JUDGMENT
C.K. Thakker, J.
1. These two petitions are filed by Ahmedabad Electricity Company Ltd. (“Company” for short) and Gujarat Electricity Board (“Board” for short) respectively against Union of India and Railway authorities for an appropriate writ, direction and/or order quashing and setting aside certain decisions taken by the respondents by which the authorities sought to recover freight/charges for transporting coal to the petitioner Company/Board on the basis of higher rate of freight (wagon-load rate) being illegal, ultra vires and contrary to law. A prayer is also made for quashing and setting aside certain letters/orders/notifications by which such demand is made being ultra vires and unlawful. They have prayed that the respondent authorities be restrained permanently from demanding and from recovering freight charges at a higher rate.
2. To consider and decide the questions raised in both the petitions, few relevant facts may now be stated.
3. In the first petition, the case of the petitioner is that it is a company registered under the Indian Companies Act, 1956, having its registered office at Ahmedabad. It has engaged itself in business of generation and distribution of electricity in Ahmedabad and Gandhinagar areas. It has established a Power House at Sabarmati which is also a Railway Station on the Western Railway situated on Ahmedabad-Delhi Trunk Route which is in the north of the City of Ahmedabad. According to the Company, the principal raw material used for generation of electricity is coal which is delivered by the Western Railway to the petitioner Company’s railway siding located within its premises at the Power House at Sabarmati. The petitioner has been buying its requirement of coal in bulk from Western Coalfields Ltd. Necessary arrangements had been made to send coal to the petitioner’s Power House. Initially there were two rates applicable for transport of coal; viz. (1) Smalls (Class 100) rate and (2) Wagon-load (Class 42.5) rate. Subsequently, however, the rates were modified into three classes, viz. (1) Smalls (Class 100), (2) Wagon-load (Class 47.5) and (3) Train-load (Class 42.5).
4. According to the petitioner, the entire traffic of coal which the petitioner Company got from Western Coalfields Ltd. was by a train-load from Chirimiri Station right upto the petitioner’s sidings at Sabarmati. There was a common Consignor, viz., the Western Coalfields Ltd. and a common Consignee, viz., the petitioner Company. All indents were placed by the Western Coalfields Ltd. for train-load suppliers and they were to be carried by the Railway in one bulk order to Chirimiri area as a whole. Supply of wagons were on three sidings of the Western Coalfields Ltd., viz., Chirimiri, New Chirimiri Ponry Hill and Kurasiar train-load suppliers and they were to be carried by the Railway in one bulk order for Chirimiri According to the petitioner, all the three sidings were situated in the nearby locality within a distance of half km. from Chirimiri Station. The movements were thus only a few yards movements. As per the policy decision of the respondents, the petitioner Company was entitled to claim benefits of rates for train-load of the coal. Since the respondent authorities declined to extend the benefit of the said rates 10 the petitioner Company, a letter was written in 1982 stating therein that in accordance with the policy decision taken by the authorities, the petitioner Company would be entitled to benefit and that it could not be denied to the company. The railway authorities, on the other hand, were of the view that the petitioner Company was not entitled to the said benefit as the train-load was not booked from one station to one destination which was an essential requirement for getting concessional freight benefit. According to the authorities, therefore, though there was only one Consignor and one Consignee, since there were different collieries and sidings and as per the policy, the benefit was available only from one station to one destination, the petitioner Company could not get the said benefit as the coal was to be taken from different collieries and sidings. The petitioner Company was eligible for freight concession and the action taken by the respondent authorities could not be said to be contrary to law.
5. On 6th January 1983 (Annexure D), the respondent authorities clarified the position that train-load classification was not applicable to train-load consignments formed by clubbing of the wagon-load of coal booked from different collieries served by same station. It was stated:
For getting benefit of train-load classification the train-load should be booked from one station to one destination.
It appears that even after January 6, 1983, correspondence continued between the parties. It is clear from the record that at a subsequent stage, again policy decision was taken by the respondent-authorities on July 8, 1983 by which, benefit demanded by the petitioner Company was granted. It was stated that though classification was made in past that the Company was not entitled to the benefit if clubbing wagon-loads were taken from different collieries, the matter was subsequently re-considered and it was decided that even such classification could be allowed to the Company and the benefit could be extended even though coal wagons were from different collieries by clubbing them together. But it was to be made effective from July 15, 1983. It is not disputed by and between the parties that after 15th July 1983, the respondents have extended the benefit in freight to the petitioner Company and the question in present petitions is limited to a period between February 15, 1982 and July 14, 1983.
6. Since the petitioner was aggrieved by the action of depriving the benefit for the period between two dates mentioned hereinabove, it has approached This Court by filing the petition.
7. Special Civil Application No. 2256 of 1987 is filed by the Gujarat Electricity Board raising substantially the same question raised by Ahmedabad Electricity Company in Special Civil Application No. 1887 of 1987. In this petition, an assertion is made by the Board that under duress and coercion, certain amounts had been paid by the Board. It is contended that the higher rate of demand made by the respondent authorities is contrary to law, unlawful and illegal.
8. From the records and proceedings it appears that initially, both the petitions were summarily dismissed but Letters Patent Appeals were allowed and the petitions were admitted and they are now placed for final hearing.
9. We have heard Mr. J.M. Thakore, learned Advocate General for Mr. H.B. Shah in Special Civil Application No. 1887 of 1987 and for Mr. M.D. Pandya in Special Civil Application No. 2256 of 1987 for the petitioners. We have also heard Mr. R.P. Bhatt, Senior Advocate instructed by Mr. J.J. Yajnik, for the respondents.
10. The learned Advocate General raised the following contentions:
(i) The action of the respondents in not giving benefit of concessional freight to the petitioners is illegal, ultra vires and unconstitutional.
(ii) The action is also arbitrary and unreasonable in that as public authority, the respondents were bound to act in accordance with law. The petitioners were entitled to certain benefits which could not be denied by incorrect and improper interpretation of circulars and notifications.
(iii) The authorities themselves were satisfied that the action taken by them was unlawful and uncalled for. On the basis of that satisfaction, a decision was taken on 15th July 1983 by re-considering the matter and extending benefits to the petitioners. There was, therefore, no earthy reason to deprive the petitioners to the said benefits from February 15, 1982 to July 14, 1983.
(iv) On the facts and in the circumstances of the case, no reasonable man could have taken a stand which has been taken by the respondents. When, there was a common Consignor and common Consignee, as per the policy decision, the respondent authorities were bound to extend the benefit to the petitioners.
(v) Coal was to be sent from one station to one destination. The stand taken by the authorities that it was from different colleries and sidings was factually incorrect and legally untenable.
11. Mr. Bhatt, on the other hand, supported the action of the authorities. He submitted that the petitions were barred by delay and laches. They were also barred by acquiescence and estoppel. The petitioners have suppressed material facts from This Court and they may not be permitted to argue on other points. Even on merits, the action taken by the respondent authorities cannot be said to be illegal, ultra vires or without authority of law. A conscious policy decision was taken by the authorities, which cannot be said to be arbitrary or unreasonable. The question agitated in the present petitions is in the realm of policy and in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India, This Court does not undertake the task of expressing opinion on advisability of particular policy.
According to Mr. Bhatt, considering various factors, such as time lo be spent, expenses to be incurred, man-power to be utilised by the authorities, etc., if a decision was taken by the authority that the benefit of certain concessional rates should be given to a particular class of customers from one station to one destination, the decision cannot be termed as arbitrary or irrational.
Mr. Bhatt stated that as and when queries were raised, the petitioners were informed about the views of the authorities. Common meetings were also held Certain decisions were taken. The officers of the Board also agreed to those decision and thereafter they have filed this petition raising a dispute. Thus, the petition filed by the Board (Spl. C.A. No. 2256 of 1987) suffers from the vice of suppression of material facts as is also barred by the doctrine of estoppel.
Mr. Bhatt submitted that there was no question of giving retrospective effect of the decision taken on 8th July 1983, when it was decided that the effect was to be given from 15th July 1983. Taking into account, special status of the petitioner Company, one being Ahmedabad Electricity Co. and other being Gujarat Electricity Board, a concession was given. The petitioners cannot say that the said benefit must be extended for the period from February 15, 1982.
Mr. Bhatt urged that though the petitioners were liable to pay dues to the respondents, the same have not been paid and the authorities were wrongly deprived of the said amount. It was, therefore, prayed that an appropriate order be passed in favour of the respondent authorities.
12. Having heard the learned Counsels for the parties, we are of the view that the petitions filed by the petitioners deserve to be dismissed.
13. It is true that though the decision was taken on January 6, 1983, both the petitions were filed in 1987. Special Civil Application No. 1887 of 1987 was filed on 23rd April 1987 whereas Special Civil Application No. 2256 of 1987 was filed on May 13, 1987.
14. In the affidavits filed in Spl. C.A. No. 1887 of 1987, a preliminary contention was taken on behalf of the respondent authorities that there was gross delay and laches in approaching This Court by the petitioner. It, however, appears that no such affidavit was filed nor contention was taken in affidavit-in-reply in other petition (Spl. C. A. No. 2256 of 1987). It further appears that though decision was taken in January 1983, correspondence took place between the parties even thereafter. The petitioners were trying to convince the authorities to grant the benefit in their favour while the respondent authorities were insisting that the petitioner Company should pay freight as per the decision taken by them. Moreover, the petitions were filed in the year 1987. At one stage, they were disposed of. Letters Patent Appeals were filed and were allowed. In these circumstances, in our opinion, it would not be proper to dismiss the petitions on the ground of delay and/or laches. We, therefore, do not propose to dismiss the petitions on the ground of delay. We think it proper to consider other points raised by the parties and decide them.
15. Regarding acquiescence and estoppel, as also suppression of material facts, it is the case of the respondent authorities that they had a meeting with the officers of the Board on 8th May, 1986, and the officers of the Board agreed to the rates suggested by the respondent authorities and after detailed discussion, various decisions were taken. Our attention was invited particularly to sub-para (1) of para 3 of the minutes of the meeting held with the officers of the Gujarat Hlectricity Board in the Chamber of C.C.O. on that day. It is clear from the minutes of the meeting that on behalf of the Board, the following personnel remained present:
Shri B.K. Patel (Member-Technical)
2. Shri A.P. Sinha (Member-Technical)
3. Shri T.R. Thakkar (Supdt. Engineer)
4. Shri B.I. Patel (Dy. Engineer U.S.D.-T.P.H.)
5. Shri Netrapal Singh (Advisor to G.E.B.)
On behalf of the Railway Administration, the following officers attended it:
Shri O.P. Nayar, CCS.
2. Shri N.P. Varma, C.C.O.
3. Shri K.K. Saxena, Dy. CCS. (R)
4. Shri P.M. Khedekar, A.C.S. (D)
Sub-para (1) of para 3 reads thus:
(1) G.E.B. will pay the invoice freight of coal at wagon-load rate as recorded on the R.R.s in respect of four sidings as stated above for the past period as well as in future. G.E.B. will issue immediate instructions to their power-house to this effect.
16. In the light of decisions and the minutes recorded at the meeting of 8th May 1986, a letter was also addressed to the Board on 8th May 1986/12th May 1986, stating the fact about decisions being taken at the meeting on 8th May 1986. An argument was, however, advanced on behalf of the Board that no such plea was taken in the petition filed by G.E.B. (Spl. C.A. No. 2256 of 1987). It is no doubt true that the contention was taken by the Railway Administration against G.E.B. in affidavit-in-reply and the minutes of the meeting dated 8th May 1986 were made part of the record and part of the counter-affidavit from which also it is clear that a copy of the minutes was forwarded to the Board. All these facts, however, are placed on record in Spl. C.A. No. 1887 of 1987 which is not filed by the Gujarat Electricity Board but by Ahmedabad Electricity Company. It was, therefore, contended that the said plea is not available to the Railway Administration against the Gujarat Electricity Board. Mr. Bhatt, no doubt, submitted that both the matters were ordered to be heard together. Even earlier, both the petitions came up for hearing together and were dismissed at admission stage. A common order was passed on September 14, 1987. Two Letters Patent Appeals were filed, which were allowed, petitions were ordered to be admitted by issuing Rule and they were again ordered to be heard together. Both the petitions were posted for hearing simultaneously. Some of the affidavits were also common including one of the affidavits filed by Railway Administration. Mr. Advocate General appeared as Counsel on behalf of both the petitioners in both the petitions and that common arguments were advanced on behalf of both of them. In these circumstances, according to Mr. Bhatt, it does not lie in the mouth of Gujarat Electricity Board to raise a technical contention that a copy of the affidavit or minutes was not sent to the Board, more particularly when in the copy of the minutes itself, it is stated that a copy of the decision was forwarded to the Gujarat Electricity Board. Mr. Bhatt further stated that even now, it is not the contention or assertion of the Gujarat Electricity Board that the officers of the Board did not attend the meeting on May 8, 1986 or that no decision was taken at that meeting or that they did not agree to such decision. He, therefore, requested the Court not to permit raising of such plea by the Board and dismiss the petition on the ground of estoppel as also suppression of vital facts.
17. It is true that looking to the record, prima facie, it appears to us that such a decision was taken at the High Level Committee meeting on 8th May 1986 in which responsible officers of G.E.B. and Railway Administration remained present. Certain decisions were taken and from the endorsement, it clearly appears that they were communicated to G.E.B. also.
18. But when that fact was not mentioned in the affidavit-in-reply in Spl. C.A. No. 2256 of 1987 and such contention was taken, though prima facie we are satisfied that there was a meeting between Railway Administration and officers of G.E.B. and some decisions were taken, we are not inclined to foreclose scrutiny on merits by G.E.B. on that ground. That contention would not debar the petitioner of Spl. C.A. No. 1887 of 1987 to raise other contentions and we have permitted G.E.B. to argue the matter on other points.
19. On merits, however, we are of the view that the contentions raised on behalf of the Company as well as the Board are not well founded and cannot be upheld.
20. It is the case of the company and of the Board that since coal was to be lifted from Western Coalfields Ltd. via Chirimiri Station, they were not liable to pay freight as demanded by the Railway Administration. It was their case that in view of a common consingor and a common consignee and all indents being placed by the Western Coalfields Ltd. for train-load supply at Chirimiri, demand made by the Railway Administration was illegal, unlawful and contrary to law. It was further submitted that all the three sidings; viz. (1) Chirimiri, (2) New Chirimiri Ponry Hill and (3) Kurasia in Spl. C.A. No. 1887 of 1987 and all the four Stations; viz. (1) West Chirimiri, (2) Amlai, (3) Birsingpur and (4) I.R.C. Siding in Spl. C. A. 2256 of 1987 are in the nearby locality. So far as Spl. C. A. No. 1887 of 1987 is concerned, collieries and sidings are at a distance of half km. from Chirimiri Station and movements to and fro these sidings were merely “Yard movements”. Similar is the case of G.E.B.. In these circumstances, the action could not be said to be legal and valid.
21. Now, affidavits were filed by Railway Administration. In an affidavit filed by Mr. K.K. Saxena, Deputy Chief Commercial Superintendent (Rates), Western Railway on June 30, 1987 (Spl. C.A. No. 2256 of 1987), it was stated that the benefit was to be extended as per circulars which permitted train-load classification and on fulfilment of certain conditions. It was stated that benefit of the train-load classification was not extended to coal consignment formed into a train-load by clubbing wagon-loads loaded from different collieries/sidings. The said benefit was extended only by a subsequent notification dated July 8, 1983 with effect from July 15, 1983. Hence, even if there was a common consignor (Western Coalfields Ltd.) and a common consignee, (Ahmedabad Electricity Co. or Gujarat Electricity Board) they were not entitled to the benefit of the train-load rate.
22. In a subsequent affidavit of Mr. Saxena, dated 2nd November 1987, which is filed in both the petitions, the position was much more clarified. In paras 1 and 2, it was stated:
1. I am filing this affidavit only with a view to explain certain facts so that the controversy can be clearly appreciated. Special train-load scale rates were introduced with effect from 15th February 1982 for achieving operational economy and passing on the benefit of economy thus achieved to the customers. In case the entire train-load is offered at one station, i.e., from one point, to one destination, Railway achieves economy in terms of saving in shunting operation and reduction in detention to wagons at the intermediate marshalling yards. The advantage thus achieved in the form of less requirement of shunting engine and reduction in wagon detention en route is passed on to the customers in the form of lower freight rates. Moreover, this also results in considerable reduction in transit time amounting to improvement in service to the customers.
2. It is not correct that entire coal of the appellants is received from Chirimiri. Appellants are getting their coal from the following collieries:
1. Bijuri Colliery Siding of South Eastern Railway.
2. Churcha Colliery Siding of South Eastern Baikunthpur Road.
3. Duman Hill Colliery Siding of South Eastern Darritola.
4. Birasampur-I Colliery Siding of South Eastern Darritola.
5. Birasampur-11 Colliery Siding of South Eastern Darritola.
6. Korea-I Colliery Siding of South Eastern Darritola.
7. Korea-II Colliery Siding of South Eastern Darritola.
8. New Kusunda-I Colliery Siding of South Eastern Darritola.
9. New Kusunda-II Colliery Siding of South Eastern Darritola.
10. Govinda (Kotma) Colliery Siding of South Eastern Darritola.
11. Belpahar Colliery Siding of South Eastern Darritola.
12. Korba Colliery Siding of South Eastern Darritola.
13. Harrad Colliery Siding of South Eastern Darritola.
14. Majri Jn. Colliery Siding of Central Railway.
15. Jaunnar Deo Colliery Siding of Central Railway.
16. Parasia Colliery Siding of Central Railway.
17. Singrauli Colliery Siding of Eastern Railway.
It is denied that indents are placed for entire consumption on Chirimiri area at one station. In fact, the indents are placed for supply of wagons in respect of each colliery separately. It is further denied that New Chirimiri Ponry Hill and Kurasia and Chirimiri are served by same depot station, namely, Chirimiri. The respondents railway had already filed an affidavit dated 26th August, 1987 annexing the R.R.s issued from the three collieries in question. It may be seen from the R.R.s that new Chirimiri Ponry Hill sidings is served by Manendragarh and Kurasia siding is served by Chirimiri Station. It will be seen from the R.R.s annexed to the affidavit that the same are prepared in the colliery sidings itself in case of New Chirimiri Ponry Hill siding and Kurasia, but for Chirimiri Colliery R.R.s are prepared by Manendragarh. Since R.R.s are prepared for three different collieries sidings at three different places the benefit of train-load rate cannot be extended to the coal consignments booked to the petitioners/appellants as railway have to perform extra shunting operations for supply of wagons at loading points as per indents placed by the consignor, viz., Western Coalfields Lid These wagons have to be collected from different collieries after loading is completed. Thus, it will be seen that no economy in operations is achieved, and as such the question of passing on the benefit to the consumer does not arise.
In view of the facts stated above, it is denied, that appellants are entitled to the benefit of train-load rate, in view of Board’s circular dated 15-1-1982.
23. The question, therefore, is as to whether such a decision could have been taken by Railway Administration. If yes, could it be said to be arbitrary, unreasonable or violative of rights of the petitioners? In our opinion, it is not. If a policy decision is taken by an authority, normally, in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, This Court will not interfere with it. The jurisdiction under Article 226 of the Constitution cannot be invoked to interfere with such decision. The question of policy is essentially for the authorities to decide. The decision on policy matters depend upon a number of circumstances and considerations and it is neither desirable nor advisable for Courts to direct or sermonize the Government to adopt a particular policy which the Court deems fit and proper. As observed by the Apex Court, “the Court cannot be propelled into the unchartered ocean of Government policy” vide Bennett Coleman & Co. v. Union of India . The Court has also no jurisdiction to sit over the judgment or wisdom of a policy evolved by authorities. It may be right or wrong or it may even be foolish. True it is that if such policy is arbitrary, unreasonable or violative of fundamental or legal rights of the parties, the Court can interfere with it. But if it is not violative of any right of a party, the Court cannot interfere with it only on the ground that other policy would have served the interest of general public better.
24. In the instant cases, according to the respondent Administration, the benefit of the railway freight was to be extended and in fact extended only on compliance with certain conditions. If those conditions were not fulfilled and the benefit had not extended in favour of the petitioners, in our judgment, it cannot be said that by adopting that course and by taking such a view, any illegality can be said to have been committed which requires interference in exercise of extraordinary powers under Article 226 of the Constitution.
25. There is no question of giving retrospective effect to the decision dated July 8, 1983 as contended by the petitioners. The decision was taken in July 1983 and it was open to the respondent authorities to give effect to it from a subsequent date. As stated in counter-affidavit, though the petitioners were not entitled to the said benefit, taking into consideration special status of the petitioners, liberal view was taken. It was open to the authorities to give effect to the decision of July 8, 1983 from a particular date which was given. Hence, the petitioners cannot contend that they were entitled to the benefit prior to July 15, 1983. We, therefore, do not see any substance in argument that the said benefit ought to have been extended from earlier date.
26. It was stated by Mr. Bhatt that all throughout the railway authorities had charged similar rates from other agencies also. For the foregoing reasons, we do not see any ground to interfere with the order passed by the Railway Authorities. Both the petitions deserve to be dismissed and are accordingly dismissed. Ad interim/interim relief granted earlier stands vacated. In the facts and circumstances, there shall be no order as to costs.
27. At this stage, the learned Advocate General stated that interim relief was granted in 1987 and is operative till today. He stated that the petitioners intend to approach higher forum. Interim relief, therefore, may be continued for some time so as to enable the petitioners to approach the Apex Court. In our opinion, the prayer is reasonable. In the facts and circumstances of the case, interim relief granted earlier and continued so far, is ordered to continue for eight weeks from today.