The Railway authorities have the power to levy a penalty for overloading wagons under Section 73 of the Railways Act, 1989, and the Railway (Punitive Charges for Overloading a Wagon) Rules, 1990, if the consignor has violated the provisions of the Rules.

KHANNA, C.J.:-This appeal has been filed against the decision of the learned single Judge given in Civil Rule No. 639 of 1993 (Hasija Coal Traders v. Union of India).

2. We have heard Mr. B. K. Sarma assisted by Mr. P. K. Tiwari, learned counsel appearing for the Union of India and Mr. N. M. Lahiri assisted by Mr. G. N. Sahewalla and Mr. A. K. Goswami, learned counsel appearing for the contesting respondent/ petitioner.

3. The brief facts for the purpose of adjudicating the controversy raised in this appeal are that the petitioner/respondent Hasija Coal Traders is a proprietary firm carrying on the business of sale and supply of coal. The coal is being loaded from Baihata Jogighopa Railway Station. According to the petitioner/respondent there is no weigh bridge for the purpose of weighing coal loaded in wagons at the Railway Station and for the purpose of determining the carrying capacity of particular wagon, the Railway authorities have provided various measurement for wagons regarding permissible carrying capacity and if the loading is made up to a particular height then loading will not exceed the permissible carrying capacity. After the coal is loaded in accordance with the instructions of the Railway authorities, the Railway authorities issue Railway Receipt and make endorsement including the endorsement in respect of the height measurement. It may however be detected later on that there may be more weight and load while making check at the destination station. This apprehension was based on the ground that the processes which were carried by the Railway authorities at the destination station for determination of carrying capacity amounts to arbitrariness and it cannot make the petitioner liable to penalty. If the excess loading/over loading is found either at the destination or during the journey, penalty for excess loading cannot be charged. There would be no power to levy penalty available to the Railway authorities to initiate penalty proceedings under S. 73 of the Railways Act, 1989 (hereinafter referred to as the Act), the reference, of which will be made later in the judgment .

4. The appellant Union of India filed an affidavit-in-opposition wherein it was stated that the loading was done at the owners risk land the penalty was imposed in exercise of the powers given to the Railway authorities as provided by the Rules framed under the Act in case there was any contravention of the provisions of S. 73 of the Act.

5. The learned single Judge while relying on the decision of the Division Bench of this Court passed in Civil Rule 39 of 1984 in Darshan Kumar Mahajan v. The Station Superintendent, Chakki Bank, Northern Railway, Punjab, (1990) 2 Gau LR (NOC) 15, has held that if the wagons are loaded according to the procedure prescribed and the Railway Receipt contains the endorsement regarding weight, the question of imposing penalty by the Railway authorities will not arise later on by rechecking but the petitioner will only be liable to pay the excess freight for such over weight or over loading.

6. At the very outset, we may first refer to the decision of the Division Bench of this Court in the case of Darshan Kumar Mahajan (supra). In our opinion, in the aforesaid case, the provisions of the Indian Railways Act, 1890 and the Rules framed thereunder were considered. The aforesaid Act, 1890 has been repealed under S. 200 of the new Railways Act, 1989. The Division Bench as at the time of adjudication of the case of Darshan Kumar Mahajan (supra) had no occasion to deal with the provisions of the present Act and the Rules made under the new Act. The relevant provisions of the present Act in respect of Punitive Charge for overloading a wagon are under Sec. 73 of the Act which runs as follows:

"S. 73. Punitive charge for overloading wagon,-

Where a person loads goods in a wagon beyond its permissible carrying capacity as exhibited under sub-sec. (2) or sub-sec. (3) or notified under sub-sec. (4) of S. 72, a railway ad