Indian Kanoon - Search engine for Indian Law

15. Mr. Sharma has also submitted that no notice is required to be given to the consignee/endorsee before carrying out re-weighment and contention of the petitioner that no re-weighment can be done without notice to the petitioner is incorrect. Reliance, in this regard, is placed by Mr. Sharma on Raghu Forwarding Agency v. Union of India, reported in (1999) 3 Gauhati LT 80 : (AIR 2000 Gauhati 27).

16. In support of his contention that the railways have the freedom to reweigh the goods en-route under Section 78 and Impose penalty for overloading on the consignee/endorsee under Section 73, Mr. Sharma has also relied on the Union of India v. Salt Marketing Center, (1995) 3 Gauhati LT 548.

27. That 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. That 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 present case, at the time of hearing. The submission of Mr. Sharma 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 correct and to this extent, the reference made by Mr. Sharma to the case of Hasija Coal Traders (AIR 1995 Gauhati 113) (supra) is correct inasmuch as a Division Bench of this Court in Hasija Coal Traders (supra) 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 :

(Emphasis is supplied)

33. From the above, it is also abundantly clear that the mere fact that the re-weighment has been taken at the railway weighbridge, it cannot be a reason for imposing penalty without giving an opportunity of showing cause to the person concerned. Viewed from this angle, reliance placed by Mr. Sharma on the decision in M/s. Kamrup Forwarding Agency (1997 (2) Gauhati LT 106) (supra) to show that on account of the fact that the re-weighment in the present case has been taken at Laskar Weighbridge, which is a railway weighbridge, the weight found therein is binding on the parties is not entirely correct inasmuch as the decision in M/s. Kamrup Forwarding Agency does not categorically lay down such a law. This apart, penalty can be imposed only if overloading is proved and to prove overloading, the railways must satisfy the Court that the weighment taken is correct. There is no law that the correctness of the weighment taken in the absence of the party concerned, at a railway weighbridge, cannot be questioned by the person/party concerned.