Important Point
Railways have a right to recover ‘penal charges’ relating to over­loading of coal in goods wagons beyond the ‘permissi­ble carrying capacity’ of each wagon, from the consignees. Consignees are not entitled to claim any refund or any direction against the Railways for the future not to collect it from them.

Judgment

M. Jagannadha Rao, J.-Leave granted in S.L.P. (C) No. 7766 of 1994.

2. These Civil Appeals and Transferred Cases raise common questions and can be disposed of together. The Civil Appeals arise out of judg­ments of the High Court of Allahabad and Rajasthan High Court. The transferred cases arise from the Delhi High Court and from the Rail­way Claims Tribunal (Lucknow Bench). Counsel have referred to the documents contained in T.C. No. 47 of 1997 (Eastern Coalfield Ltd. v. Ashoka Silicate & Glass Works, Delhi) for convenience, apart from the pleadings and documents in the other paper books. T.C. No. 47 of 1997, referred to above, is a case filed as C.W.P. No. 864 of 1985 in the Delhi High Court and transferred to this Court by virtue of orders in T.P. (C) No. 713 of 1995. On transfer it was numbered in this Court as T.C. No. 47 of 1997.

3. The broad facts in all the cases are similar. The appellants/peti­tioners are all consignees of coal from the collieries. The issue relates to the right of the Railways to recover ‘penal charges’ relating to overloading of coal in goods wagons beyond the ‘permissi­ble carrying capacity’ of each wagon, from the consignees. While the Railways claim that the said charges can be recovered from the appel­lants-consignees, the appellants, on the other hand, contend that the Railways ought not to have permitted overloading of coal at the Col­lieries railway-siding and that the consignor-collieries and the Railways are responsible for such overloading and therefore, the consignees cannot be made to pay these ‘penal charges’. The petition­ers/appellants not only seek refund of penal charges paid but a direc­tion that in future, the Railways should be directed not to collect the same from the consignees.

4. The broad facts of the case can be gathered from the Delhi case, T.C. No. 47 of 1997. The paper book in this case contains exhaustive pleadings and documents. The T.C. was initially filed as a writ peti­tion in the Delhi High Court. The writ petitioner, Ashoka Silicate & Glass Works, Delhi is a consignee of coal. It obtained a letter of identification or sponsorship from the Commissioner of Food and Sup­ply, Delhi recommending the allotment of a particular quantity of coal year after year as per the petitioner’s requirements. Thereafter the petitioner completed ‘financial arrangements’ through its agent M/s. Ramasaran Das & Bros. who have their office in New Delhi. The said agent obtained a Form, which is basically a form for approval of the sponsored quantity of coal either for every month in the year or for a particular month. The said programme was then submitted to the Col­lieries (The Eastern Coalfields Ltd. which is a subsidiary of Coal India Ltd.) for their approval so that the Colliery could agree to supply accordingly. After receiving the approval from the Collieries, the said programme was submitted to the Director of Movements (Rail­way) who works under the Railway Board so that the requisite number of wagons could be allocated for supply of coal by the Collieries to the petitioner. Once the programme is approved as above, the wagons would be brought and kept at the private railway siding of the Col­lieries for loading the coal. After the completion of loading, a forwarding note would be prepared by the Colliery. The wagons would be earmarked for different consignees and they move from the colliery to a focal point or booking point where the weigh bridge of the Collier­ies or Railways is located. The wagons constitute a ‘rake’ at the focal point and then each wagon would pass across the weigh bridge and the weight of the wagon loaded with coal would be verified and noted in the forwarding note and in the railway receipt. The Railways Act, 1890 and the Railways Act, 1989 contain provisions which require that the “average carrying capacity” of each wagon be marked on the wagon. Section 53 of the old Act refers to (i) the maximum carrying capacity, (ii) normal carrying capacity (and i