GRASIM INDUSTRIES LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER is a company having, among many other things, a cement factory at Khor in Mandsaur district. Petitioner requires coal for the manufacture of cement and purchases the same from 11th respondent Coal India Limited or one of its subsidiaries, namely, respondents 6 to 10. Petitioner has filed this writ Petition seeking to declare Clause 161-B of the Goods Tariff No. 39 Part-I, Volume-I as ultra vires and unconstitutional and for direction for refund of penal freight charges collected by the railway administration from the Petitioner.

(2.) COAL is purchased by the Petitioner from Coal India Limited or one of its subsidiaries. The coal is conveyed from the pit-heads to the Petitioner's factory by the railway administration. Railway administration allots wagons to the consignor and places the wagons at the disposal of the consignor at the respective rail head or loading point within the jurisdiction of the colliery concerned. The consignor loads the wagons. Loading is done either manually or by mechanical means such as Conveyor belt or the like. Section 53 of the Indian Railways Act, 1890 which was then in force (for short 'the Act') requires the Central Government to prescribe the maximum carrying capacity for every wagon and states that the gross weight of every wagon when loaded to the maximum carrying capacity shall not exceed the limit so prescribed. Wagons so loaded by the consignor are taken to the weigh-bridges and the weight of the coal loaded is worked out. The freight is paid only after the weighment is made. Section 27-A empowers the Central Government to give directions in regard to transport of goods by railway administration. Freight charges are fixed by the Central Government. Rule 161-A reflects the provision in Section 53 of the Act relating to carrying capacity of wagons. It says that the consignor in loading is required not to exceed the maximum carrying capacity of the wagon used. It also prescribes charge to be levied in case of over-weight. The scheme of the charges is as follows :

(3.) LEARNED counsel for the petitioner has urged only two contentions before us. They are - (1) since the Petitioner has no control over the loading which is done entirely by the consignor, it is arbitrary to mulct the hapless consignee or the petitioner with the charges under clause 161-A; and (2) the provisions for penal freight contained in Clause 161-A of the General Rules is beyond the scope of Section 27-A and 53 of the Act and, therefore, ultra vires.