Section 73 of the railway’s act, 1989 provides a statutory right to the railway administration to reweigh the consignment – Jharkhand High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No. 311 Union of India South Eastern Railway having its office at Garden reach Kolkata 700 043 represented by the Deputy Chief Commercial Manager 14 Strand Road P.O. & P.S. Kolkata District Kolkata represented by Suhas Chandra Chattapadhyaya son of Late G.D. Chattapadhyay resident of No. 6 Rashtra Guru Avenue 4th Floor Nager Bazar P.O. & P.S. Nager Bazar Dist Kolkata 700 028 1. M s. Muva Industries Ltd. Corporate Office Rawdon Chambers 11 A Rawdon Street Kolkata 700 017 Works at Jagdishpur P.S. Jagdishpur via Madhupur Dist Deoghar. Appellants ….. ….. 2. Union of India through the General Manager South East Central Railway P.O. P.S. Bilaspur Bilaspur. 3. Union of India through General Manager Eastern Railway P.O. & P.S. Kolkata Sadar Kolkata …. …. CORAM :HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellants For the Respondents CAV ON 03. 02.2022 : Mr. Mahesh Tewari Advocate : Mr. Anil Kumar Sinha Advocate PRONOUNCED ON 10.02. 2022 This appeal is filed under Section 23 of the Railway Claims Tribunal Act 1987 against the judgement dated 16.09.2009 passed by the learned Member Judicial) Railway Claims Tribunal Ranchi Bench Ranchi in Case No. OR 70011 2007 in favour of respondent named herein directing the appellant to refund Rs. 3 71 328 to the respondents along with interest @ 6% per annum from 01.11.2006 till the date of payment and also cost. The respondent applicant manufactures pretressed concrete sleepers for the Indian Railways. It is the case of the respondent that with the permission of the Railway Board 1240 MT of special cement was purchased from M s. Ambuja Cement Eastern Ltd. This consignment was booked in 20 Wagons. The consignment was loaded from the site of dispatch i.e. Bhatapara and the weight of the 20 wagons was 1241.00 M.T. Before reaching the destination site i.e. Jagadishpur when the consignment was re weighed it was found the net weight to be 1355.40 M.T. In view of the overloading a punitive charges amounting to Rs. 3 71 328 was raised against the respondent. The Respondent moved the Railway claim Tribunal for refund of the punitive charge under Section 16 of Railway Claim Tribunal Act 1987 which has been allowed on the basis of Annexure 5 which showed that weight of the cement was 1224.96 MT recorded by the Chief Goods Clerk MRLB Bhatapara under 2 South Eastern Railways in the presence of the authorized agent of Ambuja Cement Eastern Ltd. The overloading was found en route without notice to the applicant The appellant earlier moved this Court in W.P.(C) No. 274 2009 challenging the order of the Railway Tribunal which was dismissed vide order dated was wrong. The appellant moved the Hon’ble Court in L.P.A No.4910 and their Lordships vide order dated 11.01.2011 were pleased to permit the appellant to withdraw the appeal. It was held by their Lordships that the appellant will have right to move the Appellate forum and if the appeal is filed then question of limitation will be sympathetically considered. The order has been assailed on the ground that punitive charge for the onward distance from Bhaga to Jagdishpur was assessed on the difference between the net weight at Santhaldih weighbridge of 1355.40 and the chargeable weight of It is argued on behalf of the appellant that by the order number RCT DLI Judl.Policy 2002 2003 dated 19.11.2007 of Railways claims Tribunal 13 15 Moldova daily the pecuniary jurisdiction of the concerned single member bench is restricted to ₹ 2 lakhsexcept in untoward and train accident cases. According to the proviso to Section 4(4) of the Railways Claims Criminal Act 1987 the single member should have referred transferred the matter to a bench of two members that he is a division bench when the nature of the matter so demands. Apart from the jurisdictional issue raised it is also argued that there is provision to re weigh and there was nothing wrong on the part of the Railway authorities to have a reweighed the consignment. During rebooking of the consignment from Bhatapara to Jagdishpur the punitive charges were paid by respondent without any objection and without any protest. Once the excess weight had been accepted and got the same rebooked the plea against overloading and consequent punitive charges cannot be raised. It is further argued that in LPA No. 4910 the Hon’ble court was pleased to permit the appellant to withdraw the appeal and the writ and therefore the order passed by Hon’ble. the single Judge in the writ petition does not bar the appellant from preferring the instant appeal. It is submitted by the learned counsel on behalf of the respondent that Hon’ble single Bench in W.P.(C) No. 274 of 2010 by the order dated 8th September 2010 had already confirmed the order of the tribunal and dismissed the 3 As far as the issue of pecuniary jurisdiction of the Tribunal is concerned from the plain reading of the order passed in LPA No. 4910 it is apparent that earlier order passed by the Hon’ble single Judge in W.P.(C) No. 2710 has not been interfered with and therefore cannot be reopened in this appeal. It was held by the Hon’ble single Judge that the issue of pecuniary jurisdiction ought to have been raised at the earliest stage. I also concur with this finding in view of Section 21(2) of the CPC that objection as to competence of a Court with reference to the pecuniary limits of its jurisdiction cannot be allowed in appeal or revision unless the objection was taken in the Court of first instance at the earliest opportunity. 10. Coming to the merit of the appeal the matter for consideration is whether the Railways had the right to reweigh the consignment and whether the necessary procedure was followed. Section 78 of the Railways Act 1989 lays down specific power to reweigh the consignment. The provision reads as under: 78. Power to measure weigh 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 weigh or re classify any consignment ii) recalculate the freight and other charges and iii) correct any other error or collect any amount that may have been omitted to be charged. From the above provision it is manifest that the Railways was within its right to reweigh the consignment. This extract is taken from Union of India v. Shree Shiv Sai Steel Industries 2019 SCC OnLine Gau 5715 :1 Gau LR 426 :203 AIC9 at page 428 4. A bare reading of section 73 of the Railways Act 1989 would go to show that whenever there is an excess loading of the goods beyond the permissible carrying capacity the railway administration may in addition to the freight and other charges recover from the consigners consignee or the endorsee as the case may be charges by way of penalty on such rates as may be prescribed before the delivery of the goods. The relevant aspect of section 73 is that the recovery of the penalty that may be imposed can be made before the delivery of the goods concerned. The object of having the salutary provision for levying penal charges for overloading has been explained by the Hon’ble Apex Court in Jagjit Cotton Textile Mills v. Chief Commercial Supdt. N.R. 5 SCC 126 at page 147 while upholding the constitutionality it was observed: “42. In our view these contentions are not tenable. As has been noticed in our discussion on Points 1 and 2 the railway statutes define “maximum carrying capacity” “normal carrying capacity”and the “permissible carrying capacity”. 4 No wagon can be loaded beyond the maximum carrying capacity. The wagon could not ordinarily be loaded beyond the normal carrying capacity or up to any upward variation thereof and this limit is called the permissible carrying capacity. Section 73 of the new Act and Rule 161 A of the old Rules permit loading in excess of the permissible carrying capacity without any penal charges now up to a limit of 2 tonnes.What is now subjected to a penal charge is the excess over and above the permissible level above stated which is always below the maximum limit. In our view this levy under Section 73 of the new Act and the old Rule 161 A is intended for dual purposes — one is to see that the gross weight at the axles is not unduly heavy so that accidents on account of the axles breaking down could be prevented. The other reason behind the collection is that inasmuch as the wagon has carried such excess load up to the destination point at the other end the replacement cost of the coaches engines or rails or of repairs to the bridges be covered”. 11. The main ground on which the application for refund has been allowed by the learned Tribunal is that none of the representative were present at the time when the consignment was being reweighed. The impugned order is laconic and has allowed the refund of penalty for overloading merely on the ground that no representative was present. Section 73 specifically provides that the railway administration may reweigh the consignment and recalculate the freight and other charges before the delivery of the goods. During rebooking of the consignment from Bhatapara to Jagdishpur the punitive charges were paid by respondent without any objection and without any protest. In any case when the goods are en route it will be highly unpracticable to detain the consignment until the representative of the consignor comes and presents before re weighment is done. Re weighment is a statutory right of the railway administration to check all short of malpractices and a clog on this cannot be imposed by laying down unrealistic conditionalities like presence of the consignor at the time of reweighment. Considering the length and breadth of our country and the span in which the railways network is spread out is it possible to detain the goods train enroute till the representative arrives there The impugned order does not cite any rule or circular in support of such a requirement. Under the circumstance the impugned order is not sustainable and is accordingly set aside. The appeal is allowed. Consequently I.A. No.4511 stands disposed of. Gautam Kumar Choudhary J.) Jharkhand High Court Ranchi Dated the 10th February 2022 NAFR Anit 

Summary: Section 73 of the railway’s act, 1989 provides a statutory right to the railway administration to reweigh the consignment – Jharkhand High Court The present appeal under Section 23 of the Railway Claims Tribunal Act, 1987 against the judgment passed by railway claims tribunal to direct the appellant to refund Rs. 3,71,328/- to the respondents. The appeal is filed against the judgment and is heard and allowed by a single judge bench of HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY in the case of Union of India versus M/s. Muva Industries Ltd and Ors. (M.A. No. 30 of 2011) The learned counsel appearing on behalf of the appellants submitted that by the order number RCT/DLI/Judl.Policy/2002-2003 of railway claims tribunal,13/15 Moldova daily. the pecuniary jurisdiction of the concerned single bench is restricted to ₹ 2 lakhs (Rupees Two Lakhs), except in untoward and train accident cases, and according to the proviso to Section 4(4) of the Railways Claims Criminal Act 1987, the single-member should have referred/transferred the matter to a bench of two members to a division bench as the matter demands and apart from the jurisdiction issue raised it was also submitted that there is provision to re-weigh and there was nothing wrong on the part of the Railway authorities to have a reweighed the consignment and during rebooking of the consignment the punitive charges were paid by the respondent without any objection and once the excess weight is accepted then the plea against overloading and consequent punitive charges cannot be raised. It was further argued that in LPA No. 493 of 2010, the Hon’ble Court was pleased to permit the appellant to withdraw the appeal and the writ and therefore the order passed by Hon’ble. the single Judge in the writ petition does not bar the appellant from preferring the instant appeal. The learned counsel appearing on behalf of the respondents submits that the Hon’ble single Bench in W.P.(C) No. 274 of 2010 has already confirmed the order of the tribunal and dismissed the writ. And as far the issue of pecuniary jurisdiction is concerned it is apparent from the order passed in LPA No. 493 of 2010 and the earlier order passed by Hon’ble single Judge in W.P.(C) No. 274 of 2010 has not been interfered with and therefore cannot be reopened in this appeal. The respondent also submits that Section 21(2) of the CPC and that objection as to the competence of a Court regarding the pecuniary limits of its jurisdiction cannot be allowed in appeal or revision unless the objection was taken in the Court of the first instance at the earliest opportunity. The court finds merit in the appeal and the matters into consideration that whether the Railways had the right to reweigh the consignment and whether the necessary procedure was followed. Section 78 of the Railways Act 1989 lays down specific power to reweigh the consignment and relies on the case of Union of India v. Shree Shiv Sai Steel Industries, 2019 SCC OnLine Gau 5715 : (2020) 1 Gau LR 426 : (2019) 203 AIC (Sum 20) 9 at page 428 and on the case of Jagjit Cotton Textile Mills v. Chief Commercial Supdt., N.R., (1998) 5 SCC 126 at page 147 and finds and main ground which the application for refund has been allowed by the learned Tribunal is that none of the representatives were present at the time when the consignment was being reweighed. Section 73 of the railway’s act specifically provides that the railway administration may reweigh the consignment and recalculate the freight and other charges before the delivery of the goods and makes it a statutory right of railway administration to consider all sorts of malpractices and under the impugned circumstances of the case the present appeal is allowed and the impugned order was set aside.