CIVIL WRIT PETITION NO. 10546 OF 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: July 31st , 2009. Parties Name M/S Adhunik Metaliks Ltd. ..PETITIONER VERSUS Union of India and others ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE JASBIR SINGH PRESENT: Mr. V.K.Jain, Sr. Advocate, with Mr. Sanjiv Ghai, Advocate, for the petitioner. Mr. Vikas Mohan Gupta, Advocate, for the petitioner in CWP No. 10547 of 2009. Mr. Jagdish Marwaha, Advocate, with Mrs. Abha Rathor, Advocate, for the respondents. JASBIR SINGH, J. Order. This order will dispose of two Civil Writ Petitions No. 10546 and 10647, both of the year 2009, as common question of law and facts is involved in both these cases. For facility of dictating order, facts are being taken from C.W.P. No. 10546 of 2009. The petitioner – Company is engaged in the business of manufacture, sale and supply of iron and steel. It booked a consignment with Indian Railways for transportation of (total 57 Wagons) iron and steel CIVIL WRIT PETITION NO. 10546 OF 2009 -2- in the form of MS (Billets and Blooms) from Rourkela to its branch office at Mandi Gobindgarh. Part of the consignment was to be delivered to M/S Jai Ambey Enterprises, and M/S Adhunik Ispat Pvt. Ltd. at Mandi Gobindgarh. Material was booked against receipt dated July 11, 2009. The petitioner paid an amount of Rs. 69,00,000/- towards freight. After loading, consignment was weighed, under supervision of the Railway staff, on a Weigh Bridge at Bondamunda. On July 14, 2009, before the consignment reached at its destination, the respondents raised a demand of Rs. 41,94,249/- as penalty, on the ground of over-weight. The claim was raised on the basis of 'en-route weighment' of the material on Weigh Bridge at Muri. Petitioner filed an application for re-weighment of the consignment, which was rejected vide letter dated July 15, 2009 (P-7). Hence this writ petition. Besides making prayer to quash letter Annexure P-7, petitioner has prayed that the respondents be restrained from imposing penalty amount towards alleged overweight, demurrage, wharfage charges till such time consignment is reweighed. On July 17, 2009, following order was passed by this Court: “Counsel for the petitioner states that when material was loaded in the wagons at Rourkela, weighment was done at Railway weight bridge, under railway official's supervision. Weighment of the material was again done, during journey, and it is stated that material was overloaded. By stating that fact, additional amount to the tune of Rs. 41,94,249/- has been demanded by the Railway vide order Annexure P-4. Counsel for the petitioner states that as there is discrepancy in CIVIL WRIT PETITION NO. 10546 OF 2009 -3- the weighment done by the Railway, at the first instance and during journey, the petitioner moved an application that material be reweighed at the cost of the petitioner. That application has been rejected vide order Annexure P-7. Notice of motion for 21.07.2009. On asking of the Court, Ms. Abha Rathore, accepts notice on behalf of the respondents. Counsel for the respondents is directed to get instructions: i) Whether material was weighed under the supervision of the railway official when it was loaded in the train? ii)When second weighment was done and whether for that there was consent of the petitioner or not? iii)What is the difficulty in getting the re-weighment done at petitioner's cost? In response to notice issued by this Court, reply has been filed by the respondents. Petitioner has also filed replication, to the written- statement filed by the respondents. Counsel for the petitioner has argued with vehemence that the consignment was weighed on weigh bridge at Bondamunda under supervision of the Railway staff. Receipt (P-1) showing detail of the loaded material was also issued thereafter. In view of above, the respondents were not justified to again weigh the material, en-route, at Muri, for which no intimation was given to the petitioner. By making reference to the weighment receipts (P-1 to P-3), issued after first weighment and receipt Annexure R-4 , which was issued after second weighment at Muri, counsel states that tare weight of the wagons do not CIVIL WRIT PETITION NO. 10546 OF 2009 -4- tally with each other and further that speed of the train, when consignment was weighed at both the weigh-bridges was approximately the same. It is contention of counsel for the petitioner that once material was weighed on Railway weigh-bridge and at that time there was no over-loading, the weight of the material will not increase en-route, as has been shown by the respondents. By making reference to the provisions of Sections 65 and 79 of the Railways Act, 1989 (in short the Act), counsel for the petitioner argued that in case of dispute, regarding weight, the petitioner has a right to get the material reweighed. Refusal, vide Annexure P-7 is arbitrary. No reason has been given in the letter dated July 15, 2009 (P-7), declining request made by the petitioner. He prayed that the letter, mentioned above, be quashed and directions be issued to the respondents to re-weigh the consignment at the cost of the petitioner. In case, weight of the consignment is found as per the first receipt, the authorities be restrained from charging penalty amount towards demurrage and wharfage. Prayer of the petitioner has vehemently been opposed by counsel for the respondents. To deny, right of re-weighment, to the petitioner reliance was placed upon clause 1744 of the Indian Railway Commercial Manual (Vol) (in short the Manual), issued by Ministry of Railways, Government of India. He further argued that the petitioner is a consignee only for four wagons. Regarding remaining 53 wagons, two other Companies are the consignees. As such, it is not open to the petitioner to ask for reweighment of the entire rack. It is further averred that sending 4 wagons, for re-weighment, at Bathinda is not feasible, as the weigh-bridge is situated at a distance of 250 KMs. It is also not possible for the Railways to spare one diesel engine for the purpose, mentioned above. It is further CIVIL WRIT PETITION NO. 10546 OF 2009 -5- stated that the route from Gobindgarh to Bathinda is very congested. From Rajpura to Bathinda, there is single line Railway track and the line capacity is used ,to the extent of 94.5 % every day. Counsel also referred to the detail of passenger and goods train running on that line every day. By making reference to the provisions of Section 78 of the Act, he argued that the power of the respondents to reweigh the material, en-route, was justified. He prayed that the writ petition having no substance be dismissed. Before dealing with the contentions, raised by counsel for the parties, it is necessary to note down relevant provisions of the Act: “65. Railway receipt .- (1) A railway administration shall,- (a) in a case where the goods are to be loaded by a person entrusting such goods, on the completion of such loading; or (b) in any other case, on the acceptance of the goods by it, issue a railway receipt in such form as may be specified by the Central Government. (2)A railway receipt shall be prima facie evidence of the weight and the number of packages stated therein; Provided that in the case of a consignment in wagon load or train-load and the weight or the number of packages is not checked by a railway servant authorised in this behalf, and a statement to that effect is recorded in such railway receipt by him, the burden of proving the weight or, as the case may be, the number of packages stated therein, shall lie on the consignor, the consignee or the endorsee.” 72.Maximum carrying capacity for wagons and trucks. -(1) The gross weight of every wagon or truck bearing on the CIVIL WRIT PETITION NO. 10546 OF 2009 -6- 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 administration 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 so 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 determine and exhibit the normal carrying capacity for the wagon or truck in the manner specified in sub-section (2). (4) Notwithstanding anything contained in sub-section (2) or sub-section (3), where a railway administration considers 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 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 wagon or truck or 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 CIVIL WRIT PETITION NO. 10546 OF 2009 -7- or such class of wagons or trucks. 73. Punitive charge for overloading a wagon.- Where a person loads goods in a wagon beyond its permissible carrying capacity as exhibited under sub-section (2) or sub-section (3), or notified under sub-section (4) of Section 72, a railway administration may, in addition to the freight and other charges, recover from the consignor, the consignee or the endorsee, as the case may be, charges by way of penalty at such rates, as may be prescribed, before the delivery of the goods: Provided that it shall be lawful for the railway administration to unload the goods loaded beyond the capacity of the wagon, if detected at the forwarding station or at any place before the destination station and to recover the cost of such unloading and any charge for the detention of any wagon on this account. 78.Power to measure, weight, etc .- Notwithstanding anything contained in the railway receipt, the railway administration may, before the delivery of the consignment, have the right to- (i) re-measure, re-weight or re-classify any consignment; (ii)re-calculate the freight and other charges; and (iii)correct any other error or collect any amount that may have been omitted to be charged. 79.Weighment of consignment on request of the consignee or endorsee.- A railway administration may, on the request made by the consignee or endorsee, allow weighment of the consignment subject to such conditions and on payment of CIVIL WRIT PETITION NO. 10546 OF 2009 -8- such charges as may be prescribed and the demurrage charges if any: Provided that except in cases where a railway servant authorised in this behalf considers it necessary so to do, no weighment shall be allowed of goods booked at owner's risk rate or goods which are perishable and are likely to lose weight in transit: Provided further that no request for weighment of consignment in wagon-load or train-load shall be allowed if the weighment is not feasible due to congestion in the yard or such other circumstances as may be prescribed.” Reading of the provisions, reproduced above, makes it very clear that on booking of a consignment, the Railway department shall issue a receipt to the consignor, which shall be a prima facie evidence of the weight loaded. It is also provided that in case consignment is a 'full wagon load' and the weight was not checked by the Railway officials and that fact is mentioned in the Railway receipt, then on dispute, burden of proving the weight shall lie on the consignor. Gross weight of the wagons and their capacity to carry load are mentioned on each wagon. Section 72 of the Act mandates that maximum load shall not exceed that limit. Section 73 of the Act gives a right to the Railway department to impose penalty in case a consignor load goods, in a wagon, beyond its permissible limit. It gives further right to the Railway administration to unload the goods, beyond capacity of the wagon, if detected at the forwarding station or at any place before the destination CIVIL WRIT PETITION NO. 10546 OF 2009 -9- station and to recover cost of such unloading etc. Section 78 of the Act gives power to the Railway administration to reweigh the consignment en- route. Section 79 of the Act, subject to limitations as provided therein, gives right to the consignee, in case of a dispute, to ask for re-weighment of the consignment. Before dealing with respective arguments of counsel for the parties, it is also necessary to reproduce the provisions of para 1744 of the Manual : “1744. Reweighment at the request of owners- (a) As laid down in the I.R.C.A. Goods Tariffs, railways do not undertake to weigh consignments at the destination station as a matter of course. Such weighments can only be considered in exceptional cases, when the condition of the consignment or package warrants this. (b) Requests for such reweighments of goods booked in wagon loads should be referred to the Divisional Commercial Superintendent, who may permit the reweighment at his discretion provided that facilities for reweighment exist at the destination. © The consignee or endorsee of a wagon load or a train load consignment booked at Railway risk rate may, it has reason to believed that the wagon offered to him for delivery at destination, does not contain the quantity of goods entrusted for carriage, make a request in writing to the Divisional Commercial Superintendent or any other railway servant authorized in this behalf for the weighment of such CIVIL WRIT PETITION NO. 10546 OF 2009 -10- consignment at destination station such Railway Servant may allow request for weighment on a Railway Weigh bridge on payment of charges prescribed and demurrage charge if any, such request may be disallowed in the following cases if: (1)the consignment is received in covered wagon and the seals of the loading station are intact and there is no other evidence of the consignment having been tampered in transit, (2)the consignment has been received in open wagon but there is no sign of tampering with the original packing. (3)The consignment is of perishable nature and is likely to loose weight in transit. (4)Weighment is not feasible due to congestion in the yard. (5)Weighment done on request shall be without prejudice to the rights of the railway administration to disclaim liability under the Railway Act or under any other law for the time being in force.” Above said provision of the Manual indicates that re- weighment is not permissible as a matter of course except in exceptional cases. Clause (c) of this para gives right to a consignee of a 'wagon load' booked 'at railway risk rate' to ask for re-weighment in case there is a dispute regarding quantity of goods entrusted for carriage. Request for re- weighment is required to be made in writing to an authorised officer. This para, subject to some limitation, also gives authority to the Railway administration to reject prayer for reweighment. In this case, facts are not in much dispute. It is case of the CIVIL WRIT PETITION NO. 10546 OF 2009 -11- petitioner that at Rourkela, after loading the consignment, it was weighed on Railway weigh-bridge, at Bondamunda, under supervision of the Railway department. In response to that averment, in para No. 4 of the written- statement, it has been mentioned as under: “4. That so far as the contents of this para are concerned, the Consignment which was loaded by the CONSIGNOR itself was weighed at the booking Railway station at BNDM Railway Bridge, but from the WEIGHMENT ADVICE received from the Respondent, Ambala Division, it has been revealed that the speed of each wagon was not in accordance with the prescribed limit as the speed was varying from 3 KMs. To 8 KMs per hr. and different of variation was much more against the prescribed norms.” Weighment at the forwarding station, under supervision of the Railway staff is not denied. It is also not in dispute that the goods were booked at 'Railway risk rate'. For re-weighment at Muri, it has only been stated that when at the forwarding station, consignment was weighed, speed of the train was between 3 to 8 KMs. At Muri weighment was done by restricting speed of the train between 6 to 8 KMs per hour, which is permissible. To substantiate this contention, nothing has been brought on record. As to how and why difference in speed will make any change in the weight of the material, except making averment , no literature/ material to support that contention has been put on record. As per provisions of the Act, it is mandatory to exhibit tare weight on every wagon on it. Perusal of receipts issued at the forwarding station and at Muri shows that the tare weight of the wagons at Sr. No. 2 at CIVIL WRIT PETITION NO. 10546 OF 2009 -12- Bondamunda is mentioned as 23.10 tonnes whereas weight of the same wagons is shown as 21.80 tonnes in receipt issued after weighment at Muri. At the time of arguments, it was stated that this discrepancy regarding weight exists with regard to 50 wagons out of 57 wagons. It has also come on record that the petitioner made a request for re-weighment before the train had reached destination station. This fact is apparent from the document Annexure P-6, vide which request of the petitioner was forwarded to the competent authority for necessary action. In that document, it is also mentioned that nearest railway weigh-bridge is at Bathinda and Dharamkanta is locally available. Against column No. 15, it is further mentioned as under: “A rake of 57 Box N Ex ROU to GVG is expected to arrive on 14/7/09 is enroute weighed at MURI on 11/7/09. Over weight of 421.48 ton has been found for which under charges of Rs. 4194249/- served to party who refuse to pay and requested for reweighment of rake at their own cost, with plea that weighment at MURI is incorrect. Case is forwarded for necessary action.” When request for reweighment was made, the consignment had not yet reached its destination. It was possible for the Railway authorities to divert the train to Bathinda for reweighment. That was not done and application was rejected simply stating that 'request for reweighment is regretted'. No reason was given to decline the same. The grounds now given in the written-statement, for declining request of the petitioner, appear to be an afterthought. Contention of counsel for the respondents that the petitioner CIVIL WRIT PETITION NO. 10546 OF 2009 -13- can raise objection only regarding four wagons being consignee, is not justified. Admittedly, penalty amount of Rs. 41,49,249/- was demanded from the petitioner by the Railway administration. It is also not in dispute that the petitioner is the consignor and further that endorsements by other two consignees, authorising the petitioner, to get their material released, are on record. In view of above, objection raised by the respondents has no ground to stand. Railway administration's inability to take 57 wagons to Ambala for want of a diesel engine cannot be accepted, because to say so, nothing has been brought on record showing how many diesel engines the Railways have, where those are working and why one cannot be spared to take 57 wagons to Bathinda for reweighment at the cost of the petitioner. It is also not in dispute that reweighment at Muri was done without any notice to the petitioner. Right of the railway administration to weigh the material en-route is sustainable in view of provisions of Section 78 of the Act. However, at the same time, in case of dispute, right of the consignee for re-weighment cannot be denied except as provided under the provisions of Section 79 of the Act. To deny this right to the petitioner, reliance has been placed upon the provisions of para 1744 of the Manual, which is not justified for the reasons mentioned hereinafter. As per provisions of Section 65 of the Act, Railway receipt is a 'prima facie evidence' of the weight unless it is proved on record that the weight was not checked, at the time of booking, by the Railway authorities. In the event of dispute regarding weighment, burden of proof lies on the consignee to prove the same. If contention of counsel for the respondents is accepted that in view of the provisions of Para 1744 of the Manual, right CIVIL WRIT PETITION NO. 10546 OF 2009 -14- of reweighment cannot be given to the consignee, then the proviso of Section 65 of the Act will become redundant and the consignee will not get any opportunity to prove weight of the consignment. Furthermore, at the time of arguments, counsel for the respondents has failed to show to this Court that the instructions issued vide Manual were notified as per provisions of Section 87 of the Act. A combined reading of the provisions of Sections 65, 78, 79 of the Act and para 1744 of the Manual makes it very clear that the Railway administration has a right of reweighment of a consignment, en-route. However, when it comes to the question of lavying penalty, on the basis of re-weighment,en-route, this Court feels that it can be imposed only after giving reasonable opportunity to the consignee to prove to the contrary. To prove over-loading of the material, the Railway must satisfy the Court that the re-weighment was correct. Nothing is provided in the Act and the Manual that correctness of the reweighment, done in the absence of the party concerned en-route, on a railway weigh-bridge, cannot be questioned by the consignee concerned. A similar controversy came up before a Single Bench of Gauhati High Court in Nirmal Traders v. Union of India and others, AIR 2003 Gauhati 122. After noticing the provisions of Sections 65, 78, 79 of the Act, it was observed as under: “In other words, since under the first proviso to Section 79, an element of discretion does rest with the railway servant concerned to re-weigh goods, which are booked at owner's risk, the consequence will be that when omission to exercise the discretion is challenged, the railways must be in a position to satisfy the Court that in the facts and circumstances of the case, CIVIL WRIT PETITION NO. 10546 OF 2009 -15- the railway servant concerned could not have exercised his discretion to re-weigh the consignment. In the case at hand, however, the railway respondents have not mentioned even a word in their affidavit-in-position to show as to why such a discretion was not exercised by the railway servant concerned; rather, their stand in para 11 of their affidavit-in-opposition appears to be that as per provisions of Section 79, no consignment booked at owner's risk shall be allowed to be re- weighed meaning thereby as if no discretion in favour of re- weighment of goods booked at owner's risk can ever be exercised. This cannot, as already indicated hereinbefore, be treated as a correct interpretation.” In this case, situation is the same. In the refusal letter Annexure P-7, dated July 15, 2009, no reason was given to reject request of the petitioner. In the reply filed, it has only been stated that a diesel engine may not be available and further that the railway line to Bathinda, where weigh-bridge is available, is single line railway track, and is being used to the extent of 94.5% capacity. Number of trains passing on that line is given but time schedule and how the percentage has been calculated nothing has been said in that regard. To the same effect is the ratio of judgment in M/S Salt Marketing Centre