Gauhati High Court
Page No.# 1/12 vs Union Of India on 6 May, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/12
GAHC010193062013
2025:GAU-AS:5630
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MFA/110/2013
M/S. UNIQUE COAL TRADERS
RAM KUMAR PLAZA MARKET, CHATRIARI, GUWAHATI, ASSAM, PIN
781001
VERSUS
UNION OF INDIA
REPRESENTED BY THE GENERAL MANAGER, N.F RAILWAY MALIGAON,
GUWAHATI, ASSAM, PIN 781011
Advocate for the Petitioner : MR.K P MAHESWARI, MR.B MAHESHWARI,MR.A GOYAL
Advocate for the Respondent : MSK KALITA, MS.M CHATTERJEE,MS.M PHUKAN,MS.U
CHAKRABORTY,SC, NF RLY BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI JUDGMENT & ORDER (CAV) Date : 06-05-2025 Heard Mr. D. Rathi, learned counsel for the appellant. Also heard Ms. U. Chakraborty, learned standing counsel for Respondent Railways.
Page No.# 2/12
2. The claimant as appellant has preferred this appeal u/s 23 of the Railway Claims Tribunal Act, 1987 against the judgment and order passed by the Railway Claims Tribunal, Guwahati Bench dated 20.03.2013 in Claim Application No.243/2005.
3. The case of the appellant/claimant is that the appellant is a firm under the name & style M/s Unique Coal Traders, having its permanent office at Ram Kumar Plaza Market, Chatribari, Guwahati, Assam and is engaged in the business of coal. The appellant approached the learned Tribunal as an applicant for refund of Rs.50,494/- on account of shortage of goods. The claim of the applicant in the learned Tribunal was that the respondent had charged freight for 2466.1 MT of coal instead of 2404.4 MT of coal in a transaction of Train Load Consignment from Jogighopa to Sealdah under Invoice No.28 to 54 vide Railway Receipt No.743687 to 743713 dated 16.03.2003.
4. The goods entrusted to the Railways for transportation at the time of booking were 2404.4 MT of coal but the respondent had realized punitive charges for overloading at the booking station itself without giving a hearing opportunity to the appellant. In addition to that, the appellant was also not allowed or asked to adjust the excess goods if any at the booking station itself in accordance with Section 73 of the Railways Act, 1989 and Rule 3 of the Railways (Punitive Charges for Overloading of Wagon) Rules 2007. Such an action of the respondent was in violation of the said rules and law and against the principles of natural justice.
5. It was urged by the learned counsel for the appellant that the learned Tribunal has failed to make a note of the claim of the appellant that the respondent has wrongly charged the freight for 2466.1 MT of coal instead of 2404.4 MT of coal in a transaction of Train Load Consignment. The consignment Page No.# 3/12 was weighed and at the booking station itself, the appellant was forced to pay the punitive charge which was not at all warranted in the present circumstance as a hearing opportunity was not allowed to the appellant. Such an act of the respondent is in violation of the principles of natural justice and also is in violation of the law as laid down by this Court in W.A No.333/2010 [Megha Technical and Engineers (Pvt.) Ltd. Vs. Union of India and others.]
6. Further submission of the learned counsel for the appellant is that the learned Tribunal has failed to observe that the appellant ought to have been given a chance to adjust the overload goods if any in terms of Section 73 of the Railways Act, 1989 and Rule 3 of Railways (Punitive Charges For Overloading of Wagon) Rules 2007. As such, the impugned judgment and order dated 20.03.2013 is liable to be set aside.
In support of his submission, learned counsel for the appellant has relied on the following case laws -
a) (2023) SCC Online SC 1140 ( Union Territory of Ladakh and others Vs. Jammu and Kashmir National Conference and another)
b) MFA 31/2012 (Union of India Vs. M/s Fuel Sources India Pvt. Ltd.)
c) MFA 32/2013 (Union of India Vs. M/s Unique Coal Traders)
7. Per contra, learned standing counsel, Railways, has submitted that railway can levy penalty in exercise of powers given u/s 73 of Indian Railways Act. The power is available with the railway to get the goods reweighed at any point mentioned in the proviso to Section 73 and can even unload the goods from the wagon.
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8. The stand of the respondents is that the right of the Railways to levy punitive charges for overloading of wagons is covered by the provisions of Section 73 of the Railways Act, 1989 and if any such overloading beyond permissible weight is found the 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 only before the delivery of the goods and not thereafter.
9. Learned counsel also relies upon the provision of Section 79 of the Railways Act which, according to her, gives a right to the consignor consignee or endorsee to have the consignment weighed on payment of necessary charges which could not be availed of by the appellant as no weighment was made at the time of delivery of the goods and had thereafter become impossible for availing the opportunity by the appellant.
10. It is urged that under Section 65 of the Act if the consignment has not been checked at the time of loading with respect to weight by the railway administration then the burden of proving the weight shall lie on the consignor, the consignee or the endorsee.
11. It is further submitted that under Section 73 of the Act, the railway administration has an authority to recover punitive charges by way of a penalty in case the goods have been loaded by a person in a wagon beyond the permissible capacity as has been laid down in terms of the provisions of Section 72 of the Act.
12. It is also the stand that the appellant had not made any request under Section 79 of the Act for reweighment of goods and thus no benefit can accrue to the appellant on that account.
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13. Learned counsel submits that under Section 78 of the Act, the authorities of the Railways have a right before delivery of the consignment to re-measure, re- weigh or re-classify any consignment and re-calculate the freight and other charges and correct any other error or collect any amount that may have been omitted to be charged and thus, the weighment of the goods during the course of transit is in accordance with the provisions of the Act and the Railways would have every right to recover the charges on account of such overloading.
14. Learned counsel for the Railways further contends that apart from the right to lien the Railways also have the right to recover under Section 86 of the Act any freight, charge, amount or other expenses due to it and thus the action of the Railways is in accordance with the Railways Act.
Learned counsel for the respondents has referred the following cases -
a) (1995) 5 GLT 464 (Union of India Vs. Hasija Coal Traders )
b) (1995) 3 GLT 548 (Union of India Vs. M/s Salt Marketing Centre)
c) MFA 4/2013 (Union of India Vs. M/s Kavita Salt Suppliers)
15. Having heard the learned counsel for the parties, the question to be decided whether it is required as per provisions of the Railways Act that the appellant be heard before charging of excess loads while delivering the goods to the appellant.
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16. In this regard, it would be useful to quote the provisions of Sections 73 and 78 of the Railways Act, which are as follows -
"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.
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 Page No.# 7/12 that may have been omitted to be charged."
17. Section 73 clearly provides that the punitive charge for overloading a wagon may be recovered by way of penalty "before the delivery of the goods". Similarly, Section 78 provides a power to railway administration to re-measure, re-weigh or re-classify any consignment or re-calculate the freight and other charges and correct any other error or collect any amount that may have been omitted to be charged "before delivery of the consignment". The use of the words "before delivery of the goods" or "before delivery of the consignment" in the Sections has in my view a deep relevance. If any such demand is raised by the railway administration before the delivery of the goods, it would be open to the consignor, the consignee or the endorsee, as the case may be, to seek reweighment in terms of Section 79 of the Act to prove to the railway authorities that there has been no such overloading as has been alleged. If such demand is not raised before the delivery of the goods and the goods are delivered keeping the consignor, etc. completely in the dark about the goods having been reweighed during the transit and excess load having been found then after the delivery of the goods, it will not at all be possible for the consignor, consignee or the endorsee to prove to the railway administration that as a matter of fact there was no overloading. In such circumstances, it becomes totally a case of one party making a claim and treating the same as final without any real or effective right to the other party, i.e., the consignor or consignee or the endorsee, to disprove the claim by getting reweighed the same.
18. The Jharkhand High Court in the case of Jyoti Enterprises Vs. Union of India and others (AIR 2003 48), has pointed out that the various Railway Commercial Manual which provide for the railway administration to make surprise checks as also reweigh the goods. It has also taken note of the fact Page No.# 8/12 that if there has been such reweighment and excess load has been detected, in that case, the communication should have sent telephonically to the destination station which was not made in the case of Jyoti Enterprises (supra). But here in this case, the position is something different. The consignment was weighed at the booking station itself and the appellant was forced to pay the punitive charge as alleged before the delivery of the goods. The only allegation here in this case is that the appellant was forced to pay the punitive charge which was not at all warranted in the present circumstances as a hearing opportunity was not allowed to the appellant which is in violation of the principle of natural justice.
19. What is essential to note is that there can be no dispute that Railway Administration do have the power u/s 78 of the said Act to reweigh any consignment before delivery of the consignment. This power has overriding effect on all relevant provisions of the Act is clear from the very language of the Section 78, which I have already mentioned as above.
20. The use of the expression "notwithstanding anything contained in the receipt," occurring in Section 78, makes it amply clear that whatever weight might have been mentioned in a RR (Railway Receipt), the railways have the discretion to reweigh the consignment en route or at the destination before giving delivery of the consignment to the consignee or endorsee.
21. The railways have special powers under Section 78 of the Indian Railways Act, 1989 to, inter alia, re-weigh or re-measure any consignment before delivery of the same cannot be disputed and is not, in fact, seriously disputed in the light of the language employed by Section 78. The railways in exercise of their powers under Section 73 of the said Act can impose penalty in case of overloading of wagon is also not disputable and is not, in fact, disputed, in the Page No.# 9/12 present case, at the time of hearing. The submission of Ms. Chakraborty to the extent, therefore, that the said Act provides for re-weighment of consignment en-route by the railways before delivery thereof to the consignor, consignee and endorsee or if a wagon is found to be overloaded, punitive charges, can be imposed by the railways is found to be correct.
22. In the case of Hasija Coal Traders (AIR 1995 Gauhati 113), the Court has clearly laid down that the railways have the powers under Section 73 to impose penalty if the consignor has violated the provisions of the said Act or Rules made thereunder.
23. Coupled with the above, the submission of Ms. Chakraborty that before re- weighment is done under Section 78, no notice or intimation is required to be given to the consignee or endorsee is found to be correct.
24. In the case of Raghu Forwarding Agency (AIR 2000 Gauhati 27), it was held that no notice is required to be served on the consignee, consignor or endorsee before re-weighment is done by the railways under Section 78. In this regard, the following observations of the Court in Raghu Forwarding Agency (supra) are as follows -
"A bare reading of Section 73 quoted above would show that no notice is required to be given to the consignor, the consignee or the endorsee before making any weighment of a wagon has been loaded beyond its permissible carrying capacity for the purpose of levying punitive charges for overloading of wagon...... On an interpretation of Section 73 of the Act, 1989, the Supreme Court in Jagjit Cotton Textile Mills v. Chief Page No.# 10/12 Commercial Superintendent, Northern Railway (supra), AIR 1998 SC 1959 held that one of the purposes of the aforesaid Section 73 was to see that the gross weight at the axles was not unduly heavy so that accidents on account of the axles breaking down could be prevented. An emergency power has therefore been vested in the railway administration to unload the goods loaded beyond the capacity of the wagon as soon as it is detected and by implication therefore Section 73 has ruled out the requirement of issuing any notice to the consignor, the consignee or the endorsee before weighment of wagon carrying the goods. Again, treading of Section 78 of the Act 1989 quoted above would show that the railway administration has been vested with the right to re-weigh any consignment and there is no stipulation in Section 78 that such re- weighment has to be made after giving notice to the consignor, consignee or the endorsee or in presence of such party. Thus, there is no provision either in Section 73 or Section 78 of the Act 1989 for weighment of goods enroute in presence of a party. No other provision of the Act 1989 or the Rules made thereunder or any Executive instruction has been brought to the notice of the Court to show that weighment can be made by the railway administration en-route only after serving a notice on a party or in presence of such Page No.# 11/12 party."
25. To the extent, therefore, that Raghu Forwarding Agency (supra) upholds the powers of the railways to re-weigh consignment en-route without notice to, or in the absence of the consignor, consignee or endorsee.
26. Reverting to the case in hand, as per record of the Tribunal, the total penal charges levied was Rs.15,596/-. But the appellant came with a case that Rs.50,494/- was realized from the appellant as punitive charges. Ext.A(1) shows that the punitive charges was for the weight of the goods carried in the railway wagon.
27. As per judgment of the Tribunal, on the issue, is reproduced in para 14 as follows -
" 14. Person alleging denial of justice shall not be a party to deny justice. In this case if the applicant's case that the weigh bridge at the station where the goods were booked was faulty was with merit, the applicant ought to have requested for reweighment. It ought not to have entered the entry pertaining to weight in the forwarding notes. In case of any complaint against the true value of the weighbridge, the applicant ought to have applied for reweighment, for weighment was done in its presence. This is a case where Latin maxim "Ex dolo malo non oritur actio" meaning no action can have its origin in fraud, is applicable. Conduct of the applicant is making the allegation after removing the goods and all traces of evidence is treachery and no court will aid a litigant who Page No.# 12/12 does so. No one can be allowed to take benefit of his own wrong. This is such a case."
Accordingly, the learned Tribunal dismissed the case of the appellant.
28. In view of the aforesaid discussion, this Court is of the view that the appellant has not come with clean hands. The record reveals that the Railways realized Rs.15,596/- from the appellant as excess charge, which the appellant paid before delivery of goods. At that time, the appellant did not raise any objection that hearing is required on payment of such excess amount. However, the appellant subsequently came with a case that Rs.50,494/- was realized from the appellant as punitive charges which is palpably wrong.
29. Situated thus, this Court does not find any merit to interfere with the observation of the learned Tribunal.
30. Accordingly, the appeal is dismissed. There shall be no order as to costs.
31. Transmit records to the Tribunal.
JUDGE Comparing Assistant