UNION OF INDIA Vs. RAILWAY RATES TRIBUNAL

JUDGEMENT

(1.) The Union of India, who owns the South Eastern Railway as the petitioner has challenged the order of the Railway Rates Tribunal, Madras, Opp. Party No. 1 dated 31-3-1983 as per Annexure7 to this writ application and prayed for quashing the same. Opp. Party No. 2 is an industrial unit which was privately owned previously, but later, was acquired by the Industrial Development Corporation Ltd., Orissa as one of its units and is served by the petitioner's branch line (Railways) passing through the Barbil Railway Station.

(2.) To facilitate in flow of raw materials and outflow of finished products from Opp. Party No. 2's work, an application was made by the Opp. Party No. 2 to the Chief Commercial Superintendent, Railways (Administration), Calcutta when it was privately owned, for providing a temporary private siding at Barbil. At the time of application, Opp. Party No. 2 was known as Kalinga Industries Ltd. having its Head Office at 36 Chittaranjan Avenue. In the year 1960, this request of Opposite Party No. 2 was acceded to and facility of a temporary private siding was provided from the railway line at Barbil Railway Station to the Opp. Party No. 2's premises. The Opp. Party was communicated with the information by the Chief Commercial Superintendent that concerned Railway authorities were instructed that on traffic being booked from and to the aforesaid temporary private siding, a siding charge of Re. 1/- for four-wheeled wagon and Rs. 2/per loaded bogie subject to a minimum charge of Rs. 63/- per trip to be levied in addition to freight charge up to Barbil Station. Though a formal agreement was not executed between Opp. Party No. 2 and the Railway Administration, according to the petitioner the aforesaid letter dated 25-11-1960 of the Chief Commercial Superintendent on behalf of the Railway Administration having been accepted by Opp. Party No. 2 in their letter dated 29-11-1960, terms and conditions of the office to render service for consideration became binding contract between the parties. According to the Railway Administration, this siding charge which the Railway Administration was levying on Opp. Party No. 2 was for a special and exclusive service for hauling the wagons from the central Barbil station to the factory premises of Opp. Party No. 2 and back. The private siding of Opp. Party No. 2 started from the then existing railway line known as adjustment siding. The adjustment siding itself originated from junction of shunting neck of loop on which a hundred-ton way bridge was situated. Along with the adjustment siding another railway line which bifurcated to two other railway lines, namely, lines Nos. 5 and 6 originated from the point of shunting neck and are meant for loading iron ore at Barbil station. From this point, the wagons are drawn up to the adjustment siding from where this private siding of Opp. Party No. 2 is utilised for hauling wagons to and fro, to the factory premises. Lines Nos. 5 and 6 carry iron ore of different persons. A small sketch of the lines, adjustment siding, shunting neck and private siding of the company are shown below as reflected in the station diagram of Barbil station produced before us at the time of hearing of the writ application. The correctness of this is not disputed before us. From the year 1960 till 1967, wagons and rakes for Opp. Party No. 2's factory premises originated in the main line which was wired for electrical traction and was shunted by railway engine to the shunting neck and run to adjustment siding and thereafter to the private siding of Opp. Party No. 2. The Goods Platform of Barbil Station is at southern side of the railway station whereas the adjustment siding and line Nos. 5. and 6 meant for loading of iron ore are at northern side of the railway station. The siding charge was levied for sorting out the wagons on line No. 3 and taking the wagons from line No. 3 to the factory premises of Opposite Party No. 2 as it constituted special and exclusive services rendered by the railway from the mid point of Barbil Railway Station to the factory premises and back. This is not the service rendered as a common service by the railways.

(3.) In the year 1967, Opp. Party No. 2 informed the authorities of Railway Administration that they have acquired shunting engines and movement to and from the adjustment siding to the Opp. Party No. 2's premises on the private siding of Opp. Party No. 2 would thereafter be undertaken by their own engine and requested the Railway Administration not to take the trouble of hauling wagons by use of their engine which proposal was accepted by the Railway Administration and the special and exclusive service for inward and outward journey from the adjustment siding to the factory premises was modified. According to the petitioner, it was agreed between the Railway Administration and Opposite Party No. 2 that the siding charges only be made upto to the take off point of private siding in addition to the freight charges upto Barbil Railway Station. This siding charges, however, are charged from time to time depending upon the actual expenses incurred on that account. The Opp. Party No. 2 for the first time in the year 1976 took a stand that levy of siding charges on the trip basis of Rs. 51/- per trip plus usual supplementary charges cannot be levied. It was stated that no siding charge was leviable, at all since Opp. Party No. 2 owned its own engine and was having the wagons from the adjustment siding which is a part of Barbil Railway Station as according to the Opp. Party No. 2 it was not special service as carrying the wagons to the adjustment siding do not amount to any special and exclusive service and is a part of common (normal service) of the railways, and desired refund of siding charge of Rs. 6,12,570/- collected by the petitioner by then. This representation of the Opp. Party No. 2 was rejected by the railway administration on the ground that the railway administration was placing wagons at a particular siding, solely for the convenience of Opp. Party No. 2 from where no other person receives service. According to the railway administration line Nos. 5 and 6 are public sidings and stand on different footings. It was stated in the writ application that several applications were made to different authorities of railway administration for withdrawing the siding charges all of which are rejected. Ultimately, Opp. Party No. 2 was compelled, finding no alternative, to file a complaint under Section 41(1)(c) of the Indian Railway Act, 1980 (hereinafter to be referred as 'the Act') before Opp. Party No. 1, the Railway Rates Tribunal, Madras (hereinafter to be referred as 'the Tribunal), which was filed on 28-7-1982 and was registered as Complaint No. 7 of 1982. The Railway Administration on receipt of the notice of this complaint, had filed their answer to the complaint.