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2006 Supreme(Cal) 808
High Court Of Calcutta
DEBASISH KAR GUPTA, J.
AGARWALA AND CO. - Appellant
Versus
UNION OF INDIA - Respondent
C. O. 15765 (W) Of 1991
Decided On : 12/20/2006
N.C.Roychowdhury, P.K.SAMANTA, PRASANTA BISHAL, R.P.MUKHERJEE
A railway authority is required to consider the representation of the consignor or consignee for re-weighment of off loaded goods in their presence or in presence of the sender, as per the provisions of Section 79 of the Railways Act, 1989 and paragraph 1744 of the Indian Railway Commercial Manual II.
Headnote:
RAILWAY - WEIGHMENT OF CONSIGNMENT - Section 79 of the Railways Act, 1989 - Failure of railway authority to comply with the provisions of Section 79 of the Railways Act 1989 read with the provisions of paragraph 1744 of the Indian Railway Commercial Manual II - Railway authority failed to consider the representation of the petitioner for re-weighment of the off loaded bags in their presence or in presence of the sender - Writ petition allowed - Impugned demands quashed - Refund of security deposit and sale proceeds directed.
Fact of the Case:
The petitioners, M/s. Hari Trading Co. and M/s. Laxmi Trading Co., dispatched iodised salt consignments from Chirai, Gujarat to Bharampur (West Bengal) in 30 wagons. The railway authority at Chirai issued receipts against the loading of such consignments containing endorsements to senders weight accepted SM enroute to weigh and advise jointly destination to weight before delivery. The petitioners engaged J. B. Boda surveyors Pvt. Ltd., for supervision of crushed salt in bags for human consumption in B. G. wagons and also for weighment the weight of bags at random. Thereafter, 24 wagons out of the aforesaid 30 wagons reached the destination station at Berhampur Court when shortage of 1141 bags of salt were detected and short certificates were issued to that effect. The petitioners were informed by the Station Superintendent Bharampore Court. Eastern railway, as per his communication issued under Memo No. BPC/goods/11/91 dated October 29, 1991, that an amount of Rs. 52,938/- was charged as weighment charge by CGS/KKF as per his weighment order No. GI/635/91 dated February 12, 1991 and GI/635/91. dated October 12, 1991 and GI/ 635/91 dated October 14, 1991 against the aforesaid salt weights. The petitioners were requested to pay the aforesaid amount to clear the outstanding dues as well as to enable the office to deliver the balance consignment of the salt.
Finding of the Court:
The court found that the Railway authority failed to consider the representation of the petitioner for re-weighment of the off loaded bags in their presence or in presence of the sender. The court held that a power is given to the respondent authority in accordance with the provisions of the Railways Act 1989 for re-weighment of the goods and to take steps in respect of off loading of goods in excess of the maximum carrying capacity. But at the same time a protection is given to the consignor and the consignee by way of re-weighment of off loaded goods in their presence on the basis of their request. But in the instant case the Railway Authority failed and or neglected to comply with the provisions of Section 79 in discharging their function.
Issues: 1. Whether the railway authority was justified in not considering the representation of the petitioner for re-weighment of the off loaded bags in their presence or in presence of the sender? 2. Whether the impugned demands of the respondent authority were valid?
Ratio Decidendi: The court relied on the provisions of Section 79 of the Railways Act, 1989 and paragraph 1744 of the Indian Railway Commercial Manual II to hold that the railway authority was required to consider the representation of the petitioner for re-weighment of the off loaded bags in their presence or in presence of the sender. The court also relied on the decision in Nazir Ahmed v. King Emperor to hold that the respondent authorities failed to discharge their function in a way as provided in Section 79 of the Railways Act 1989.
Final Decision: The writ petition was allowed. The impugned demands of the respondent authority were quashed. The respondent authority was directed to refund the security deposit of the petitioners and the sale proceeds of the off loaded goods in question to the petitioners.
( 2 ) THE fact of the case in a nutshell is this on October 8, 1991 M/s. Hari Trading co. and M/s. Laxmi Trading Co, despatched iodised salt consignments from Chirai, gujarat to Bharampur (West Bengal in 30 wagons against bills for Rs. 3,20205/- and rs. 2,42,831/- respectively. The railways authority at Chirai issued receipts against the loading of such consignments containing endorsements as follows : "senders weight accepted SM enroute to weigh and advise jointly destination to weight before delivery". The senders engaged j. B. Boda surveyors Pvt. Ltd. , for supervision of crushed salt in bags for human consumption in b. G. wagons and also for weighment the weight of bags at random. Thereafter, 24 wagons put of the aforesaid 30 wagons reached the destination staiion at berhampur Court when shortage of 1141 bags of salt. were detected and short certificates were issued to that effect. Then the petitioners' were informed by the Station superintendent Bharampore Court. Eastern railway, as per his communication issued under Memo No. BPC/goods/11/91 dated october 29, 1991, that an amount of Rs. 52,938/- was charged as weighment charge by CGS/kkf as per his weighment order No. GI/635/91 dated February 12, 1991 and gi/635/91. dated October 12, 1991 and GI/ 635/91 dated October 14, 1991 against the aforesaid salt weights. The petitioners were requested to pay the aforesaid amount to clear the outstanding dues as well as to enable the office to deliver the balance consignment of the salt. On October 30, 1991 the petitioners submitted representation to the respondent Nos. 2 to 4 with request for re-weighment of the consignment and or the alleged excess eight salt bags in their presence as per provisions of paragraph 1744 of indian Railway Commercial Manual-II. The railway Authority did not pay any hit to that representation. Hence this writ application.
( 3 ) MR. P. K. Samanta Learned Advocate, on behalf of the petitioners submits that on october 10, 1991 and October 11, 1991 the consignor raised the bill disclosing the weight of the iodised salt. Drawing my attention towards the railway receipts dated october 7/8, 1991 Mr. Samanta submits that the Railway Authority accepted the senders weight and advised Station Master en-route to weight before delivery. He draw my attention towards the provisions of subsection (2) of Section 65 and submits that the railway receipt is the prima facie evidence of the weight and number of packages stated therein. In the event the weight of number of packages of train loaded consignment is not checked by the Railway authority and the statement for that effect is recorded in the railway receipt, the burden of proving the weight and number of packages as stated in railway receipt should be on the consignor or the consignee. But in the present case the railway receipts did not contain endorsement that the weight of number of packages were checked by the railway Authority. Mr Samanta further submits that the alleged enroute weighment of the consignment without notice either to the consignor or to the consignee and in their absence without complying with the requirement of Rule 117 (4) of the goods tariff cannot be sustained in law. Mr. Samanta further submits that in accordance with the provisions of paragraph 1423 of the Indian railway Commercial Manual-II. in case of non-checking of the weight and number of packages at the forwarding station, an appropriate remark should be inserted to the effect that on the connected invoices and railway receipts. The weight of the wagons are to be taken at a particular station and the charges are subject to alteration on weighment at the dest
