ORDER
1. Both these petitions raise common questions of facts and law and common contentions have been raised. The points raised in the petitions have been argued on this basis only. Therefore, both the matters are being disposed of by this common order. In course of the arguments the learned Advocate General has referred to the facts of Special C. A. Not, 1884/87, hence mostly the facts of this petition alone are referred to in the judgment.
2. Special Civil Application No. 1884 of 1987 is filed by the Ahmedabad Electricity Company Ltd., (hereinafter referred to as 'the Company') Special Civil Application No. 2255 of 1987 is filed by the Gujarat Electricity Board (hereinafter referred to as the. Board). The petitioners challenge the legality and validity of the minimum carrying capacity prescribed by the Railway with regard to BOXN wagon for loading slack coal As per the relevant tariff rules, whenever a wagon is indented and utilised, the goods loaded in such wagon are subject to A. minimum charge leviable at the wagon-load rate on the minimum weight prescribed. for that commodity, or the actual weight whichever is higher. Even if the quantity of the commodity filled in the wagon is less than the prescribed minimum weight, the freight will be charged on the basis of the minimum weight prescribed. There are different types of wagons such as BCX, BOI, BKCX, BFR, BOB, HRS, BRH, BUI, BOBX, BOY, BQBZ, BOXC, BOXN and so on The Railway introduced BOXN type of wagon in July, 1983. Initially 58.3 tonnes was prescribed as the minimum parrying capacity of BOXN wagon. It may be noted that this minimum prescribed carrying capacity qua stack coal varies from wagon to wagon, and as stated at t e Bar, from colliery to colliery and it ranges from 58.3 to 58.81 tonnes. There were complaints from different sections of the consumers -regarding prescribed minimum carrying capacity of this type of railway wagons. Probably in response to the, complaints from various quarters, or on account of the inadequate. infrastructure facilities, the railway authorities reduced this minimum prescribed carrying capacity to 55 tonnes with effect from December, 1, 1983. This remained in force up to May 30, 1986. Again, from June 1, 1986 the minimum carrying capacity of BOXN wagon has been prescribed to be 58.3 tonnes. The petitioners' complaint is that this has been fixed arbitrarily, without there being reasonable basis for the same. The challenge is mainly based on the ground that it is physically impossible to fill in that much slack coal in this type of wagon. The Railway being a public carrier cannot charge for what it cannot carry. Hence it is prayed that the railway authorities should be restrained from charging the freight with respect to slack coal when carried in BOXN wagon on the basis of minimum prescribed carrying capacity of 58.3,Metric tonnes.
3. The Company filed the petition on April 23, 1987. This court (coram : D.C. Gheewala, J.) passed the following order on 24-4-87.
'Notice pending admission returnable on 22-6-87. Ad-interim relief in terms of para 31(b) granted till then.'
Para 3 1 (B) reads as follows:
'restraining respondents Nos. 2 and.3 from enforcing the letters at Annexures 'G' and 'J' to the petition against the petitioner or from in any manner recovering from the petitioner so-called arrears of freight/charg6s by imposing minimum weight condition of BOXN wagon'.
Thereafter the interim relief has continued till today. The Board filed the petition on May 13, 1987. This Court (Coram : M.B. Shal-4 J.) passed the following order in Special Civil Application No. 2255 of 1987 on May 14, 1987-
'Notice pending admission returnable on 22-6-1987, Pending admission, ad-interim relief in terms of para 33(g)'
Para 33(g) reads as follows:
'to restrain, 'pending the hearing and final disposal of this petition, respondents from recovering freight/charges of coal transported to the petitioner's Power House Yards at Vanakbori, Ukai Dhuvaran and Gandhinagar on the basis that BOXN wagon has a carrying capacity beyond 50 MTs.'
In this case also the ad-interim relief has continued till today.
4. It may be noted that earlier up to May 30, 1986 the minimum prescribed carrying capacity of BOXN wagon was 55 tonnes and thereafter it has been raised to 58.3 tonnes as indicated hereinabove. However, even thereafter the Company as well as the Board continued to pay the freight on the basis of previously prescribed minimum carrying capacity of 55 tonnes only. Railway-freight per metric tonne of coal ranges from Rs. 250 to Rs. 350 depending upon the distance between the loading station and the destination. The Board consumes about four to five thousand wagon-loads of coal per month. The Company consumes about IOW to 1500 wagon-loads of coal per month. It can be said that on an average the difference of freight would come to Rs. 1000/- per wagon (difference between 58.3 and 55 tonnes being 3.3 tonnes). Thus, in the case of the Company the difference of payment of freight would be Rs. 1 crore to Rs. 1.5 crore and in the case, of the Board it would be Rs. 4 to 5 crore per month. As the difference w4s not paid in. the past and the Company as well as the Board continued to pay the freight on the basis of previously prescribed carrying capacity of 55 tonnes, the railway hat) written letters for recovery of the difference. Hence the petitions and the prayer for interim relief.
5. When the petitions were filed, the difference of arrears in the case of the Board was to the tune of Rs. 2.54 crore and in the case of the Company it was Rs. 2.36 crore. Despite the fact that the High Court granted interim relief and directed the respondent authorities not to charge freight on the basis that the BOXN wagon had carrying capacity beyond 50 tonnes, the Board has paid the freight on the basis of minimum prescribed carrying capacity of 55 tonnes. So is the case with the Company. But even so the difference in payment of amount of freight will have to be calculated on the basis of 3.3 metric tones per wagon which would be about Rs. 1000/-. This appears to be the magnitude of the stake involved in both the petitions. The calculation is made on the basis of the figures supplied at the Bar.
6. The challeng7ii in both the petitions is that the prescribed minimum weight condition of BOXN wagon has been determined arbitrarily and unreasonably. In support of this contention the petitioners have heavily relied upon certain paragraphs of the Report of the Comptroller and Auditor General of India for the year 1984 - 85 the report is prepared for submission to the President under Article 151 of the Constitution. It inter alia includes 'reviews on BOXN wagons'. This is so stated in the prefatory remarks of the report. Relying upon. the contents of the report it is submitted that even the Railway, when it purchased coal from Coal India and carried the same to destinations in BOXN wagons, paid Coal India on the basis of 80% to 90'%, of the minimum prescribed carrying capacity of BOXN wagon. Hence it is submitted that if the railway considered that coal could not be carried in BOXN wagon as per the prescribed minimum carrying capacity and paid the price to Coal India on the basis of 80% to 90%, of the prescribed minimum carrying capacity, it is obvious that the Railway authorities cannot charge freight from the consumers on the basis of prescribed minimum carrying capacity of 58.3 tonnes. Different paragraphs from the report have been read with a view to substantiate the contention that the minimum carrying capacity of BOXN wag6n prescribed by the Railway is arbitrary and unreasonable.
7. A fair reading of the report only indicates that BOXN wagon which has been designed after prolonged research which started some time in the year 1972 and which has been introduced some time in the year 1982-83 has led to several disputes and problems relating to(1) carrying capacity. (2) unloading arrangements, (3) unloading time, and (4) system of weighment. It is observed that satisfactory solutions have not been found so far (i.e. up to August 1985) (videpara8.38 of the report). It, para 8.52 of the report it is indicated t hat the design of the wegon was deficient in respect of load ability of coal for which it was mainly intended to be used. Necessary investigations were not carried out at the design stage and before introducing the wagon for commercial operation. The disputes and problems relating to load ability and free time for loading and unloading have not been resolved. Thus the report indicates certain defects in the use of the wagon and highlights the problems which have been experienced during the course of thirty months of its user, i.e. up to August, 1985. During the period of report it was not possible to weigh BOXN wagons on existing weighbridges of the railway, collieries, steel plants or at the premises of the consumers because of the shorter length of BOXN wagons. In this connection it is stated in the report, 'consequently, these wagons are not weighed and freight is collected on the notified chargeable weight. The Railway Board had decided that all future weigh-bridges should be electronic ones capable of handling all kinds of wagons. No progress, however, has been made in the choice, standardisation and installation of electronic weigh- bridges.' (para 8.39 of the report). Thus it should be clear that the problems relating to carrying capacity and system of weighment highlighted in the report have their roots in the lack of facility of weigh-ridges either at the collieries or at the loading station or at the destination point. Therefore the complaints by the petitioners. and others that the carrying capacity of the wagon cannot be decided on abstract theoretical basis. Both the sides asserted their view points, and in absence of lack of facility of weigh-bridges the problem could not be resolved. But this is not the position today. The report reflects the position as it existed up to August 1985. On the date of filing of the petitions and at least from May, 1986onwards the position has considerably changed. As indicated in the affidavit-in-reply dated August, 10, 1987 filed by the respondent railway, weigh- bridges have been installed at different collieries from 1986 onwards and by now almost at all collieries the weigh-bridge facility exists. In this' view of the matter, what is stated in the audit report is riot of much relevance and it is a matter of the bygone days of past. Therefore, the challenge to the fixation of minimum carrying capacity of BOXN wagon will have to be resolved by referring to the load ability trials conducted by the railway and the actual fact-situation reflected in the railway-receipts issued to the petitioners as well as to many other consumers. These railway receipts show gross weight of the wagon. Therefrom the tare weight is deducted and the net weight of the coal filled in the wagon is also shown therein.
8. The very basis of the challenge made by the petitioners is reflected in para 10 of Special C.A. 1884/87 and in para8 of Special C.A. 2255/87 of the petitions. It reads as follows :
'The petitioner states that the actual physical carrying capacity of a wagon is a question of fact. No axiomatic or doctrinaire considerations can justifiably be applied in determining the actual and real carrying capacity of a wagon'.
In the same paragraph it is further stated that on verification by making actual weighment at the destination, on an average the difference of 10 to 20 per cent between 'booked weight on theoretical carrying capacity basis and actual weight' is found. The petitioners are very right. Weighment of coal wagon is a question of hard fact. It cannot be decided in abstract. This very contention of the petitioners is the answer to the petitioners' case. No theoretical or abstract consideration, but hard facts alone should determine the question as to whether the railway has acted arbitrarily and in an unreasonable manner.
9. The hard facts, at least after May 1986, are as follows .
(1) weigh-bridges are provided at the site of collieries or at loading stations.
(2) BOXN wagons are being weighed; and
(3) as reflected in some of the Railway receipts BOXN wagons have actually carried weight to the extent of more than 60 tonnes.
The aforesaid facts are revealed from' the affidavit-in-reply filed on behalf of the railway and the actual weight carried in BOXN wagons as shown in the railway receipts which are produced at pages 151 to 230 and again at pages 2,36 to 249. The batch of railway receipts from pages 151 to 230 is in respect of consignees other than the petitioners, while the batch of railway receipts at pages 236 to 249 is in respect of the petitioners. A mere look at these railway receipts shows that in some of the wagons the actual weight carried is to the extent of 60 to 62 tonnes, in most of the railway receipts the weight is around 57 tonnes.
10. The petitioners contend that before determining the minimum carrying capacity of the BOXN wagons, trials were conducted by the railway, but they were conducted under certain ideal and special conditions. It is contended that the wagons were specially loaded up to the height of 11/2 feet above the brim of the wagon. Another grievance is that the loading time taken was20 minutes instead of 10 minutes which is normally granted. It is also contended that there was reshuffling of wagons at loading point with a view to adding further quantity of coal and the wagons were being escorted enroute to the destination.
11. The results of the trial conducted by the railway are produced together with the affidavit-in-reply dated June 22, 1987. It appears that the trials have been conducted once in July, 1985 and again in December, 1985. On analysis of the trial reports which are produced together - with the affidavit-in reply it appears that the grievance with regard to the height up to which the coal is filled in is without substance. This aspect is required to be considered from the point of view of loading profile. The loading profile adopted is of three different types, probably depending upon the variety of coal available from different collieries. At page 107 the loading profiles used are indicated. They are of three different types
(1) Trapezoid; - means a quadrilateral with no two sides parallel. It means that there will be one big heep and only in the centre of the wagon the height of coal filled in will be above the brim. This is again required to be kept at a particular level with reference to the guide-bar.
(2) 5 Heaps.
(3) Level.
The recommended height varies in each case. When the coal is to be filled in the loading profile called 'level' the recommended height is 7 cms. below the brim. The result of the trial shows that at loading point the coal weight which can be filled in was even to the extent of 64.4 tonnes. The results of trial show the difference between the weight at the loading station and at the destination. The difference is about 1.2 to 1.4 tonnes. This difference is bound to arise on account of the moisture content in the slack coal, which would be between 12 to 14% when the slack coal is loaded. The results of the trial are mentioned at page 121 of the petition. In certain cases the net weight recorded is even above 60 tonnes. The same procedure is reflected in trials the results of which are produced at pages 122 to 120 oft he petition. These results show that the maximum net weight achieved per wagon in many cased is about 60.6 to 60.1 tonnes (annexure III at page 122). The trials have been conducted in rakes also and the number of BOXN wagons carried in rake ranges from 47 to 50. The average weight carried per BOXN wagon is also shown in colum l3 and this goes even up to 65.2 tonnes (page 123). In above view of the matter the grievance made with regard to the height up to which coal may be filled in the wagon is more. imaginary than real. It cannot be said that the loadability profile adopted by the railway as well as by the collieries is arbitrary. It may again be noted that the height up to which the coal is to be filled in differs according to the loadability profile and according to the quality and the type of coal. The trials carried out clearly show that in certain cases slack coalabove60 tonnes could be filled in, in this type of wagons.
12. The grievance with regard to time factor also does not seem, to be correct. According to the petitioners, the normal time given is ten minutes. If one looks at the consumers observations on load ability trials which are noted at page 117, it is clear that the time taken for loading was between 12 to 15 minutes for each wagon, In these diservations it is also noted that the normal time is between five to six minutes. Therefore, it appears that the grievance with regard to time allotted for loading varies from consumer to consumer. It may be noted that the time which may be taken for loading purpose again depend, upon t he type of chute which is used for this purpose. If the chute of a particular size and specification is used, the time factor should not come in the way of the petitioners. This is a matter between the colliery and the consumers. The railway 1/4erely, supplies wagons Loading is to be done by the collieries a d the consumers. They can vary suitable equipments for loading purposes and reduce the time iii, the process of loading. Another grievance is that the reshunting of the wagons. was made at the loading point, with a view to add further quantity of coal. This defect does not seem to be there in the observations made by various consumers with regard to the trials conducted by the railway. In this connect ion also it may be noted that even after reshunting if additional coal is filled in it would not increase the physical capacity of the wagon to contain more coal. That should again be reflected when the wagon is weighed. Escort enroute the destination is irrelevant, because escort at the most can prevent spillage (theft of coal on the way. Presence of escort will not increase or decrease the capacity of the wagon. Hence all these grievances made with regard to the alleged ideal and special conditions created while conducting the trials live no substance.
13. On the basis of the aforesaid hard facts, nemely, existence of weigh-bridges, actual weighment of the coal and the same having been reflected in the railway receipts, and the actual trials conducted by the railway, it is not possible to say that it is physically impossible to fill in 58.3M. tonnes of coal (i. e. prescribed minimum carrying capacity) in BOXN wagons. Therefore, the main basis, and the sole basis, of challenge to the prescribing of minimum carrying capacity of BOXN wagon disappears. The basis of challenge is that the prescribed minimum carrying capacity is determined in abstract, theoretical and on doctrinaire basis. This is not so. It is determined on the basis of hard facts and it is again -reflected in actual operation as indicated in the railway receipts. The hard fact is that more quantity of slack coal than the prescribed minimum carrying capacity could be carried in BOXIS wagon. Hence the argument that the Railway being a public carrier cannot charge for what it could never have carried is based on facts non-existing. If at all the facts existed they were in the imaginary grievances raised by the petitioners and other consumers. In fact this argument has. its roots in the past when uncertainties regarding weighment of BOXN wagon prevailed.
14. It is contended that on account of the fixation of higher carrying capacity, the petitioners lose on several accounts; the harsh consequences are mentioned in para 11 of the petition. The petitioners complain that they are required to pay to the Coal India Limited on the. basis of the weight mentioned in the railway receipts. They are required to pay sales tax and excise duty to various authorities on this basis. M6y such grievances are mentioned in, this paragraph. To say the least, these grievances are irrelevant as 14 as the fixation of minimum weight condition of the wagon is concerned. If the Coal India Limited is charging the petitioners on wrong basis, the petitioners can take up the issue with Coal India Limited. The Coal India is the vendor of coal. The coal India cannot charge price of the goods which are not sold to the vendee. When a consignee indents and utilises the wagon he has to pay the freight on' the basis of prescribed minimum carrying capacity of the wagon. Payment of freight on the basis of minimum prescribed carrying capacity of the wagon does not always mean that, that much commodity is actually carried therein. It is the prescribed minimum carrying capacity for the purposes of charging freight. It is not for the purpose of charging the price of the commodity. Therefore, it is obvious that if Coal India is charging the price of coal on the basis of prescribed minimum carrying capacity of the wagon, the issue can be taken up with the Coal India. Similarly the petitioners, case also take up the matter with the Sales-Tax, authorities or with Excise authorities But it appears that at least after the facility of weigh-bridges having been' provided it would be difficult for the petitioners to raise such contention even with the Coal India Limited or with the Sales Tax authorities or Excise Authorities. Be that as it may if other authorities act wrongly, that is no ground to say that the Railway has prescribed the minimum carrying capacity arbitrarily and unreasonably.
15. Here it may be noted that the petitioner Company has produced certain railway receipts which are at pages 256 to 267. Five, of these receipts bear the date of December 17, 1986. In four of them there is no date stamp. One receipt bears the date stamp of March 27, 1987. In two receipts the date stamp is of August 3, 1987. In all these receipts there is endorsement to the effect, that weigh-bridge is out of order. It is rather surprising that the Company produced only one type of railway receipts bearing endorsement as stated hereinabove It appears to be the practice of the Company that before surrendering the original railway receipt to the Station Master concerned, xerox copy thereof is taken out. At least some railway receipts have been produced by the Company and that too of one type bearing endorsement as stated above. From these facts one may reasonably infer that the petitioner should have, other types of railway receipts wherein the actual weight of coal after weighment is noted. Even so these receipts are not produced. Therefore, it would be reasonable to infer that if these receipts would have been produced, they would have shown the picture which would have gone against the case of the petitioners.
16. It may also be noted that in either of the two petitions it is not stated that at least after May 1986 the weigh-bridge facility is provided at some of the collieries and by the time the petition was filed at most of the collieries; weighbridge facility was provided. When the Board which is an instrumentality of the Government and, therefore 'State' within the meaning of Article. 12 of the Constitution and the Company which is also many a time treated as 'State' come before. the Court making grievance as indicated hereinabove, would it be. in any way, unreasonable to expect that both the petitioners ought to have disclosed these facts before the Court On the date of filing of the petition the position was that there existed weigh-bridge facility and the Railway did charge freight after actual weighment of the coal wagons. In the context of the dispute between the parties these facts are certainly material facts and Very much important, However, on the contrary it is contended that 'booked weight' is on 'theoretical' carrying capacity basis' (see- para 8 herein above). This is the main basis on which both the petitions proceed, without adverting to the fact with regard to weighment of wagons at collieries. Should one not reasonably expect and that too from the petitioners of this high status that they disclose the aforesaid facts in the petition? Is this not material suppression? I do not wish to elaborate this aspect beyond raising these questions, which, I hope, the petitioners will themselves ponder over and try to answer the same.
17. While considering the challenge to the fixation of prescribed minimum carrying capacity with regard to BOXN wagon, it should not be lost sight of the fact that the Railway is empowered to fix the minimum carrying capacity. In fact Section 54 of the Indian Railways Act. enjoins duty upon the Railway to determine the carrying capacity of each and every wagon. The minimum prescribed carrying capacity of wagon is required to be fixed for the purposes of levying freight For determining minimum carrying capacity of a wagon there may be different methods to arrive at the figure of Minimum carrying capacity. While deciding the minimum carrying capacity of a wagon various factors are required to be taken into consideration, such as (1) total available area in the wagon; (2) strength of axel of the wagon; (3) aspect of safety; (4) capacity of the track to bear the load; (5) total weight that may be carried in a rake; (6) number of wheels of the wagons, etc. These are the factors which would be required to be taken into consideration while determining the minimum carrying capacity of wagon qua each and every commodity. Further, in addition to the aforesaid general factors, while deciding minimum carrying capacity with regard to a particular commodity, factors such as the density of the commodity, the form of the commodity - i.e. solid, powder, liquid, semiliquid,etc., the condition in which the commodity is available i.e. wet or dry of semi-wet or semi-dry. These are the salient features which should be taken into consideration while determining the minimum carrying capacity of a particular wagon as regards a particular commodity. After taking all or almost all the factors into consideration if minimum carrying capacity of any type of wagon is determined, it cannot be said that the fixation of minimum carrying capacity is done arbitrarily. In the instant case the trials have been conducted in wet w earlier and dry weather. Trials have been conducted separately on wagon load basis as well as on rake-load basis. Almost all the relevant factors have been taken into consideration. There may be some imperfections in the method adopted. It may also be shown that there were other methods available by which the minimum carrying capacity could have been determined. But simply on account of the fact that there are certain imperfections or that some other alternative method is available and that is not adopted, it can never be said that the basis adopted or the decision arrived at is arbitrary. The term 'arbitrary' is required to be understood in its proper meaning it means 'derived from opinion or random choice, capricious, unrestrained, despotic'. In the instant case it is impossible to say that the respondent-Railway has determined the minimum carrying capacity of the wagon merely on the basis of an opinion of some officer/officers or that it is fixed on the basis of random choice. As indicated hereinabove, actual trials have been conducted. Thereafter even in actual operations it is found that the minimum carrying capacity of BOXN wagon determined by the Railway has close proximity with the average weight of slack coal carried tin such type of wagons. Therefore, it can never be said that the minimum carrying capacity of BOXN wagon has been fixed arbitrarily or that it has no reasonable basis. Under Article 226 of the Constitution of India the High Court cannot sit in appeal over the decision of the Railway authorities. Once it is found that the decision is based on some reasonable basis, it connot be termed arbitrary. The matter ends there as far as the inquiry of the High Court in a petition under ' Article 226 of the Constitution of India is concerned.
18. Here it may be noted that by way of amendment to the petition the vires of Rule .164-A of the General Tariff Rules were sought to be challenged. It was mentioned in the proposed amendment that the Rule 164-A is statutory rule. But the learned Advocate General fairly conceded while arguing the question with regard to amendment that the 'rule does not appear to be statutory'. It was conceded by the learned counsel for, the respondents under instructions that the rule was administrative and not statutory. For the reasons separately recorded, the amendment has been rejected. However, while rejecting the amendment it was made clear that if the petitioners so thought fit it would be open to them to challenge the legality and validity of the rule by filing a separate petition. The order refusing amendment was passed on August 20, 1987. Today I am told that no such petition challenging the legality and validity of the rule has been filed. Since the reasons for refusing the amendment have been recorded separately they are not, required to be repeated here.
19. No other contention is raised. In above view of the matter, there is no substance in the petitions. Hence rejected. Ad-interim relief granted earlier stands vacated in both the petitions.
20. xxx xxx xxx xxx