Calcutta High Court (Appellete Side)
Nirma Limited & Anr vs The Union Of India & Ors on 11 April, 2019
IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:
The Hon'ble Chief Justice Thottathil B. Radhakrishnan And The Hon'ble Justice Biswanath Somadder MAT 711 of 2017 With CAN 4575 of 2017 With CAN 4576 of 2017 Nirma Limited & Anr.
Vs. The Union of India & Ors.
For the appellant/ : Mr. Shyamal Sarkar, Sr. Advocate, applicant Mr. Deepak Kumar Jain Heard on : 11th April, 2019 Judgment on : 11th April, 2019. Biswanath Somadder, J. :-
This appeal has been preferred against the judgment and order dated 23rd February, 2017, passed by a learned Single Judge in WP 2917 (W) of 2017 (Nirma Limited & Anr. vs. The Union of India & Ors.).
By the impugned judgment and order, the writ petition stood dismissed for reasons stated therein.
The instant appeal has been preferred by the writ petitioners. The issue before the learned Single Judge was in respect of certain demands raised by the railway authorities upon the appellants/writ petitioners 2 on the allegation of excess weight of the freight of the appellants/writ petitioners, without affording an opportunity to the appellants/writ petitioners to establish the correct weight of the consignment. The matter was heard at length in the presence of the railway authorities. The learned advocate for the railway authorities had relied on a Full Bench judgment of this Court, reported in 2015 (2) Calcutta High Court Notes, 156 (Union of India vs. Biswanath Agarwal), in order to submit that the railway receipt was prepared in the absence of an officer of the railways so far as the weighment is concerned at the originating station.
Under section 79 of the Railways Act, 1989, the appellants/writ petitioners did not make any request for re-weighment prior to discharge of the goods. The railway authorities had discharged the cargo at the destination station. It was submitted on behalf of the Railway authorities that in view of Biswanath Agarwal (supra), the appellants/writ petitioners was not entitled to any relief.
The learned Single Judge, thereafter, considered the applicability of the Full Bench decision of this Court in Biswanath Agarwal (supra), where various provisions of the Railways Act, 1989, including sections 65 and 79 were considered. The learned Single Judge took into consideration the observation of the Full Bench and was of the view that the onus to establish weight of the consignment was on the appellants/writ petitioners. The learned Single Judge also took note of the fact that in the instant case, the railway receipt disclosed showed that the railway did not check the goods by its officer at the point of origin. In transit, the rake was weighed and it was found that the cargo was over- weight. On the basis of such over-weight and other heads, the railway authorities 3 had made the demand, which was impugned before the writ Court. The appellant/writ petitioners did not ask for weighment before discharge of the cargo from the rake. The cargo had not been taken delivery by the appellants/writ petitioners and was lying at the railway yard.
The learned Single Judge, having taking note of the above facts and considering the views expressed by this High Court in Biswanath Agarwal's case (supra), came to the conclusion that the appellants/writ petitioners were not entitled to any relief and the demands raised by the railway authorities were valid.
The learned advocate representing the appellants/writ petitioners during the course of hearing of the matter referred to section 73 of the Railways Act, 1989, which is reproduced hereinbelow:-
"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."
A plain reading of the aforesaid provision of law reveals that this section concerns with imposition of punitive charges on a person who loads goods in a 4 wagon beyond its permissible carrying capacity. However, the issue in the facts of the instant case is quite different. This case appears to be centred around weighment of a consignment before its discharge. As such, the provisions of section 73 are not applicable in the facts of the instant case. Rather, the provisions of section 79 of the Railways Act, 1989 are squarely applicable. For convenience, section 79 is set out hereinbelow:-
"79. Weighment of consignment on request of the consignee or endorsee. - 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."
In such circumstances as stated above, we do not find any cogent and justifiable reason to interfere with the impugned order passed by the learned Single Judge. That apart in any event, in an Intra-Court Mandamus Appeal, interference is usually warranted only when palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts of the instant case, we do not find any such palpable infirmity or perversity on a plain reading of the impugned judgment and order 23rd February, 2019. 5
For reasons stated above, the appeal and the connected applications are liable to be dismissed and stand accordingly dismissed. (Biswanath Somadder, J.) (Thottathil B. Radhakrishnan, CJ.) sb