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1995 Supreme(MP) 332
1995 JLJ 365
U.L. Bhat, C.J. and Rajeev Gupta, J.
Grasim Industries Ltd. v. Union of India and others
M.P. No. 2440 of 1989; Decided on 9.3.1995.
Headnote:(1) Railways Act, 1890 -- S. 53 -- Goods Tariff No. 39 Part-I, Vol. 1 -- Cl.161A -- provision under Cl. 161A are not ultra vires -- levy of higher rate of freight in case of over-loading -- is a matter between consignor and Railway Administration -- consignee is not directly involved.
The levy of higher freight is a matter between the railway administration and the consignor and not a matter between the railway administration and the consignee. It is for the consignee to ensure that in the contract between the consignor and the consignee, appropriate provision is made to relieve the consignee from reimbursing the consignor of the higher freight paid by the consignor to the railway administration. [Para 5
It is true that section 53 merely enables the Central Government to prescribe maximum carrying capacity for the wagons and does not contain a specific provision enabling a higher freight from being levied on excess load. Where a statutory provision enables an authority to prescribe maximum carrying capacity of wagons, power so conferred must necessarily include the power to make all incidental and consequential provisions for ensuring that the maximum limit is adhered to and to ensure that breach of the limit is discouraged. The submission that the provision contained in Clause 161A is outside the framework of section 53 is not correct. [Para 7
(2) Railways Act, 1890 -- S. 27 A -- specification of routes, goods and freight thereof -- it is not necessary to prescribe uniform rates for all distances and under all circumstances -- Central Government may prescribe higher rate in case of excess loading. [Para 8
¼1½ jsy vf/kfu;e] 1890 && /kkjk 53 && eky VSfjQ Ø- 39] Hkkx 1] ftYn 1 && [kaM 161d && [kaM 161d ds v/khu mica/k vf/kdkjkrhr ugha gSa && vfrHkjkbZ ds ekeys esa <qykbZ dh mPprj nj mn~xzg.k && ijs"kd rFkk jsy iz‘kklu ds chp dk fo"k; gS && ijsf"krh lh/ks varxZzLr ugha gSA
mPprj <qykbZ dk mn~xzg.k jsy iz‘kklu rFkk ijs"kd ds chp dk fo"k; gS] u fd jsy iz‘kklu rFkk ijsf"krh ds chp dk fo"k;A ijsf"krh dks lqfuf‘pr djuk gksxk fd ijs"kd rFkk ijsf"krh ds chp lafonk esa] ijs"kd }kjk jsy iz‘kklu dks lanÙk mPprj <qykbZ dh ijs"kd dks izfriwfrZ djus ls ijsf"krh dks HkkjksUeqDr djus ds fy, leqfpr mica/k fd;k x;k gSA ¿ iSjk 5
;g lR; gS fd /kkjk 53 }kjk dsanzh; ljdkj dks oSxu dh vf/kdre ogu {kerk fofgr djus esa ek= leFkZ cuk;k x;k gS rFkk mlds varxZr vf/kd Hkkj ij mPprj <qykbZ mn~xzghr djus esa leFkZ cukus dk fofufnZ"V mica/k ugha gSA tgk¡ dkuwuh mica/k }kjk oSxu dh vf/kdre ogu {kerk fofgr djus esa izkf/kdj.k leFkZ cuk;k tkrk gS] ogk¡ bl izdkj iznÙk ‘kfDr esa ;g lqfuf‘pr djus ds fy, lHkh vkuq"kafxd rFkk ikfj.kkfed mica/k cukus dh ‘kfDr vko‘;dr% varfoZ"V gksuk pkfg, fd vf/kdre lhek dk ikyu gks rFkk lhek dk Hkax fu:Rlkfgr fd;k tk,A ;g fuosnu fd [kaM 161d esa varfoZ"V mica/k /kkjk 53 ds <k¡ps ds ckgj gS] lgh ugha gSA ¿ iSjk 7
¼2½ jsy vf/kfu;e] 1890 && /kkjk 27d && ekxZ] eky rFkk mldh <qykbZ dk fofunsZ‘k && lHkh nwfj;ksa rFkk lHkh ifjfLFkfr;ksa ds v/khu ,d:i nj fofgr djuk vko‘;d ugha && vf/kd ynkbZ ds ekeys esa dsanzh; ljdkj }kjk mPprj nj fofgr dh tk ldrh gSA ¿ iSjk 8
U.L. Bhat, C.J. -- 1. Petitioner is a company having, among many other things, a cement factory at Khor in Mandsaur district Petitioner requires coal for the manufacture of cement and purchases the same from 11th respondent Coal India Limited or one of its subsidiaries, namely, respondents 6 to 10. Petitioner has filed this writ petition seeking to declare clause 161-B of the Goods Tariff No. 39 Part-I, Volume-I as ultra vires and unconstitutional and for direction for refund of penal freight charges collected by the railway administration from the petitioner.
2. Coal is purchased by the petitioner from Coal India Limited or one of its subsidiaries. The coal is conveyed from the pit-heads to the petitioner's factory by the railway administration. Railway administration allots wagons to the consignor and places the wagons at the disposal of the consignor at the respective rail head or loading point within the jurisdiction of the colliery concerned. The consignor loads the wagons. Loading is done either manually or by mechanical means such as conveyor belt or the like. Section 53 of the Indian Railways Act, 1890 which was then in force (for short 'the Act') requires the Central Government to prescribe the maximum carrying capacity for every wagon and states that the gross weight of every wagon when loaded to the maximum carrying capacity shall not exceed the limit so prescribed. Wagons so loaded by the consignor are taken to the weigh-bridges and the weight of the coal loaded is worked out. The freight is paid only after the weighment is made. Section 27-A empowers the Central Government to give directions in regard to transport of goods by railway administration. Freight charges are fixed by the Central Government. Rule 161-A reflects the provision in section 53 of the Act relating to carrying capacity of wagons. It says that the consignor in loading is required not to exceed the maximum carrying capacity of the wagon used. It also prescribes charge to be levied in case of overweight. The scheme of the charges is as follows:
"(i) If the overweight above the permissible cc is one ton or less such overweight should be charged at normal train load/wagon load rate as the case may be applicable to the commodity.
(ii) If the overweight beyond the permissible cc of the wagon exceeds one tonne but does not exceed 2 tonnes per wagon, the overweight beyond the permissible cc plus one tonne should be charged at the smalls rate applicable to the commodity.
(iii) If the overweight beyond the permissible cc of the wagon exceeds two tonnes, the entire overweight in excess of the permissible cc should be charged at double the smalls rate applicable to the commodity."
Thus, it is seen that an allowance is given in regard to minor overweight or marginal excess loading and where the overweight exceeds the prescribed margin higher freight is required to be paid. Only when the entire freight due is paid that the wagons .are moved to destination. The freight is paid by the consignor to the railways, but it is said, under the contract between the consignor and the petitioner-consignee the petitioner reimburses the colliery or consignor the amount paid towards freight, ordinary or penal. Thus the burden of the excess freight contemplated in Clause 161 of the General Rules though paid initially by the consignor, it is ultimately borne by the consignee. It is on this basis that the petitioner projects its grievance about the freight charges prescribed by Clause 161 of the Rules.
3. Learned counsel for the petitioner has urged only two contentions before us. They are - (1) since the petitioner has no control over the loading which is done entirely by the consignor, it is arbitrary to mulct the hapless consignee or the petitioner with the charges under clause 161; and
(2) the provision for penal freight contained in Clause 161-A of the General Rules is beyond the scope of sections 27-A and 53 of the Act and, therefore, ultra vires.
4. Return has bee
