GIAN CHAND GURG Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition and other connected petitions under Article 226 of the Constitution of India seek a writ of mandamus directing the Railway Administration to give matching delivery of coal against the wagons belonging to the petitioners containing coal wrongfully diverted to loco sheds/power houses/public undertakings for their use.

(2.) In order to appreciate the rival contentions, we may state the facts from this petition. The petitioner is a brick kiln owner at Sangrur and for the sake of his business to manufacture bricks, he purchases coal wagons from various places and have them booked through railways for despatch to Sangrur. Two consignments of coal were booked with the Railway Administration, one under invoice No. 10 and 11, RR No. 019001 and 019002 on March 9,1981 from Butibari to Ludhiana and the other under invoice No. 2 RR No. 147270 dated March 20, 1981 from Satna to Sangrur. The Railway Administration had thus agreed to carry the coal from the forwarding stations to the destination stations for delivery to the consignees. The consignments consisting of steam coal were loaded in wagon No. CR 3565 and CR 81850 respectively. The said wagons No. CR 3565 and CR 81850 have not been delivered to the petitioner who-is the endorsee of the Railway receipts by the consignees. at the destination stations at Ludhiana and Sangrur and as such, the petitioner preferred formal claims by notice under Section 78-B of Indian Railway Act, 1890 (hereinafter referred to as the Act) vide his letters dated July 10, 1981 and July 16, 1981. It is pleaded that the petitioner was later inofrmed that wagon No. 3565 had not been received at the destination but diverted and the petitioner requested the respondents for giving a matching delivery. As regards wagon No. CR 81850, the petitioner also requested the Chief Claims Officer vide letter dated December 30, 1981 to grant matching delivery of coal to the petitioner. The allegations are then made that the matching delivery had to be granted to the petitioner as Wagon No. CR 3565 had been wrongfully diverted to Maharashtra State Electricity Board, Bhusaval for their use on May 12, 1981 and wagon No. CR 81850 had been delivered to Locoshed Jind on April 28, 1981 for their consumption. The failure of the Railway Administration to give the matching delivery of coal is branded as discriminatory on the plea that the respondents have been granting maching delivery to other persons placed in similar circumstances whose wagons of coal have been consumed by the Railway in its locosheds or diverted to the power houses. Reference is made to the various policy decisions of the Ministry of Railways and memoranda issued from time to time for estab lishing the claim of the matching delivery of the two wagons. We will deal with these circulars in detail hereinafter as a batch of writ petitions are to be disposed of.

(3.) Before construing those circulars, we may notice the background facts and the policy formulation by the Union or India as disclosed in the counter-affidavit. Prior to April 27, 1981 when the policy of granting matching delivery was formulated and announced, the Railway Administration was faced with the problem of tackling unconnected wagons of coal/coke. Wagons become unconnected because of its label getting misplaced or missing. It may not be possible to link within the normal period of seven days such wagons to a particular party because of missing particulars nor can such wagons be kept underload for too long. Keeping the wagons underload would lock up transport potential and the wagons go out of circulation. It was decided in the year 1978 to create coal dumps at suitable places on every zonal railway. The rationale behind creation of these coal dumps lay in the fact that the Railways felt the need of keeping contents of unconnected wagons together at one place, from where matching coal deliveries in genuine cases could be given. The guidelines for connecting the wagons against the original booking and on failure for disposal of unconnected coal wagons from coal dumps were given in the Northern Railway Head- quarter's letter dated August 16, 1978. It, inter alia, enabled the coal]coke being offered to the locosheds etc. for their use. Numerous complaints were received by the Railway Administration from time to time. It was observed that the creation of these coal dumps had resulted in a number of malpractices, in which unscrupulous traders and unscrupulous Railway staff had joined hands. The Railway Administration re-examined the question and felt that it was not possible to eliminate the mis. chiefs or to reduce them substantially. The Railway Board directed the stoppage of the practice of delivering unconnected coal Wagons against pending claims. The coal dumps were abolished. The system of granting matching delivery of coal against claims also ceased. With the abolition of the coal dumps, difficulty was felt for making available coal in emergent cases to various public undertakings. A number of representations were received. The Railway Board felt that in emergent cases where Railways feel constrained to divert coal wagons with a view to meeting the essential needs of the community, like keeping power houses and locosheds running, matching delivery of coal wagons should be given. A policy decision was taken as regards the interception I diversion of coal consignment of private parties in public interest by the specified officers and for giving a matching delivery. The Ministry of Railways issued the instructions in that regard in the letter dated April 27, 1981 in these words :