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 overweight. The scheme of the charges is as follows: "(i) If the overweight above the permissible cc is one ton or less such overweight should be charged at normal train load/wagon load rate as the case may be applicable to the commodity. (ii) If the overweight beyond the permissible cc of the wagon exceeds one tonne but does not exceed 2 tonnes per wagon, the overweight beyond the permissible cc plus one tonne should be charged at the smalls rate applicable to the commodity. (iii) If the overweight beyond the permissible cc of the wagon exceeds two tonnes, the entire overweight in excess of the permissible cc should be charged at double the smalls rate applicable to the commodity." Thus, it is seen that an allowance is given in regard to minor overweight or marginal excess loading and where the overweight exceeds the prescribed margin higher freight is required to be paid. Only when the entire freight due is paid that the wagons .are moved to destination. The freight is paid by the consignor to the railways, but it is said, under the contract between the consignor and the petitioner -consignee the petitioner reimburses the colliery or consignor the amount paid towards freight, ordinary or penal. Thus the burden of the excess freight contemplated in Clause 161 of the General Rules though paid initially by the consignor, it is ultimately borne by the consignee. It is on this basis that the petitioner projects its grievance about the freight charges prescribed by Clause 161 of the Rules.

(3.) RETURN has been filed on behalf of respondents nos. 1 to 5. The return seeks to justify the impugned provision. Return makes it clear that loading is not made by the railways but the consignor -collieries. Coal is booked under 'L' condition as specified in Rule 701 (7) (XIII) of IRCA Goods Tariff No. 39 Part -I (Vol. I). The railway only supplies wagons according to the demand and realises freight on the basis of weight subject to carrying capacity. Load -line, for coal is marked on the body of wagons on the basis of test loading and test weighment The purpose of loading is to ensure that the consignor while loading the commodity does not exceed the permissible carrying capacity of the wagon which would otherwise involve safety hazards. Overloading may cause hazards to safety of the movement which is against public interest. Permissible carrying capacity is fixed on the basis of various technical factors and principles like design of wagon, gross axle -load limitation, etc. irrespective of individual consignor or consignee as it is purely an internal matter of the railways. According to tarrif rule, it is further contended, freight charges are levied on the actual weight of the consignment subject to the notified minimum weight in accordance with the type of wagon used. What is referred in the writ petition as section 161 -B is actually section 161 -A. There is no obligation on the railways to unload the excess coal from the wagon or require the colliery to do so. The track capacity and wagon capacity are also taken into consideration while determining the carrying capacity.