Gauhati High Court
Page No.# 1/ vs The Union Of India And 4 Ors on 3 February, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/11
GAHC010007972015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/545/2015
M/S SAI BABA ENTERPRISES and ANR.
REP. BY ITS PROPRIETOR SMT. SAVITA LOHIA, BARUANIBAT, JORHAT,
ASSAM.
2: SAVITA LOHIA
W/O- SRI JAIPRAKASH LOHIA
R/O- BARAUNIBAT
JORHAT- 785001
ASSAM
VERSUS
THE UNION OF INDIA and 4 ORS
REP. BY THE SECY., MINISTRY OF RAILWAYS, RAILWAY BOARD, RAILWAY
BHAWAN, NEW DELHI.
2:THE GENERAL MANAGER
N.F. RAILWAYS
MALIGAON
GHY- 11.
3:THE CHIEF CLAIMS OFFICER
N.F. RAILWAYS
DIBRUGARH.
4:THE ASST. COMMERCIAL MANAGER
N.F. RAILWAYS
DIBRUGARH.
5:THE CHIEF GOODS SUPERINTENDENT
N.F. RAILWAYS
DIBRUGARH
Advocate for the Petitioner : Ms. M. Sarma, Adv.
Page No.# 2/11
Advocate for the Respondent : Mr. B. Sarma, SC, NF Railway
Date of Hearing & Judgment : 03/02/2022
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT & ORDER (ORAL)
Heard Ms. M. Sarma, learned counsel appearing on behalf of the petitioner as well as Mr. B. Sarma, learned standing counsel, appearing on behalf of the NF Railways.
2) The facts for the instant case arising for determination is that one Sai Baba Salt Limited through M/s Decent Enterprises have booked 42 wagons purportedly loading 67120 wagons of Non-refined Iodized Salt in Halvad station which was to be delivered at Dibrugarh station. The said consignment was sent to one M/s Prakash Floor Mill A/c Deputy Commissioner. The railway receipt on which the said loading was done has been enclosed as Annexure-2 to the writ petition. It may be relevant herein to take note of that in the said Railway receipt the commodity description and the remarks have been mentioned is the same has relevance to the adjudication of the instant writ petition, the same is quoted herein below:
"Non refined salt for human consumption (Rake demand) Train load conditions complied with # loaded directly from truck/car to wagon, loading not supervised by Railway Staff. # Loading done in siding, not supervised by Railway Staff # Sender's weight accepted # Page No.# 3/11 said to contain # Load condition fulfilled Default # the base FT for 3139.00 kms @@@@2323.000/T after rebate comes to Rs. 4476188.700. However, the base FT for 3000 KMS comes to Rs.4532479.872. Hence charged Rs. 4532479.870 i.e. The higher base FT ### sales tax not application# bank draft 000786 05-09- 14 HDFC Rs. 4543811/-"
3) Before further delving upon the facts, it would be relevant to take note of the provisions of Section 65 of the Railway Act 1989, which is quoted herein below:
"Section 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:
Provided 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 authorized 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."
4) For the purpose of understanding the purported of the quoted portion of the Railway receipt, it is relevant to take note of that a Railway receipt shall be a prima facie evidence of the weight and the number of packages stated therein. However, in view of the proviso added to the Sub-Section 2 of Section 65 in the case of consignment in wagon load or train load and the weight or the number of packages is not checked by Page No.# 4/11 the Railway servant authorized in that behalf and a statement to that effect is recorded in such Railway receipt by him, the burden of proving the weight or the as the case may be the number of packages stated therein shall lie on the consigner, consignee or the endorsee.
5) In the backdrop of the above, it is also relevant to take not of the facts involved in the instant case. The loading of the 42 wagons of Non- refined Iodized Salt at Halvad Station was done by one Gupta & Associates (Assessors) Private Limited at the behest of M/s Decent Enterprise for loading supervision of the consignment and random weight checking at Halvad Railway Station. The said consignment reached Dibrugarh on 14.09.2014. The petitioner firm reached the station for taking delivery of the said goods and submitted the original Railway receipt and took the delivery. Although, at paragraph 5 of the writ petition, it has been alleged that while taking delivery it came to the notice of the petitioner that all the 42 wagons carrying the said consignment were seal defective condition without any seals and card labels and all the wagon doors were in open condition. But a perusal of Annexure-3 to the writ petition which is a communication issued by the proprietor of the petitioner to the Chief Goods Superintendant, NF Railway Dibrugarh does not disclose that all or any of the wagons were in seal defective condition without any seal card labels and all the wagon doors were in open condition. A reading of the said communication dated 14.09.2014 on the other hand shows that the proprietor of the petitioner informed the said Chief Goods Superintendant that the latter was aware of the release of the wagon and the detailed list of the wagon was attached. It was also mentioned that as per the Railway Rule in force, Page No.# 5/11 the petitioner wanted to put remark in the delivery book as salt is essential controlled commodity meant for PDS book in Govt. A/c and thereby requested to allow to remark in the delivery book. Even in the statement enclosed to the said communication dated 14.09.2014 there was no allegation as regards the seal defective condition without any seal and card labels and all wagon doors were in open condition.
6) It was only on 18.09.2014 that the petitioner wrote a communication to the Assistant Commercial Manager, NF Railway, after taking delivery of all the goods stating inter-alia that the salt consignment arrived at Dibrugarh on 14.09.2014 and the "the about Rake without card lable and wagon doors were lightly open". It was mentioned that the petitioner approached the Chief Goods Superintendent, Dibrugarh to remark in the delivery book but the said Officer refused to remark in the delivery book and in that regard made a reference to the communication dated 19.01.1991 issued by the CCO Maligaon. By the said letter, the petitioner requested the addressee to advice the Chief Goods Superintendent, Dibrugarh to remarks in the delivery books as regards the salt consignment.
7) Thereupon, the petitioner on 29.10.2014 issued a communication to the General Manager NF Railway raising claims in respect to 3209 packages amounting to Rs. 6,50,000/- and thereby requested the said General Manager, NF Railway to register the claim of the petitioner and on the basis of the said communication, it was submitted by the learned counsel for the petitioner during the course of hearing that a claim proceeding is pending in respect to their claims before the Railway Claims Page No.# 6/11 Tribunals bearing no. OA no. I/02/2017. It has also been mentioned by the learned counsel of the petitioner that the said claim application was filed in the year 2017 much after filing of the instant proceeding.
8) In reference to the communication dated 18.09.2014 a communication dated 22.10.2014 was sent by Divisional Commercial Manager of Tinsukia NF Railway making various queries from the petitioner. Relevant to take note of that in serial no. 11 of the said communication, it was mentioned that the consignor is not entitled to pass any remark in the goods delivery book and it is only the consignee or his endorsee is entitled to do so subject to fulfillment of the conditions and as such, sought clarification from petitioner as to why the demand for passing remark on the delivery book is coming from the consigner and instead of consignee.
9) Thereupon, the petitioner vide a communication dated 07.11.2014 replied to the said communication dated 22.10.2014. Relevant to note that against the query made at serial no. 11 as stated herein above, the petitioner stated as herein under:
Item no. 11 - That we grateful to Sri D. Thakuria, DCM, N.F. Railway, Tinsukia who appreciated and admitted and permitted us to record all delivery deficiencies in the delivery book of the destination station DBRG (Goods).
10) It is relevant however to mention that as regards the query made in serial no. 11 of the communication dated 22.10.2014, the petitioner stated that though the petitioner was permitted by the DCM Railway to record all delivery deficiencies in the delivery book of the destination station, but the Office of the CGS/Dibrugarh did not allow to record the Page No.# 7/11 delivery deficiencies in the delivery book and suggested and requested the petitioner to obtain the clear cut orders from the DCM NF Railway and higher up of the Railway Officials to CGS/Dibrugarh with the direction to permit recording of deficiency in the delivery book in terms of the IRCMVOL. II of 1992 Rule no. 1886. As such, the petitioner requested vide the said communication dated 07.11.2014 for passing appropriate directions to the CGS Dibrugarh goods for permitting to record of delivery deficiencies in the delivery book. Pursuant to the said communication dated 22.10.2014, as concerned respondent Railway authorities did not permit the petitioner to record the delivery deficiencies in the delivery book at the destination station, the petitioner has approached this Court under Article 226 of the Constitution.
11) The respondent nos. 1-5 filed an affidavit-in-opposition wherein, it was mentioned that from the delivery date and other particulars disclosed by the petitioner, it has come to light that the consignment was booked under the Railway Receipt No. 212003972 dated 05.09.2014 Ex Halvad to Dibrugarh and directly loaded from truck to wagon and as such, such loading was not supervised by the Railway Staff at the forwarding station. It was also mentioned that the consignee did not issue any memo to the concerned CGS/Dibrugarh regarding defects, in the seal and rivet of the wagons before unloading of the consignment.
12) Moreover, it was recorded in the unloading tally that all the above wagon bearing both side doors HVD/SRI (Sealed Rivet Intact) HVD to DBRG, Inv. no. 01 dated 05.09.2014 unloaded direct from wagon to truck by party. It was also mentioned that since the consignment was Page No.# 8/11 booked under the remark "said to contain" the question of supervision loading/unloading at the forwarding and destination station by the Railway Staff does not arrive and as such, it was not advisable to allow the party to put remark regarding any shortage of consignment.
Reference was made to the paragraph 1836 of the Commercial Manual, Volume-II, Chapter-III, which stipulates that the party cannot be allowed to put remark regarding actual shortage of consignment in the delivery book and while referring to the said paragraph 1836, it was contended that as such the petitioner was not allowed to put remarks to get short certificate against the consignment. Further that it was mentioned that Rule 1715 was not relevant.
13) At this stage, a circular dated 19.02.1991 enclosed as Annexure- VIII to the writ petition wherein it has been mentioned under what circumstances the issue of delivery certificate is to be permitted also needs to be taken into consideration. The relevant portion of the said circular is quoted herein below:
"In view of the above, issue of delivery certificate is not permissible in case of consignments booked under 'said to contain' R.R. and reached destination with seal intact wagons.
In other words, delivery certificate stating actual number of bags/packages delivered to consignee may be issued in respect of consignments booked under 'said to contain' R.R. and reached destination in wagons with seal defective condition, open wagons and wagons transshipped en-route keeping in view the provision contained in para 1836 of I.R.C.M. Vol.II."
14) From the above quoted portion of the circular it would reveal that the issue of delivery certificate is not permissible in cases of Page No.# 9/11 consignment booked under "said to contain" R.R. and reach destination with seal intact wagon. However, delivery certificates stating actual number of packages/delivered to consignee may be issued in respect to consignment booked under "said to contain" RR and reach destination in wagons with sealed defective condition, open wagons and wagons transshipped en-route keeping in view the provisions contained in para 1836 IRCM Vol.II.
15) From the above facts as enumerated herein above and reading the same along with Section 65 of the Railway Act 1989 and the Circular dated 19.02.1991, it would reveal that normally a railway receipt shall be prima facie evidence of the weight and the number of packages stated therein. However, in case of consignments in wagon load or train load and the weight of number of packages not checked by the railway servant authorized in that behalf and a statement to that effect is recorded in such railway receipt, the burden shifts upon the consigner, the consignee or the endorsee for proving the weight or as the case may be number of packages stated therein.
16) Reading the said proviso of Sub-Section 2 of the Section 65 with the Circular dated 19.02.1991 also makes it clear that the delivery certificate shall not be issued in case of consignments booked under 'said to contain' R.R. and reach destination with seal intact wagons. However, a delivery certificate may be issued stating the actual number of bags/packages delivered to the consignee even in respect of consignments booked under the 'said to contain" R.R. where the wagons reached the destination with sealed defective condition, open wagons Page No.# 10/11 and wagon transshipped en-route and not otherwise.
17) In the instant facts, it would be seen that on 14.09.2014, the wagons reached the destination i.e. Dibrugarh. There was no complaint whatsoever on the date on which the wagons were delivered and when the goods were taken delivery thereupon. It was only on 18.09.2014, a communication was issued stating that the Rake were without card lable and wagon doors were slightly open. The non-raising of the protest that the wagons were without card label and the wagon doors were slightly open on the date on which the wagons reached the destination and the delivery was taken, in the opinion of this Court this disentitles the petitioner to a delivery certificate in terms with the Circular dated 19.02.1991 in as much as the communication dated 18.09.2014 as well as the contents of para 5 of the writ petition as the same seems to be an after-thought. Further after taking delivery on 14.09.2014, the petitioner cannot be permitted to raise objections on 18.09.2014 as regards the condition of the wagon.
18) Consequently, the non-issuance of the delivery certificate by the respondent authorities in the instant case cannot be faulted upon and accordingly, the instant writ petition being devoid of any merits is liable to be dismissed. It would however be open to the petitioner to prove the number of packages loaded as well as packages received before the Claims Tribunal in respect to the claim proceedings pending in term with proviso to Sub-Section (2) of the Section 65.
Page No.# 11/11
19) With the above observations, the petition stands dismissed. No Costs.
JUDGE Comparing Assistant