Penalties for overloading railway wagons cannot be enforced post-delivery of goods without prior notice, as mandated by statutory requirements.

1. This appeal is directed against an order and / or judgment dated 30th July, 2009 passed by the Hon'ble Single Judge in W.P. No. 357 of 2006 and W.P. No. 358 of 2006. The question involved in the said two writ petitions was as to whether a claim may be made by the railways on account of overloading a wagon only prior to the release of the goods.

2. The facts revealed that the Petitioner Company is one of the largest manufacturers of cement and clinker. The said company uses railway wagons to transport raw materials to its manufacturing units and to carry its products to its customers or en - route to its customers. The writ petitioners challenged the several demands made by the railways on account of overloading charges and penalty thereon for the petitioner company, whether as consignor or as consignee or as endorsee of the railway receipts, having loaded or caused to be loaded goods in railway wagons beyond the permissible carrying capacity thereof.

3. An incidental challenge has also been made to the quantum of penalty levied. According to the writ petitioner the penalty imposed was six times the freight rates applicable to the highest class. It is further the case of the writ petitioners that since the extent of penalty was subsequently scaled down to twice the freight rates, there is implicit admission on the part of the railways that the imposition of the penalty at the rate of six times the freight rates was irrational and unjustified.

4. It is further appears to us that the railways raised several claims on account of overloading charges and penalty but no formal notice was issued, prior to the petitioner company taking delivery of the respective consignments on the ground that the wagons have been overloaded. It is also admitted that in every instance of claim challenged by the writ petitioner, there was no weighment at the boarding station and the railway receipts had been issued tentatively indicating the weight as declared by the consignor which was subject to verification upon actual weighment at an intermediate station.

5. On such facts, the Hon'ble Single Judge duly considered the relevant provisions of the Railways Act, 1989 , which are set out hereundere: -
"65. Railway receipt. - (1) A railway administration shall, -
(a) In a case where the goods are to be loaded by a person entrusting such goods, on the completion of such loading; or
(b) in any other case, on the acceptance of the goods by it, issue a railway receipt in such form as may be specified by the Central Government.
(2) A railway receipt shall be prima facie evidence of the weight and the number of packages stated therein:
Provided that in the case of a consignment in wagon - load or trainload and the weight or the number of packages is not checked by a railway servant authorized in this behalf, and a statement to that effect is recorded in such railway receipt by him, the burden of proving the weight or, as the case may be, the number of packages stated therein, shall lie on the consignor, the consignee or the endorsee."
72. Maximum carrying capacity for wagons and trucks. - (1) The gross weight of every wagon or truck bearing on the axles when the wagon or truck is loaded to its maximum carrying capacity shall not exceed such limit as may be fixed by the Central Government for the class of axle under the wagon or truck.
(2) Subject to the limit fixed under the sub-section (1), every railway administration shall determine the normal carrying capacity for every wagon or truck in its possession and shall exhibit in words and figures the normal carrying capacit