KAMRUP FORWARDING AGENCY Vs. UNION OF INDIA

JUDGEMENT

(1.) The facts which are relevant for disposal of this appeal are that the appellant, a dealer of coal, registered its indent at the Baihata Railway Station and loaded coal in 34 BCN Wagons on 12.12.96 for being despatched to Sriganganagar Railway Station. The Station Master of the Baihata Railway Station issued RRs dated 12.12.96 to the appellant mentioning therein that the consignments were to be reweighed enroute or at the destination. Thereafter, the 34 wagons were despatched from Baihata Railway Station but were not reweighed enroute and 33 out of the 34 wagons arrived at Shriganganagar Railway Station. The Chief Goods Superintendent of Sriganganagar Railway Station then issued a notice dated 22.12.96 to the representative of the appellant camping at the destination ttat as desired by the Vigilance Branch HQ, New Delhi and Sr. DCN (BKN), the whole consignment of 33 wagons will be weighed at Dharamkanta and delivery will be effected after collecting all the dues or the charges. On receipt the said notice dated 22.12.96, the appellant submitted a letter dated 23.12:96 stating, inter-alia, that weighment of the coal at Dharamkanta after unloading was illegal and requested the Chief Goods Superintendent to arrange delivery of the consignment as eairly as possible. The respondents, however, took the coal to some private weigh bridge for weightment and issued a notice dated 30.12.96 to the appellant stating therein that if delivery is not effected within 15 days from the date of receipt of the notice and all the charges paid the consignment will be treated as unclaimed and would be sold by public auction under Sections 55 and 56 of the Indiian Railways Act, 1890. The appellant submitted his objections to the said notice dated 30.12.96 in his letter dated 31.12.96 and in the leller dated 2.1.97 of his Advocate to the Chief Goods Superintendent of Sriganganagar Railway Station. In the meanwhile, a leiJter dated 1.1.97 along with an amended notice dated 30.12.96 were issued by the Chief Goods Superintendent of Sriganganagar Railway Station reiterating that if delivery was not taken within the time stipulated therein after payment of all the charges as per the rules, One consignments will be sold by public auction under Section 84 of the Railways Act, 1989. Although the charges that were required to be paid by the appellant have not been stated in the said amended notice dated 30.12.96, it has been stated in the writ petition that the said charges comprised of penal freight collected under the Railways (Punitive Charges for Overloading Wagons) Rules, 1990 (for short "the 1990 Rules)", wharfage and demurrage.

(2.) Aggrieved, the appellant filed C.R. No. 67/97 for declaring the 1990 Rules as ultravires and for a mandamus directing the respondents to cancel, recall or otherwise forbear from giving effect to the sale notices dated 30.12.96. The learned single Judge disposed of the same at the motion stage by the impugned judgment and order dated 9.1.97 directing the respondents to give the appellant reasonable opportunity to state his case against the proposed penal charges and permitting the appellant to lift the consignments of coal on payment of 50% of the proposed penal charges and on furnishing adequate security for the balance amount of penal charges subject to final orders which may be passed by the respondents. It is against the said judgment and order dated 9.1.97 of the learned single Judge passed in Civil Rule No. 67/97 that this appeal has been filed. On 10.1.97, while entertaining this appeal, we passed an interim order directing that the coal belonging to the appellant will not be sold by the Railways for realising the charges and that the impugned JUDGMENT & ORDER of the learned single Judge will remain stayed for the time being. Thereafter, on 16.1.97, we permitted the respondents to file an affidavit. Pursuant to the said orders, the respondents filed an affidavit-in-opposition to the various averments made in Civil Rule No. 67/97 as well as an affidavit-in-opposition to the averments made in the additional/ supplementary affidavit filed by the appellant in this writ appeal.

(3.) At the hearing of the appeal, Mr. S.K. Ghosh, learned counsel for the appellant, submitted that in the impugned judgment, the learned single Judge has not decided the question of vires of the 1990 Rules under which penal freight charges were proposed to be recovered from the appellant for over loading of the wagons. He contended that a reading of Sections 72 and 73 of the Railways Act, 1989 (for short the 1989 Act) would show that no carriage of goods beyond the maximum carrying capacity of a wagon was permissible under law and that the proviso to Section 73 stipulated that any goods loaded beyond such maximum carrying capacity of the wagon, if detected at the forwarding station or at any place before the destination station, have to be unloaded by the Railway Administration at the cost of the consignor, consignee or the endorsee as the case may be. Mr. Ghoshi argued that since Sections 72 and 73 made: carriage of goods in a wagon beyond its maximum carrying capacity unlawful, no punitive freight charges could be recovered for carriage of goods beyond the maximum carrying capacity and any rules made under the 1989 Act authorising the levy and recovery of such charges for carriage beyond the maximum carrying capacity of a wagon would be ultravires the 1989 Act. Mr. Ghosh pointed out that a reading of the 1990 Rules along with its schedule would show that no maximum limit has been fixed in respect of carriage of goods beyond the permissible carrying capacity for the purpose of calculating the punitive freight to be charged for a consignment. The consequence is that the 1990 Rules permits carriage of goods beyond the maximum carrying capacity of a wagon by realising punitive charges from the consignor, consignee or the endorsee. In support of his submision, Mr. Ghosh relied on the judgment of the Supreme Court in the case oif Rameshwar Prasad Vs. State of U.P. AIR 1983 SC 383 in which the Supreme Court has held that the State Government by issuing a notification containing a direction to the Transport Authorities to issue limitless number of permits had attempted to circumvent the provisions of the Motor Vehicles Act 1939. Mr. Ghosh further submitted that the schedule to the 1990 Rules would show that the punitive charges to be levied for overloading of wagons are highly disproportionate to the value of goods found to be over loaded and the 1990 Rules were therefore arbtrary and unreasonable and were hit by Article 14 of the Constitution. Mr. Ghosh pointed out that in the present case the value of coal which was loaded in the 34 wagons was about Rs. 21 lacs and the total freight that was paid for transportation of the coal from Bihata Railway Station to Sriganganagar Railway Station was about Rs. 22 lacs whereas the punitive charges for overloading the wagons which have been calculated as per the 1990 Rules works out to more than Rs. 38 lacs.