Punjab-Haryana High Court
M/S Jain Coal Concerns vs The Union Of India And Others on 6 August, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CWP Nos. 7378 of 1989 & 7413 of 1990 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: August 06, 2013
1. C.W.P. No. 7378 of 1989
M/s Jain Coal Concerns, Sonepat .... Petitioner
Versus
The Union of India and others ... Respondents
2. C.W.P. No. 7413 of 1990
M/s G.P. Gupta .... Petitioner
Versus
The Union of India and others ... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. Sudhir Mittal, Advocate,
for the petitioner(s).
Mr. Lakhwinder Singh, Advocate,
for respondent Nos. 1 to 6 (in CWP No.7378 of 1989)
for respondent Nos. 1 to 7 (in CWP No.7413 of 1990)
Mr. M.L. Sarin, Sr. Advocate with
Ms. Himani Sarin, Advocate,
for respondent No.8 ( In CWP No. 7413 of 1990).
Paramjeet Singh, J.
Both the above mentioned Civil Writ Petitions i.e. CWP No. Kumar Virender 2013.08.16 11:05 I attest to the accuracy and integrity of this document CWP Nos. 7378 of 1989 & 7413 of 1990 2 7378 of 1989 and CWP No. 7413 of 1990 have been listed together for hearing. Both the Civil Writ Petitions are being disposed of by a common judgment. Learned counsel for the petitioner has referred to the facts in CWP No. 7378 of 1989. Therefore, for the sake of convenience, facts from this case are being taken.
Instant petition has been filed under Article 226 of the Constitution of India for quashing the demand of penal rate of freight on the wagon of coal supplied to the petitioner by respondent no.7 (Annexure P/1 and P/2).
Brief facts of the case are that the petitioner is a sole proprietorship firm engaged in the business of dealing in coal. The petitioner got a sponsorship from the Government of Haryana for bringing one rake of coal, consisting of 35 B.C.N. boxes from the Raniganj Coalfields near Asansol in the State of West Bengal. Respondent no.7 is having its coal mines at Belbord and Bansra Open Cast Project (OCP) near Asansol and the staff of respondent no.7 loaded two B.C.N. boxes from Belbord and 33 B.C.N. boxes from Bansra O.C.P. in the rake meant for the petitioner. The entire loading process was managed and controlled by respondent no.7 and its officials and employees. The petitioner had no role to do with the process of loading of the rake of coal. The cost of the coal loaded from Belbord was Rs.73,499.50 paise and that loaded from Bansra O.C.P. was Rs.11,27,011.07 paise. The loading at both the places was by manual process. These boggies were loaded from Railway Station, Andal near Asansol to Panipat vide railway receipt Nos. 926847 and 926848 Kumar Virender 2013.08.16 11:05 I attest to the accuracy and integrity of this document CWP Nos. 7378 of 1989 & 7413 of 1990 3 dated 23.05.1989 respectively. It is the duty of the railway authorities under Section 53 of the Indian Railways Act, 1890 (hereinafter referred to as the "Act") that no rake or wagon is over-loaded. The petitioner's representative had informed the railway officials that if they felt wagons were over-loaded, they could unload the extra amount of coal.
The rate of carriage of coal for the permissible chargeable weight is alleged to be Rs.437.25 per tone plus surcharge @ Rs.5%, whereas the penal rate for carriage of the load in excess of the permissible load is Rs.1032.50 paise plus 5% surcharge. Due to the dispute with regard to the excess load, the petitioner has been charged penal rate of carriage for 29.5 tones, which has been calculated at Rs.32,523.80 vide receipts (Annexure P/1 and P/2). Hence, this writ petition.
I have heard learned counsel for the parties and perused the record.
From the arguments raised by the counsel for the parties, the following issue arises in the present petition:-
"Whether the penal charge for over-loading is arbitrary or violative of Constitution of India, it being the duty of the railway authorities to see whether the load in the wagon is within permissible limit?"
The issue is no more res integra. Similar issue has already been decided by the Hon'ble Supreme Court in Jagjit Cotton Textile Mills vs. Chief Commercial Superintendent N.R. & others, JT 1998(3) S.C. 297, wherein it has been held that the penal charges for over loading are Kumar Virender 2013.08.16 11:05 I attest to the accuracy and integrity of this document CWP Nos. 7378 of 1989 & 7413 of 1990 4 neither arbitrary nor violative of the Constitution. Rule 161-A contained in the IRCA (Indian Railway Conference Association) Goods Tariff (corresponding to Section 73 of the Act) is neither inconsistent nor excluded by other rules. Since, consignee is also responsible to pay freight and to take delivery of coal on paying freight etc. he is also liable to pay penal charges.
Before I deal with the issue framed, it would be appropriate to reproduce Rule 161-A of the Goods Tariff No. 37, Part-I (Volume-I) and Section 53 of the Indian Railways Act, 1890:-
"Rule 161-A Penalty for loading commodities in loose condition beyond the permissible carrying capacity of the wagon. While loading commodities in loose, consignors must not exceed the permissible carrying capacity of the wagon used or any reduced carrying capacity that may be required in the circumstances referred to in rule 162. Should overweight be discovered at the booking point or enroute or at the destination, such overweight beyond the permissible carrying capacity of the wagon used will, notwithstanding anything contained in this tariff or in any other rule or instructions be charged as under from the forwarding station to the destination:
(1) If the overweight above the permissible carrying capacity of the wagon is two tones or less per wagon, whether a four wheeled, six wheeled or bogie wagon, such overweight will be charged at the trainload / wagonload rate, as the case may be, applicable to the commodity. (2) If the overweight beyond the permissible carrying capacity exceeds two tones, but does not exceed three tones Kumar Virender 2013.08.16 11:05 I attest to the accuracy and integrity of this document CWP Nos. 7378 of 1989 & 7413 of 1990 5 per wagon, the overweight beyond the permissible capacity plus two tones will be charged at the "small" rate applicable to the commodity.
(3) If the overweight beyond the permissible carrying capacity exceeds the limit of three tones per wagon the entire overweight in excess of the permissible carrying capacity will be charged at double the "small" rate applicable to the commodity."
"53. Maximum carrying capacity of wagons -
(1) The gross weight of every wagon or truck bearing on the axles when the wagon or truck is loaded to its maximum carrying capacity shall not exceed such limit as may be fixed by the Central Government for the class of axle under the wagon or truck.
(2) Subject to the limit fixed under sub-section (1), every railway administration shall determine the normal carrying capacity for every wagon or truck in its possession and shall exhibit the words and figures representing the normal carrying capacity so determined in a conspicuous manner on the outside of every such wagon or truck.
(3) Every person owning a wagon or truck which passes over a railway shall similarly determine and exhibit the normal carrying capacity for the wagon or truck. (4) Notwithstanding anything contained in sub-section (2) or sub-section (3), where a railway administration thinks it necessary or expedient so to do in respect of any wagon or truck carrying any specified class of goods or any class of wagons or trucks of any specified type, it may, by notification, vary the normal carrying capacity for such wagon or truck or such class of wagons or trucks and, subject to such conditions as it may think fit to impose, determine for Kumar Virender 2013.08.16 11:05 I attest to the accuracy and integrity of this document CWP Nos. 7378 of 1989 & 7413 of 1990 6 the same such carrying capacity as may be specified in the notification and it shall not be necessary to exhibit the words and figures representing the carrying capacity so determined on the outside of such wagon or truck or such class of wagons or trucks.
Provided that in no case the gross weight of such wagon or truck or such class of wagons or trucks shall exceed the limit fixed under sub section (1) for the class of axle under the wagon or truck."
Learned counsel for the petitioner contended that there is conflict between the Rule 161-A of the Goods Tariff No.37, Part-I (Vol.I) and Section 53 of the Indian Railway Act, 1890 as under Section 54, the railway administration cannot impose any condition which is inconsistent with any provision of the aforesaid Act. However, learned counsel for the petitioner fairly concedes that the present case is squarely covered by the judgment of Hon'ble Supreme Court in Jagjit Cotton Textile Mills's case (supra).
Since there is no inconsistency or conflict between Rule 161- A and Section 53 of the re-enacted Railways Act, 1989 as held in Jagjit Cotton Textile Mills's case (supra), I do not find any merit in both the aforesaid writ petitions.
In view of the above discussion and settled position of law, both the aforementioned writ petitions are disposed of in terms of Jagjit Cotton Textile Mills's case (supra).
August 06, 2013 [ Paramjeet Singh ]
vkd Judge
Kumar Virender
2013.08.16 11:05
I attest to the accuracy and
integrity of this document