1. The Appellants were Writ Petitioners. They had filed Writ application under Article 226 of the Constitution of India (Civil Rule No. 815/97) praying for issuance of following directions to the Respondents (i) to refund punitive charges of Rs. 9,50,114.00 recovered from them for allegedly carrying goods in the Wagons beyond permissible capacity (ii) not to claim demurrage and wharfage charges from them and (Hi) to release the Wagons detained by the Respondents for the purpose of realizing the said amount.
2. The Civil Rule was heard by a learned single Judge who by the impugned Judgment and Order dated 3-8-1999, declined . the prayer for refund of the punitive charges amounting to Rs. 9,50,114.00 paid by the Appellants. In view of the interim directions, five Wagons of coal detained by the Respondent Railways were released on furnishing of Bank Guarantee by the Appellants. The ; learned single Judge subsequently held that the Respondents are not entitled to claim demurrage and wharfage as the same were not payable by the Appellants. The Bank Guarantee was accordingly released. The appellants filed Review Application No. 67/ 99 which was dismissed vide order dated 7-12-2002. Against the orders dated 3-8-1999 passed in the Civil Rule and dated 7-12-2002 passed in the Review application, the Appellants have filed this Appeal.
2.1. There was delay of 461 days in filing this appeal for condonation of which an application was tiled. That application was dismissed by holding that sufficient cause has not been shown and consequently the Writ Appeal was also dismissed being barred by limitation. The appellants filed Civil Appeal No. 230/2002 before the Hon'ble Supreme Court of India. By order dated 23-8-2002 the Hon'ble Supreme Court condoned the delay and remitted back for hearing this appeal.
3. The relevant facts in brief are as follows :--
3.1. The Appellants were the consignor in respect of a Railway Rake containing 35 Wagons wherein Nangal Dry Coal was loaded at Jogighopa Railway Station. There was no Weigh Bridge at Jogighopa Railway station at the relevant point of time and, as such, the Wagons were loaded without weighment. A certificate to that effect was issued on visual check. An endorsement was also made in the Railway receipt that the Wagons were to be weighed at the Weigh bridge station enroute or at destination station and thereafter all thirty five Wagons were weighed at the station Laskar. It was found that most of the Wagons were loaded beyond the permissible limit. The Rake arrived at the destination station Rohtak on 1-2-97 and in view of finding of Laskar Weigh Bridge that the Wagons were loaded beyond the permissible limit, the Appellants were informed and asked to pay punitive charges of Rs. 9,50,114.00.
3.2. The Appellants challenged the weighment made at the Laskar station on the ground that no notice of such weighment was issued to them and, as such, the weighment was bad in law. The Appellants also prayed for re-weighment at the nearest Weigh Bridge at their cost in their presence. The Respondents allowed re-weighment of the coal Rake and directed the Appellants to deposit a sum of Rs. 94,080.00 towards re-weighment and haulage charges. The Appellants deposited the said amount. The weighment took place at Panipat Thermal Power Station (for short the 'PTPS') Weigh Bridge in presence of the officials of the Railways. During re-weighment, it was found that the Wagons were not loaded beyond the permissible limit and the Appellants were not liable for payment of punitive charges.
3.3. The Respondents, however, refused to accept the re-weighment at FITS and insisted on payment of punitive charges on the basis of the weighment at Station Laskar. The appellants paid the punitive charges under protest and took delivery of thirty Wagons of coal.
3.4. The remaining five Wagons of coal were detained by the Respondents for realizing demurrage and wharfage.
3.5. The writ petition was contested by the Respondents stating, inter alia, that the consignor was not entitled to any notice and, therefore, notice regarding weighment at the Laskar Station was not issued. Re-weighment at PTPS was not in accordance with law as the Railways Act or Rules framed thereunder do not provide for such re-weighment and, as such, they were not bound to accept such re-weighment. The PTPS Weigh Bridge is private and not maintained by the Respondents.
3.6. These five Wagons were released at the intervention of this Court. So far as demurrage and wharfage in respect of remaining five Wagons of coal were concerned, the learned Judge granted relief. The Respondents have not come up in appeal against the said direction.
3.7. So far as the plea of Respondents that no notice was required to be issued to the consignor for re-weighment enroute at Laskar Station, the learned single Judge by referring to the provisions of Section 78 of the Indian Railways Act and relying on the decision of the Apex Court in the case of Jagajit Cotton Textile Mills v. Chief Commercial Superintendent, Northern Railway AIR 1998 SC 1959, held that the Respondent Railways are empowered to measure or weigh loading and overloading of Wagons.
4. In this appeal, we are concerned with the claim of the Appellants that they are not liable to pay any punitive charges and the amount claimed by the Respondent Railways and paid by them under compulsion need to be refunded.
5. Section 78 of the Indian Railways Act, 1989, (for short the 'Act'), 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) 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.
A plain reading of this Section shows that the Railways are vested with the power of measure, weigh or re-weighment of any consignment before delivery and there is no provision for issuing notice for the purpose. The findings recorded by the learned single Judge on non-issuance of notice to the Appellants has not been challenged before us.
6. Section 87 of the Act, empowers the Central Government to make Rules in respect of matters of carriage of goods.
7. Section 79 of the Act, reads as follows :--
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 such charges as may be prescribed and the demurrage charges if any :
Provided that except in cases where a railway servant authorized 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..
8. However, there is no dispute that re-weighment at PTPS was made at the behest of the Appellants, who had also paid the re-weighment and haulage charges from Rohtak Railway Station to PTPS, as demanded by Respondent-Railways. The fact that the PTPS Weigh Bridge does not belong to Respondents and they do not maintain it is also not disputed. The contention of the Appellants is that as the Respondents had accepted and allowed the prayer for re-weighment on payment of necessary charges, in view of the principles of promissory estoppel, they are estopped from disputing the re-weighment at PTPS Weigh Bridge and acting on the basis of weighment made at the Laskar Station and insist payment of punitive charges therefor.
9. It was submitted on behalf of the Respondents-Railways that no Rule has been framed by the Central Government pursuant to the provisions of Sub-section 2(g) of Section 87 of the Act which provides that rules can be made in the matter of -- sub-Clause (g); 'the conditions subject to which charges payable for allowing weighment and circumstances for not allowing weighment of consignment in wagon load or train load under Section 79'.
10. The learned single Judge has accepted the above contention of the respondents Railways and held that in absence of the Rules/executive instruction the Circulars issued by the Respondent-Railways would hold the field. As regards the plea of promissory estoppel, the learned single Judge rejected the same holding that the Appellants did not make any whisper in the writ petition that the respondent-Railways had made any representation to them at the time of allowing the prayer for re-weighment at their instance, that the result of re-weighment (emphasis provided) made pursuant to the order dated 4-2-97, will be accepted by the Respondents. He further held that Section 79 of the Indian Railways Act, 1989, nowhere provides that when re-weighment is allowed at the request of the consignee or endorsee, the result of such re-weighment will be binding on the Respondent-Railways. The learned single Judge-further held :
In my considered opinion, therefore, until Rules are made by the Central Government under Section 79 and Section 87(2)(g) of the Act, 1989 to the contrary, even where weighment or re-weighment is allowed under Section 79 of the Act, 1989 at the request of the consignee or the endorsee, the result of such weighment or re-weighment at. a weigh-bridge other than a railway weighbridge cannot be held to be binding on the railway administration.
11. The broad facts are not in dispute. The re-weighment of thirty five Wagons in the Rake was allowed by the Mukhya Mal Parzabekshak, Northen Railway, by his latter dated 4-2-97, which reads as follows :
NORTHERN RAILWAY
No. 10/CGS/ROK/97 Dt. 4-2-97
To
M/s. Vijay Coal Co.
Anaj Mandi, Rohtak,
Sub : Payment of re-weighment & Haulage charges Rs. 94080/-
As per Coml. CNL Message No. 675/CC/ 9706 dt. Re-weighmet of coal Rake
permitted. So Pl. deposit the Re-weighment charges & haulage charges as cited
above before Re-weighment.
Sd/- Illegible
Mukhya Mal Parzabekshak.
12. Before the learned single Judge, it was contended on behalf of the Respondents that it is not known as to whether the Mukhya Mal Parzabekshak had any authority under the law to allow re-weighment or not. Onus to prove the absence of authority of the Mukhya Mal Parzabekshak, Northern Railways, to allow re-weighment, lies on the Respondents and as they have failed no contrary view can be taken.
13. As stated above, It is also not disputed that pursuant to order dated 4-2-1997, the Appellants had deposited the required amount and thereafter the Wagons were taken to FTPS by the Respondents and re-weighment was done in presence of the Appellants and the copies of the re-weighment chart, annexed to the writ petition, indicate that a number of officers of the Respondent-Railways were present when the re-weighment was done. It is true, however, that in order dated 4-2-97, whereby re-weighment was permitted, the Respondents did not hold out any promise that the result of such re-weighment will be accepted by them.
14. The transportation of goods by the Railways comes with the realm of contract between the consignor and the consignee on the one end and the transporter, i.e., the Railways on the other end. In view of provisions under Section 78, the transporter has liberty to re-measure, re-weigh or re-classify any goods or consignment before delivery, if it suspects overloading and the transporter can also recalculate the freight and other charges on the basis of such re-measurement, re-weighment or re-classification but the transporter is not required to issue any notice for such acts and these can be carried on in absence of the consignor. In the other hand, under Section 79 of the Indian Railways Act, 1989, permission for re-measurement or re-weighment may be granted to a consignor on latter's prayer. Therefore, absence of any rule to the above effect will not dilute the provisions of the Act. The Rules are framed to add and assist the Act and no Rule can override the Act or negate the provisions of the Act. From the letter dated 4-2-97, quoted above, it is crystal clear that the Respondent-Railways allowed re-weighment of the Wagons at the cost of the Appellants and, in fact, necessary charges to that effect have been collected by them. We are unable to subscribe to the view taken by the learned single Judge that though re-weighment was allowed by the Respondent-Railways, the latter was not bound to accept the result of such re-weighment in absence of any specific terms to that effect in the letter in question. The natural query to the above is, what for the re-weighment was done and why the Appellants deposited Rs. 90,080.00 as the cost of such re-weighment? If the Appellants would have been informed that though re-weighment would be allowed as sought for, but the results thereof might not be accepted by the Respondent-Railways; the Appellants would have not gone for such re-weighment on payment of huge amount. Admittedly, the letter in question does not contain any promise made by the Respondent-Railways but when the act is done naturally the consequences should follow. Whey re-measurement, re-weighment is done? It is done only to find out the actual weight or mistake, if any. Hence, if the Railways have the liberty to accept or not to accept, then what is the purpose of allowing weighment or re-weighment. The Railways cannot have such arbitrary powers. Furthermore, the letter in question also does not contain any statement that the Railways will not be bound by such re-weighment. We are, therefore, constrained to hold that once weighment or re-weighment is done for the Wagons in question in presence of the Appellants and the officials of the Respondent-Railways, in absence of any plea or proof that such re-weighment was faulty or defective, the Railways are duty bound to accept the results thereof in view of the provisions of Section 79 of the Act.
15. The learned single Judge has also accepted the Respondents' plea that the Weigh Bridge at FTPS is not maintained by the Railways and in view of the executive instruction, the results of weighment made at a private Weigh Bridge cannot be accepted. The submissions made by the learned Counsel for the Appellants was recorded by this Court in its order dated 19-5-2005 and it reads as follows :
One of the submissions made by Mrs. Goyal, learned Counsel for the appellant, is that apart from the fact that the statute does not impose any ban on the re-welghment on a machine other than that of the Railways, and in the instant case the authorities having allowed the request of the appellant for re-weighment at another place after imposing the appellants of certain charges which were also paid, now the Railway authorities have refused to accept the re-weighment which was done in presence of Railway authorities, who had also put signatures, on the ground that the instructions do not permit it which is not couched in such language, besides, from the facts available in the recent Contempt Application No. 199/ 2005 it is clear that in the case of M/s. V.J. Agencies the Railways had allowed re-weighment on other weighing machine which were accepted by the Railways and thereby the impugned action is discriminatory and violative of Article 14 of the Constitution of India.
16. In spite of providing sufficient opportunities to the Respondent-Railways, they did not file any counter affidavit to rebut the allegations or the statements made by the Appellants.
17. It is not disputed that as per the re-weighment at FTPS, the discrepancies in the loading of coal was within the permissible limit of 2%,
18. On perusal of the records and documents available before us, we hold that the Respondents had allowed re-weighment of Wagons in question at private Weigh Bridge (Dharamkatas) and they also accepted the results of such re-weighment; The Appellants before us stand on a better footing. The FTPS Weigh Bridge is maintained by a Public Sector Undertaking and not by a private individual. We, therefore, hold that as the Respondents had allowed re-weighment of the Wagons at FTPS and as the re-weighment was done in presence of both sides, they (the Respondents) are bound to accept the results of such re-weighment.
19. We further hold that the Appellants are not liable to pay punitive charges as the discrepancies were within permissible limit. The Appellants are, therefore, entitled to refund of amount of Rs. 9,50.114.00.
20. In the result, this Writ Appeal is allowed. The impugned Judgment and Order dated 3-8-99 so far it relates to refund of the punitive charges is set aside. The Respondents are directed to refund the amount of Rs. 9,50,114.00 within a period of eight weeks from today.
21. However, considering the entire facts and circumstances, the parties are directed to bear their own costs.