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(2) The Railway Administration may issue separate instructions in regard to limits of weight beyond which over-loaded wagons could not be carried. Such instructions may also specify the charges, penalties and other consequences that would ensue from loading beyond such limits" .
Rule 161A(1) is, it will be noticed in two parts. The first part deals with the prohibition while the second part concerns the levy and collection of penal charges and does not specifically say from whom. The Rule uses the word 'permissible carrying capacity'.

We may incidentally point out that in the High Court the question of vires of Rule 161A was not specifically raised and the only point argued was that Rule was inconsistent with section 53. However, as the point has been argued before us, we have considered the same and we find no substance in the point. Point 3 is held against the appellants/petitioners.

Point 4:

To Contend that Rule 161A is excluded by other rules, reliance is placed by the appellants/petitioners on Rules 6 and 29 of Eastern Railway Coal Tariff Part 1, as impliedly excluding Rule 161A. Rule 6 carries the heading 'charges payable in respect of the overloading the excess coal and re-loading the same and the demurrage charges payable therefor. Therefore, it is clear that this rule does not cover penal charges for overloading coal beyond the permissible limits and cannot be said to exclude Rule 161A. Coming to Rule 29, it reads as follows:
"Rule 29: Wagons not be loaded in excess of maximum weight prescribed: Consignors in loading are required not to exceed the maximum weight prescribed for a wagon. Should overweight be ascertained on weighment, the load will be reduced. In case of consignments weighed in route, any overloading, however, detected at destination is liable in the same rate as the remainder of the consignment."

It is true Rule 29 deals with coal but we may point out that Rule 161A also deals exclusively with coal and was specifically introduced to deal with overloading coal beyond the permissible carrying capacity. It will be noticed that Rule 29 deals with loading beyond the maximum weight prescribed by section 53(1) (see discussion in Point 1), while Rule 161A deals with penal charges for loading in excess of the permissible carrying capacity asa stated in section 53 (2) and section 53(4). Rule 29 was introduced to clarify that for carriage of the excess coal the rate to be charged is the normal rate. The Rule was not intended to deal with the penal charge. Finally, one more strong reason against the petitioner's contention is that Rule 161A contains a non-obstante clause. The non-obstante clause in Rule 161A reads as follows:

It is contended for the petitioners/appellants that inasmuch as the first part of Rule 161A prohibits the consignor from loading, the penal charges referred in the second part of the Rule must have been intended to be collected from the consignor only. On the otherhand, it is contended for the Railways that the language employed in the second part is wide and it does not say that the levy and recovery is restricted to the consignors only.

It is to be noticed that the second part of Rule 161A speaks of discovery of the overweight at the booking point or en route or at the destination and recovery of the penal charge therefor for the entire distance from the booking point to the destination. The rule-making authority must, in our opinion, be deemed to have been aware that title in the goods might have passed to the consignees in several cases after the loading or after the weightment and before the actual delivery of the goods to the consignee such as where the Railway Receipt is delivered to the consignee against the receipt of price. In our view, the second part of Rule 161A is quite wide and unrestricted and can be treated as permitting recovery of the penal charges "from the consignor or consignee or the endorsee, as the case may be", though these words are not expressly used in Rule 161A. That is how the Railway becomes entitled to recover the penal charges from the consignee also even under the old Act.