WP(C) 547/2011 BEFORE THE HON’BLE MR. JUSTICE A.C. UPADHYAY JUDGMENT & ORDER Heard M. G.N. Sahewala, learned senior counsel assisted by Mr. P .Bora , learned counsel for the petitioners and Mr. A. K. Sarkar , learned Stand ing counsel, N.F. Railways. 2. All these writ petitions involving common question of law and based on similar facts, have been heard analogously with the consent of the lea rned counsel for the parties and are being disposed of by this common judgment a nd order. 3. The facts, necessary for disposal of the writ petitions, may be stated, as follows: - The petitioners, who are engaged in the business of supply of co al, availed the services of the Indian Railways for the purpose of transportatio n of coal. By the instant writ petitions petitioners have assailed the impug ned action of the Railways in off loading the goods of the petitioners from the railway wagons, even though they load the goods within the permissible carrying capacity of the wagon in question, as prescribed by the circular No.76 of 2007. The petitioners have alleged that the goods are off loaded from the wagons for e xceeding the permissible gross weight for CC+6+2 type of wagons, which is owin g to excess weight of the empty wagons (weight of the empty wagons i.e., tare we ight) and not for overloading of the goods . The Director, Traffic Commercial(R) Railway Board, issued a Rate Circular No.76 of 2007, permitting running of freight trains on CC+6 routes unde r the subject captioned permitting running of freight trains on CC+6 routes- un iversalization . The circular No.76 of 2007 reads as follows: Rates Circular No.76 of 2007 GOVERNMENT OF INDIA(BHARAT SARKAR) MINISTRY OF RAILWAYS(RAIL MANTRALAYA) RAILWAY BOARD) No.TCR/1394/2004/2 New Delhi, dated 20.07.2007 The Chief Commercial Managers All Indian Railways. Sub: Permitting running of freight trans on CC+6 routes-Universalisation . Ref: Rates Circular No.69 and addendum dated 29.06.2007, 05.07.2007 and 10.07.2007. 1.0 In supersession to all previous instructions regarding clearance of CC+6 routes, Ministry of Railways has decided that all BG routes of Indian Railways except the routes mentioned in the Annexure, will be treated as CC+6 routes. 2.0 The chargeable weight for all commodities on CC+6 routes and on excepted routes(mentioned in Annexure), loaded in different types of wagons will be as u nder: Wagons On CC+6 routes On excepted routes Chargeable weight(in tonne) Loading tolerance(in tonne) Chargeab le weight(in tonne) Loading tolerance(in tonne) BOXN, BOXNHS 65 2 64 2 BOBR 61 2 60 2 BOBRN 62 2 60 2 BOST 62 2 61 2 BCN 61 1 61 1 BCNA/BCNAHS 64 1 63 1 3.0 For other types of wagons not mentioned in para 2.0 above, the existing instructions regarding permissible carrying capacity mentioned in Rates Circular No.13 of 2007, amended from time to time, will continue to remain applicable fo r CC+6 routes also. 4.0 However, in case of emergency such as accidents etc., running of CC+6 lo aded wagons can be permitted even in the excepted routes given in the Annexure. Such permission will be given by PCE, who will advise suitable speed restriction s keeping in view the condition of fixed infrastructure. 5.0 The existing instructions of charging on CC+8 and 25 tonne axle load rou tes shall remain unchanged. 6.0 These instructions will come into force with effect from 06.08.2007. 7.0 This issues with the approval of Civil Engineering, Mechanical Engineeri ng, Traffic Transportation and Finance Directorates of Ministry of Railways. DA: Annexure ( N.K. Parsuramka) Director, Traffic Commercialﬁ Railway Board. 4. In terms of clause 2 of the aforenoted circular No.76 of 2007, t he chargeable weight has been given for all commodities on CC+6 routes, loaded i n different types of wagons. A perusal of the table therein, clearly indicates t hat while prescribing the chargeable weight, loading tolerance is also prescribe d. In other words, chargeable weight is the fixed weight at which the wagon woul d be charged. For instance, for a BCNA type wagon, wherein 64 tons is being pres cribed as the chargeable weight, the freight chargeable would be for 64 tones ir respective of the fact whether the goods weighing 64 tons are loaded or not by t he consignor. Therefore, a consignor would obviously desire to best utilize the price paid by him for transportation of the goods by loading the wagon to its op timum chargeable capacity. However, in the event of loading weight beyond the ch argeable capacity, Railway authorities may propose penalty in accordance with la w. It also appears from the above circular that the loading tolerance of 1(one) ton as prescribed, for BCNA/BCNAHS type wagons, for extra load up to 1(one) ton, in excess of 64 tons, no additional fare would be charged ,i.e. up to (64+1)=65 tons, there will be no extra charge . 5. For each type of wagons, the railway prescribed the permissible carrying capacity, which is also the chargeable weight of the wagon. As a matter of fact, weight of the empty wagons, i.e. tare weight, which ultimately, woul d form the gross weight of the wagons. As submitted by the learned SC Railways, (i)Gross weight of the wagon (First weight) =tare weight + commodity loaded in i t. It has been stated by the petitioner that even though tare weight is printed on the body of the wagon, but due to repairing of the wagons with heavy metals, collection of dust,mud etc. with passage of time the actual weight of the wagon far exceeds the printed weight . Therefore, in such a situation, the peti tioners would have no scope to verify the tare weight of the wagons at the time of loading of the goods, inasmuch as, the petitioners are not afforded any oppor tunity to weigh the empty wagons, nor the railway administration undertakes any weighment of the empty wagons before placing it for loading of the goods . 6. On 27.02.2009, the Railway Board issued operating instructions bearing No.2007/CE-II/TS/8, under the caption operation of CC+8+2/CC+6+2 trains , for movement of CC+8+2/ CC+6+2 trains. The relevant extracts of clause 3.2 .2, of the above instructions ,which are relevant for the purpose of this case, are given herein below: 3.2.2 In rare case, when any overloading is detected beyond this level, followi ng procedure shall be follows: Case Gross weight of nominated wagons of trains loaded for Action required to be taken by Railway 25 t axle CC+8+2 CC+6+2 CC+4+2 1 More than 100 t but less than 102 t. More than 91.28 t but less than 93.28 t More than 89.28 t but less than 91.28 t. More than 87.28 t but le ss than 89.28 t Get the load adjusted/unloaded or excess load wagon detached or run the rake at a restricted speed not exceeding 50 kmph 2 More than 102 t but less than 104 t More than 93.28 t but less than 95.28 t More than 91.28 t but less than 93.28 t More than 89.28 t but less than 91.28 t Ger the load adjusted/unloaded or excess load wagon detached or run the rake at a restricted speed not exceeding 30 kmph. 3 More than 104 t More than 95.28 t More than 93.28 t More tha n 91.28 t Overloaded wagon to be detached at the station and the load spli t into another wagon brought at the site or the material offloaded and then trai n is allowed to run. Commercial actions for overload and resulting detention are to be taken as per extent rules. 7. In point of fact, loading in wagons is limited to permissibl e carrying capacity prescribed and the loading tolerance; which would imply that while loading BCNA type of wagon, wherein 64 tons has been prescribed as charge able weight and permissible carrying capacity, with one ton added to it, being loading tolerance, the loading capacity shall be limited to 65 tons. On bar e perusal of the table above would disclose that the permissible gross weight of the wagon has been fixed at 89.28 tons in case of CC+6+2, which includes permis sible carrying capacity together with loading tolerance and tare weight of the w agon . However, in the possible event of gross weight of the goods exceeds 89.28 tons, but remain less than 91.28 tons, the Railway authorities in rare cases, i s either permitted to get the load adjusted/unloaded or excess load wagon detach ed or run the rake at a restricted speed not exceeding to 50 kmph. 9. Learned counsel for the petitioners by drawing the attention of the Court to the above prescription submitted that if a BCNA type of wagon is used for loading, where the permissible carrying capacity together with loadin g tolerance is 65 tons and the permissible gross weight is 89.28 tons, the tare weight of the wagon has to be less than (89.28- 65.00)= 24.28 tons. 10. However, in the event of the gross weight of the wagon exceed th e stipulated weight i.e. 91.28 tons owing to the excess tare weight, in spit e of the fact that the loading is made by the consignor within the permissible c arrying capacity and the loading tolerance, the railway cannot take recourse t o penal action by offloading the goods of the consignor and detached the excess load wagon, inasmuch as the petitioners have no control over the tare weight. Ho wever, in the case, the consignor load the wagons beyond the permissible carryin g capacity and the loading tolerance, the Railway would be at liberty to exercis e the discretion to offload the excess goods from the wagon or detach the wago n as prescribed under the circular or do the needful in accordance with law . 11. In this context, it would be pertinent to extract herein below t he relevant provisions of Sections 72, 73, and 78 of the Railway Act, 1989, wher ein the maximum carrying capacity of wagons and trucks, vis-à-vis punitive charg es for overloading and power of the Railways to re-measure the weight, have been provided, which are as follows: 72. Maximum carrying capacity for wagons and trucks- (1) The gross weight of every wagon or truck bearing on the axles when the wagon or truck is 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 administrati on shall determine the normal carrying capacity for every wagon or truck in its possession and shall exhibit in words and figures the normal carrying capacity s o determined in a 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 deter mine and exhibit the normal carrying capacity for the wagon or truck in the mann er specified in Sub-section (2). (4) Notwithstanding anything contained in Sub-section (2) or Sub-section (3), wh ere a railway administration considers it necessary or expedient so to do in res pect of any wagon or truck carrying any specified class of goods or any class of wagons or trucks 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 such c lass of wagons or trucks. 73. Punitive charge for overloading a wagon.- Where a person loads goods in a wa gon beyond its permissible carrying capacity as exhibited under Sub-section (2) or Sub-section (3), or notified under Sub-section (4) of Section 72 <javascript: fnOpenGlobalPopUp(’/ba/disp.asp’,’28930’,’1’);>, a railway administration may, i n addition to the freight and other charges, recover from the consignor, the con signee or the endorsee, as the case may be, charges by way of penalty at such ra tes, as may be prescribed, before the delivery of the goods: Provided that it shall be lawful for the railway administration to unload the go ods loaded beyond the capacity of the wagon, if detected at the forwarding stati on or at any place before the destination station and to recover the cost of suc h unloading and any charge for the detention of any wagon on this account. 78. Power to measure, weigh, etc.- Notwithstanding anything contained in the rai lway receipt, the railway administration may, before the delivery of the consign ment, have the right to- (i) re-measure, re-weigh or re-classify and consignment; (ii) re-calculate the freight and other charges; and (iii) correct any other err or or collect any amount that may have been omitted to be charged. 12. On careful perusal of the provision of Section 72 of the Railway Act, 1989, it transpires that Section 72 empowers the Railway to fix the limit of carrying capacity for wagons and trucks. Further, the normal carrying capacit y so determined shall be exhibited on the conspicuous part of the body of the wa gon. However, Section 73 provides punitive action for loading more than the perm issible carrying capacity of the wagon. Railway has been empowered to unload the goods if in the eventuality of loading beyond the permissible carrying capacity , but in case the load is within the permissible carrying capacity, the Railway authorities, in terms of the provisions of Section 73, neither can impose puniti ve charge for overloading of wagons, nor can it resort other punitive action for overloading. However, the proviso to Section 73 empowers the Railways administr ation to unload the goods beyond the permissible carrying capacity of wagons, if detected at the forwarding station or at any place before the destination stati on and to recover the cost of such unloading and any charge for the detention of any wagon on this account. 13. Learned counsel for the petitioners vehemently submitted that in terms of the provision prescribed u/s 73 of the Railways Act, the Railway autho rities cannot slap a punitive action for overloading a wagon, if the consignor l oads goods within its permissible carrying capacity and loading tolerance. The Railway authorities, as a service provider cannot take resort to penal action o f offloading the goods, for its own fault of not properly maintaining the wagons and the tare weight, and/or for not having carried out the weighment of the e mpty wagons, prior to loading of the goods in it. It has been further pointed o ut by the learned counsel for the petitioners that if a consignor loads goods an y weight in the wagon which is less than 64 tons, they would be required to m ake payment of the chargeable fare of the wagons, which obviously, would impel t he customers to load maximum permissible carrying capacity in the wagons to bes t utilize the fare paid in the deal, so that the consignors do not suffer any loss in the transactions. 14. Learned counsel for the petitioners has strenuously submitted th at the instructions issued vide No.2007/CE-II/TS/8 dated 27.03.2009, empowering the Railway administration to offload the goods or to detached the wagon even wh ere the loading is done within the permissible carrying capacity and loading tol erance, only on the ground that the gross weight of wagon exceed the permissible limit, is ultra virus to the provisions of the Railways Act, 1989, besides bein g illegal and arbitrary. 15. It has been further stated on behalf of the petitioners that eve n when the goods are loaded in the wagons within the permissible carrying capaci ty by the petitioners, the Railway authorities undertake weighment beyond load ing stations and in case gross weight of the wagon is found beyond 89.28 tons, t he petitioners’ goods are offloaded, obviously, without any intimation. Learned Counsel for the petitioner pointed out that, the above action of the Railways apart from being irrational land arbitrary, is beyond the scope of the impugned circular issued by the railways vis-à-vis section 73 of the Railways Act. 16. Learned counsel for the petitioners submits that the impugned ac tion on the part of the respondent authorities in offloading the goods even when the goods are within the permissible carrying capacity, is bad in law, and, as such, is liable to be interfered with. Learned counsel for the petitioners furth er referring to the decision of Nirmal Traders vs. Union of India & Ors : 2003(2 ) GLT 175 submitted that even though the Railways Act, 1989 empowers the Railway s to get the goods reweighed at any point, but penal action can be taken only after issuing show cause to the person against whom penal action is proposed, in order to afford such person a reasonable opportunity of placing his case before the competent authority . 17. Learned counsel for the petitioners further pointed out that i f the wagon is loaded within the permissible carrying capacity and the loading t olerance, the Railway authorities cannot offload the goods due to subseque nt increase of tare weight of the wagon, for some fault on their part. 18. On bare perusal of Section 73 of the Railways Act, 1989, it tran spires that punitive charge for overloading a wagon can be resorted to only when the consignor loads goods in the railway wagon beyond the permissible carryin g capacity. The Railway authorities can offload the good by resorting to penal a ction , if consignor, at the first instance, has loaded goods beyond the prescr ibed permissible limit, only then the Railway authorities can resort to penal ac tion as proposed, for noncompliance of restrictions on overloading. Therefo re, if the consignor loads the goods within the permissible carrying capacity an d loading tolerance of the wagon, there is no provision either on the statute or in the impugned notification, to resort to any penal action. 19. However, in rare cases, if gross weight of the wagon exceeds the prescribed limit due to some fault on the part of the Railways , it has to accept the responsibility for the remiss, either by adjusting the excess load in other trucks or wagons and/or split the load in another wagon brought at the site or resort to other appropriate procedure suitable in the situation . The penalty of offloading the goods without notice, for no fault of the c onsignor is apparently arbitrary, and illegal, which is not permissible under Se ction 73 of the Railways Act, 1989. 20. Offloading of goods from the wagon due to excessive tare weight, even when the loading is made by the consignor within the permissible carrying capacity of the wagon, would eventually be unjust enrichment of the Railways, si nce the consignor is required to make payment of the fare for the total chargeab le weight. If the consignor is made to pay the tariff for maximum carrying capacity of the wagon, being the chargeable weight, he has to be allowed to lo ad the wagon up to the prescribed limit for which he has paid the price. Likewi se, it is necessary for the Railway authorities to allow a consignor to carry lo ad in the wagon up to the maximum carrying capacity including loading tolerance . Therefore, the impugned action of the Railways, resorting to offload the goods in spite of the fact that the consignor has loaded the goods much within the pe rmissible carrying capacity and loading tolerance, is illegal and improper. 21. Mr. A. K. Sarkar , learned standing counsel N. F. Railways , sub mitted that if the gross weight of the wagon exceeds 89.28 tons, then the condit ions mentioned in circular would apply, which empowers the Railways to offlo ad the goods, apart from resorting to other follow up actions.. 22. As a matter of fact, if gross weight of the nominated wagons of trains loaded for CC+6+2 is 89.28 tons and the maximum carrying capac ity together with loading tolerance for such wagon is 65 tons, then the optimum tare weight of wagon has to be (89.28-65)=24.28 tons. If the tare weight of the wagon is higher than the above limit prescribed, in that case maximum car rying capacity of the wagon as prescribed in the circular will get reduced. Ther efore, as a service provider, the Railway authorities are duty-bound to mainta in the tare weight of the wagon to make the impugned circular functional and e ffective, so that the consignor is not penalized, for none of his fault. 23. Learned counsel for the petitioners further submitted that the r espondent authorities are liable to be restrained from verifying the goods loade d by the petitioners, if the same is loaded within permissible carrying capacity and the loading tolerance of the wagon as prescribed by the Railways. 24. In case of overloading of wagons, the Railway authorities h ave been empowered to exercise wide discretion, either by adjusting the excess l oad or by unloading the excess load in the wagon or detaching the wagon or split ting the load into other wagon brought at the site or run the rake at a restric ted speed. Therefore, in such situations as indicated above, when goods are lo aded in the wagon within the maximum carrying capacity and loading tolerance, th e respondent authorities may resort to the best suitable option, by exercising their discretion, so that the consignor is not penalized; since the fault is wi th the Railways and not with the consignor. 25. In view of the above discussion, the impugned action of offloadi ng the goods of the petitioner from the wagon loaded within the permissible ca rrying capacity and loading tolerance, is arbitrary and illegal. Therefore, it i s directed that the respondent Railway authorities shall not off load the goods of the petitioners from respective wagons, provided the goods loaded is within the permissible carrying capacity and loading tolerance, as prescribed by the r espondent Railways. With the above observation and direction all the above noted writ petitions stand disposed of.