V.K.KHANNA, J. - (1.) The petitioner, U.P. State Electricity Board, has one of its power stations situated in Obra district Mirzapur. The Obra Thermal Power Station is engaged in generation of Hydel as well as Thermal power and the present writ petition relates to the two units generating thermal power and known as Obra "A" and Obra "B". For the purposes of running its thermal power stations it draws coal by rail from the neighbouring Singrauli Coal Field. On an average 6-7 rakes of about 40-44 Box Wagons each i.e. about 250 Box wagons per day is received by the aforesaid Thermal power station from the Railways. According to the petitioners, after arrival of the rakes the locomotive and staff of the Obra Thermal Power station pull out wagons for placing them on the wagons tippler siding. After unloading of the rakes the empty wagons are transferred to the railway yard for interchange. For calculating detention for purposes of levying demurrage the Railway Board in exercise of the powers conferred on it by clauses (f) and (g) of sub-section (1) of S. 47 of the Indian Railways Act, 1890 has prescribed rules for Warehousing and retaining of goods, wharfage on goods, luggage and parcels and also Demurrage on Goods wagons as follows: "II. Rules for regulating the use of Rolling Stock, Engines and Trains. 6. Demurrage on Goods Wagons : Demurrage shall be charged at the following rates : Circumstance Time allowed free. Rate per tonne or part Remarks of a tonne on carrying capacity of the wagons per hour or part of an hour in excess of the free time. Remarks 1 2 3 4 (i) On wagons ordered In the case of a and waiting to be loaded by consignors or detained for consignment note or otherwise owing to default of or at the request of the consignor, In the case of a group of 20 Box wagons or more placed at a time for loading by one party 10 working hrs. from the time at which the wagons are placed in position for loading. 25 paise for the first day/30 ps for 2nd day and 40 paise for 3rd day and thereafter for all wagons except vegetable oil tank wagons 60 paise for all days for vegetable oil tank wagons. The entire group of Box wagons placed for loading will be treated as 1 unit for the purpose of levy of demurrage charge i.e. even if one wagon out of group of 2 or more is detained for loading beyond the prescribed. later on, in Rule 6 of the Railways (Warehousing and Wharfage) Rules 1958, the following amendment was made in 1976 by the Railway Board by means of a notification dated 15/03/1976. The relevant portion of the amended Rule 6 runs as follows : "2. In rule 6 of the Railways (Warehousing and Wharfage) Rules 1958, in the table appearing, under the heading 'Demurrage on goods wagons' against item (1) in column 2 : i) For the existing entries (a) and (b) the following entries shall be substituted, namely; (a) in the case of a group of 20 Box wagons or more placed at a time for loading by one party 8 (eight) working hours from the time at which the wagons are placed in position for loading : (b) In the case of a group of 11-19 Box wagons placed at a time for loading by one party 6 (six) working hours from the time at which the wagons are placed in position for loading. (c) in the case of 1-10 Box wagons placed at a time for loading by one party 5 (five) working hours from the time at which the wagons are placed in position for loading." The entire controversy in the present writ petition centres round the question as to whether the demurrage by the Railways can be charged on the basis of the rakes or it has to be charged on the basis of wagons. The controversy has arisen because in the free time allowed under the rules on many occasions the Obra Thermal power Station Staff of the petitioner is not able to empty the entire box wagons consisting the rakes. The railways are charging demurrage on the basis that the entire group of box wagons placed for loading/unloading as the case may be, will be treated as one Unit for the purposes of levy of the demurrage charge i.e. even if one wagon out of the group of 2 or mare is detained for loading/unloading as the case may be, beyond the prescribed free time, the demurrage will be levied on all the box wagons in the group.
(2.) The petitioner, however, challenges the impugned rule as being void and ultra vires of the provisions of S. 46C(d) and also S. 47 (1)(f) and (g) of the Indian Railways Act. The precise argument raised is that the definition of demurrage has been given in S. 46-C (d) of the Act and charge of demurrage can be levied after the expiry of free time allowed for loading and unloading of the wagons. According to the petitioner it is apparent that the Act directs a wagon and not a rake to be treated as a single unit for the purposes of calculating detention and demurrage. It has also been urged that the impugned rule is not covered by S. 47(1)(f) and (g) of the Act. 2A. Petitioner in this writ petition has also challenged the rules for regulating use of rolling Stock, engine and Trains as being discriminatory and arbitrary as the Steel plants situated on Eastern Railway are treated differently as in the case of steel plant a group of box wagons is not treated as a Unit whereas in the case of Obra Thermal Power plant all the wagons of a group (rake) are treated as one unit. It has also been stated that other allowances are also allowed to the steel plants which are similarly situated and thus the rules are liable to be struck down on the ground of being arbitrary and discriminatory.
(3.) A counter affidavit in this case has been filed by the Divisional Commercial Superintendent, Eastern Railway. According to the Railways a rake is a rake only and exclusively when the box wagon comprises therein are all booked to one and the same customer. Where different wagons are booked by different customers to different consumers such wagons go to comprise a goods train as distinguished from a rake. Different consideration arises in the two different situations. The freight charges from the individual small consumers and customers is more than the freight charged from bulk consumers. Accordingly the computation of demurrage charges are based on different considerations. The charges for carriage of goods in bulk are far less than the charges in case of piecemeal booking Bulk supply is made on the basis of rake system because the formation of rakes and the maintenance of the unity of rakes and identity of particular rakes expedites the carriage of goods. In piecemeal booking, delivery is taken in the goods yard and the carriage charges are far more than in the case of freight booking on regular basis. The rule authorising the charge of demurrage on rake basis is formed on reasonable considerations by way of a deterrent against causing unnecessary detention of wagons and avoiding dispensable causes of delay like mal-functioning of facilities for unloading or inadequate yard with the customers resorting to bulk booking.;