- (1.) THE above Rules, along with others, were heard together by consent of parties as the points involved in these or the challenges as thrown were the same. It was also agreed by the learned Advocates appearing that arguments in Civil Rule No S. 1194 (W) of 1979, 1187 (W) of 1979, 1199-93 (W) of 1979, 1195 (W) of 1979, 2575-80 (W) of 1979, 2583 (W)-89 (W) of 1979, 2773-27740/v) Of 1979, 2776-2777 (W) of 1979 and 1235 36 (W) of 1979, would be advanced by the learned Advocates appearing for the petitioners in the respective Rules and thereafter the learned Advocates for the Respondents would give their replies in the respective cases. All these Rules, in the facts as mentioned above were analogously heard as group cases and it was also agreed at the Bar that all other Coal matters as in the list, would have or follow the same arguments and in fact no separate argument would be advanced. There is also no dispute that the relevant and material facts in issue in these Rules, so also the points involved or germane for consideration are the same.
(2.) THE petitioners are traders in Coal and Commission agents for the same and have stated to be carrying on the business of supplying Coal and Coke in different parts of India through Railways in "smalls" i. e. less than wagon loads. It has been stated that the supply of coal and coke in the manner and for the purposes as mentioned above, would be economic and advantageous through Railways apart from the fact that loading and unloading of such articles through or on rails would be the most convenient system.
(3.) THEY have claimed that under section 27 of the Indian Railways Act (hereinafter referred to as the said Act), which deals with the duties of the Railway Administration for receiving and forwarding traffic without unreasonable delay and without partiality and which is to the following effect :- (1) Every railway administration shall, according to its powers afford all reasonable facilities for the receiving, forwarding and delivering of traffic upon and from the several railways belonging to or worked by it and for the return of rolling-stock. (2) (Omitted.) (3) A railway administration having or working railways which form part of a continuous line of railway communication, or having its terminus or stations within one kilometer of the terminus or station of another railway administration, shall afford all due and reasonable facilities for receiving and forwarding by one of such railways all the traffic arriving by the other at such terminus or station, without any unreasonable delay, and without any such preference or advantage or prejudice or disadvantage as is referred to in section 28 and so that no obstruction may be offered to the public desirous of using such railways as a continuous line of communication, and so that all reasonable accommodation may by means of such railways be at all times afforded to the public in that behalf. (4) The facilities to be afforded under this section shall include the due and reasonable receiving, forwarding and delivering by every railway administration, at the request of any other railway administration, of through traffic to and from the railway of any other railway administration at through rates : provided: as follows : (a)the railway administration requiring the traffic "to be forwarded shall give written notice of the proposed through rate to each forwarding railway administration, stating both its amount and its apportionment and the route by which the traffic is proposed to be forwarded. The proposed through rate for animals or goods may be per truck or per quintal (100 kilograms) (b)each forwarding railway administration shall, within the prescribed period after the receipt of such notice, by written notice inform the railway administration requiring the traffic to be forwarded whether it agrees to the rate apportionment and route, and, if it has any objection, what the grounds of the objection are : (c)if at the expiration of the prescribed period no such objection has been sent by any forwarding railway administration, the rate shall come into operation at the expiration of that period (d)if an objection to the rate apportionment or route has been sent within the prescribed period, the Central Government, shall, on the request of any of the railway administration, decide the matter (e)if the objection is to the granting of the rate or to the route, the Central Government shall consider whether the granting of the rate is a due and reasonable facility in the interests of the public as whether regard being had to the circumstances, the route proposed is a reasonable or and shall allow or refuse the rate accordingly or fix such other rate as may seem to the Central Government to be just and reasonable ; (f)if the objection is only to the apportionment of the rate, the rate shall come into operation at the expiration of the prescribed period but the decision of the Central government as to its apportionment shall be retrospective in the case of an other objection the operation of the rate shall be suspended until the Central Government makes its order in the case; (g)the Central Government in apportioning the through rate shall take into consideration all the circumstances of the case including any special expense incurred in respect of the construction maintenance or working of the route or any part of the route as well as any special charges which any railway administration is entitled to make in respect thereof ; (h) the Central Government shall not in any case Compel any railway administration to accept lower rates than the rates which the administration may for the time being legally be charging for the like traffic carried by a like mode or transit on any other line of communication between the same points, being the points of departure and arrival of the through route". (i) subject to the foregoing provisions of this sub-section, the Central government shall have full power to decide that any proposed through rate is due and reasonable notwithstanding that a less amount may be allotted to any forwarding railway administration out of the through rate than the maximum rate which the railway administration is entitled to charge and to allow and apportion the through rate accordingly (j) the prescribed period mentioned in this sub-section shall be one month, or such longer period as the Central Government may be general or special order prescribe. (5) Any decision given by the Central Government under subsection (4) shall be final and binding on all parties concerned. " at all material times it was and still it is the obligation of the Railway administration to provide for all the necessary and reasonable facilities for receiving forwarding and delivering of the traffic tendered by the public without any such preference or advantage or prejudice and disadvantage as mentioned in section 28 of the said Act to the following effect : "a railway administration shall not make or give any undue or unreasonable preference or advantage to, or in favour of, any particular person or railway administration, or any particular description of traffic in any respect whatsoever, subject any particular person or railway administration or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever". There was initially restriction imposed on booking of coal in smalls to 5 quintals per day from every station in Eastern/south Eastern Railway. Such restriction was imposed by Circular dated 23rd April, 1973. The imposition of such restriction was challenged by several traders in Coal and the Rules, as obtained, was made absolute, consequently the circular in question was quashed From such determination, an appeal was taken, which was not finally determined on merits as the Railway authorities informed the Court that the circular in question was withdrawn. The appeal, in fact was disposed of as, because of such subsequent happenings as mentioned above, the same was considered to have become in fructuous.;