ORDER
1. This Batch of wit petitions can be disposed of by a common order, as the point involved in all the writ petitions is one and the same.
2. All these writ petitions are filed by the mango traders who export mangoes from Nuzvid to New Delhi under a consignment entrusted to Railway administration to transport and deliver the same at its destination at New Delhi.
3. The petitioners have questioned the action of the respondent No.9, The Chief Goods Supervisor, Northern Railways, Jhansi, Uttar Pradesh, in issuing re-weighment particulars by arriving overweight vide the order dated 5-6-1998 and consequently collecting the under charges of Rs.4,97,767/- from the petitioner in VP No.9796 of 1999 (vide money receipt Nos.777628 to 777635 by the third respondent-The Chief Parcel Supervisor, Naya Azadpur Railway Station, New Delhi); Rs.85,387/- from the petitioner in WP No.9830 of 1999 (vide money receipt Nos.777623 to 777639 by the third respondent); Rs.91,193/- from the petitioner in WP No.9838 of 1999 (vide money receipt Nos.777636 to 777627 by the third respondent) and Rs.24,915/- from the petitioner in WP No.985,8 of 1999 (vide money receipt Nos.777640 and 777641 by the third respondent) and Rs.4,31,038/- from the petitioner in WP No.9909 of 1999 (vide money receipt Nos.777617 to 777622 by the third respondent); as arbitrary, illegal and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India.
4. The averments made in the Writ Petition No.9796 of 1999 filed by one Syed Muneer Raza, as briefly as follows:
The petitioners do business in mango forwarding and transporting from Nuzvid, Andhra Pradesh to New Delhi. During 1998 the petitioners registered one rake load indent vide Way Bill Nos.0993234 to 0993252 with 19 NMG wagons and was loaded with mangoes at Nuzvid Railway Station. The railway authorities have conducted test weighment of 10% of the baskets loaded and have accepted the weighment particulars given by the petitioner, which was as per the Railway Rules. He further submitted that the respondent have detained the rake at Jhansi, Uttar Pradesh, and conducted re-weighment of the entire rake and issued particulars of weighment arrived at by them at Jhansi at weigh bridge No.46 and the register of the weigh bridge at Jhansi disclosed 70.7 tonnes excess weight thereby the respondents have collected Rs.4,97,767/- from his consignees at New Delhi vide money receipt Nos.777628 to 777635. He also stated that he objected the action of the respondents by his letter dated 6-6-1998 stating that the weighment procedure adopted by them is faulty, unscientific and requested for justice by re-weighment at Naya Azadpur, but the respondent authorities have refused his request for re-weighment by their letter dated 6-6-1998. The respondent No.8, The Chief Commercial Manager, Refunds, Northern Railways, New Delhi also refused to refund the under charges by his letter dated 21-9-1998.
5. It is further stated by the petitioner that the consignees at New Delhi have withheld and adjusted his transportation charges and the earlier amounts due from them to him thereby making him to suffer for no fault of him and further at his request the consignees at New Delhi gave letter of authority dated 2-1-1999 for claiming refund of the under charges. Therefore, he contends that the action of the respondents in refusing to re-weigh the mangoes at Naya Azadpur Railway Station and to refund the excess amount collected by them is violative ofprinciples of natural justice. He further contends that when once the goods are accepted under senders weighment system and have re-weighted the goods at Jhansi Railway Station, Bridge No.46 without giving notice to the petitioner is illegal and contrary to the principles of natural justice; that his request for re-weighment at Naya Azadpur Railway Station was specifically refused and the respondent No.8 also refused to refund the undercharges; that as per Rule 117 of the IRCA, difference upto 2% for four wheelers and 4% to eight wheelers has to be ignored, but instead of that the respondents have penalised him even for one quintal; that the re-weighment should not have been done enroute for a perishable commodity like mangoes which is detrimental for the business of the petitioner; that the suppression of the material fact that eight wheeled NMH wagon cannot be placed on the weigh bridge at a time due to its length, the length of the NMG wagon is more than the diameter of the weigh bridge and as such the procedure of placing four wheels of the wagon on the weight bridge and leaving rest of the four wheels on the track thereby weighing right four wheels one time and left four wheels another time is absurd, unscientific and is fraudulent; that the procedure of calculating and adding permissible difference for eight wheels wagons upto two tonnes by the Vigilance Inspector at Jhansi Railway Station without seeing the original RR and arriving at high over-weighment creating alarm in the minds of the authorities and subsequently reducing the permissible differences i.e., two tonnes for eight wheeler NMH wagon when the rake ultimately arrived at Naya Azadpur. Therefore, the action initiated by the respondents for conducting re-weighment of the mangoes at Jhansi Railway Station and refusing to accept his request for re-weighment at Naya Azadpur Railway Station, New Delhi and also the refusal to refund the amount is illegal, arbitrary and offending Articles 14, 19(1)(g) and 21 of the Constitution of India, and thus, sought for interference of this Court.
6. The learned standing Counsel for the Railways raised a preliminary objection that the writ petitions are not maintainable at the instance of the petitioners for claiming refund of the freight charges inasmuch as an efficacious alternative remedy is made available to them by approaching to the Railways Claims Tribunal, provided under the Act, for redressal of their grievances.
7. In the light of the contentions of the petitioners in the affidavit and the preliminary objection raised by the learned standing Counsel for the Railways, let us examine the legal position with regard to the maintainability and the factual aspects of the matter.
8. The learned Counsel for the petitioners has taken me to the various provisions of Chapter IX of the Railways Act, 1989 (for short the Act). Section 64 of the Act contemplates that every person entrusting any goods to a railway administration for carriage shall execute a forwarding note in such form as may be specified by the Central Government. It further envisages that the consignor shall be responsible for the correctness of the particulars furnished by him in the forwarding note and he shall indemnify the railway administration against any damage suffered by it by reason of the incorrectness or incompleteness of the particulars in the forwarding note. So in compliance of the aforementioned section of the Act, the petitioners have executed forwarding note from Nuzvid to New Delhi.
9. The learned Counsel also took to Section 65 of the Act, which contemplates issuance of receipt. It envisages that the railway administration shall, in a case where the goods are to be loaded by a person entrusting such goods, on the completion of such loading or in any other case, on the acceptance of the goods by it, issue a railway receipt in such form as may be specified bythe Central Government, which shall be prima facie evidence of the weight and the number of packages stated therein. Proviso to this section says 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. Section 66 of the Act contemplates that the owner or a person having charge of any goods which are brought upon a railway for the purpose of carriage by railway, and the consignee or the endorsee of any consignment, shall, on the request of any railway servant authorised in this behalf, deliver to such railway servant a statement in writing signed by such owner or person or by such consignee or endorsee, as the case may be, containing such description of the goods as would enable the railway servant to determine the rate for such carriage. Sub-section (4) of this section contemplates if the statement delivered under sub-section (1) is materially false with respect to the description of any goods to which it purports to relate, the railway administration may charge in respect of the carriage of such goods such rate, not exceeding double the highest rate for any class of goods as may be specified by the Central Government. Sub-section (5) hereof specifies that if any difference arises between a railway servant and such owner or person, the consignee or the endorsee, as the case may be, in respect of the description of the goods for which a statement has been delivered under sub-section (1), the railway servant may detain and examine the goods.
10. Section 73 of the Act empowers the Railway administration for punitive charges for overloading, where a person loads goods in a wagon beyond its permissible carrying capacity as exhibited under sub-section (2) or sub-section (3) ornotified under sub-section (4) of Section 72 of the Act, the 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.
11. Section 78 of the Act empowers the Railway administration to measure and weight. It contemplates that notwithstanding anything contained in the railway receipt, the railway administration may, before the delivery of the consignment, have the right of re-measure, re-weigh or re-classify any consignment, to re-calculate the freight and other charges and to correct any other error or collect any amount that may have been omitted to be charged. Section 79 of the Act contemplates that the 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 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 arc perishable and are likely to lose weight in transit and it further provided 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.
12. The learned Counsel for the petitioners submitted that under Section 79 of the Act, when the petitioners have madea request to the railway administration to re-weigh the mangoes at Naya Azadpur Railway Station, which is a genuine request, the railway administration should have accepted the request in the interest of the business. The learned Counsel for the petitioners further contended that the railway authorities have taken re-weighment without giving any notice either to the consignor, consignee or the endorsee, as the case may be and as such the action of the respondents attracts the violation of the principles of natural justice and as such liable to be set aside, but he has not stated whether the necessary payment was made for surcharges of re-weighment.
13. In support of his contention, he relied on a judgment of the Supreme Court Union of India and others v. Himmat Singh Chahar, : 1999CriLJ2894 . Their Lordships of Supreme Court have reversed the judgment of the High Court and held that the defence personnel serving in the Army, Navy or Air Force when commit any offence are deait with by the special provisions contained in the Army Act, 1950, or the Navy Act 1957 or the Air Force Act, 1950 and not by the normal Criminal Procedure Code. The said Navy Act is a complete code by itself and prescribes the procedure to be followed in case it is decided that an officer should be tried by a Court-Martial. The Act also provides sufficient safeguard by way of further appeal to the Chief of the Staff and then ultimately to the Union Government. Therefore, ordinarily there should be a finality to the findings arrived at by the competent authority in the Court-Martial proceedings. The High Court's power under Article 226 to judicially review such findings is for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of principles of natural justice which vitiated the entire proceedings or that the authorityexercising the jurisdiction had not been vested with jurisdiction under the Act. The said power of judicial review cannot be a power of an appellate authority permitting the High Court to reappreciate the evidence and in coming to the conclusion that the evidence is insufficient for the conclusion arrived at by the competent authorities in Court-Martial proceedings. At any rate, it can not be higher than the jurisdiction of the High Court under Article 227 against an order of an inferior Tribunal. Therefore, it has to be held that the High Court overstepped its jurisdiction in trying to reappreciate the evidence of the victim in coming to the conclusion that her evidence was not credible enough to give a finding of guilt against the respondent of a charge under Section 354 of Indian Penal Code.
14. On the other hand the Supreme Court held that on facts it has to be held that the statement of the victim leads to an inescapable conclusion that the respondent has been rightly found by the authorities in the Court-Martial proceedings to have committed the offence under Section 354 of the Indian Penal Code. Therefore the point decided by the Supreme Court in Mimmat Singh Chahar's case (supra), is that while exercising the power under judicially review the Court cannot re-appreciate the evidence adduced before the Court-Martial under the Army Act and it cannot reverse the finding of the Court-Martial. Therefore, the principle laid down by the Supreme Court in the above case is not applicable to the facts of these cases.
15. The learned Counsel for the petitioners has further relied on a judgment of the Supreme Court in Hindustan Petroleum Corporation Limited and another v. Dolly Das, (1994) 4 SCC 450, wherein Their Lordships of the Supreme Court held that if the facts pleaded before the Court are of such a nature which do not involve any complicated questions of fact needingelaborate investigation of the same, the High Court could also exercise jurisdiction under Article 226 of the Constitution of India in such matters. There can be no hard and fast rule in such matters. When the High Court has chosen to exercise its powers under Article 226 of the Constitution we cannot say that the discretion exercised in entertaining the petition is wrong.
16. But as can be seen from the facts and circumstances of the case, and applying the principle laid down in Dolly Das's case (supra), the questions involved in these writ petitions are complicated needing an elaborate investigation, inasmuch as the relation between the petitioners and the railway administration has emanated from out of the contract to transport mangoes from Nuzvid Railway Station to New Delhi. The petitioners entrusted the mangoes to the railway administration by executing a forwarding note in the prescribed form and in token of acceptance of carrying the goods to the destination, the railway administration has given receipt. Thus, the rights of the parties trace the origin to the contract and for the alleged violation of the rights under the contract, the only recourse available to the petitioners is the Railway Claims Tribunal constituted under the Railway Claims Tribunal Act, 1987; which provides for inquiring into and determining claims against a railway administration for loss, destruction, damage, deterioration or nondelivery of animals or goods, entrusted to it to be carried by railway or for the refund of the fares or freight or for compensation for death or injury to passengers occurring as a result of railway accidents and for matters connected therewith or incidental thereto.
17. The objections raised by the petitioners are that the railway administration has conducted re-weighment of mangoes at Jhansi during the transit without giving notice to the petitioners on bridge No.46 which is not suitable for weighment of eight wheeledNMH wagon due to its diameter, by placing four wheels of the wagon on the weight bridge and leaving the rest of the four wheels on the track thereby weighing right four wheels one time and left four wheels another time and allowing a difference of two tonnes as difference. All these disputed facts require a through enquiry and thus they involved complicated questions of facts. Thus the facts pleaded before the Court involve complicated questions of facts needing elaborate investigation and this Court, cannot, in exercise of the extraordinary jurisdiction under Article 226 of the Indian Constitution decide such questions. Moreover, in the Dolly Das's case (supra), ultimately the Supreme Court has given the discretion to the High Court to entertain the case based on the facts and circumstances of the case, as the facts mentioned in the present writ petitions are complicated in nature, therefore, the Railway Claims Tribunal has to decided them.
18. The learned Counsel for the petitioner also relied on a judgment of the Supreme Court in Nawabkhan Abbaskhan v. State of Gujrath, : 1974CriLJ1054 . The subject-matter involved in the above judgment arises under the Bombay Police Act, on contravention of the externment order, passed under Section 56, and the accused was not given an opportunity to tender explanation under Section 59 and there was disobedience of order and prosecution under Section 142 was launched. In those circumstances, the Supreme Court quashed the prosecution order on the ground that extemment order was not passed observing the principles of natural justice. But violation of Fundamental Rights of the petitioner was not involved in the present writ petitions, therefore, the above judgment is of no help to the petitioners.
19. The learned Counsel for the petitioners further relied on a decision M/s. Salt Marketing Centre, Gatiahati v. Union of India and others, AIR 1996 Gauhati 36,wherein the case arose under Section 105 of the Railways Act, when the goods were weighed enroute by railway without information to the consignor or consignee, the consignee can claim re-weighment at destination station in case of doubt re-weighment and that too when the Railway has levied penally on the basis of re-weighment. In M/s. Salt Marketing case (supra), the learned single Judge of the Gauhati High Court held that if some doubt arises regarding the genuineness of the weight taken enroute, the consignor or the consignee or its endorsee are entitled to re-weighment at the destination station. It was the duty of the Railway Authority to inform the consignee about their intention to re-weigh which was however not done. The learned Judge further held that it is true that the Railway administration is not always bound to re-weigh, but when the Railway administration had decided to impose penalty such re-weighment is obligatory. Therefore, the Railway authority in the opinion of the learned Judge was bound to re-weigh the goods when asked for. The imposition of excess tariff and imposition of penalty are two different things.
20. In M/s. Salt Marketing case (supra), the goods entrusted for transportation was salt, which is not a perishable commodity. The learned Judge, in that case, in the discretion of the Court, having regard to the facts and circumstances of the case, passed the above said order, which in my considered view cannot govern the facts and circumstances of these cases as such the ratio of the said case cannot be made applied to the facts of these cases on hand. In the present cases on hand, the petitioners seek refund of the excess freight collected by the respondents. The grant of said relief squarely falls within the ambit of Section 13(lXb) of the Railway Claims Tribunal Act, 1987, which can be only be after conducting a detailed enquiry and investigation in the matter having regard to the provisions of Section 78 of the Railways Act, 1989.
21. In reply to the above contention of the learned Counsel for the petitioners, the learned standing Counsel for the Railways submitted that under Section 13(lXb) of the Railway Claims Tribunal Act, 1987, the Claims Tribunal is empowered to exercise jurisdiction in respect of the claims for refund of fares or part thereof, for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railways. Further sub-section (2) of Section 13 of the Act contemplates that the provisions of the Railways Act and the Rules made thereunder shall, so far as may be, applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act.
22. The petitioners are thus provided with an efficacious alternative remedy for the redressal of their grievances i.e., refund of excess amount collected by the railway administration after conducting re-weighment of mangoes entrusted by them to the railway administration for transportation to New Delhi. The petitioners also raised disputed questions of facts which require verification of records, recording evidence with regard to the suitability of the track and weigh bridge for weighment of the wagons, at Jhansi. Therefore, these questions of facts cannot be gone into by this Court under extraordinary jurisdiction conferred under Article 226 of the Constitution of India.
23. From the contentions and rival contentions of both the parties, it is manifest that the rights of the petitioners emerge from a contract which they entered between the petitioners and the railway administration when they entrusted the mangoes with forwarding note in the prescribed form for transportation from Nuzvid Railway Station to New Delhi, and the railway authorities have conducted test weighment of 10% of the baskets loaded and have accepted the weighment particulars given by the petitioners. On the other hand, the respondents have denied the same and asper Section 78 of the Act, the Railway administration has got the power to re-weigh the mangoes, recalculate the freight and other charges and correct any other error or collect any amount that may have been omitted to be charged.
24. Thus the facts pleaded in this Batch of writ petitions are complicated questions of facts, which need an elaborate investigation and enquiry by a fact finding authority. With such an object the Railway Claims Tribunal has been constituted where the petitioners can agitate their claim and claim refund of the freight charges which are alleged to have been collected by the respondents. The petitioners are further entitled to raise the issue of violation of principles of natural justice before the said Tribunal also.
25. In the present case, it can be seen from the facts and circumstances of the case that the railway administration has got power under Section 78 of the Act to re-measure, re-weigh or re-classify any consignment, to recalculate the freight and other charges and to correct any other error or collect any amount that may have been omitted to be charged before delivery of the consignment.
26. With regard to the contention that no notice was given while weighing the mangoes at Jhansi, Section 79 of the Act empowers the Railway administration 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 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. The exception provided in this section amply applies to the goods booked by the petitionersherein viz., mangoes, which are perishable goods. Therefore, while exercising power under Section 78 of the Act, the respondents-railway administration has weighed the mangoes by itself, inasmuch as the re-weighment after issue of notice may take considerable time and may effect the very nature of the consignment. Therefore, exercising the power vested in the railways, under Section 78 of the Act, re-weighed the goods. That apart, the action of the respondents in exercise of the powers under Section 78 of the Act is an administrative action and therefore, issuance of notice does not arise.
27. There was an occasion for the Apex Court to consider Section 78-B of the Railways Act, 1890 which prescribes to make a claim within a period of six months from the date of delivery of goods for refund of Ihe excess freight collected by the railway administration, in a decision Birla Cement Works v. G.M., Western Railways and another, : [1995]1SCR5 . In the said case, the claimant filed claim petition after expiry of six months before the Tribunal As the petitioner therein approached the Tribunal beyond the limitation under Section 78-B of the Act, the same was dismissed and the matter was carried from High Court to the Supreme Court. When the Tribunal and the High Court have held that the claim is maintainable, but the Supreme Court reversed the judgments of both the Tribunal and the High Court holding that the limitation is not applicable and as per Section 78-B of the Act, the claim has to be made within a period of six months from the date of delivery. Though the decision in Birla Cement's case (supra), does not have any bearing on the facts and circumstances of the case, but the ratio that emerges from the above decision is that the claimant has to approach the Claims Tribunal first for refund of the excess freight collected by the Railway Administration. Therefore, filing of the present writ petitions before this Court straightaway for refund of theexcess freight charges collected by the railway administration, without seeking the relief before the Claims Tribunal, are not maintainable. The claimants have to first approach the Tribunal constituted under the Act, for redressal of the grievance.
28. Though the learned Counsel for the petitioners has raised contention that the writ petitions are maintainable when the Railway authorities have passed the impugned order without having regard to the principles of natural justice. But I am sorry to make a comment that the said contention was not substantiated by any authoritative pronouncement.
29. Therefore, for the foregoing reasons, the writ petitions do not deserve any consideration and they are accordingly dismissed. But in the circumstances of the cases, without costs.