenge was to the provision providing for payment of stamp duty on a sale-deed relating to immovable property. As a matter of fact, in this judgment the Supreme Court has restated the principle that the Court must always remember that invalidating a statute is a grave step, and must therefore be taken in very rare and exceptional circumstances. The Supreme Court has also observed that all decisions in the economic and social spheres are essentially ad hoc and experimental. Since economic matters are extremely complicated, this inevitably entails special treatment for special situations. The State must therefore be left with wide latitude in devising ways and means of fiscal or regulatory measures, and the court should not, unless compelled by W.P.No.2737/2008 25 the statute or by the Constitution, encroach into this filed, or invalidate such law. This judgement to our mind is more useful to reject the argument of the petitioner about the validity of section 73 of the Act and Rule 3 of the Rules. In the case of Hinsa Virodhak Sangh (supra), the Supreme Court was called upon to consider the challenge to the resolution passed by the Corporation for closure of municipal slaughters during the period of Paryushan festival, resulting in serious violation of fundamental rights of the persons engaged in trade and business of meat. Even in this judgement, the Supreme Court has restated that the Court should exercise judicial restrain while judging the constitutional validity of any law made by the legislature. Further, same principle applies while judging the constitutional validity of delegated legislation. For, there is a presumption in favour of the constitutionality of statute as well as delegated legislation and it is only when there is clear violation of a provision of the Constitution or that of the parent statute beyond reasonable doubt that the Court should declare it to be unconstitutional. Once again this decision will be more useful to uphold the argument of the Railway Administration. As aforesaid, the validity of section 73 has already been tested by the Supreme Court and is negatived.
W.P.No.2737/200826
27- Having said this, we have no hesitation in not only rejecting the prayer for declaring section 73 of the Railways Act and Rule 3 of the Rules of 2005 as ultra vires,but, also the challenge to the demand notices Annexures-P/5, P/7 and P/8. As regards the challenge to the demand notices, it will be open to the petitioner to pursue statutory remedy and raise all permissible grounds therein which will have to be decided by the Tribunal on its own merits in accordance with law. We may not be understood to have expressed any opinion on those grounds one way or the other. 28- For the same reason, we reject the prayer for declaration that the respondents have no authority to levy punitive charges and detention charges from the petitioner or that the petitioner was not liable to pay such amount referred to in the demand notices with liberty to the petitioner to challenge the demand notices by way of appropriate proceedings, if so advised.
29- As regards the incidental relief prayed for refund of the amount along with interest, the same does not arise for consideration.
30- Petition disposed of accordingly with no order as to costs.
(A.M. Khanwilkar) (Sanjay Yadav)
Chief Justice Judge
Khan*