AHMEDABAD ELECTRICITY COMPANY LIMITED Vs. UNION OF INDIA

JUDGEMENT

(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 Spl. C. A. No. 1884 of 1987 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. thereinafter 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 is 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 BRS BRH BUI BOBX BOY BOBS BOXC BOXN and so on. The Railway introduced BOXN type of wagon in July 1983 Initially 58.3 tonnes was prescribed as the minimum carrying capacity of BOXN wagon. It may be noted that this minimum prescribed carrying capacity qua slack coal varies from wagon to wagon and as staled at the 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 1/12/1983 This remained in force upto 30/05/1986 Again from 1/06/1986 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 23/04/1987 This Court (Coram: C). C. Gheewala J.) passed the following order on: 24-4-1987.