Calcutta High Court
Skylark Fiscal Service Pvt. Ltd. & Anr vs Union Of India & Ors on 10 April, 2014
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
W.P. No. 137 of 2009
Skylark Fiscal Service Pvt. Ltd. & Anr.
versus
Union of India & Ors.
For Petitioner : Mr. Kalyan Bandopadhyay,
Mr. Ram Anand Agarwal,
Mr. Kumar Gupta,
Ms. Nibedita Pal,
Mr. Ramesh Dhara,
Mr. A.G. Mukherjee.
For Respondent : Mr. Ashok Chakraborty,
Mr. Saptarshi Roy.
Judgment On : 10th April, 2014.
Tapabrata Chakraborty, J.
This writ application had been preferred challenging the impugned denial of the railways to refund an amount of Rs.14,24,678/- which had been illegally collected from the petitioners as punitive charges.
In the writ application it had been averred, inter alia, that the petitioner no.1 is an exporter of iron ore fines and in course of the business the petitioner no.1 purchased iron ore fines from Orissa Mineral Development Company Ltd., (hereinafter referred to as the OMDC), a Government of India Enterprise. The said private siding is served by Barajamda Railway Station, which is the starting/forwarding station and an electric-in-motion weigh bridge stands installed there. On 12th February, 2009, about 3700- M.T. of iron ore fines was loaded at Barajamda Railway Station. As per the policy guideline weighment of any bulk goods is to be conducted at the forwarding station, provided there is a weigh bridge in the said station. In spite of availability of a weigh bridge at Barajamda, the load was weighed at the Dangoapusi Railway Station which is about 30 K.M. away from the forwarded station. According to the petitioners the weigh bridge at Dangoapusi Railway Station was a defective one. Thereafter on 13th February, 2009 at late hours the petitioner was issued a railway receipt claiming an amount of Rs.14,24,678/- on account of punitive charges and the petitioners were compelled to make the said payment. As 14th and 15th of February, 2009 were Saturday and Sunday respectively, the petitioner no.1 made a representation to the respondent no.2 on 16th of February, 2009 alleging inter alia that the weighment was made without any notice to the petitioners and at their back in a faulty weigh bridge and that the petitioners had to pay the punitive charges under compulsion, otherwise the office refused to handover the railway receipt and that the punitive charges payment was a payment under protest. By the said representation the petitioners further prayed for reweighment of the rake in question but the railway authorities did not respond to the same and no reweighment was done and the rake was unloaded at Paradeep, i.e., the destination station. Aggrieved by such action of the respondents, the petitioner had approached this Court through this instant application under Article 226 of the Constitution of India.
In the backdrop of the said facts, Mr. Kalyan Bandopadhyay, learned senior counsel, assisted by Mr. Agarwal, learned advocate, appearing for the petitioners, submits that the respondents have illegally denied to reweigh the rake at the destination station in spite of a prayer made to that effect by the petitioners, prior to unloading on 16th February, 2009. A weighment was conducted by the Railways at Dangoapusi Railway Station without notice to the petitioners and that as such the petitioners availed no opportunity whatsoever to be present at the said reweighment site. The petitioners were compelled to make payment of the punitive charges, which the petitioners paid under protest as they were threatened of withholding of the railway receipts. Even in the destination station, the respondents could have conducted a reweighment in the presence of the petitioners on the basis of the representation duly received by the concerned authority on 16th February, 2009, prior to unloading of the rake.
It was further submitted that the levy of punitive charges was absolutely without jurisdiction and by such action the petitioners right as provided under Section.79 of the Railways Act, 1989, (hereinafter referred to as the said Act) had been denied. Such action of the respondents was derogatory to the principles of the natural justice.
It was further submitted that the weigh bridge at Dangoapusi Railway Station was defective and that as such the quantification of the alleged overload was faulty.
In support of his contention, the learned senior counsel had relied upon the following judgements :-
a) Unreported judgement dated July 30, 2009 delivered in the case of Ultra Tech Cement Limited & Another versus Union of India & Others.
b) Unreported judgement dated 27th January, 2010 delivered in the appeal against the judgement dated 30th July, 2009 passed in Union of India & Ors. Versus Ultra Tech Cement Ltd. & Anr.
c) The judgement dated 19th December, 2007 delivered in the case of Union of India & Ors. Versus Agarwala & Co. & Anr.
reported in (2008) 1 CHN 751.
The respondents have entered appearance and had filed an affidavit-in-opposition controverting the averments made in the writ application stating inter alia that there is no provision towards issuance of notice prior to weighment of the goods by the railways. The goods were loaded on the basis of the declaration of weight by the petitioners and the weighment was conducted by the respondents in the enroute station at Dangoapusi. According to the respondents upon weighment and upon ascertainment of the fact that there had been an overloading, the punitive charges were intimated to the petitioners and the same was paid by the petitioners without any objection whatsoever. According to the respondents, the petitioners did not make any application towards reweighment and took delivery of the goods after the same was unloaded at Paradeep. The representation for reweighment on 16th February, 2009 was made before an authority who had no role to play in the matter. The respondents further averred that admittedly, Saturday is not a Holiday. It was also averred that weighment could not be done by the railways at the Barajamda Weigh Bridge since the same was congested by another rake.
Mr. Chakraborty, learned senior counsel, assisted by Mr. Roy, learned advocates appearing for the respondents, submits that the writ application itself is not maintainable inasmuch as there is a provision towards preference of a statutory appeal and in support of such submission, reliance was placed upon an unreported judgment delivered in the case of the Associated Cement Co. Ltd. versus General Manager, S.E. Rly.
In reply thereto, the learned advocate for the petitioner submits that an alternative remedy does not oust the jurisdiction of the Writ Court. As there had been a violation of the principles of natural justice, the petitioner can certainly approach the Hon'ble Writ Court and in support of such submission reliance was placed upon the judgment delivered in the case of Popcorn Entertainment and another versus City Industrial Development Corpn. and another reported in (2007) 9 SCC 93.
It would be necessary to first deal with the objection of availability of an alternative remedy to the petitioners. It is settled law that mere existence of an alternative remedy does not oust the jurisdiction of the Writ Court. In view of the decision of the Hon'ble Supreme Court reported in (1998) 8 SCC 1 (Whirlpool Corporation Versus Registrar of Trade Marks, Mumbai), at least in four situations a Court of Writ would be justified in entertaining a writ petitioner despite availability of an alternative remedy. One of such situations is when the action impugned in the writ petition is violative of the principles of natural justice. The rule of exhaustion of alternative remedy, being a rule of discretion rather than a rule of compulsion, in an appropriate case the court would be justified in exercising its discretion. Having regard to the facts and circumstances of the present case, in my view, since the issue of violation of the principles of natural justice is involved in the instant lis, the petitioners can certainly approach the Hon'ble Writ Court notwithstanding the availability of an alternative remedy. I therefore do not propose to relegate the petitioners to the alternative remedy.
In the backdrop of the averments made in the affidavit-in- opposition, Mr. Chakraborty places reliance upon the provisions of Section 65 of the said Act of 1989 and submits that as the consignment was not checked by the authorized railway servant, the burden of proving the weight shall lie on the consignor, the consignee or the endorsee.
According to Mr. Chakraborty, when the petitioners had already paid the punitive charges and had taken delivery of the goods, they cannot subsequently turn back and demand refund of the punitive charges already paid by them.
Mr. Chakraborty had further submitted that the petitioners could have made a representation for reweighment on 14th February, 2009 itself though the said date was a Saturday but the offices were open on the said date. According to Mr. Chakraborty such failure constitutes acquiescence on the part of the petitioners.
I have heard the submissions made by the learned advocates appearing for the respective parties and I have considered the materials on record.
In order to appreciate the points involved, it will be profitable to refer to the follows provisions of the Railways Act and the Railway Manual.
"65. Railway receipt - (1) A railway administration shall,-
(a) in a case where the goods are to be loaded by a person entrusting such goods, on the completion of such loading;
or
(b) in any other case, on the acceptance of the goods by it, issue a railway receipt in such form as may be specified by the Central Government.
(2) A railway receipt shall be prima facie evidence of the weight and the number of packages stated therein:
Proved that in the case of a consignment in wagon-load or train-load and the weight or the number of packages is not checked by a railway servant authorised in this behalf, and a statement to that effect is recorded in such railway receipt by him, the burden of proving the weight or, as the case may be, the number of packages stated therein shall lie on the consignor, the consignee or the endorsee.
"73. Punitive Charges 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.
"78. Power to measure, weigh, etc. - Notwithstanding anything contained in the railway receipt, the railway administration may, before the delivery of the consignment, have the right to -
(i) re-measure, re-weigh or re-classify any consignment;
(ii) re-calculate the freight and other charges; and
(iii) correct any other error or collect any amount that may have been omitted to be charged.
"79. Weighment of consignment on request of the consignee or endorse - 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 do, 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.
"1744. Reweighment at the request of owners - (a) As laid down in the I.R.C.A. Goods Tariffs, railways do not undertake to weigh consignments at the destination station as a matter of course. Such weighments can only be considered in exceptional cases, when the condition of the consignment or package warrant this.
(b) Requests for such reweighments of goods booked in wagon loads should be referred to the Divisional Commercial Superintendent, who may permit the reweighment at his discretion provided that facilities for reweighment exist at the destination.
(c) The consignee or endorsee of a wagon load or a train load consignment booked at Railway risk rate may, it has reason to believe that the wagon offered to him for delivery at destination, does not contain the quality of goods entrusted for carriage, make a request in writing to the Divisional Commercial Superintendent or any other railway servant authorised in this behalf for the weighment of such consignment at destination station such Railway servant may allow request for weighment on a Railway Weigh bridge on payment of charges prescribed and demurrage charge if any, such request may be disallowed in the following cases if: (1) the consignment is received in covered wagon and the seals of the loading station are intact and there is no other evidence of the consignment having been tempered in transit;
(2) the consignment has been received in open wagon but there is no sign of tempering with the original packing, (3) the consignment is of perishable nature and is likely to loose weight in transit, (4) weighment is not feasible due to congestion in the yard, (5) Weighment done on request shall be without prejudice to the rights of the railway administration to disclaim liability under the Railways Act or under any other law for the time being inforce.
"1745 - When the request of a consignee or a endorsee for reweighment of wagon load consignments at destination station is accepted on merits of each cash by the Divisional Commercial Superintendent, the charges notified in the Supplementary Goods Tariff of the Railway should be collected and a separate money receipt, in Form Com./M-2 issued for each reweighment. In addition, demurrage charges due under the rules should also be recovered if the request for reweighment is received after placement of the wagon for unloading. The reweighment charges should be accounted for as a special debit in the station books and balance sheet.
The petitioners had drawn the attention of this Court to the paragraphs 12 and 14 of the judgement reported in (2008) 1 CHN 751 which runs as follows :-
12. "In order to take punitive charge for overloading a wagon, the concerned parties must be given intimation of the overloading and once the goods have been booked after due weighment, such punitive charge cannot be levied unless the goods are reweighed in the presence of the representatives of the parties concerned. As provided in para 1451 of IRCM, the Railway receipts should not be granted till the goods are correctly examined and weighed and when the senders are required to load their consignments, the Railway receipts should not be given until loading has been completed to the satisfaction of the Railway."
14. "Therefore, without reweighment of the consignment in the presence of the representatives of the parties concerned, there was no scope of claiming punitive charges on the alleged ground of overloading. Moreover, even in case of overloading, as provided in Para 1877 of IRCM, the excess goods are sold and the price thereof is adjusted against the freight charge and the penalty and the balance is refunded to the representatives of the senders."
The factum of service of the letter dated 16th February, 2009 upon the respondent no.2 prior to unloading of the goods does not stand disputed by the respondents. The respondents in paragraph 12 of the affidavit-in-opposition had inter alia stated that "the petitioner has asked for reweighment of the rake to the Chief Commercial Manager, Kolkata on 16.02.09. By that date the rake had already arrived at the destination, i.e., Paradeep".
According to the petitioners in terms of paragraph 1422 and 1423 of the Railway Manual, the petitioners ought to have weighed the consignment at Barajamda as the said station was the first weigh bridge enroute and as there was an electronic-in-motion weigh bridge there. But the respondents conducted the weighing at Dangoapusi which was about 30 K.M. away from Barajamda. The respondents had not denied that the weighment was made at Dangoapusi and had stated weighment was not done at Barajamda as the weigh bridge there was congested by another rake. Such explanation is untenable in view of paragraph 1424 (a) which runs as follows :-
1424 (a) "At weighbridge stations, where the wagons are required to be weighed, the Station Master should ensure that such weighment is done and that the wagons are not pushed on without weighment."
When the respondents failed to weigh the load at Barajamda, it was incumbent upon them to issue a notice intimating that the weighment would be conducted at Dangoapusi.
Clause 1745 of the Railway Manual, inter alia, permits consideration of a request for weighment upon payment of charges prescribed including demurrage charges, if any and even in the event of receipt of such request for weighment subsequent to placement of wagon for unloading.
On the basis of the representation dated 16th February, 2009 it was incumbent upon the respondents to consider the same but they unloaded the goods in hot haste so as to scuttle the right of the petitioners.
The above sequence of fact reveals that admittedly an application for reweighment of the rake was made by the petitioners and that the same was made prior to unloading and that it was incumbent upon the respondents to conduct reweighment on the basis of the petitioner's application and that as such the respondents had illegally denied reweighment of the rake before unloading of the same at the destination station.
In the instant case, the railways do not dispute that there exists a provision towards consideration of an application for reweighment but their stand is that by the time, the petitioners made the application for reweighment, the rake had arrived at the destination station.
In my view the alleged failure on the part of the petitioner to make the representation for reweighment on 14th February, 2009 does not tantamount to a conscious relinquishment of the right of reweighment on the part of the petitioners and that as such it cannot be construed that there had been an acquiescence on the part of the petitioners. Furthermore, as the receipt of the representation for reweighment is not disputed, the respondents ought to have taken necessary steps for reweighment.
The contention of the respondents to the effect that the application for reweighment was made by the petitioners to an authority who had no role to play, is unsustainable inasmuch as it would be explicit from pages 20 and 21 of the affidavit-in-opposition that the prayer for refund of excess freight charges in the railway receipt no.212001896 dated 13th February, 2009, pertaining to the same consignment, was sanctioned by the Deputy Chief Commercial Manager (Refunds) having his office at Koilaghat building (9th Floor) and the prayer for reweighment was also made to the Chief Commercial Manager, South-Eastern Railway having his office at Koilaghat building (9th Floor).
In support of his submissions, Mr. Chakraborty placed reliance upon the judgement delivered in the case of Union of India Versus Rameshwar Lal Agarwal reported in 2013 (4) CHN (Cal) 379.
The judgement in the case of Union of India Versus Rameshwar Lal Agarwal (Supra), as relied upon by the respondents, was delivered in the backdrop of the facts as follows :-
a) The appeal was against a judgement dated 2nd August, 2012, by which an order of proportionate refund passed by the railway authorities pursuant to an order in an earlier writ application, was rejected.
b) By the judgement impugned in the appeal, the Hon'ble Single Bench was pleased to quash the demand in toto holding that railway authority was under obligation for making arrangement of reweighment and that the said authority had failed and neglected to deal with the matter in accordance with the provisions of Sections 65 and 79 of the said Act of 1989 and paragraph 1744 of Indian Railways Commercial Manual (hereinafter referred to as the said manual).
c) The delivery was taken by the petitioner without filing any application for reweighment of the goods as per the provisions of Section 79 and paragraph 1744.
d) In the railway receipt there was a mention that there was no weighment facility at originating station.
e) No application was made by the petitioners praying for reweighment before taking delivery.
f) No such application was also filed later for weighment of the consignment.
g) The consignment could not be weighed at the originating station due to non-availability of a functional weighing machine.
The said judgement (Union of India and Others Versus Rameshwar Lal Agarwal) is distinguishable on facts since in the instant matter the petitioners did make an application for reweighment as would be explicit from the document at page 27 of the writ application and that though there was an electric-in-motion weigh bridge at the originating station, the respondents did not undertake the weighment of the goods loaded and that the petitioners were compelled to pay the punitive charges on threat of withholding of the railway receipts. Thus it cannot be contended that the petitioners had failed to exercise the right under Section 79 of the said Act of 1989 and had failed to discharge the burden cast upon them under the proviso of Section 65 of the said Act.
Section 72 of the Indian Contract Act of 1872 (hereinafter referred to as the said Act) runs as follows :-
"Liability of person to whom money is paid, or thing delivered, by mistake or under coercion. A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it."
Illustration 'b' to Section 72 runs as follows :-
"A Railway Company refuses to deliver up certain goods to the consignee, except upon the payment of any illegal charge for carriage. The consignee pays the sum charged in order to obtain the goods. He is entitled to recover so much of the charge as was illegally excessive".
Therefore, when the amount is not legally payable and if the petitioners are required to pay it under compulsion, the petitioners are entitled to repayment.
The railways cannot act at its caprice, whims or fancy nor can it taking advantage of its monopoly status exact an amount which it cannot do under the provisions of law. The railways could not have, by virtue of its superior bargaining position, secured payment of the punitive charges from the petitioners under compulsion. (See Ajay Kumar Agrawal Versus O.S.F.C. and others, reported in AIR 2007 Orissa 37).
In my opinion, the respondents were bound to show, before it imposed the punitive charges on the petitioners, that there had been a proper adjudication of the alleged liability of the petitioners for which punitive charges were imposed. The very word "Punitive" as had been used by the Rule makers shows that the petitioners are to suffer for the fault on their part and on that basis an adjudication as to the petitioners' liability has to be made a condition precedent before imposition of penalty/punishment by way of punitive charges.
In the instant case, admittedly no such adjudication had been made and the punitive charges had been illegally demanded and collected from the petitioners under compulsion, without reweighment of the consignment in presence of the petitioners.
For the foregoing reasons, the writ application is allowed and the respondents are directed to refund the sum of Rs.14,24,678/- to the petitioners within a period of 8 weeks from the date of communication of this order.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.)