Rajasthan High Court - Jaipur
Straw Products Ltd. And Anr. vs Union Of India (Uoi) And Ors. on 1 February, 1995
Equivalent citations: AIR1995RAJ193, 1995(2)WLC720, 1995(1)WLN226
Author: P.K. Palli
Bench: P.K. Palli
JUDGMENT P.K. Palli, J.
1. All these writ petitions involve common questions of law and further raise common questions of facts and hence these are proposed to be disposed of by a common order.
2. The facts are taken from D.B. Civil Writ Petition No. 3894/1988 : Straw Products Ltd. and Anr. v. Union of India and Ors. It is said in the petition that the petitioner is carrying on the business of manufacturing and selling cement and for running the business the coal is required for manufacturing purposes. The requirement is decided by the Coal Linkage Committee comprising of the Railway Officials and Officials of the Collieries, Officials from the Ministry of Coal and Officers of the Development Commissioner for Cement Industries, Government of India. The quota is decided in the said Committee where after the coal is purchased from M/s. Coal India Limited or from its subsidiaries as per quota sanctioned by the Committee.
3. The said coal is transported through the Railway wagons from the Collieries and the loading is done under the supervision of the Railway authorities and the petitioner has nothing to do with the same. The wagons are loaded by the Coal India Ltd. and the Railway authorities are required to see that the coal is loaded only to the extent of carrying capacity. It is next stated that weigh bridges are in the control of the Railway department and the wagons are weighed there. If the quantity is found in excess, the Railways are empowered to unload the excess weight, since the petitioner has no control over the weigh bridges. Under Section 47 of the Indian Railways Act, 1890 that rule making power is given to the Central Government and under Clause (8) the Central Government is to make rules for regulating the terms and conditions on which the Railway administration shall carry goods from one place to another. It is under this power that the rules have been published in the Goods Tariff No. 37, Part I. These rules have the statutory force. Section 54 of the Act empowers the Railway administration to impose conditions for receiving, forwarding and delivering of the goods in such manner that these are not inconsistent with the Act and the Rules framed thereunder. For facility of reference, Sections 53 and 54 of the Act are reproduced hereunder :
"53. Maximum carrying capacity for wagons:--
(1) The gross weight of every wagon or truck bearing on the axles when the wagon or truck loaded to its maximum carrying capacity shall not exceed such limit as may be fixed by the Central Government for the class of axle under the wagon or truck.
(2) Subject to the limit fixed under Sub-section (1) every Railway administration shall determine the normal carrying capacity for every wagon or truck in its possession and shall exhibit the words and figures representing the normal carrying capacity so determined in conspicuous manner on the outside of every such wagon or truck.
(3) Every person owning a wagon or truck which passes over a railway shall similarly determine and exhibit the normal carrying capacity for the wagon or truck.
(4) Notwithstanding anything contained in Sub-section (2) or Sub-section (3), where a railway administration thinks it necessary or expedient so to do in respect of any wagon or truck carrying any specified class of goods or any class of wagons or trucks of any specified type, it may, by notification, vary the normal carrying capacity for such wagon or truck or such class of wagons or trucks and, subject to such conditions as it may think fit to impose, determine for the same such carrying capacity as may be specified in the notification and it shall not be necessary to exhibit the words and figures representing the carrying capacity so determined on the outside of such wagon or truck or class of wagons or trucks :
Provided that in no case the gross weight of such wagon or truck or such class of wagons or trucks shall exceed the limit fixed under Sub-section (1) for the class of axle under the wagon or truck."
54. Power for Railway administration to impose conditions for working traffic :--
(1) Subject to the control of the Central Government the Railway administration may impose conditions, not inconsistent with this Act or with any general rule thereunder, with respect to the receiving, forwarding or delivering of any animals or goods.
(2) The Railway administration shall keep at each station on its railway a copy of the conditions for the time being in force under Sub-section (1) at the station, and shall allow any person to inspect it free of charge at all reasonable times.
(3) A railway administration shall not be bound to carry any animal suffering from any infectious or contagious disorder.
4. Next comes Rule 161 of the Goods Tariff No. 37, Part I, Volume I and this rule is reproduced hereunder:--
"161. Carrying capacity of a wagon not to be exceeded consignors in loading are required not to exceed the marked carrying capacity of wagon used or any reduced carrying capacity that may be required in the circumstances referred to in the Rule 163 should over-weight be discovered, charges, therefore, will be levied as under :--
(1) Discovery en route and excess weight removed and delivered at the point of detection for the distance from the booking station to the point of detection.
(2) Discovered en route excess weight removed and sent separately. The over-weight will be charged on for "Small" for the whole distance i.e. from the booking to the destination. When, however, owing to the nature of the goods, an entire wagon has to be used for the carriage of such over-weight, the charge will be made on a minimum of 60 quintal for four wheeled Broad Gauge Wagon and 35 quintals for meter or narrow-guage wagons rates applicable to "Small" for the entire distance. The prior instructions of the consignors should be obtained for the disposal of the excess weight removed from the wagon.
(3) Discovered at destination or en route but weight not removed -- The over-weight will be charged at the same rate proportionately as for the rest of the consignment."
5. According to the petitioner, sometimes the coal is loaded without weighing and the freight is charged as per carrying capacity of the wagons and in case there is over-weight the same is charged proportionately for the rest of the consignment. The petitioner cannot be held responsible for the excess weight as the petitioner at no point of time had in hand in the excess load. Rule 161 reproduced above was amended and a new Rule 161A was added. The amended rule and the added rule are reproduced hereunder:--
"161. Penalty for loading commodities other than those tendered in loose condition beyond permissible carrying capacity other than BOX wagons -- Consignors, in loading, are required not to exceed the permissible carrying capacity of the wagon used or any reduced carrying capacity that may be required in the circumstances referred to the Rule 163. Should over-weight be discovered en route or at the destination charges therefor will be levied as under:--
(1) If the over-weight above the permissible carrying capacity of the wagon is one tonne or less in a 4-wheeled/6 wheeled wagon and two tonries or less in a 8-wheeled wagon, such over-weight will be charged at the "Smalls" rate applicable to the same commodity for the distance such over-weight is carried.
(2) If the over-weight exceeds the limit mentioned in (1) above, entire over-weight will be charged at double the highest class rate (viz. Class 300) for the distance such overweight is carried."
"161A. -- Charge for loading commodities in loose condition beyond the permissible carrying capacity of the wagon -- While loading commodities in loose, consignors must not exceed the permissible carrying capacity of the wagon used or any reduced carrying capacity that may be required in the circumstances referred to in Rule 163. Should over-weight be discovered, such over-weight beyond the permissible carrying capacity of the wagon used will, notwithstanding anything contained in this Tariff or in any other rule or instructions be charged as under from the forwarding station to the destination:--
(a) When detected at the time of booking -- If the over-weight above the permissible carrying capacity is up to one tonne or less in the case of a 4-wheeled/6 wheeled wagon and two tonnes or less in the case of an eight wheeled wagon (including BOX wagons) such over-weight, will be charged at the normal trainload, wagonload rate as the case may be, applicable to the commodity. Any overweight beyond these limits (i.e. the weight which exceeds permissible carrying capacity plus one tonne in the case of (a) four or six wheeler, and two tonnes in the case of an eight wheeler) will be charged at the "Smalls" rate applicable to the commodity.
(b) When detected en route or at the destination.-
(1) if the over-weight above the permissible carrying capacity is one tonne or less in the case of a 4-wheeled/ 6 wheeled Wagon and two tonnes or less in the case of an eight wheeled wagon (including BOX wagons), such overweight will be charged at the normal train-load/wagonload, rate, as the case may be, applicable to the commodity.
(2) if the over-weight beyond the permissible carrying capacity exceeds one tonne but does not exceed two tonnes in the case of a four-wheeled/6-wheeled wagon or exceeds two tonnes but does not exceed three tonnes in the case of an eight-wheeled wagon (including BOX wagon), the charges will be levied at the following rates:--
Normal trainload/wagonload rate on the weight of permissible carrying capacity plus one tonne in the case of a four/six wheeled wagon and two tonnes in the case of an eight-wheeled wagon.
Smalls rate on the weight beyond the limit mentioned above.
(3) if the over-weight beyond the permissible carrying capacity exceeds two tonnes in the case of four-wheeled/six wheeled wagon or exceeds three tonnes in the case of an eight wheeled wagon (including BOX wagons), the charges will be levied at the following rates:--
Normal trainload/wagonload rate on the weight of permissible carrying capacity plus one tonne in the case of a four/six wheeled wagon and two tonnes in the case of an eight-wheeled wagon.
Double the "Smalls" rate on the weight beyond the limit mentioned above."
6. It is further stated that the Rule 161A was amended vide the Circular No. 44 of 1984 and again vide the Circular No. 73 of 1984 with effect from 1-8-1984. Both these circulars have been placed as Annexs. 1 and 2 respectively.
7. It is said that sometimes the coal is loaded less in quantity and sometimes the quantity exceeds the permissible carrying capacity and it involves penal charges for which the authorities are victimising the petitioners. The challenge is also made to the directions whereby the carrying of the coal is found beyond the permissible capacity. The Commercial Superintendent has issued directions to charge penalty on over-loaded and these directions are reproduced hereunder:--
"(I) Wherever weight is one tonne or less per wagon, such over-weight should be charged at the wagon load rate applicable to the commodity.
(II) If the over-weight exceeds one tonne but does not exceed two tonnes per wagon such over-weight should be charged at the "Smalls" rate applicable for the commodity from the forwarding station to the destination stations.
(III) If the over-weight exceeds the above limits such over-weight should be charged at the double the "Smalls" rate applicable for the commodity."
The aforesaid directions have been slightly modified by the circular dated 20-3-1987. This circular has been placed as Annex. 3. Challenge has been made mainly to the Rule 161 where penalty is to be levied for loading the coal beyond the carrying capacity and the carrying capacity is also specified in the rules. Rule 701(5) lays down the provision for loading and charging in the absence of weighing facilities. It is said that the imposition of penal rates as per quality of the coal carried out by the administration wherein the petitioners at no point of time have nothing to do nor it is under their control and thus, how could the petitioners be penalised for an act over which he has no control.
8. Opening the arguments on behalf of the petitioners, the learned counsel, Mr. D.S. Shishodia, argues that the Legislature casts a duty upon the railways to observe compliance of the rules on the subject and the subordinate rule making authority instead of discharging their duties as enjoined upon them under the provisions of the Act has placed the burden on the cosnignor, therefore, the said action is ultra vires and contrary to the provisions of the Act. Learned counsel further proceeds that the consignor has no access to detect whether the wagons have been loaded as per capacity or any excess load has been put or the weight is less. Since weighing and loading are done at the site by the Railways itself prior to the commencement of the journey and the railway authorities are expected to know the actual load contained in the wagon and if it is found that the same is being carried beyond the permissible limit then the petitioner can be asked to unload the excess weight of the commodity and, therefore, the charging of penal rates is not only arbitrary but wholly unreasonable and beyond the provisions of the Act and the Rules framed thereunder. Rule 161, therefore, argues that learned counsel, has to be struck down being unreasonable and arbitrary. Challenge has also been made to the circular issued by the Chief Commercial Superintendent (Claims) which has been placed as Annx. 5 and it is argued that the said Officer has no jurisdiction to issue such a circular and it is beyond his powers.
9. In reply, the learned counsel appearing for the respondents, Mr. K.N. Joshi, urges that the points raised in all these petitions stand squarely covered by the three decisions on the points given by the Jammu and Kashmir High Court, Allahabad High Court and Calcutta High Court. The judgment of the Jammu and Kashmir High Court was rendered in Darshan Kumar and etc. v. Union of India, (AIR 1988 J & K 28) and the judgment of the Allahabad High Court was rendered in Civil Misc. Writ Petition No. 394 of 1985 decided by the Hon'ble Division Bench of the Allahabad High Court on 7-2-1992 and a number of writ petitions involving these questions have been disposed of by a common order. The judgment rendered by the Calcutta High Court which is a single Bench judgment was given in Civil Rule No. 19/171 (W) of 1984, Ballarpur Industries Ltd. v. Union of India decided on 2-12-1988.
10. In the judgment given by the Hon'ble Division Bench of the Jammu and Kashmir High Court, it was held that the attack, on the vires of Rule 161A was not justiciable as disputed questions of facts were involved into the controversy as to the over-loading and imposition of penalties and the High Court in writ jurisdiction would not enter into the controversy on the disputed questions of facts in respect of over-loading and imposition of the penalty. It was further held that incorporating of the provision in respect of penalties was in fact meant to restrict the overloading and its violation. All that provision which has been made penal and in no way it can be said to be aban or restriction on the movement. It was also observed that the coal merchants while engaging the coal wagons enter into a contract accepting the goods tariff as part of the contract and it looses its statutory character and cannot be assailed on the ground that any such condition is ultra vires of the provisions of the Constitution of India. After weighing the contentions and viewing it from all angles the petitions were dismissed and itwas laid down that the provisions were neither unequitable nor arbitrary.
11. In the decision given by the High Court of Allahabad, it was held that there was no conflict between Rule 161A and the provisions contained in Sections 53 and 54 of the Indian Railways Act. The inconsistency sought to be demonstrated was not there. The learned Judges further observed that the instructions against overloading were obviously aimed and designed for the reasons of safety and Rule 161A was designed to achieve the object of prohibition against excess loading and ensure safety as would be evident from the existence of stipulation in the rule with regard to penalty for violation of prohibition against the loading of a wagon beyond its carrying capacity. The learned Judges further noticed that the Act has been repealed in its entirety by Section 200 of the Railways Act, 1989 which came into operation with effect from 1-7-1990 in the Indian Railways Act of 189Q and Section 53 whereof is being attacked by the petitioners no longer exist on the statute book and as such Rule 161A under reference cannot be held to be inconsistent or in conflict with Section 53 of the aforesaid Act after 1-7-1990, the date of enforcement of the Indian Railways Act, 1989.
12. We have also carefully and minutely perused the judgment given by the Calcutta High Court and the learned Judge has exhaustively dealt with each and every point which has been raised in these writ petitions. The petitions and the points raised here are totally identical with the points raised, debated and dealt with in the judgment of the Calcutta High Court. After taking into account the relevant provisions of the Act and the Rules and after hearing the learned counsel for the parties appearing in that case it was held as under:--
"that the first gap was given at the time of excess load and the second gap was given and if there is propensity to increase overloading beyond the permissible gaps there is proposed imposition of penal rates. Such a step for imposition of penal rate is not contrary to and inconsistent with the scheme of fixation of rates as envisaged under Section 53 of the Act. It is not also inconsistent with the rights and the powers of the Railway Administration under Rule 1877. If Rule 161A as amended is looked in the proper perspective it will be appreciated that in order to check the propencity to load in excess with the risk of getting more commodities by sacrificing the safety, the measure and the expenses passed over to the consumers cannot be supported. There may be an analogy that the house owner should be asked to be very alert so that the burglary may not take place but the burgler cannot be checked by imposing the penalty if the act is accomplished. Looking to the entire infrastructure of the Railways Act and the connected Rules regarding the loading of coal wagons and the realisation of penal charges under the Rule 161A is neither irregular nor illegal".
The challenge made as to the framing of Rule 161A and the steps taken by the Railway Administration is fallacious."
13. Now dealing with the other arguments raised by the learned counsel appearing for the petitioners towards the attack on Annex. 5, it may be made clear that Annex. 5 is only a reproduction of the letter dated 2-4-1984 of the Chief Commercial Officer and it is wrong to argue that the Assistant Claims Officer has no jurisdiction to take a decision of that kind. A reading of the letter shows that it was after noticing that the claims pertaining to coal wagons above the permissible weight that the penalty of overcharging was being refunded along with cost of the coal and the proportionate freight. It was under these circumstances it was decided that since the overloading above the permissible weight was done by the consignor the Railway Administration was not liable to refund POL charges. It was under these circumstances it was decided that only proportionate freight will be paid and no part of the penalty for overloading the charge will be refunded. The arguments raised by the learned counsel for the petitioners is, thus, misconceived. There is no occasion for amending the rules on the subject and if there be any it is for the respondents to consider. No attack has been made on the rule and authority of the Chief Commercial Officer who has handed down these directions.
14. Learned counsel appearing for the petitioners has not raised any other argument to project any inconsitency or conflict between the rules noticed above and other provisions of the Indian Railways Act. It was observed by the learned Judges constituting the Bench of the Allahabad High Court that Rule 161A continues to be endowed with life by virtue of Section 24 of the General Clauses Act, 1897 notwithstanding the repeal of the Indian Railways Act, 1890 whereunder the rule was made.
15. We are in respectful agreement with the three decisions noticed above and no case has been made out to persuade us to take a different view in the matter. We are clearly of the opinion that these writ petitions have no force and are hereby dismissed with no orders as to costs.