Madras High Court
Jayakrishna Flour Mills Pvt.Ltd vs The Chairman on 27 March, 2013
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.03.2013 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.No.2446 of 2008 and M.P.No.2 of 2008 Jayakrishna Flour Mills Pvt.Ltd., Rep. by its Director R.K.Mohan, No.62/3, Maravankulam, Madurai Road, Thirumangalam, Madurai, Madurai District .. Petitioner -vs- 1. The Chairman, Railway Board, Rail Bhavan, New Delhi. 2. The Railway Rates Tribunal, Rep. by its Secretary, RRB Campus, Dr.Crescent Cherian Road, Chennai-105. 3. The General Manager, Southern Railways, Chennai-3. 4. The Chief Commercial Manager, Southern Railways, Park Town, Chennai-3. 5. The Chief Goods Superintendent, Kudal Nagar Goods Shed, Southern Railway, Madurai. .. Respondents Prayer: Writ petition is filed under Article 226 of Constitution of India for issuance of a writ in the nature of Declaration, declaring that the Section 44 of the Railway Act, 1989 insofar as it restricts the power of the 2nd respondent to grant any relief anterior to the date of complaint is ultra vires, unconstitutional of the various provisions of the Constitution of India. For Petitioner : Mr.M.Sekar For R1 & R2 : Mr.M.Vellaisamy For R3 & R4 : Mr.T.S.Raja Mohan O R D E R
M/s. Jayakrishna Flour Mills Pvt.Limited / petitioner has approached this Court with the prayer for issuance of a writ in the nature of declaration to declare Section 44 of the Railways Act, 1989 to be ultra vires the Constitution of India.
2. M/s. Jayakrishna Flour Mills Pvt.Limited, a company registered under the Companies Act, is running a leading flour mill in Tamil Nadu. It commenced its commercial production in the year 1988. The petitioner procures quality wheat from Rajasthan, Uttarpradesh and Madyapradesh and transporting it to petitioners place through Railway wagons supplied by Railways.
3. The present annual volume of goods transported by the petitioner through Railways is not less than 90,00 Mts. In other words, an average of 36 rakes of train load (41 wagons) is used and paid for its service in advance. The petitioner pays the freight charges of approximately Rs.16,20,00,000/- (Rupees Sixteen Crores and Twenty Lakhs only).
4. The case of petitioner is that in the last 19 years, the petitioner has paid a sum of Rs.145,50,00,000/- (Rupees One Hundred Forty Five Crores and Fifty Lakhs only) as freight charges to the Railways. The petitioner also carries a very good reputation and has not defaulted any payment of any kind of tax so far to any authority. That the respondents have recently introduced a new devise for weighment of goods while on motion of train, which is known as electronic in motion weigh bridge. This device is promoted by two companies in India, i.e., Sanmar and Avery.
5. It is submitted, that because of failure of performance of the Sanmar devises in various places of the India Railways, the Company is not encouraged by the respondents, whereas the results of other companies, i.e. Avery are also quite discouraging not only to the potential railway users like the petitioner, but also to the Officers of Railways itself. That to rely upon such reading and to penalize rail users for over loading is not the right method, which the respondents are expected to adopt.
6. The case of petitioner is that the Railways do not have any weighing facility at Sri Ganga Nagar station, i.e., the loading point of wheat in the state of Rajasthan. Therefore, the weight declared by the sender is accepted and charged. According to the latest Railway Boards notification in force, the maximum limit up to which and the permissible carrying capacity has been revised from 60 to 61 tonnes with effect from 01.03.2007 in respect of BCN wagons while 63 tonnes is retained with in respect of BCNA wagons. The respondents in the recent past have been steadily increasing the carrying capacity of covered wagons after careful study of the loading pattern adopted by the parties in parameter with safety standards. The situation has reached where it is not possible to load any further excess of goods than maximum prescribed and the chances of overloading have been considerably decreased.
7. It is further case of petitioner, that on account of the faulty recording of the electronic in motion weight bridge at Chenglepet Railway Station, there was an unlawful levy of penal charges by the respondents against the petitioner during the months of May and June of 2004. The petitioner, being aggrieved filed W.P.Nos.15754, 15763, 15764 and 15765 of 2004 for interim direction for re-weighment of entire goods to find out physically, if there was any overloading. The writ petitions were allowed, but appeal filed against the judgment of the Honble Single Judge, was allowed. The detained goods were ordered to be released against the Bank Guarantee.
8. The Honble Division Bench of this Court remitted the matter to the Forum having jurisdiction to try these kinds of dispute under Section 36 of the Railways Act, 1989. The cases filed by petitioner have been now renumbered as Complaint Nos.4, 5, 6 and 7 of 2006.
9. It is submitted by the petitioner, that on 06.05.2007, a rake of wagons were booked and a trainload of wheat was dispatched from Sri Ganga Nagar Railway Station to Madurai Kudal Nagar goods shed. The Railway freight RR Nos. C929930, 931, 932 and 933 were obtained in which the actual charges for transportation of wheat of Madurai / Kudal Nagar were paid for Rs.45,60,800/- (Rupees Forty Five Lakhs Sixty Thousand and Eight Hundred only) in all for 2483 tonnes of wheat valued more than Rupees Three Crores.
10. It is also submitted, that wheat which is procured from the market and traders are required to be straight away taken to the Railway goods shed and loaded in wagons in uniform regular sized tight gunny bags each weighing hundred kilograms at their risk. The original invoices indicating the correct weight are also shown and accompanied with the consignment after payment of required tax. The goods arrived at the destination on 14.05.2007 and were cleared from wagons in nine hours of free time and were latter loaded in lorries with capacity of ten or fifteen tones each and taken to the petitioners premises almost in or about 200 lorry trips. These lorries are again weighed in Thiagarajan Automobiles weigh bridge near to the goods shed. These lorries are again weighed at the Mill premises at computerized electronic weigh bridge before being utilized for consumption.
11. It is further submitted, that the weights recorded in these lorries are compared with the weight given in the original invoice and the Railway receipts and the weight recorded at the Mill tallies with each other except a marginal difference. The whole transaction is verified at various stages for any loss or pilferage in transition for the satisfaction of petitioner.
12. The case of petitioner is that, as many as 190 weighment certificate for each lorry was obtained on 14th and 15th of May 2007 from the authorised weigh bridge operator, which recorded 2479 tonnes in all with a marginal variation (reduction) of four tones. The Mill weigh bridge has recorded 2478.540. That the petitioner was surprised to receive a communication dated 29.05.2007 from The Chief Goods Superintendent, intimating that there was reweighment of the subject consignment while crossing at Kalamboli Yard of Central Railway on 10.05.2007 and the same revealed an over loading of goods to an extent of 93.64 tonnes in 37 wagons, therefore, raised under charges to the tune of Rs.9,75,350/- (Rupees Nine Lakhs Seventy Five Thousand Three Hundred and Fiftuy only) as punitive charges. Aggrieved against this, the petitioner filed a complaint under Section 36 of the Act before the Railway Rates Tribunal vide C.No.8/07. Vide order dated 07.08.2007 in I.A.No.4 of 2007, an order of interim direction, restraining the respondent Nos.3 to 5 from taking coercive action to recover the punitive charges, was obtained. The order was renewed from time to time till 06.11.2007, when it was vacated by the learned Tribunal by holding that it did not have jurisdiction to give any relief in respect of levy of any unreasonable charges anterior to the date of filing of the complaint in view of the bar under Section 44 of the Railways Act, 1989.
13. Section 44 of the Railways Act reads as under:
44. Reliefs which the Tribunal may grant In the case of any complaint made under clause (b) or clause (c) of section 36, the Tribunal may-
(i) fix such rate or charge as it considers reasonable from any date as it may deem proper, not being a date earlier to the date of the filing of the complaint;
(ii) direct a refund of amount, if any, as being the excess of the rate or charge fixed by the Tribunal under clause (i).
14. The constitutional validity of Section 44 of the Railways Act, 1989, is challenged, on the ground;
i) that the demand of punitive charges after delivery of goods is belated, therefore, is violative of Section 73 of the Act, as no weighment could be taken behind back of the petitioner without production of weighment particulars;
ii) that the party cannot be penalized for the default of Railways in not providing weighing machine at any loading point, inspite of the fact, that their revenue is on the high side;
iii) that the electronic weigh bridge in motion is not a proven and a successful devise, as it gives contrary report. Therefore, in case of challenge, an opportunity should be given to the party to cross check the correctness of the same by subjecting the consignment for reweighment by any other proven means, which the administration is shy of.
15. The case of petitioner is that, the respondents have reserved the rights to itself under Section 78, which is discriminatory and violative of Article 14 of the Constitution of India.
16. That Section 36 is a provision, enabling the complainant to file complaint for contravention of Section 70, which prohibits undue preference the levy of any charge for carriage of any commodity between two stations at a rate which is unreasonable and also against levying of any other charges, which is unreasonable, therefore, the remedy is available under Section 36, which can be tried by RRT, but Section 44 prohibits RRT from granting any relief in a complaint from a date, which is anterior to it, that is to say, that it can grant relief prior to the date anterior to it.
17. It is submitted, that the petitioner cannot have any legal remedy for the wrong done to him in view of Section 44 of the Act. That Section 44 of the Act is against the intent of the legislation and is repugnant to Section 36 of the Act and that the legal right to remedy is indispensable and unfettered, therefore, Section 44, which deprives this provision is against the legal principle and maxim ubi jus ibi remedium.
18. It is also submitted, that levy of unlawful punitive charges and leaving an aggrieved person remedy less is against the tenor of the fundamental right to carry on any trade or business and therefore, the impugned provision is violative of Article 19(i)(g) of the Constitution of India.
19. Section 44 of the Act is also challenged being arbitrary, thus violative of Article 14 of the Constitution of India.
20. Therefore, it is prayed, that Section 44 to be declared as unconstitutional.
21. Learned counsel for the petitioner vehemently contended, that Section 36 gives right to a party to file complaint against wrongful claims, whereas Section 44 bars the remedy, being repugnant to each other, and renders the petitioner remediless.
22. Learned counsel for the petitioner also contended, that Section 44 is arbitrary, thus violative of Article 14 of the Constitution, as it has no nexus with the object sought to be achieved, as it has restricted the right of the Tribunal to remedy the wrong done to the party by providing remedy in the future and not for the wrong done.
23. The writ petition is opposed by the respondents by contending that the judgment passed by the Railway Rates Tribunal is in consonance with the law laid down by the Honble Supreme Court in the case of Upper Doap Sugar Mills Ltd. vs. S.S.L Railway Company Limited, AIR 1963 SC 217, holding therein that the Railway Rates Tribunal has no jurisdiction to give relief to the complainant for the period prior to the date of complaint, therefore, the impugned order does not call for any interference by this Court.
24. On the question of constitutional validity, the contention of the learned counsel for the respondents is that the learned Railway Rates Tribunal is constituted under Section 33 of the Railways Act, 1989 to discharge the functions under Chapter VII. Section 36 of the Railways Act, 1989 deals with the jurisdiction of the Tribunal to entertain the complaint in the following circumstances;
(a) The Administration is acting in contravening the provisions of Section 17 (OR)
(b) The Administration is charging for the carriage of any commodity between two stations at a rate which is unreasonable (OR)
(c) Levy any other charge which is unreasonable. Whereas Section 37 of the Railways Act, 1989 deals with the matter which are not within the jurisdiction of the Tribunal.
25. Section 44 of the Act deals with the relief, which may be granted by the learned Tribunal while dealing with the complaint under Section 36 Clause (b) or (c) and further gives power to the leaned Tribunal to fix rate or charge as it considers reasonable from the date, as it may deem proper, not earlier to the date of the filing of the complaint.
26. It is vehemently contended, by the learned counsel for the respondents, that the Tribunal, being creation of Statute, was bound by the terms of the statute. The complaint was with regard to the levy of penal charges for overloading earlier to the date of complaint, therefore, complaint was rightly held to be not maintainable.
27. The contention of learned counsel for the respondents was, that it was open to the petitioner to move appropriate forum or Court for seeking appropriate relief, as Section 44 does not bar the aggrieved parties to work out their remedies in accordance with law, therefore, its constitutional validity cannot be challenged on the ground that the learned Tribunal is not able to grant relief prior to the date of filing of the complaint.
28. It was also vehemently contended, that the levy of penal charges is governed by the statutory rules known as The Railways (Punitive Charges for Overloading of Wagons) Rules, 2007, framed in exercise of powers under Section 1 r/w Clause (9) of Sub-Section (2) of Section 87 of the Railways Act, 1989, therefore, these charges do not come under Clause (b) or (c) of Section 36 of the Railways Act, thus, the matter did not fall within the jurisdiction of the learned Tribunal.
29. It is submitted, that there is no jurisdiction with the learned Tribunal to interpret the penal charges levied under the rules to be reasonable or unreasonable, because under Section 36 of the Act, the complaint can only be made before the learned Tribunal for declaring the charges levied for carrying of commodity between two stations to be unreasonable. It is open to the learned Tribunal to issue such declaration, therefore, the complaint with regard to levy of charges prior to the date of the complaint was not contemplated under Section 36 of the Act.
30. Whereas levy of penal charges could be only related to the past event, i.e. overloading of wagons and the relief in such cases cannot be granted in view of the bar under Section 44 of the Act.
31. In support of the contention, that it is not open to the learned Tribunal to grant relief prior to the date of making of complaint, reliance is placed by the learned counsel for the respondents on the judgments of this Court in Southern Railways and another vs. The Railway Rates Tribunal and others, AIR 1955 Madras 476, Hindustan Materials, Bombay vs. Railway Rates Tribunal, Madras, AIR 1958 Madras 47, Shree Bajrang Jute Mills Ltd., vs. Railway Rates Tribunal, AIR 1962 Madras 218 and The Union of India vs. The Railway Rates Tribunal, Madras and another, AIR 1975 Madras 28.
32. The contention of the learned counsel for the respondents was that constitutional validity of the provisions cannot be challenged, unless there is a clear violation of constitutional provisions, as there is presumption in favour of the constitutionality of the statute as well as delegated legislation.
33. In support of this contention, reliance was placed by the learned counsel for the respondents, on the judgment of the Honble Supreme Court in Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat and others, (2008) 5 SCC 33, laying down, that the Court should exercise judicial restraint while judging the constitutional validity of statute or constitutional validity of delegated legislation, as presumption of constitutionality applies in favour of both statute law as well as delegated legislation and the statute or delegated legislation can only be declared unconstitutional in case of clear violation of the provisions of the Constitution or of the parent statute, in the case of delegated legislation.
34. Reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of Government of Andhra Pradesh and others vs. P.Laxmi Devi, (2008) 4 SCC 720, wherein, the Hon'ble Supreme Court was pleased to lay down, that likelihood of abuse of discretionary power conferred under statute does not render the statutory provision as unconstitutional, as there is always a difference between a Statute and the action taken under a Statute. In that event, though the Statute may be held to be valid and constitutional, action taken thereunder can be said to be invalid.
35. It was further laid down in this judgment, that hardship to a party is not relevant in determining the constitutional validity of taxing statutes.
36. On consideration, I find, that this writ petition is devoid of any merit. Learned counsel for the respondents was right in contending, that the impugned order does not call for any interference by this Court, as the judgment of the learned Railway Rates Tribunal is based on the judgment of the Hon'able Supreme Court in the case of Upper Doap Sugar Mills Ltd. vs. S.S.L Railway Company Limited (supra) holding that the Railway Rates Tribunal has no jurisdiction to give relief to the complainant for period prior to the date of complaint.
37. Otherwise also, it is well settled law, that a Tribunal, which is creation of Statute, is bound by the provisions of the statute and cannot go against the provisions thereof, nor it can go into the constitutional validity of the provisions of the Statute, therefore, no fault can be found with the order, declining the claim of petitioner in view of Section 44 of the Act.
38. The contention of the learned counsel for the petitioner, that Section 44 of the Act, is unconstitutional, being arbitrary and inconsistent with Section 36, as also devoid of any merit. It may be noticed, that the complaint under Section 36 of the Railways Act, 1989, can only be filed if there is contravention of the provisions of Section 70 of the Railways Act, 1989. Section 70 of the Act prohibits undue preference.
39. The railway administration is barred from giving unreasonable preference or advantage to or in favour of any particular person or any particular description of traffic in the carriage of goods. It is not the case of petitioner, that any such preference has been given or that the petitioner is aggrieved by any such decision of the Railway administration.
40. Similarly, under Section 36 (b), the complaint can be made for charging for the carriage of any commodity between two stations at a rate, which is unreasonable. This again is not the case of petitioner, as the petitioner has no grievance with the rate of carriage fixed by the Railways, but is aggrieved by the imposition of penalty and additional charges for overloading.
41. The case of petitioner if at all only falls under Section 36(c) of the Act, the Central Government has been authorized by notification to make rules for the purpose of this chapter. It also provides to frame rules with regard to the right of penal charges to be imposed under Section 73, therefore, it was open to the petitioner to challenge the fixation of charges under the rules, but the case of petitioner is not that the rules are unreasonably fixed, but the challenge is to imposition of penalty on disputed facts.
42. The authority with the learned Tribunal is only to go into the question of reasonableness of authorities in framing the rules and not an act of imposing penalty.
43. Therefore, remedy with the petitioner was to challenge the particular act of the respondents in passing of order to be in contravention of any provisions of law, or being illegal before any other authority, as it is not open to challenge such order before the learned Tribunal.
44. Merely because Section 44 bars the remedy qua the past, cannot be the ground to declare it to be unconstitutional, as it is always open to a party to avail any other remedy available under law or in the alternative to invoke the writ jurisdiction of this Court, but this cannot be the ground to declare the provisions of statute to be invalid, merely because a particular remedy is not available before the learned Tribunal constituted to deal with the limited questions under Section 36 of the Act.
45. The contention, that the provision is unreasonable or has resulted in hardship to the petitioner in taking away its remedy to challenge the penalty, cannot be the ground to challenge the constitutional validity, in view of the law laid down by the Hon'ble Supreme Court in the case of Andhra Pradesh and others vs. P.Laxmi Devi, (supra).
46. No merit. Dismissed.
47. No costs. Connected miscellaneous petition is closed.
ar