UNION OF INDIA Vs. GUJARAT AMBUJA CEMENTS LIMITED

JUDGEMENT

(1.) . The respondents in Special Civil Application No. 475 of 1990 (reported in 1993 (2) GLR 1460) are the appellants in this Letters Patent Appeal. The petitioner in the Special Civil Application is the respondent in this Letters Patent Appeal. Convenience suggests that we refer to the parties as per the nomenclature assigned to them in the Special Civil Application.

(2.) . The petitioner established a cement plant at Mahuva in Saurashtra. For manufacturing cement, the petitioner requires huge quantities of coat and it is stated that they are being purchased from Bilaspur Collieries and other Collieries and the coal is transhipped by railway wagons to the site of the factory of the petitioner at Kodinar and the manufactured product of the petitioner, viz., cement, is being despatched to the various destinations by railway wagons. With regard to the inward traffic of coal and the outward traffic of cement, a controversy has arisen as to whether the petitioner could avail of the shortest route between Sabarmati, Khijadiya and Kodinar. The shortest route is : "Khijadiya - Visavadar - Talala - Prachi Road - Kodinar." The longest route is : "Khijadiya - Jetalsar - Junagadh - Veraval - Talala - Prachi Road -Kodinar." The longest route is 213 Kms. and the shortest route is 139 Kms. The difference between the longest route and the shortest route is 74 Kms. On the basis of Rule 125(l)(b) of the Goods Tariff No. 39, Part-1, Volume I, the petitioner would say that the goods are to be despatched only by the shortest route at the charges by the cheapest route. The said rule read? as follows :

(3.) . We are bound, first, to concentrate upon the moot question as to whether, in fact, the Central Government made the General Orders, upon which alone the respondents rely for the purpose of thwarting the claim of the petitioner for availing of the shortest route. The pleadings, as already noted, by the petitioner on the point, are specific. Apart from bare assertion that the General Orders were, in fact, made by the Central Government, we are not shown any material, which would clinch the issue and persuade us to hold that the General Orders were, in fact, made by the Central Government. What is being relied on by Mr. R. P. Bhatt, learned Senior Counsel appearing for the respondents, is the recitals in the General Orders, which, according to him, are portent on this aspect and this Court must take note of such recitals and hold that the General Orders emanated only from the Central Government, having been made by it It is true that there are recitals saying : "In the opinion of the Central Government", and "The Central Government hereby directs". But, these bare recitals could not carry conviction to the mind of the Court on the moot point and could not form the basis for the Court to conclusively and positively hold that the General Orders were, in fact, made by the Central Government. The signatory to the General Orders is a Deputy Director of Traffic-Transport, Railway Board. It is not possible to hold that the said authority could be equated to the Central Government. Apparently, he is of the Railway Board. Here, Mr. R. P. Bhatt, learned Senior Counsel appearing for the respondents, would submit that as per the Allocation of Business Rules, 1961, formulated under Art. 77(3) of the Constitution of India, the Ministry of Railways ('Rail Mantralaya') has been allocated the business relating to the Railways. Be it so that the Central Government could act through the Ministry of Railways, but, certainly, the Railway Board could not act as the Ministry of Railways. There was an attempt on the part of Mr. R. P. Bhatt, learned Senior Counsel appearing for the respondents, to say that the Railway Board is a part of the Railway Ministry of the Central Government. Such a concept we are not able to subscribe our support to and uphold. Similar argument was advanced before the Apex Court in the land in K. N. Shukla v. Navnitlal Manilal Bhatt and Anr., AIR 1967 SC 1331 : [1967 GLR 571 (SC)] and that was repelled by the Apex Court in the land in the following terms :