Madras High Court
Union Of India vs M/S. Aryan Coal Beneficiations Private ...
Bench: R.Subbiah, Krishnan Ramasamy
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date of Reserving Judgment : Date of Pronouncing Judgment
16.04.2019 04.06.2019
Coram
The Hon'ble Mr.Justice R.Subbiah
and
The Hon'ble Mr.Justice Krishnan Ramasamy
W.P.Nos.19846 and 23848 of 2009
and
M.P.No.1 of 2009
and
M.P.No.2 of 2010
W.P.No.19846 of 2009
1. Union of India,
Represented by its General Manager,
South Each Central Railway,
Bilaspur, Chhattisgarh.
2. The Union of India,
Represented by its Secretary,
Railways Board,
Rail Bhavan, New Delhi. ...Petitioners
Vs.
1. M/s. Aryan Coal Beneficiations Private Ltd.,
Rep. by its Vice President D.R.Gupta,
No.18, Vasant Enclave Rao Ram Marg,
New Delhi – 110 057.
2. The Railway Rates Tribunal,
No.5, Dr.R.V.Cherian Cresant Road,
Chennai - 600 105. ...Respondents
http://www.judis.nic.in
2
W.P.No.23848 of 2009
1. M/s. Aryan Coal Beneficiations Private Ltd.,
Rep. by its President (marketing) D.R.Gupta,
7th Floor, Corporate Tower Ambience Mall,
Gurgaon 122 001 (Haryana).
...Petitioner
Vs.
1. Union of India,
Represented by its General Manager,
South East Central Railway,
Bilaspur, Chhattisgarh.
2. The Union of India,
Represented by its Secretary,
Railways Board,
Rail Bhavan, New Delhi. ...Respondents
3. The Railway Rates Tribunal,
Dr.R.V.Cherian Road,
Chennai.
PRAYER IN W.P.No.19846 of 2009:
Writ Petition filed under Article 226 of the Constitution of India, for
issuance of Writ of Certiorari, calling for the records relating to the order
passed by the second respondent Tribunal in Complaint No.11 of 2005
dated 27.01.2009 quash the same in so far as it relates to paras 4, 5 and 6 at
pages 125 and 126 in the order part.
For Petitioners : Mr.M.T.Arunan
For Respondent-1 : Mr. A.Ramesh Kumar
Respondent-2 : Tribunal
http://www.judis.nic.in
3
PRAYER IN W.P.No.23848 of 2009:-
Writ Petition filed under Article 226 of the Constitution of India, for
issuance of Writ of Certiorarified Mandamus, calling for the records relating
to the common order passed by the third respondent dated 27.01.2009 in
Complaint Nos.11 of 2005, 1 of 2006, 6 of 2006, 2 of 2007 and 10 of 2005,
quash the same in so far as the petitioner herein is concerned and
consequently direct the second respondent to fix the carrying capacity of
BOX-N wagons for washed coal as C.C tones under Section 72 of the
Railways Act, on permanent basis with effect from 01.09.2004. Based upon
the load ability tests conducted and further direct the second respondent to
refund the excess amounts collected hitherto from the petitioner.
For Petitioner : Mr. A.Ramesh Kumar
For Respondents 1 & 2 : Mr.M.T.Arunan
Respondent-3 : Tribunal
*****
COMMONORDER
[ Order was delivered by Krishnan Ramasamy] M/s.Aryan Coal Beneficiations Private Limited is hereinafter called as the complainant. The Union of India, represented by its General Manager, South East Central Railway, Bilaspur, Chhattisgarh and the Union of India, represented by its Secretary Railway Board, Rail Bhavan, New http://www.judis.nic.in 4 Delhi are hereinafter called as respondents. The Railway Rates Tribunal is hereinafter called as Tribunal for the sake of easy reference.
2. The complainant has filed the Writ Petition No.23848 of 2009 for issuance of Writ of Certiorarified Mandamus, calling for records relating to the common order passed by the Tribunal, dated 27.01.2009 in Complaint Nos.11 of 2005, 1 of 2006, 6 of 2006, 2 of 2007 and 10 of 2005, and to quash the same insofar as the complainant herein is concerned and consequently, to direct the second respondent to fix the carrying capacity of BOX-N wagons for washed coal as C.C tones under Section 72 of the Railways Act, on permanent basis with effect from 01.09.2004, based upon the load ability tests conducted and further, to direct the second respondent to refund the excess amounts collected hitherto from the petitioner.
3. On the other hand, the respondents have filed the Writ Petition No.19846 of 2009 for issuance of Writ of Certiorari, calling for the records relating to the order passed by the Tribunal, in Complaint No.11 of 2005 dated 27.01.2009 and to quash the same insofar as it relates to paras 4, 5 and 6 at pages 125 and 126 in the order part are concerned. http://www.judis.nic.in 5
4. The facts of the case, which led to the filing of Writ Petitions are as follows:-
i). The complainant is in the business of moving washed coal to Thermal Power Stations and other consumers. Railways along with these consumers are beneficiaries of washed coal due to improved turn around of wagons caused by substantial reduction to loading and unloading time.
When the Box-N wagons were introduced by Railways after conducting test weighments, it had fixed the carrying capacity for washed coal in a Box-N as Carrying Capacity (CC), i.e. around 58.3 tonnes per Box-N. From first September 2004, the CC was increased by 2 tonnes, i.e. from CC to CC+2. Subsequently, from 7th November 2004, it was further increased by additional 2 tonnes i.e. CC+2+2 and thereafter, to 65 tonnes from different dates for different routes.
ii) According to the complainant, the increase in CC were adhoc and arbitrary and not based on such test weighment required by Railway's own Rules and Tariffs with specific reference to para 206 of Indian Railway Code for Traffic (Commercial) Department.
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iii) The loadability trial was conducted by South East Central Railway at the complainant's siding at Junadih on 5th December 2004, to establish that 64 tonnes of washed coal could be loaded, and thereby, increasing the CC to CC+6 i.e., 64 tonnes. As per the Railways own report, this loading resulted in the following;
a) This washed coal was relatively dry
b) Around 25 labourers were engaged for levelling the wagons and to complete this exercise it took nearly 2 hours.
c) The Pay Loader was almost touching the Over Head Electric Traction supply of 25KVA(OHE) wire and even a minor error and negligence could lead to breakage of OHE wires.
d) Leveling the extra coal resulted in heavy spillage and blocking of track creating potential danger of derailment and stoppage of movement.
e) At present, cleaning of track is done once or twice in a week. However, with enhanced lading, cleaning will be required twice daily by stopping movement. http://www.judis.nic.in 7 Inspite of Railway's own assessment of the consequences, they proceeded to raise the carrying capacity of Box-N wagon not only to 64 tonnes but to 65 tonnes.
iv) The loadability trial conducted at our Junadih siding on 18th September, 2006 in the presence of Chairman, Railway Rates Tribunal by Officers of South East Central Railway, Bilaspur (Chattisgarh) gives out the following;
a) 10 wagons from a full train of 58 wagons were loaded as a trial measure. On the advice of Chairman, Railway Rates Tribunal heap loading was done with maximum possible height at the middle of the wagon leaving about one foot wide area on all the four side of the wagons.
b) After loading these wagons the same ware weighed on the weigh bridge at Junadih siding and second time at the Railway's own weigh bridge at Champa.
c) The weighment clearly brought out that even with heap loading, quantity of even 62 tonne could not be accommodated in a box-N wagon.
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v) Therefore, the complainant contended that it is not physically possible to load CC+4, as per the current carrying of 65 tonne i.e., CC+7 in a Box-N wagon. Loading 65 tonnes requires loading wagons about 29 to 30 cm above the brim level to accommodate additional quantity. However, the Railway increased the chargeable weight to CC+2 with effect from September , 2004; CC+4 from November 2004 and to CC+7 ie. 65 tonnes from different dates for different routes, for washed coal arbitrarily and unreasonably without conducting any test weighments.
vi) The complainant further stated that they did not have its own bridge till September, 2005. The wagons were loaded on carrying capacity basis. The Railways in order to ensure that the wagons are not overloaded, were doing weighment of most of the rakes at Railway Weigh Bridge at Champa. This weighbridge for a long time was not functioning properly and the same was brought to the notice of the Railways time and again. In certain cases, the weighments have shown excess weight of 6 to 7 tonnes over CC while in other cases less than CC, for which, the Railways have levied overloading and under loading (idle freight) penalty. This has resulted the payment of heavy penalty for wagon wrongly shown to have http://www.judis.nic.in 9 been overloaded or under loaded. In fact the Tribunal, in para No.38 of its order observed as follows “ For all the above aspects noticed and the reasons elaborated, we are of the firm opinion that, ascertainment of weight of the consignment during transit through electronic in motion weighbridges is quite in accordance with law and a fair and reasonable method as well and no exception could be legitimately taken by the complainants. But at the same time we feel that indisputably the correctness or accuracy limits of the same being dependent on the several variable factors noticed supra and admitted even by the witnesses of the Railways, interests of justice and fair play would require a tolerance limit being applied or leavage in weight being shown before acting upon the measured weight so ascertained at least for imposing and collecting penal charges and not merely the freight charges. This vital aspect is found now to be sufficiently taken care of by the rate Circular No.49 of 2006 dated 1/06/2006 issued by the Railway Board as also the rules issued for levying punitive charges in 2006 and 2007.” http://www.judis.nic.in 10
vii) Therefore, according to the complainant, what requires to be considered further is as to the grievance if any in respect of the quantum of punitive charges.
viii) Under Section 72 of the Railways Act, 1989, Railways have the power to vary and fix chargeable weight, less than or more than the carrying capacity of the wagon. This power is exercised by conducting extensive test weighments and seeking approval from Expert Bodies like the Commercial Committee of Railways. In the present case, the chargeable weight for washed coal has been fixed above the carrying capacity, at CC+2, CC+4 and later CC+7 i.e., 65 tonnes without following the above procedures.
ix) While for commodities like iron ore and steel, the enhanced axle load can give greater capacity to load in the same Wagons without increasing their area by change of design due to higher specific density and it cannot apply to washed coal or any coal with higher percentage of carbon contents. The complainant only want to submit that, in case of washed coal, http://www.judis.nic.in 11 the increase of axle load does not bring about any possibility of accommodating higher weight for carriage, because, it is related to the design and size of the wagon, which in this case, has not changed. If the wagon is redesigned to accommodate 100 tonnes, then, it is possible to load 100 tonnes. But this is not possible without redesigning the wagon to increase its volume to accommodate additional coal beyond the original carrying capacity.
x) Therefore, according to the complainant, the Tribunal failed to appreciate that the statutory power to fix rates/conditions in respect of goods is present in section 30 of the Railway Act, which power is subject to review by the Tribunal under Section 36 of the Railway Act on the grounds of reasonableness. Further, respondents failed to perform its functions and duties as set out in section 72(4) of the Railways Act.
xi) Aggrieved by the order of the Tribunal, the complainant has filed W.P.No.23848 of 2009, contending that the respondents have not followed the prescribed carrying capacity of box N Wagon for washed coal. http://www.judis.nic.in 12
5. Per contra, it is the case of the respondents that the carrying capacity of the wagon is fixed as per the weight bearing capacity of the under gear of wagons, brake capacity, load sustaining capacity of Railway lines, bridges and other fixed structures. As in due course, the capacity of wagons under gear and fixed structures improved, the carrying capacity of wagons was enhanced. The enhancement in carrying capacity was done by Railway Board after keeping all aspects into consideration. The complainant has quoted para No. 206 of Indian Railway code for Traffic (commercial) Department in support of their argument that the increase in CC were adhoc and arbitrary and not based on such test weighment required by Railway's own Rules and Tariffs. However, the same is not related to fixation of carrying capacity of wagons as it was related to the standard minimum weight condition system of charging, whereas, coal is charged as per the carrying capacity of wagon notified by Railways. The complainant has loaded washed coal upto the permissible carrying capacity of Box-N wagon and in some cases more than the permissible carrying capacity and thus, attracted punitive charges.
http://www.judis.nic.in 13
6. The respondents further submitted that the Railways permit loading of loose commodities in the wagon beyond permitted carrying capacity upto the loading tolerance of 2 tonnes, as it is not possible to load exact quantity of loose commodity. It is further contended that, if loading is within the tolerance limit, normal freight is charged, and in case, if loading is beyond the tolerance limit, punitive charge is collected as per rule. However, no punitive charge is collected, if customer off loads excess materials at the originating point itself and punitive charges are levied to discouraged customer from overloading than the permitted carrying capacity.
7. The respondents further submitted that the complainant has taken contradictory stand. At one place, the complainant stated that, loading of washed coal upto 65 tonnes was not possible but at the same time, they contended that overloading of washed coal in the same wagon is not possible, which is not sustainable. The respondents further stated that the present permissible carrying capacity of Box-N wagon is 68 tonnes and customers (including complainant) are loading washed coal upto the http://www.judis.nic.in 14 permissible carrying capacity of Box-N wagon, and, in some wagons punitive charges also accrued. Hence, it is clear that washed coal can be loaded upto 68 tons in Box-N wagon. Therefore, the respondents stated that the averment of the complainant that the washed coal cannot be loaded upto 65 tonnes in Box-N wagon is far beyond the fact and the same is unsustainable.
8. The respondents further averred that, weighment of rake is done on "Electronic in-motion weighbridge", which are calibrated regularly and certified by Weights and Measures Department, a statutory body of the Government. But the complainant has produced the weighment data of weighbridge installed inside the siding at destination, which is not calibrated and certified by Railways. Railways would normally permit re- weighment of rakes at destination if requested by customer and on payment of re-weighment charges. In the present case, the complainant has done weighment at their weighbridge for their internal purpose, which was not supervised by Railway Officials, and the same cannot be accepted for railway charging purpose.
http://www.judis.nic.in 15
9. The respondent further stated that punitive charges are levied as a deterrence to avoid overloading by customer, as running overloaded wagons causes risk to train safety and may lead to severe damage to railway lines and other fixed structures. Since it is difficult to load exact weight of coal in a wagon, a cushion/tolerance limit is allowed, it does not mean that customer is permitted to load upto the tolerance limit. Therefore, the respondents contended that, if overloading increases beyond the tolerance limit, punitive charge is levied as per rules in vogue. In fact, the Ministry of Railways is issuing Gazette notification from time to time framing rules for punitive charges for overloading of wagons under section 73 of the Railway Act 1989. The said rules would come into force on the date of their publication in the official Gazette. Moreover, if the customer carries out load adjustment of overloaded consignments at the originating point, then, punitive charges are not collected.
10. The respondents further submits that the Tribunal has overlooked the circular 49 of 2009, dated 01.06.2006, and wrongly held that the same is applicable on and from 22.11.2005 instead of 01.07.2006. Therefore, the http://www.judis.nic.in 16 respondents pleaded that the order of the Tribunal is liable to be quashed to the extent its holds that the circular No.49 of 2006 is applicable with effect from 22.11.2005, and this Court may hold that the circular is applicable from 1.07.2006, and may be implemented from the date of registration of the complaint.
11. We have heard the learned counsel for the parties concerned and perused the documents available on record, including the detailed written argument filed by the both sides.
12. In the present case, both the complainant and respondents filed Writ Petitions challenging the order of the Tribunal, dated 26.06.2018. Insofar as the complainant is concerned, they are aggrieved over the Tribunal's findings on the aspect of fixation of the Carrying Capacity of the wagon and the respondents' challenge is over effective date of applicability of circular No. 49 of 2006. Since the challenge in both Writ Petitions is to the order passed by the Tribunal on the aforementioned two aspect alone, we are not adverting to the other facts of the case and it would be sufficient for us to clarify the said two aspects of the matter. http://www.judis.nic.in 17
13. With regard to the fixation of CC of Box-N for transportation of washed coal with a chargeable weight of CC+4tonnes and CC+6 tonnes wagon is concerned, the Tribunal found the same to be reasonable and held that the carrying capacity fixed by the respondents is in accordance with law, fair and reasonable method as well and no exception could be legitimately taken by the complainant. The Tribunal further held that such fixation was well within Section 72 of the Railways Act. Further, we would like to point out that, if the complainant's contention is that fixation of CC for Box-N wagon by the respondents is not in accordance with Section 72, the complainant ought to have adduced evidence to show as to in what respect and for what reason the fixation of CC doest not confirm to Section 72 of the said Act and in the absence of any materials produced by the complainant either before the Tribunal or before this Court, the complainant has no locus-standi to contend that fixation of CC for Box-N wagon does not conform to Section 72 of the Railways Act. Further, the Tribunal, being the Fact Finding Authority, before arriving at such conclusion, thoroughly gone through all the evidence and hence, we are not inclined to interfere with the findings on the Tribunal on that aspect. http://www.judis.nic.in 18
14. Insofar as the applicability of Circular No.49 of 2006 to calculate the penal charges to be levied in respect of the consignment of the complainant is concerned, the Tribunal rendered a clear-cut finding that the same has to be determined in the manner as if circular No.49 of 2006 dated on 01.06.2006 issued by the Ministry of Railways, Railway Board was applicable to them on and from 22.11.2005 and the relevant penal charges shall be according to the Railway (Punitive charges for overloading of wagon). Thus, we find that the Tribunal held that the circular was applicable from the date of complaint, that is 22.11.2005, and not from the date of 01.06.2006 and based on that, directed the respondents to refund the penalty charges. Further, we would like to observe herein that the Tribunal discharged the function as a Fact Finding Authority by going through all the evidence and materials. Hence, we are not inclined to interfere with such findings of the Tribunal, which were passed purely on the basis of facts and circumstances of the case and we hold that the circular No.49 of 2006 is applicable with effect from 22.11.2005, i.e, the date on which, the complaint was presented.
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15. Hence, both the Writ Petitions fail and are dismissed as being devoid of merit. No costs. Consequently, connected Miscellaneous Petitions are closed.
R.P.S.J., K.R.J.,
04.06.2019
av
Index : yes/no
Speaking Order/Non speaking
To
1. M/s. Aryan Coal Beneficiations Private Ltd., Rep. by its Vice President, D.R.Gupta, No.18, Vasant Enclave Rao Ram Marg, New Delhi – 110 057.
2. The Railway Rates Tribunal, No.5, Dr.R.V.Cherian Cresant Road, Chennai - 600 105.
3. Union of India, Represented by its General Manager, South East Central Railway, Bilaspur, Chhattisgarh.
4. The Union of India, Represented by its Secretary, Railway Board, Rail Bhavan, New Delhi.
http://www.judis.nic.in 20 R.Subbiah,J., & Krishnan Ramasamy, J., av Pre-Delivery Judgment in W.P. Nos.19846 and 23848 of 2009 04.06.2019 http://www.judis.nic.in