SAI CHANDRA TRADES Vs. UNION OFINDIA

JUDGEMENT

(1.) THIS petition has been filed for quashing the orders of the Divisional Superintendent, Central railway and for issue of a writ in the nature of mandamus to direct the respondents to make available the wagons to the petitioners for loading stone ballast at the rail-siding at Shankergarh.

(2.) THE case of the petitioners, in brief, is that they had taken a stone quarry on lease for supplying ballast to the State Government. They wanted to load the ballast at the Railway siding in dispute at Shankergarh and for that purpose required the Railway Administration to make available the wagons at that place. The Railway Administration made available the wagons on some occasions but then refused to make them available at the siding. According to the petitioner this action of this Railway Administration is contrary to law.

(3.) THE question or issue, therefore, that arises for decision of the pleadings of the parties is : whether siding in dispute is a private siding of the railway administration meant for its exclusive use, or it is a public siding open for use by the members of the public? The evidence led by the petitioner in this connection is of the character of user. The petitioner had alleged that he had utilised this siding for loading the wagons on some occasions with permission and on other occasions without specific permission. The other evidence is on the basis of the information received by the petitioner from some other persons including one Radhey Shyam Misra to the effect that they had also been loading their ballast in Railway wagons at this siding. There is also an averment that this process of occasional loading without specific permission had been going on for quite a number of years. The evidence of the respondents is to the effect that on occasions permission had been granted to some persons including the petitioner to load the wagons at this siding but that was only by way of special concession and it did not create any right in favour either of the petitioner or any other member of the public. The respondent has also denied the allegation that the siding had been used for number of years by the members of the public without permission. It is urged that whenever the Railway Administration made available the wagon at the disputed siding, it was on the basis of an implied permission to use the siding; it did not mean user by right.