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Judgment
Ashok Bhushan, J.—Heard Shri Shambhavi Nandan learned Counsel for the Petitioner and Shri Vivek Singh appearing for the Railways.
By this petition, Petitioner has prayed for quashing the order/notices dated 25/12/2008, 18/2/2009 and 20/1/2011. By the said notices the Petitioner has been directed to deposit punitive charges amounting to Rs. 18,39,666/-.
Petitioner''s case in the writ petition is that an intend to load 3901.3 Metric Tonnes loose coal for the destination Lalkua District Nainital was submitted. Railway Receipt no.-038746 dated 03/6/2008 was issued after payment of total freight charges. Excess weight of 33.7 Metric Tonnes coal was found and the punitive charges were also paid at the originating station. The consignment was delivered to the Petitioner on 06/6/2008. After more than 6 months after the date of delivery of the goods a notice dated 25/12/2008, was issued by the Respondent No. 3 to the Petitioner for payment of punitive charges of Rs. 9,29,283. Another notice dated 18/2/2009, was issued by the Respondent No. 3 demanding Rs. 18,39,666/- as panel freight for over loading of goods booked under Railway Receipt No. 038746 dated 03/6/2008 instead of Rs. 9,29,283/- as per the earlier notice dated 25/12/2008. Petitioner immediately submitted representations on 21/4/2009 and 09/7/2010 stating that he is not liable to pay the said punitive charges. The Respondents have lastly issued notice on 20/1/2011, asking the Petitioner to deposit the aforesaid amount.
Learned Counsel for the Petitioner submits that u/s 73 of The Railway Act, 1989 (hereinafter called the -Act, 1989") no punitive charges can be demanded after delivery of the goods. It is submitted that the Petitioner had paid the freight charges as well as the over loading charges at the originating station and the Petitioner was delivered the goods on 06/6/2008 without raising any demand of any punitive charges or any other charge. He submits that after the delivery of the goods, it is not open for the Respondents to claim any punitive charges.
Learned Counsel for the Petitioner submits that the Petitioner is not liable to pay any charges.
Shri Vivek Singh learned Counsel appearing for the Railways submits that the Petitioner is liable to pay punitive charges. He submits that the said charges are being demanded since the goods were re-weighed at Vyas Nagar, Weigh Bridge at District-Rampur (U.P.) in which the goods were found to be over loaded. He submits that the Petitioner had given indemnity note on 05/6/2008, and they are liable to pay punitive charges in view of the indemnity note.
Shri Vivek Singh learned Counsel appearing for the Railways has further placed reliance on the judgment of the Apex Court in Jagjit Cotton Textile Mills Vs. Chief Commercial Superintendent N.R. and Others,
Learned Counsel for the Petitioner has also placed reliance on the judgment of the Apex Court in Jagjit Cotton Textile Mills Vs. Chief Commercial Superintendent N.R. and Others, . as well as the judgment of Gauhati High Court in AIR 2000 27 Raghu Forwarding Agency and Anr. v. Union of India and Ors. and the judgment of the Jharkhand High Court in AIR 2003 Jha 48 Jyoti Enterprises v. Union of India and Ors.
We have considered the submission of the learned Counsel for the parties and have perused the record.
Section 73 of the Railways Act, 1989 on which reliance has been placed is to the following effect:-
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.
In the present case, from the facts brought on the record it appears that consignment was delivered to the Petitioner on 06/6/2008 and for the first time punitive charges have been issued vide letter dated 25/12/2008. The the Apex Court in the case of Jagjit Cotton Textile Mills (supra) held that that the levy of penal charges for over loading is permissible in accordance with the provisions of the Railway Act, 1989 and such levy can neither said to be arbitrary nor violative of the Constitution of India. It was also held that in case of failure to pay charges, Railway has lien to recover it.
Shri Vivek Singh learned Counsel appearing for the Railways has placed reliance on the following observations of the Apex Court in paragraphs 42, 49 and 53 which are quoted below:
42.There is therefore no violation of Article 14. Further, the question of reasonableness of the quantum of any such extra rate cannot be challenged before us and the appropriate forum therefore is the Railway Rates Tribunal. Rule 161A can therefore be resorted to for collecting these penal charges from the consignee also. After all, the consignee had received delivery of the overloaded goods and used the same for their business, commercial or industrial purposes. For the above reasons, a statutory provision like Section 73 or Rule 161A which permits levy on such a consignee cannot, in our view, be said to be arbitrary or unreasonable in the context of Article 14.
49.For the aforesaid reasons, we hold that the Railways had a lien for the penal charge u/s 55(1) of the old Act and have a lien for the penal charges u/s 83 of the new Act. Under both statutes, the said charges are recoverable from the consignee as a condition precedent for delivery of the goods.
53.Inasmuch as we have held under Points 5 and 6 as well as under Point 7 that these penal charges can be collected from the consignees or endorsees of the railway receipt, under the new Act of 1989 and the 1990 Rules made thereunder, the Petitioners/Appellants are not entitled to any direction against the Railways for the future.
In the aforesaid case the question before the Apex Court as to whether the punitive charges can be realised after the delivery of the goods is not shown to have been considered. There can be no dispute that u/s 73 of the Act. 1989, punitive charges can be realised for over loading. The Judgment of the Gauhati High Court in M/s. Raghu Forwarding Agency (supra) is also not on the issue which has been directly raised in the present case. The judgment of the Jharkhand High Court in Jyoti Enterprises (supra) do support the submission raised by the counsel for the Petitioner up to some extent. From the materials which have been brought on the record it is not clear as to when the Petitioner was made aware of the re-weighment of the goods during journey and as to why the Petitioner was not made aware of over loading when he took the delivery of the goods on 06/6/2008.
In the facts of the present case, it is necessary to call upon the Respondents to file counter affidavit explaining the relevant facts. On the submissions made by the learned Counsel for the Petitioner and in view of the judgment of the Apex Court in Jyoti Enterprises (supra) the Petitioner has made out a prima-facie case for grant of interim order.
Learned Counsel for the Petitioner has also placed reliance on the Division Bench order of this Court in Writ Petition No. 53371/2007, Century Textile and Anr. v. Union of India and Ors. in which this Court entertained the writ petition and passed an interim order staying the operation of the impugned orders demanding payment of punitive charges.
Connect with Writ Petition No. 53371/2007.
Respondents are allowed three weeks'' time to file counter affidavit.
List on 18/5/2011.
In the meantime, implementation of the impunged notices dated 25/12/2008, 18/2/2009 and 20/1/2011, demanding punitive charges from the Petitioner shall remain stayed.