Patna High Court
Dehri Rohtas Light Rly. Co. Ltd. vs Union Of India (Uoi) And Anr. on 26 February, 1969
Equivalent citations: AIR1970PAT109, AIR 1970 PATNA 109, ILR 48 PAT 399
JUDGMENT S.N.P. Singh, J.
1. This is an application under Articles 226 and 227 of the Constitution of India in which the validity of the order of the Government of India, Ministry of Railways (Railway Board), contained in letter No. TCR/1078/66/DRL, dated 2-4/5-1968 (Annexure 13) addressed to the petitioner has been challenged.
2. The relevant facts which are not in dispute are these. The petitioner. Dehri Rohtas Light Rly. Co. Ltd., hereafter to be called the petitioner Company, is a Company registered under the Indian Companies Act, 1882, having its registered office at Dalmianagar in the State of Bihar and it carries on business of transport of goods and passengers by the Dehri Rohtas Light Railway in the district of Shahabad. Sometime in the year 1908 Messrs Octavius Steel & Company, Calcutta, the promoters of a Company to be called the Dehri Rohtas Tramway Company Ltd., made an application to the Government of Bengal for sanction to the construction of a line of Tramway between Dehri-on-Sone on the East Indian Railway and the village of Akbarpore within the District of Shahabad. The Government of Bengal by Notification No. 24 R, dated the 10th of November, 1908, granted the application and made an order under Section 5 of the Bengal Tramways Act (III of 1883) called the Dehri Rohtas Tramway Company Order (Annexure 1). By the said order the Government of Bengal reserved to itself full control over charges of all kinds for the use of the tramway. An agreement dated the 4th of June, 1909, between the District Board of Shahabad, Octavius Steel & Company and the Dehri Rohtas Tramway Company Ltd., was entered into (Annexure 2) and thereafter Dehri Rohtas Light Railway was constructed. When the Government of India Act, 1935, came into force, the control over Dehri Rohtas Light Railway vested in the Federal Railway Authority (which before its establishment meant the Central Government) by virtue of the provisions of Section 311 (2) of the Government of India Act, 1935. Thereafter the petitioner Company is governed by the provisions of Indian Railways Act, 1890 (Act IX of 1890), hereafter called "the Act", and is included in the definitions of "Railway Company" and "Railway Administration" within the meaning of Section 3 of the Act. In exercise of the Powers conferred on the Central Government by Section 29 of the Act, the Central Government fixes the maximum and minimum rates from time to time applicable to Government Railways and other private Railways including the petitioner Company. The Central Government also by virtue of the provisions contained In Section 42 of the Act classifies any commodity, which has not been classified before, or re-classifies any commodity and increases or reduces the level of class rates and other charges applicable to Government Railways and other private railways including the petitioner Company.
3. It appears that there was a general revision of classification and rates by the Central Government in the year 1958 and accordingly the petitioner Company also revised the freight rate in 1958. The Central Government permitted to levy five per cent surcharge on the basic rates as revised in 1958 with effect from the 1st of April, 1960, to all Railways including the petitioner Company. By order No. TC. 1/1078/62 dated the 2nd of May, 1962, the Railway Board revised the basic freight rates for goods, coal and livestock traffic in respect of all Government Railways and forwarded the copy of the order to all non-Government Railways including the petitioner Company asking them whether they also desired that the proposed increase should be made applicable to them as well and to furnish full justification for the same to enable the Board to examine the question further (Annexure 4). It appears that the petitioner Company sent a representation dated the 5th July, 1962, in which the petitioner Company made a request for making the increased freight rates applicable to it (Annexure 5). The Railway Board, however, rejected the representation of the petitioner Company and by their letter No. TCI/1078/62, dated the 20th of August, 1962, informed the petitioner Company that after considering all the points raised in the letter of the petitioner Company the Board came to the conclusion that no increase in the rates in force over the Dehri Rohtas Light Railway was called for (Annexure 6). The request made by the other non-Government Railways for the increase in rates and freights was acceded to and they were allowed the same increase in rates and freights as were applicable to the Government Railways.
4. It appears that in 1963 in respect of Government Railways the supplementary charge on goods traffic was increased from 5% to 10 p. c. and a surcharge of 10% was introduced on parcels traffic. All non-Government Railways including the petitioner Company and Port Trust Railways made a request for similar increase in the rate of supplementary charge. The request made by the petitioner Company was turned down by the Railways Board whereas the request made by the other non-Government Railways and Port Trust Railways was acceded to and they were allowed to implement the same increase in the rate of supplementary charge from different dates as was made applicable in the case of Government Railways.
5. In the year 1964 there was a further increase in the rate of supplementary charge from 10% to 12% on goods freight with effect from the 1st of April, 1964, in respect of Government Railways.
All non-Government Railways including the petitioner Company made representations for similar increase in the rate of supplementary charge. The increase in the rate of supplementary charge was sanctioned to all non-Government Railways except the petitioner Company from different dates. The request made by the petitioner Company for increase in the rate of supplementary charge was finally turned down by the Ministry of Railways by their letter No. TCI/1078/64 DRL dated the 8th of June, 1965 (Annexure A).
6. It is alleged that by Circular No. TCI/1078/65 dated the 27th of February, 1965, and the 12th of March, 1965, the Railway Board ordered various adjustments in freight rates with effect from the 1st of April, 1965, both upward and downward, by way of reclassification of certain commodities, introduction of some new classes and merging of the supplementary charges in the basic rates which had been permitted earlier to Government and some non-Government Railways. It is further alleged that the petitioner Company was required to show the supplementary charges separately and was not permitted to merge with the basic freight as was done in the case of all Government Railways and other non-Government Railways, although the re-classifications, upward and downward, were made applicable to the petitioner Company. It is stated in the counter-affidavit filed on behalf of the opposite party that the petitioner Company was permitted to revise the rates merging the 5% supplementary charge and to notify them with effect from the 1st of May, 1965. In support of the above statement, the copy of letter No. TCI/1078/65, dated the 9th of April, 1965, from the Ministry of Railways, addressed to the Managing Agents, Dehri Rohtas Light Railway, Dalmianagar, has been enclosed with the counter-affidavit (Annexure B).
7. In the year 1966 a supplementary charge of 3% was introduced with effect from the 1st of April, 1966, on goods traffic subject to certain exceptions in respect of Government Railways. All non-Government Railways including the petitioner Company made representations for similar increase in the supplementary charge. The representations made by other non-Government Railways, namely, Shahadra-Saharanpur, Arrah-Sasaram, Futwa-Islampur. Howrah-Amta and Howrah-Sheakala, were made applicable to them with effect from the 15th of December, 1966. The representation made by the petitioner Company dated the 18th of October, 1966 (Annexure 7) was turned down by the Ministry of Railways by their letter No. TCR/1078/65/ DRL, dated the 9th of January, 1967 (Annexure 8).
8. It appears that in the year 1967 also there was some increase in the charges in respect of Government Railways. All non-Government Railways including the petitioner Company made representations for permitting the same increase and all the non-Government Railways except the petitioner Company were allowed the same increase from different dates. The representation of the petitioner dated the 17th of June, 1967 (Annexure 9) was turned down by letter No. TCR/1078/66 DRL dated the 27th of December, 1967, of the Ministry of Railways (Annexure 10). It appears that the petitioner Company again sent a letter dated the 21st of February, 1968, to the Railway Board for reconsideration of the aforesaid order dated the 27th of December, 1967, and made a request for increase in freights and fares as were applicable to the other Railways (Annexure 11). In response to the letter of the petitioner Company (Annexure 11), the Government of India. Ministry of Railways (Railway Board) by the impugned order, as contained in their letter No. TCR/1078/66/DRL, dated 2-4/5-1968. (Annexure 13), accorded sanction for the increase in freight rates for goods traffic and passenger fares with effect from the 1st June, 1968, in respect of the petitioner Company on the following basis:
(a) The supplementary charge leviable on goods traffic to be increased from 5% to 10%.
(b) The basis for first class passenger fares to be increased from 5.18 paise per kilometre to 6 paise per kilometre, for second class from 2.91 paise per kilometre to 3.5 paise per kilometre and for the third class from 1.94 paise per kilometre to 2.25 paise per kilometre.
9. In the meantime the Railway Board revised the freight rates of passenger fares in respect of Government Railways with effect from the 1st of April, 1968, and all the non-Government Railways with effect from the 11th April, 1968. The petitioner Company thereupon made a representation by letter dated the 20th April, 1968, in which they made a request for the same increase in freights and fares (Annexure 12).
10. It appears that the petitioner Company, not being satisfied with the decision of the Railway Board as conveyed in their letter (Annexure 13), sent a letter by way of representation to the Railway Board on the llth of May. 1968, in which they made another request for making the freight rates at par with the rates applicable to Government and other non-Government Railways (Annexure 16). On the 27th of May, 1968, the petitioner Company sent a telegram to the Railway Board to expedite the sanction (Annexure 17). A letter was also sent by the petitioner Company on the 17th of June, 1968, in which a request was made for an early decision on their representation. The Railway Board by their letter No. TCR/1078/66/DRL, dated the 23rd of July, 1968 ultimately rejected the representation made by the petitioner Company and expressed their inability to accede to any further enhancement in fares and freights (Annexure D). The above-mentioned letter of the Railway Board was sent to the petitioner Company after the present application was filed in this Court on the 22nd of July, 1968.
11. It is alleged that the freight rates which are applicable to the petitioner Company after the increase made by the order of the Railway Board dated 2-4/5-68 are almost equal to the freight rates which were applicable in the case of Government Railways with effect from the 1st of July, 1962. Statements showing the year to year increase in the freight rates applicable to Government Railways and those applicable to the petitioner Company in regard to some major commodities, such as, limestone and cement, have been filed as Annexures 14 and 15. According to the petitioner Company, the Central Government has made a discrimination against the petitioner Company by allowing them only the increase in the rates which had been allowed to the Government Railways as far back as 1962 instead of allowing them to charge the same rates as are at present charged by the Government and other non-Government Railways.
12. In their application the petitioner Company has challenged the validity of the order (Annexure 13) on various grounds. In their counter-affidavit the opposite party have alleged that the petitioner Company stands in a class by itself and that the reasons, which led to increase in the freight rates etc., from time to tune in respect of Government Railways, are not applicable to the petitioner Company. It is further alleged that the Central Government in granting increase in freight rates etc., to other non-Government Railways have taken into consideration their financial position.
13. Mr. Lal Narayan Sinha, learned counsel appearing for the petitioner Company without disputing the position that the petitioner Company is governed by the provisions of the Act, at the time of argument raised the following contentions.
(a) That Sections 29 and 42 of the Act are invalid in so far as they empower the Central Government to regulate the rates of freight etc., applicable to non-Government Railways.
(b) That the power, which is vested in the Central Government under Sections 29 and 42 of the Act, is quasi-judicial in nature and it has to be exercised in conformity with the principles of natural justice which has not been done while fixing the rates of freight etc. of the petitioner Company.
(c) That the Central Government while exercising quasi-judicial power under Sections 29 and 42 of the Act have to pass reasoned orders which have not been done in the case of the petitioner Company.
(d) That the Central Government in fixing the rates of freight etc., have made a discrimination between the petitioner Company and the Government Railways as well as between the petitioner Company and other non-Government Railways without any reasonable basis.
(e) That the Central Government have taken into consideration irrelevant factors and have left out of consideration relevant factors in fixing the rates of freight etc., applicable to the petitioner Company.
14, I shall now proceed to consider the points raised seriatim. The validity of Sections 29 and 42 of the Act has been challenged on the ground that in the two Sections absolute power has been given to the Central Government to regulate the rates of freight etc. applicable to all railways including the non-Government railways. Mr. Sinha urged that the two Sections may be valid in so far as they empower the Central Government to regulate the rates of freight etc. applicable to Government railways inasmuch as the Central Government have the absolute right to regulate the rates of freight and fare applicable to their own Railways but the Sections are invalid in so far as they empower the Central Government to regulate the rates of freight and fare applicable to non-Government Railways because the Legislature has not provided any guidance in the matter of fixation of rates. According to Mr. Sinha there is a complete delegation of the Legislative functions in the Central Government in regard to the question as to what would be the guiding principles in the matter of fixation of rates of freight and fare applicable to non-Government Railways. Section 29 of the Act reads as follows:
"(1) The Central Government may by general or special order fix maximum and minimum rates for the whole or any part of a railway, and prescribe the conditions in which such rates will apply.
(2) The Central Government may, by a like order, fix the rates of any other charges for the whole or any part of a railway and prescribe the conditions in which such rates of charges shall apply.
(3) Any complaint that a railway administration is contravening any order issued by the Central Government under Sub-section (1) shall be determined by the Central Government."
It is clear from the provisions of Section 29 that no guiding principles have been provided there in the matter of fixation of maximum and minimum rates or the rates of any other charges applicable to the whole or any part of a railway and for prescribing the conditions in which the rate and rates of charges are to be applied. Section 42 of the Act runs as follows:
"The Central Government alone shall have power-
(a) to classify or reclassify any commodity;
(b) to increase or reduce the level of class rates and other charges."
Similarly no guiding principles have been provided in Section 42 itself in the matter of classification or reclassification of the commodities or in the matter of increase or reduction in the level of class rates and other charges by the Central Government. Thus, in the two impugned Sections the Legislature has not provided any guide-line in the matter of regulation of rates of freight etc. by the Central Government. The preamble of the Act does not lay down any legislative policy and as such it is not possible to gather any guide-line from the preamble of the Act in the matter of regulation of rates of freight etc. by the Central Government.
15. The next question which falls for consideration is whether any legislative policy has been laid down in the other relevant Sections of the Act. It is well settled that the legislative policy behind a particular enactment can be gathered from the entire provisions of the Act (See the cases of Union of India v. Bhanamal Gulzarimal Ltd., AIR 1960 SC 475 and Vasanlal Maganbhai Sanjanwala v. State of Bombay, AIR 1961 SC 4). Chapter V of the Act in which the two impugned Sections occur is headed as "Traffic Facilities". Section 27 imposes an obligation on a Railway Administration to arrange for receiving and forwarding traffic without unreasonable delay and without partiality. Section 27A empowers the Central Government in the public interest to give directions in regard to transport of goods by a Railway Administration, Section 28 lays down as follows:
"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, or subject any particular person on railway administration or any particular description of traffic to any undue or un- reasonable prejudice or disadvantage in any respect whatsoever."
Section 41 of the Act reads thus:
"(1) Any complaint that a railway administration-
(a) is contravening the provisions of Section 28,
(b) is charging for the carriage of any commodity between two stations a rate which is unreasonable, or
(c) is levying any other charge which is unreasonable, may be made to the Tribunal, and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this Chapter.
(2) In the case of a complaint under Clause (a) of Sub-section (1),
(i) whenever it is shown that a railway administration charges one trader or class of traders or the traders in any local area lower rates for the same or similar animals or goods or lower rates for the same or similar services, than it charges to other traders or classes oi traders, or to the traders in another local area, the burden of proving that such lower charge does not amount to an undue preference shall lie on the railway administration.
(ii) in deciding whether a lower charge does or does not amount to an undue preference, the Tribunal may, in addition to any other considerations affecting the case, take into consideration whether such lower charge is necessary in the interests of the public.
(3) In the case of a complaint under Clause (b) or Clause (c) of Sub-section (1), the Tribunal may fix such rate or charge as it considers reasonable:
Provided that the rate to be fixed Under Clause (b) of Sub-section (1) shall be within the limit of the Government under Sub-section (1) of Section 29.
(4) A complaint under this section may be made jointly against two or more railway administrations".
From the provisions of Sections 27A, 28 and 41 of the Act it can be gathered that "reasonableness", "interest of the public" and "avoidance of discrimination" are the basic legislative policy behind the enactment as contained in Chapter V of the Act. There is thus a binding rule of conduct in Sections 27A, 28 and 41 of the Act in the light of which the Central Government have to exercise the powers conferred on them under Sections 29 and 42 of the Act. It is, therefore, difficult to hold that the Legislature has delegated its authority to the Central Government in the matter oi regulation of rates of freight etc.. applicable to Railways including the non-Government Railways by surrendering its essential legislative functions in favour of the Central Government.
16. Mr. Sinha appearing for the petitioner company strongly relied on a decision of the Supreme Court in the case of Devi Das v. State of Punjab, AIR 1967 SC 1895. In that case Section 5 of the East Punjab General Sales Tax Act, 1948, as it originally stood, was held to be void. The learned Chief Justice while dealing with the question regarding the validity of Section 5 of the Punjab Act observed as follows:
"Under Section 5 of the Punjab General Sales Tax Act, 1948, as it originally stood, an uncontrolled power was conferred on the Provincial Government to levy every year on the taxable turnover of a dealer a tax at such rates as the said Government might direct. Under that section the Legislature practically effaced itself in the matter of fixation of rates and it did not give any guidance either under that section or under any other provisions of the Act.... no other provision was brought to our notice. The argument of the . learned counsel that such a policy could be gathered from the constitutional provisions cannot be accepted, for, if accepted, it would destroy the doctrine of excessive delegation. It would also sanction conferment of power by Legislature on the executive Government without laying down any guide-lines in the Act. The minimum we expect of the Legislature is to lay down in the Act conferring such a power of fixation of rates clear legislative policy or guidelines in that regard. As the Act did not prescribe any such policy, it must be held that Section 5 of the said Act, as it stood before the amendment, was void."
The case relied upon by learned counsel appearing for the petitioner is distinguishable on the ground that in that case no legislative policy or guide-lines were found under any other provisions of the impugned Punjab Act. As I have already indicated, a clear legislative policy and guide-lines have been laid down under other provisions of the Act. namely, Sections 27-A, 28 and 41 of the Act.
17. Dr. V.A. Seyid Muhammad appearing for the opposite party relied on the following cases, namely. N.T.F. Mills Ltd. v. 2nd Punjab Tribunal, AIR 1957 SC 329, Jyoti Pershad v. Union Territory of Delhi, AIR 1961 SC 1602 and Abdul Wajid v. State of U. P., AIR 1955 All 708 for the proposition that the basic idea underlying all the provisions of the Act has to be taken into consideration for judging the vires of the Act. The decisions in the cases referred to and relied upon by the learned counsel appearing for the opposite party support his contention.
18. Dr. V.A. Seyid Muhammad put forward an alternative argument that even if it be held that the Legislature has not given sufficient guidance to the Central Government in the matter of fixation of rates of freight etc., the discretion to exercise the powers being vested in a high authority, the Court will assume that the authority will exercise the power conferred upon it reasonably. According to learned counsel, mere possibility of the abuse of power is not a sufficient ground to strike down the provisions of the Act as unconstitutional. In support of his, above contention, he relied on the following cases, namely. Fannalal Binjraj v. Union of India, AlR 1957 SC 397, Virendra v. State of Punjab, AIR 1957 SC 896 and State of Bombay v. F.N. Balsara, AIR 1951 SC 318. Learned counsel, further relied on the following passage in "Willis on Constitutional Law" (1936 Edition) at pages 586-587:
"...Perhaps the best view on this subject is that due process and equality are not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom conferred. If this is the correct position, the only question that would then arise would be the delegation of legislative power. If a statute declares a definite policy, there is a sufficiently definite standard for the rule against the delegation of legislative power, and also for equality if the standard is reasonable. It no standard is set up to avoid the violation of equality, those exercising the power must act as though they were administering a valid standard."
It is not necessary to consider the alternative argument of learned counsel for the opposite party in any detail in view of the fact that, as found above, there is a sufficient legislative policy in the Act itself in the light of which the Central Government have to exercise the powers conferred upon them under the two impugned Sections of the Act.
19. It will be relevant to refer to some of the passages in the Report of the Railway Freight Structure Enquiry Committee 1955-57, Volume I (Part-I), which reveal the legislative history of the Act. Paragraph 278 of the Report shows that when more railways were established and when more Companies were formed, the necessity for a check on the rating policy of the Companies to safeguard the interest of both the railways and the public was felt.
Paragraph 278 of the Report runs thus:
"In the early days of railways in this country the need for detailed control by Government was not felt. As more railways were established and more railway companies were formed, there was a growing desire that Government should have a check on the rating policy of the companies to safeguard the interest of both the railways and the public. By a resolution of the Government of India, of 12th December, 1887, it was laid down, amongst other principles, "that, although in the interests of the public, Government should abstain from direct interference in the matter of rates and fare yet there are certain ruling principles which Government, as the guardian of public interests, must see complied with by the railway administration. There should be no undue preference, in other words, railway administration ought not to be permitted to make preferential bargain with particular persons or companies, such as granting them scales of charges more or less favourable than those granted to the public generally. Again, in cases where the traffic offering is sufficient to justify these arrangements, railway administration must give reasonable facilities for public traffic between any two railway stations, each railway administration being contented to receive for its share of the through rate, less than its ordinary low rate....."
It appears from paragraph 279 of the Report that when the Act was passed in 1890, in order to safeguard the interest of the public provision was made in the Act for the appointment of a Railway Commission. The legislative history of the Act, therefore, shows that "interest of the public" was the dominant consideration for a check by the Government on the rating policy of the Companies running non-Government Railways. The Legislature in Chapter V of the Act clearly indicated that "interest of the public", "avoidance of discrimination" and "reasonableness" are the three basic factors which have to be taken into consideration in the matter of check by the Government on the rating policy of the, Railways. For all these reasons, I would overrule the first contention which has been raised on behalf of the petitioner Company and hold that Sections 29 and, 42 of the Act are valid.
20. I now proceed to deal with the second contention of learned Counsel appearing for the petitioner Company. Mr. Sinha urged that the petitioner Company and other Companies, which are running non-Government Railways, have a right to conduct their business according to their choice which includes the right to fix their own rates for rendering service to the people by transporting goods and passengers. Therefore, the power which is vested in Central Government under Sections 29 and 42 of the Act is quasi-judicial in nature inasmuch as the exercise of the power affects the right of all such Companies, which run non-Government Railways, and such a power must be exercised in conformity with the principles of natural justice. According to Mr. Sinha, the Central Government have not followed the principles of natural justice while fixing the rates of freight etc., applicable to the petitioner Company, Learned counsel appearing for the opposite party, on the other hand, submitted that no duty is cast on the Central Government by the provisions of the Act to act judicially and the orders which are passed by the Central Government under Sections 29 and 42 of the Act are purely administrative in nature. The Central Government, therefore, are not required to strictly observe the principles of natural justice while passing the orders. Alternatively, he argued that even if it be held that the power vested in the Central Government is quasi-judicial in nature, there has been no violation of the principles of natural justice because the petitioner Company was given ample opportunity to represent their case for enhancement in the rates of freight and fare before the impugned order was passed by the Central Government.
21. On the rival contentions raised on behalf of the parties, two main points fall for consideration, namely, (1) whether the power vested in the Central Government under Sections 29 and 42 of the Act is quasi-judicial in nature or it is purely of administrative character and (2) whether the Central Government nave transgressed the principles of natural justice while passing the impugned order (Annexure 13) if the nature of the power vested in the Central Government be held to be quasi-judicial in nature. It will not be necessary to deal with the second point if it is found that the nature of the power that the Central Government have to exercise under Sections 29 and 42 of the Act is purely administrative in character. It shall have, however, to be considered whether the Central Government have observed the ordinary rules of fair play while passing the impugned order.
22. Learned counsel appearing for the petitioner Company relying on the case of R. v. Manchester Legal Aid Company, (1952) 1 All ER 480, urged that where an authority is under an obligation to pass an order on objective determination of certain facts, either under an express provision of the statute or by implication and the order affects the right of some one, the authority concerned is under a duty to act judicially. According to Mr. Sinha, the very nature of the power vested in the Central Government to regulate the rates of freight etc., implies that the Central Government have to act objectively taking into consideration the relevant facts and any decision of the Central Government in that regard has the direct effect on the right of the Companies running non-Government Railways. According to learned counsel appearing for the opposite party, the mere fact that a decision has to be taken by an objective test and the decision affects the right of some one, the decision cannot be said to be quasi-judicial in nature. He submitted that the real test is whether by the statute a duty is cast on the authority to act judicially.
23. In the case of Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam, AIR 1958 SC 398 at p. 399 it was observed as follows:
"...whether or not an administrative body or authority functions as a purely administrative one or in a quasi-judicial capacity, must be determined in each case, on an examination of the relevant statute and the rules framed thereunder."
In the case of Radeshyam Khare v. State of Madhya Pradesh, AIR 1959 SC 107 the learned Chief Justice made the following observation:
"As stated in paragraph 115 of Halsbury's Laws of England, Volume 11 at page 57, the duty to act judicially may arise in widely differing circumstances which it would be impossible to attempt to define exhaustively. The question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular statute with the assistance of the general principles laid down in the judicial decisions. The principles deducible from the various judicial decisions considered by this Court in Province of Bombay v. Khusaldas S. Ad-vani, AIR 1950 SC 222 at p. 260 were thus formulated, namely:
'(i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.' "
In the instant case there is no lis and there is no question of any contest between the two parties and as such the principle referred to under the first category has no application. It has, therefore, to be considered whether the case comes under the second category, namely, whether the provisions of the Act require the Central Government to act judicially when passing orders under Sections 29 and 42 of the Act. No express provisions have been made in the Act regarding the procedure to be adopted by the Central Government in carrying out their duties under Sections 29 and 42 of the Act. It is manifest, however, from the nature of the power, which is vested in the Central Government, that they have to take into consideration the various facts before passing orders under Sections 29 and 42 of the Act. Undoubtedly an order passed under Sections 29 and 42 of the Act in respect of non-Government Railways affects the right of the Companies to run their Railways according to their choice. It is not disputed that the Central Government pass orders under Sections 29 and 42 of the Act in respect of non-Government Railways after consideration of the materials placed before them.
Indeed, in paragraph 17 (vi) of the counter-affidavit it has been stated that the Central Government exercise the powers under Section 42 of the Act after considering both the viewpoints of the Railways, their financial position and the effect of fixation of rates and charges on the public. Taking into consideration all the circumstances, I am of the view that though the Act does not expressly cast a duty on the Central Government to act judicially, as the orders of the Central Government have to be passed on the materials placed before them and such orders might seriously affect the rights of the Companies running non-Government Railways, it is implied that a duty is cast on the Central Government to act judicially in the matter of regulation of rates etc., applicable to non-Government Railways, As observed by their Lordships of the Supreme Court in the case of Board of High School and Intermediate Education, U. P. Allahabad v. Ghanshyam Das Gupta AIR 1962 SC 1110-
"...the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and on one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision of the person affected and other indicia afforded by the statute."
I accordingly hold that the power which Is vested in the Central Government under Sections 29 and 42 of the Act is quasi-judicial in nature in so far as it affects the rights of the Companies running non-Government Railways and such a power in the case of non-Government Railways has to be exercised in conformity with the principles of natural justice.
24. It is now to be considered whether or not the Central Government have violated the principles of natural justice, while passing orders relating to the fixation of rates of freight etc. applicable to the petitioner Company. Paragraph 21 (iv) and (v) of the application, in which the petitioner Company has taken the specific ground regarding the violation of the principles of natural justice, read thus:
"21 (iv) The petitioner was not given any opportunity to show cause against the proposed order nor was it informed of the reasons why its request could not be acceded to as a result of which the petitioner could not explain the relevant materials and their effect and the consequent relief to which the petitioner is entitled.
(v) The said orders having been passed without due consideration and without giving the petitioner an opportunity to prove its case and thus they offend the rules of natural justice. They are, therefore, illegal and void."
In paragraph 17 of the counter-affidavit filed by the opposite party the allegation that the principles of natural justice have been violated has been denied and it has been asserted that all opportunities were given to the petitioner for justifying their case for the increased rates. It is further stated in that paragraph as follows:
"... The petitioner Light Railway not only made representations on the subject and produced whatever evidence they wished to, they were also asked to supply additional information and clarification and they did so. And it was only after all the material supplied by them or obtained from them had been duly considered that the Ministry of Railways took the decision. These matters were considered by the Ministry of Railways carefully and the Ministry of Railways decided in favour of the petitioner by making applicable to them the increases in freight rates and fares as detailed in the order dated 2/4-5-1968 of the Ministry of Railways, a copy of which is enclosed to the petition and marked as Annexure 13. It is, therefore, abundantly clear that the petitioner was given all opportunity in the matter and the question of offending the rules of natural justice by the opposite party did not arise."
25. The two impugned Sections of the Act do not contemplate recording of oral or documentary evidence in the usual way as in a court of law nor do they contemplate a regular hearing by the Central Government. No rule framed under the Act has been brought to our notice in course of arguments to show that the Central Government have to follow a particular procedure before passing an order either under Section 29 or under Section 42 of the Act in respect of Government Railways. As observed in the case of Bharat Barrel and Drum Mfg. Co. v. L.K. Bose, AIR 1967 SC 361-
"... It is now well settled that while considering the question of breach of the principles of natural justice the court should not proceed as if there are any inflexible rules of natural justice of universal application. The Court therefore has to consider in each case whether in the light of the facts and circumstances of that case, the nature of the issues involved in the inquiry, the nature of the order passed and the interests affected thereby, a fair and reasonable opportunity of being heard was furnished to the person affected."
In the case of Union of India v. P.K. Roy, AIR 1968 SC 850 the same principle has been reiterated in these words:
"....the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case."
26. It is not disputed that whenever the Government of India revised the freight rates etc. in respect of Government Railways and non-Government Railways, they were informed by the Railway Board and they were asked to furnish full justification for the increase in the freight rates etc., if they desired that the proposed increase should be made applicable to them as well. On being asked by the Railway Board to furnish justification for the increase in the freight rates etc., the petitioner Company had sent written representations from time to time. Along with the let-
ter of representations the petitioner Company had sent various statements to show the increase in the cost of running the Railway and at times they had also sent their annual reports. According to Mr. Lal Narayan Sinha, the petitioner Company ought to have been given an opportunity for personal hearing by the Central Government before rejecting the representation of the petitioner Company and before passing the impugned order (Annexure 13) allowing only a partial increase in the rates of freight etc. Mr. Sinha submitted that the petitioner Company would have been able to show to the satisfaction of the Central Government that regard being had to all the relevant facts including the fact that there is a considerable increase in the cost of running Railway Administration, the petitioner Company is entitled to the same increase in the rates of freight and fare as they are made applicable to the Government Railways and other. non-Government Railways if it had been given a personal hearing before the decision of the Central Government. Learned counsel appearing on behalf of the opposite party contended that as the provisions of the Act do not contemplate a personal hearing, the Central Government were not bound to give a personal hearing to the petitioner Company. He, however, conceded that if the petitioner Company had demanded a personal hearing and the same had been denied by the Central Government, the question regarding violation of the principles of natural justice might have arisen.
In support of his contention he relied on the decision in the case of the State of Assam v. Gauhati Municipal Board, Gauhati, AIR 1967 SC 1398. In that case a question for consideration was whether the Gauhati Municipal Board was entitled to a personal hearing before the State Government passed the order of supersession under Section 298 of the Assam Municipal Act. The High Court had held that the proceedings culminating in an order under Section 298 of the Assam Municipal Act were quasi-judicial and there was violation of the principles of natural justice in that case. According to the decision of the High Court, the State Government should have given an oral hearing to the Board and should also have given opportunity to produce materials in support of the explanation offered by the Board. While dealing with the question whether the principles of natural justice were violated and the Board had a right of personal hearing, their Lordships of the Supreme Court observed as follows:--
"The High Court has conceded that a personal hearing of the nature indicated above is not always a concomitant of the principles of natural justice. But it was of the view that in the present case principles of natural justice required that the Board should have been given a personal hearing and an opportunity to produce materials in support of the explanation. We should have thought that when the Board is giving notice as required by Section 298 it would naturally submit its explanation supported by facts and figures and all relevant material in support thereof. However, we are definitely of opinion that the provisions of Section 298 being fully complied with it cannot be said that there was violation of principles of natural justice in this case when the Board never demanded what is called a personal hearing, and never intimated to the Government that it would like to produce materials in support of its explanation at some later stage. Therefore, where a provision like Section 298 is fully complied with as in this case and the Board does not ask for an opportunity for personal hearing or for production of materials in support of its explanation, principles of natural justice do not require that the State Government should ask the Board to appear for a personal hearing and to produce materials in support of the explanation. In the absence of any demand by the Board of the nature indicated above, we cannot agree with the High Court that merely because the State Government did not call upon the Board to appear for a personal hearing and to produce material in support of its explanation it violated the principles of natural justice."
Two principles are deducible from the observation of their Lordships of the Supreme Court in the above-mentioned case, namely, that a personal hearing is not always a concomitant of the principles of natural justice and that there is no question of the violation of the principles of natural justice when the aggrieved party has not demanded a personal hearing. In the instant case the petitioner Company in their representation (Annexure 7) did not ask for a personal hearing. In the representation (Annexure 9) the petitioner Company simply stated as follows:
"We shall be glad to furnish any other information and depute our representative for personal discussions, if necessary."
In the representation (Annexure 11) no request for personal hearing was made. In the representation (Annexure 12) it was stated as follows:
"We will be pleased to explain the various points and reply to further queries as may be desired and will be prepared to discuss various points per-
sonally at any place in India as and when called for."
As I have already stated, after the receipt of the impugned order (Annexure 13), the petitioner Company sent another representation on the 11th May, 1968 (Annexure 16). In that application the petitioner stated as follows:
"It is further requested that the matter may please be given your immediate attention and if required we may be given an opportunity to explain the various points and reply to further queries if any, as may be desired."
In the telegram (Annexure 17) and in the letter (Annexure 18). which the petitioner Company sent subsequently, it did not make any request for a personal hearing. As I have already stated, by Annexure 'D' dated the 23rd of July, 1968, the Railway Board finally rejected the representation made by the petitioner Company and expressed their inability to accede to any further enhancement in freights and fares. From the various representations, which I have referred to above, it is clear that the petitioner Company did not make a demand for personal hearing. The request made in three of the representations cannot be construed as a demand for personal hearing inasmuch as the petitioner Company left the matter whether they should be given an opportunity to explain the various points to the discretion of the Central Government. For the reasons stated above, I find it difficult to hold that the principles of natural justice have been violated by the Central Government because the petitioner Company was not given a personal hearing.
27. I shall now deal with the third point raised by Mr. Lal Narayan Sinha. Mr. Sinha submitted that in none of the orders, which have been passed by the Central Government and communicated to the petitioner Company, the reasons for disallowing the increase in the rates of freight and fare have been given. It is, therefore, difficult for the petitioner Company to know the grounds on which the representations made by it have been disallowed. According to Mr. Sinha, an authority exercising quasi-judicial power must pass a reasoned order. Learned counsel appearing for the opposite party, on the other hand, contended that an authority exercising quasi-judicial power need not give reasons in support of its decision in every case. It must give reasons when its decision is likely to be challenged in appeal or in revision. According to learned counsel, as an order passed by the Central Government either under Section 29 or under Section 42 of the Act is final and there is no provision in the Act for appeal or revision against the decision of the Central Government, an order passed under either of the Sections cannot be held to be bad in law merely because no reasons have been given in support of the order.
28. Where a statute or any rule framed thereunder in specific terms requires an authority to give reasons for its decision, the authority is bound to give a reasoned decision. An order passed in contravention of such a mandatory provision would render its decision invalid. As the two impugned Sections of the Act do not provide for giving reasons, the question of the violation of the statutory provision does not arise in the instant case. It is, however, to be considered whether the absence of reasons in the various orders passed by the Central Government has rendered those decisions invalid on the ground of the failure of the principles of natural justice. In order to decide the point it is necessary to review some of the judicial decisions.
29. In the case of Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578 one of the grounds of attack was that the decision of the Wage Board constituted under the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, was illegal because no reasons were given by it for its decision. While dealing with that point it was observed as follows:
"It was no doubt not incumbent on the Wage Board to give any reasons for its decision. The Act made no provision in this behalf and the Board was perfectly within its rights if it chose not to give any reasons for its decision. Prudence should, however, have dictated that it gave reasons for the decision which it ultimately reached because if it had done so, we would have been spared the necessity of trying to probe into its mind and find out whether any particular circumstance received due consideration at its hands in arriving at its decision. The fact that no reasons are thus given, however, would not vitiate the decision in any manner and we may at once say that even though no reasons are given in the form of a regular judgment, we have sufficient indication of the Chairman's mind in the note which he made on April 30, 1956, which is a contemporaneous record explaining the reasons for the decision of the majority."
In the case of Harinagar Sugar Mills v. Shyam Sunder, AIR 1961 SC 1669 the point for consideration was whether the authority exercising appellate power under Section 111 (3) of the Indian Companies Act, 1956, was obliged to set out reasons in support of its decision. While considering that question, it was observed as follows:
"If the Central Government acts as a tribunal exercising judicial powers and the exercise of that power is subject to the jurisdiction of this Court under Article 136 of the Constitution, we fail to see how the power of this Court can be effectively exercised if reasons are not given by the Central Government in support of its order".
In the case of Govindrao v. State of M.P. AIR 1965 SC 1222, while considering the validity of the order passed by the Government under Section 5 (3) of the Central Provinces and Berar Revocation of Land Revenue Exemption Act (37 of 1948) it was observed as follows:
"The next question is whether Government was justified in making the order of April 26, 1955? That order gives no reasons at all. The Act lays upon the Government a duty which obviously must be performed in a judicial manner. The appellants do not seem to have been heard at all. The Act bars a suit and there is all the more reason that Government must deal with such cases in a quasi-judicial manner giving an opportunity to the claimants to state their case in the light of the report of the Deputy Commissioner. The appellants were also entitled to know the reason why their claim for the grant of money or a pension was rejected by Government and how they were considered as not falling within the class of persons who it was clearly intended by the Act to be compensated in this manner."
In the case of M. P. Industries Ltd. v. Union of India AIR 1966 SC 671 it was held that in exercising the power of revision under Rule 55 of the Mineral Concession Rules. 1960, the Central Government acts as a judicial tribunal and as the decision of the Central Government is subject to appeal under Article 136 of the Constitution of India, the giving of reasons for its decision is necessary. In the case of Bhagat Raja v. Union of India AIR 1967 SC 1606 the view expressed in the case of AIR 1966 SC 671 was reiterated and it was held that in exercising the powers of revision under Rule 55 of the Mineral Concession Rules 1960 the Central Government discharge functions which are quasi-judicial in nature.
While considering the question whether it was incumbent on the Central Government to give any reasons for its decision on review it was observed as follows:
"The decisions of tribunals in India are subject to the supervisory powers of the High Courts under Article 227 of the Constitution and of appellate powers of this Court under Article 136. It goes without saying that both the High Court and this Court are placed under a great dis-
advantage if no reasons are given and the revision is dismissed curtly by use of the single word 'rejected' or 'dismissed'. In such a case, this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal. This will certainly be a very unsatisfactory method of dealing with the appeal. Ordinarily, in a case like this, if the State Government gives sufficient reasons for accepting the application of one party and rejecting that of the others, as it must, and the Central Government adopts the reasoning of the State Government, this Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. But, when the reasons given in the order of the State Government are scrappy or nebulous and the Central Government makes no attempt to clarify the same, this Court in appeal may have to examine the case de novo without anybody being the wiser for the review by the Central Government. If the State Government gives a number of reasons some of which are good and some are not, and the Central Government merely endorses the order of the State Government without specifying those reasons which according to it are sufficient to uphold the order of the State Government, this Court, in appeal, may find it difficult to ascertain which are the grounds which weighed with the Central Government in upholding the order of the State Government. In such circumstances, what is known as a 'speaking order' is called for."
Learned counsel appearing for the opposite party placed before us an unreported decision of the Supreme Court in the case of Som Datt Datta v. Union of India. Writ Petn. No. 118 of 1968 D/-20-9-1968 = (AIR 1969 SC 414). In that case it was contended that the order of the Chief of the Army Staff confirming the proceedings of the Court Martial under Section 164 of the Army Act and that of the Central Government dismissing the appeal of the petitioner under Section 165 of the Army Act were illegal since no reasons had been given by either of them. The contention was overruled with the following observation:
"In the present case, it is manifest that there is no express obligation imposed by Section 164 or by Section 163 of the Army Act on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court Martial. Mr. Dutta has been unable to point out any other section of the Act or any of the rule made therein from which necessary indication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority. Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication we are unable to accept the contention of Mr. Dutta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. In English law there is no general rule apart from the statutory requirement that the statutory tribunal should give reasons for its decision in every case In Rex v. Northumberland Compensation Appeal Tribunal, 1952-1 KB 338 it was decided for the first time by the Court of Appeal that if there was a speaking order a writ of certiorari could be granted to quash the decision of an inferior court or a statutory tribunal on the ground of error on the face of record. In that case, Danning L. J. pointed out that the record must at least contain the document which initiates the proceedings in the pleadings, if any, and the adjudication but not the evidence nor the reasons, unless the tribunal chooses to incorporate them in its decision. It was observed that if the tribunal did state its reasons and these reasons were wrong in law a writ of certiorari might be granted by the High Court for quashing the decision. In that case the statutory tribunal had fortunately given a reasoned decision, in other words, made a speaking order and the High Court could hold that there was an error of law on the face of the record and writ of certiorari may be granted for quashing it. But the decision in this case led to an anomalous result, for it meant that the opportunity for certiorari depended on whether or not the statutory tribunal chose to give reasons for its decision in other words, to make a speaking order. Not all tribunals by any means were prepared to do so and a superior court had no power to compel them to give reasons except when the statute required it. This incongruity (6 & 7 Elizabeth 2 C. 66) which provides that on request a subordinate authority must supply to a party genuinely interested the reasons for its decision. Section 12 of the Act states that when a tribunal mentioned in the first schedule of the Act gives a decision it must give a written or oral statement of the reasons for the decision if requested to do so on or before the giving or notification of the decision. The statement may be refused or the specification of reasons restricted on grounds of national security and the tribunal may refuse to give the statement to a person not principally concerned with the decision if it thinks that to give it would be against the interests of any person primarily concerned. Tribunals may also be exempted by the Lord Chancellor from the duty to Rive reasons but the Council of Tribunals must be consulted on any proposal to do so. As already stated, there is no express obligation imposed in the present case either by Section 165 of the Indian Army Act on the confirming authority or on the Central Government to give reasons for its decision. We have also not been shown any other section of the Army Act or any other statutory rule from which the necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority. We therefore reject the argument of the petitioner that the order of the Chief of the Army Staff dated May 26, 1967 confirming the finding of the Court Martial under Section 165 of the Army Act or the order of the Central Government dismissing the appeal under Section 165 of the Army Act are in any way defective in law."
30. From the various decisions of the Supreme Court, referred to above, the following principles can be gathered, namely, that the authority exercising quasi-judicial functions must give reasons for its decision if the statute under which it acts provides that reasons should be given in support of its decision, then reasons in support of its decision should be given by the authority when the decision is subject to an appeal or revision by a higher court or the higher authority even if the statute does not provide specifically that reasons should be given by the authority in support of its decision; that as a rule of prudence the authority should give reasons in support of its decision while exercising quasi-judicial power even if the statute does not require it to give reasons or its decision is not subject to appeal or revision; and that failure of the administrative authority to give reasons in support of its quasi-judicial decision would not per se render its decision invalid on the ground of failure of the principles of natural justice if the statute does not require it to give reasons and its decision is not subject to appeal or revision.
31. In the instant case the various orders of the Central Government cannot be struck down as invalid simply because the Central Government did not give reasons in support of their decision. It must, however, be observed that it would have been proper if the grounds on which the representations of the petitioner Company were rejected would have been disclosed in the various orders of the Central Government so that the petitioner Company might have known the reasons which led the Central Government to reject their representations.
32. On the point of discrimination relevant statements have been made in paragraph 20 of the writ application which read thus:
"That the freight rates now prevalent in the petitioner's Railway after the above mentioned increases are nearly equal to the freight rates prevailing in the State Railways with effect from 1-7-1962. Statements showing year to year increase in freight rates over State Railways and those in the case of the petitioner's Railway in regard to the major commodities carried by this Railway, namely, limestone (about 87% of the total goods traffic) and cement (about 10% of the total goods traffic), are Annexures 14 and 15 hereto and form part of the petition. It will be seen from Annexure 14 that for limestone, which is 87% of the goods traffic on this railway, the freight rates over the 'State Railways which were at the same level as in the case of the Petitioners railway in 1968 were 27.5% above those of the petitioner's railway in 1967. After the increase sanctioned by the said letter dated 4-5-1968, the freight rates over the State Railways are still 25% higher than the freight rates of the petitioner's Railway. Your petitioner's Railway was not given the benefit of increase made from time to time between 1963 to 1968. It will be seen that even if in 1968, your petitioner's Railway be allowed to charge the same freight rates and fares as State Railways, the loss incurred by the petitioner's Railway during all the past years as a result of its being compelled to charge lower freights and fares would still remain and never be recouped. Instead of at least doing belated justice to the petitioner by allowing the petitioner to charge the same rates as are now charged by State Railways and other private railways, the Central Government has continued to discriminate against the petitioner by allowing the petitioner only the increase effected over the State Railways as far back as 1962 and denying the petitioner the benefit of increases effected between 1963 and 1968. In paragraph 21 (vii) and (viii) of the writ application the point of discrimination has been raised in these words:
"21 (vii) The said orders of the Government are in contravention of Article 14 of the Constitution as they discriminate against the petitioner by denying to it the sanction that was accorded to other private railways similarly placed to the petitioner.
(viii) In the matter of increase in freight rates the case of the petitioner cannot be distinguished at all from that of the other private railways nor from that of the Government Railways and in the absence of any factor that distinguishes the case of the petitioner from that of others the orders are clearly discriminatory and invalid."
Certain facts and figures have been given in paragraphs 22 and 23 of the writ application to show discrimination and they read as follows:
"22. That while proposing further increase in passenger rates and freight rates for coaching and goods traffic in the Railway Budget 1968-69, the Hon'ble Railway Minister made specific mention in Parliament, of the increase in costs and how they are required to be neutralised by saying:
During the past 16 years, from 1951-52 to 1967-68 the price of coal has risen by 115%, of iron and steel by 143 p. a. of cement by 85%, of timber by 72% and of mineral oils by 61 p. c. The per capita cost of staff has risen by 106% during the same period. Taking all these increases into account, the cost of Railway transport has gone up by about 100%. On the other hand, passenger fares have gone up during the period to a substantially lower extent. The average fare realised per passenger per kilometre (non-suburban) increased by 75 % for the First Class, by 58.8% for Second Class Mail, by 51.9% for the Second Class Ordinary, by 60% for the Third Class Mail. The fare by Third Class Ordinary tram by which 87% of the total non-suburban passenger travelled rose only 36%. Taking all the classes together, the increase during the period 1951-52 to 1967-68 works out to 48.1%".
While proclaiming the above increase in cost of operation to be the basis which warrants the increase in the freight rates passenger fares over the Government Railways, your petitioner has been discriminated against not being allowed the same increase to compensate for the same increased cost of operation which applies to the petitioner's railway as it applies to the Government and other private railways.
33. That in any event after 1962-63 the financial position of the petitioner (which had been deteriorating steadily on account of Government's refusal to sanction any increase in passenger fares and freight rates) declined further and the return on capital at charge went below the return that Indian Government Railways were getting. The deteriorating financial position continued year by year in 1966 67, the return on capital at charge in the case of your petitioner was as low as 1.4% against the figure for Indian Government Railways of 5.4%. In the year 1967-68 the position will deteriorate further and the return on capital at charge is expected to be in vicinity of 0.5% as against 5.4% on the State Railways. This continuously deteriorating financial position is due to the fact that the working expenses in the case of all the railways in India have been going up steadily on account of increased prices of coal, spares and others as well as increased salary and wages bill. While the increased working cost in the case of the Government and all other private railways were neutralised by the freight increases, the petitioner was not allowed the benefit of increased freight rates till 1968 and even in 1968 the increase sanctioned can at the best be comparable to the freight level prevalent in the Indian Railways in 1962 with the result that the return on capital at charge has gone down from figure above that of the Government Railways to the low figure of 1.4% in 1966-67 and still lower in 1967-68 against the figure for Government Railways of 5.4%, thus causing great loss to the petitioner. Statements explaining the position as stated above were made out and sent to the Opposite parties along with your petitioner's representation dated 16/17-6-1967."
Paragraph 16 of the counter-affidavit filed by the Opposite Party is a reply to paragraph 20 of the writ application and it reads as follows;
"With regard to paragraph 20 of the petition, it is stated that the petitioner railway stands in a class by itself and that the reasons which led to increase over Government Railways from time to time as brought out in paragraphs 10 to 15 above are not applicable to the petitioner Railways. It is further stated that in granting increases in freight rates to other non-Government Railways, their financial position was considered. Shahabad-Saharanpur, Ahmadpttr-Katwa, Burdwan-Datwa and Banakura-Damodar River Light Railways had consistently shown a loss each year from 1960-61 to 1966-67. Futwa-Islampur Light Railway had shown a loss in the years 1960-61 and 1962-63. Although the remaining three non-Government Light Railways, namely, Arrah-Sasaram, Howrah-Amta and Howrah-Sheakhala had shown some profits for the years 1960-61 to 1966-67, the dividend paid by these Railways ranged from 3% to 5% as against 10 to 20% paid by the Dehri-Rohtas Light Railway, the petitioner. On the other hand, the petitioner was having a fairly good profit and his financial position was good. Over and above, the reserves accumulated by the petitioner were and are also considerably more than the reserves of the other non-Government Light Railways. A statement showing the financial position of the non-Government light Railways is attached hereto and marked as Annexure C. It is stated and submitted that there is no substance in the allegation made by the petitioner Railway that it has been discriminated against in the matter of increases in freight rates and fares, the petitioner and the other non-Government Railways not being similarly situated."
In paragraph 17 (vii) and (viii) of the counter-affidavit the point raised in paragraph 21 (vii) and (viii) of the application has been answered in these words:
"17 (vii) It is stated that there has been no discrimination against the petitioner by refusing their prayer as stated, which refusal was based on such proper grounds as have been stated in this counter affidavit and the question of any contravention of Article 14 of the Constitution does not arise. It is further submitted that the petitioner and the other private Railways are not similarly situated,
(viii). That the Government Railways and other non-Government Railways not being similarly situated and there being distinguishing features in the case of the petitioner as already explained in the previous paragraphs, there is no discrimination as alleged."
The statements made in paragraphs 22 and 23 of the application have been replied in paragraphs 18 and 19 of the counter-affidavit which read thus:
"18. With reference to the statements made in paragraph 22 of the petition, it is stated that the opposite parties crave leave to refer to the speech of the Hon'ble Minister in connection with the increase in the passenger fares and freight rates in the Railway Budget 1968-69 and place their submission, and it may be necessary that the said speech may be submitted before the Hon'ble Court to show the exact position as stated in the speech. The petitioner is also put to strict proof as regards the rise in costs and the factors responsible for it over the petitioner railway. It is further stated that the question of discrimination against the petitioner does not arise. It is, however, submitted that the case of the petitioner was considered in all its aspects and as already stated in this counter-affidavit the financial position of the petitioner was found quite satisfactory and the opposite parties have acted properly and justly in dealing with the case of the petitioner.
19. With regard to the statements made in paragraph 23 of the petition, it is stated that the financial position of the petitioner has not deteriorated. It is submitted that the financial position of the petitioner does not justify the increase as asked for by the petitioner. The reserves accumulated by the petitioner, which increased from 59.37 Lakhs in 1960-61 to Rs. 74.56 Lakhs in 1966-67, were, and are, also considerably more than the reserves of the other Light Railways. The petitioner transferred Rs. 20 lakhs to the Capital account by issue of Bonus shares of value of Rs. 10 lakhs in the year 1961-62 and another 10 lakhs in the year 1966-67. It may. be further stated that the net earnings of the Government Railways for the years 1966-67 and 1967-68, were Rs. minus 18.27 crores and Rs. minus 31.52 crores respectively after paying Rs. 132.39 crores and Rs. 141.52 crores in these two years as contribution to general revenues at 5.50% for the capital invested up to 31-3-1964 and at 6.0% for the capital invested thereafter."
34. Although in the writ application the point of discrimination between the Government Railways and the petitioner Company has been specifically taken, Mr. Lal Narayan Sinha in course of his arguments did not press the point seriously. It is a well settled principle that the Government can be legitimately put in a separate class by itself. (See the cases Manna Lal v. Collector of Jhalawar, AIR 1961 SC 828 and Lachhman Dass v. State of Punjab, AIR 1963 SC 222.) There can be no two opinions on the question that the profits earned by Government Railways accrue to the benefit of the general public whereas the profits earned by non-Government Railways accrue to the benefit of a particular individual or a set of individuals. It cannot also be doubted that a Government Railway provides better facilities to the travelling public than a non-Government Railway in several respects. The Government Railways, therefore, can legitimately be put as a class by themselves and as such there will be no violation of Article 14 of the Constitution when the Central Government differentiate between the Government Railways and the non-Government Railways in the matter of fixation of rates of freight and fare.
Mr. Sinha seriously contended that the Central Govt. had made a discrimination between the petitioner company and the other non-Government Railways in the matter of fixation of rates of freights etc. without any rational basis. Learned counsel appearing for the opposite party, on the other hand, submitted that the petitioner company stands as a class by itself and as such the Central Government have not made any discrimination between the petitioner Company on one hand and the other non-Government Railways on the other in the matter of fixation of rates of freight and fare. He further contended that the petitioner Company has failed to discharge the onus to prove that the Central Government have made a discrimination between it and the other non-Government Railways.
There is substance in the contention raised on behalf of the opposite party and it cannot be brushed aside.
In the case of Budhan Choudhary v. State of Bihar, AIR 1955 SC 191 the true meaning and scope of Article 14 of the Constitution were explained in these words:
"It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different basis; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure."
In the case of Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 the principle enunciated above was reiterated and it was further observed as follows:
"The decisions of this Court further establish-
(a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others that single individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been clear transgression of the constitutional principles;
(c) that it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds ;
(d) that the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and
(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the fact of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.
The above principles will have to be constantly borne in mind by the Court when it is called upon to adjudge the constitutionality of any particular law attacked as discriminatory and violative of the equal protection of the laws". .
The same principles have to be borne in mind by a Court if a particular order passed by the Government is challenged on the ground of violation of Article 14 of the Constitution.
35. In the application filed by the petitioner company the particulars showing that the petitioner company and the other non-Government railways are similarly situate have not been given. The onus to prove that there has been a discrimination between the petitioner company and the other non-Government Railways being on the petitioner company, which has challenged the orders of the Central Government on the ground of infringement of Article 14 of the Constitution, it was incumbent upon the petitioner company to place sufficient materials before the Court to show that the petitioner company and the other non-Government Railways are similarly situate. In paragraph 16 of the counter-affidavit quoted above it has been asserted by the opposite party that the petitioner company stands as a class by itself. Although in the rejoinder to the counter-affidavit filed by the opposite party the petitioner company has denied the fact that the petitioner company stands as a class by itself, it has not furnished particulars showing that the other non-Government Railways, such as, Shahdara-Sharanpur, Ahmadpur-Katwa, Buddwan-Katwa, Bankura-Damodar and Futwah-Islampur Light Railways, are similarly situate. In the case of State of Madhya Pradesh v. Bhopal Sugar Industries Ltd. AIR 1964 SC 1179 it was observed as follows:
"The petitions filed by the company are singularly deficient in furnishing particulars which would justify the plea of infringement of Article 14 of the Con-
stitution. It cannot be too strongly emphasized that to make out a case of denial of the equal protection of the laws under Article 14 of the Constitution, a plea of differential treatment is by itself not sufficient An applicant pleading that equal protection of the laws has been denied to him must make out that not only he had been so treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is unjustifiably made".
The contention raised on behalf of the petitioner Company that the Central Government have made a discrimination between it and the other non-Government Railways must, therefore, be rejected on the preliminary ground that the petitioner Company has not been placed sufficient materials before the Court to show that the petitioner company and the other non-Government Railways are similarly situate. I may state here that in the writ application the petitioner company has also alleged that the orders passed by the Central Government are mala fide. At the time of argument, however, learned counsel appearing for the petitioner company did not challenge the orders of the Central Government on the ground of mala fide. Indeed no particulars have been given in the writ aoplication to show that the Central Government have made a discrimination against the petitioner company for some ulterior reasons. For the reasons stated above, it is not possible to strike down the orders of the Central Government as invalid on the ground of discrimination between the petitioner company and other non-Government Railways.
36. Now remains to consider the last contention of learned counsel appearing for the petitioner company. Mr. Lal Narayan Sinha contended that the orders of the Central Government are vitiated because they have taken into consideration irrelevant factors and have ignored the relevant factors while fixing the rates of freight etc., applicable to the petitioner company. According to Mr. Sinha, 'freight' and 'fare' are the prices for the service rendered by a Railway. They must relate to the cost actually incurred in rendering service by way of transportation of goods and passengers. Any other factor is not relevant in the matter of fixation of rates of freight etc. He further contended that the Railway Board have taken into consideration wrong facts and irrelevant matters even in judging the financial position of the petitioner company. Before dealing with the aforesaid contentions of Mr. Sinha, I would consider a preliminary point which was raised by Dr. V.A. Seyid Muhammad appearing for the opposite party. Learned counsel submitted that the petitioner company, although aware of the fact that over-all financial position of the petitioner company was taken into consideration in fixing the rates of frieght and fare, has not alleged in the main petition that wrong facts and irrelevant matters were taken into consideration in judging the financial position of the petitioner company. According to learned counsel, on the facts stated in the counter-affidavit, the petitioner company has taken a new point in the rejoinder to the counter-affidavit that wrong facts and irrelevant matters have been taken into consideration in judging the financial position of the petitioner company. In support of his contention that a new point cannot be taken in the rejoinder to the counter-affidavit without amending the main petition, he replied on certain observations made in the cases of Kar-tick Chandra Dutta v. District Traffic Supdt., Pandu Region. Katihar N.F. Railway, AIR 1957 Pat 676 and Shivdev Singh v. State of Bihar, AIR 1963 Pat 201. In Kartick Chandra Dutta's case AIR 1957 Pat 676 it was observed:
"The authority of the District Traffic Superintendent to remove him from the service was questioned for the first time in his rejoinder to the counter-affidavit on behalf of the opposite party. For this reason alone, this argument must be rejected".
In Shiv Deo Singh's case, AIR 1963 Pat 201 it was observed:
"... It appears to me that after the filing of the counter-affidavit on behalf of the two respondents, no new ground of attack on the whole scheme can be made, by merely mentioning a new fact in a supplementary affidavit without an amendment of the original application".
Mr. Lal Narayan Sinha submitted that the facts stated in the counter-affidavit can be taken into consideration in support of the point raised in the main application and relief can be given to the petitioner on the basis of the facts stated in the counter-affidavit. In support of his submission he relied on the cases of Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177, Babu Raja Mohan Manucha v. Babu Manzoor Ahmed Khan, AIR 1943 P. C. 29 and Ranbir Singh Chadha v. Chief Commercial Superintendent (Rates) Head Quarters Office, Delhi, AIR 1961 Punj 268. In Firm Sriniwas Ram Kumar's case AIR 1951 SC 177 their Lordships of the Supreme Court observed as follows:
"... when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim, which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings".
In Babu Raja Mohan Manucha's case, AIR 1943 PC 29 the Judicial Committee has observed thus:
"With all due respect to the Chief Court, their Lordships think that their attitude towards the question of pleading was unduly rigid. A defendant who when sued for money lent pleads that the contract was void can hardly regard with surprise a demand that he restore what he received thereunder".
In the Punjab case, which was an application under Article 226 of the Constitution, the following observations were made:
"...If it is open to the High Court to decide a question of fact which is in dispute on the pleadings or on the evidence produced before it, then there is no reason why the petitioner cannot be allowed to request the High Court to decide the petition on the basis that the respondent's allegation of disputed facts is correct. When the petitioner accepts the respondent's allegations of facts, then insistence on amendments of the petition can serve no useful purpose and can only result in delay in disposal of the petition on merits".
37. Upon a consideration of the various decisions, referred to above, I am of the opinion that ordinarily a new point taken in the rejoinder to the counter-affidavit should not be entertained by the Court unless the petitioner with the permission of the court amends the main application. But facts stated in the counter-affidavit of the other side which support a point taken in the petition can always be relied on. Further where a particular point is taken in the main application and what is stated in reply to it in the counter-affidavit of the other side is not factually correct, statements in the rejoinder to the counter-affidavit pointing out the incorrectness of the allegations in the counter-affidavit should also be taken into consideration. If it is open to the plaintiff to a suit to deny in his deposition the averments in the written statement, there appears no reason why statements in the counter-affidavit not factually correct cannot be denied by filing a rejoinder to it by the petitioner in a writ application. In the instant case in paragraph 21 (ii) of the application the point that the Central Government did not apply their mind to the relevant matters has been specifically taken. The details as to which relevant matters had been ignored and which irrelevant matters had been taken into consideration have not been given. In paragraph 23 of the application, which I have already quoted above, the petitioner company has asserted that after 1962-63 the financial position of the petitioner company had deteriorated. In paragraph 17 (i) of the counter-affidavit the following statements have been made:
"The petitioner having failed to make out a case for increase in railway freight and fares, the request aforesaid was not acceded to. Further, it is stated that in letter No. TCD/1078/64/DRL dated 8-6-1965 from the Ministry of Railways to the petitioner, a copy of which letter is attached and marked as Annexure 'A', it was explained to the petitioner that 'having regard to the over-all financial position of the line, there does not exist adequate justification for sanctioning the increases asked for specially when the upward revision of classification of commodities such as limestone and cement, with effect from 1-4-1965, would further improve the revenues of the company."
In paragraphs 18 and 19 of the counter-affidavit, which I have quoted above, the assertion of the petitioner company that its financial position deteriorated since 1962-63 has been denied and a counter assertion to the effect that the financial position of the petitioner company was found satisfactory has been made. The statements made in paragraph 19 of the counter-affidavit show that the reserves accumulated by the petitioner company were also taken into consideration by the authorities in fixing the rates of freight and fare. Annexure 'C' is a chart in which the financial position of the various non-Government Light Railways has been shown. In my opinion, the petitioner company, which has taken a ground that the Central Government did not apply their mind to the relevant matters in fixing the rates of freight and fare, can legitimately show with reference to the facts stated in the counter-affidavit and the charge (Annexure 'C') that the Central Government have taken into consideration irrelevant facts and have excluded out of consideration the relevant facts in fixing the rates of freight and fare applicable to the petitioner company. I, therefore, do not think that the petitioner company can be disallowed to rely on the statements in the counter-affidavit which support its case.
38. Now I proceed to deal with the main contention. Learned counsel appearing for the opposite party submitted that the companies running railways are public utility concerns and as such if a particular company running a non-Government Railway does not make reasonable profit, the Government have to subsidise that company. Keeping that fact in view, the Central, Government took into consideration the overall financial position of a company including its reserves in fixing the rates of freight and fare. Referring to the chart (Annexure C), learned counsel submitted that the financial position of all the other light railways excepting the petitioner company was unsatisfactory since the year 1960-61. Three of the railways, namely. Futwah-Islampur, Burwwan-Katwa and Bankura-Damodar River Light Railways had to be subsided by the Government from different dates on account of their deteriorating financial position. The management of one of the Railways, namely, Ahmadpur-Katwa, was actually taken by the Government with effect from the 1st of July, 1967. The chart (annexure C) shows that the petitioner company earned a net profit of Rs. 16 lakhs and odd in the year 1960-61 and declared a dividend of 20%. Rs. 59 lakhs and odd was its reserves and surplus. In the year 1961-62 it earned a net profit of Rs. 11 lakhs and odd and declared 15% dividend. Its reserves and surplus were Rs. 57 lakhs and odd. In the year 1962-63 it earned a net profit of Rs. 9 lakhs and odd and it declared a dividend of 10%. Its reserves and surplus were Rs. 67 lakhs and odd.
In the year 1963-64 it earned a net profit of Rs. 7 lakhs and odd and it declared a dividend of 10%. Its reserves and surplus were Rs. 73 lakhs and odd. In the year 1964-65 it earned a net profit of Rs. 7 lakhs and odd and declared 10% dividend. Its reserves and surplus were Rs. 78 lakhs and odd. In the year 1965-66 it earned a net profit of Rs. 4 lakhs and odd and declared a dividend of 10% and its reserves and surplus were Rupees 82 lakhs and odd. In the year 1966-67 it earned a net profit of Rs. 3 lakhs and declared a dividend of 8%. Its reserves and surplus were Rs. 74 lakhs and odd. Annexure 'C' further shows that in the year 1960-61 the paid-up capital of the petitioner company was Rs. 30 lakhs and odd and its total capital outlay was Rs. 90 lakhs and odd. In the year 1966-67 its paid-up capital was Rs. 50 lakhs and odd and its total capital outlay was Rs. 104 lakhs and odd. On the above figures shown in the chart, it was submitted by learned counsel that the over-all financial position of the petitioner company remained sound throughout and keeping that fact in view, the Central Government did not allow the petitioner company same rates of freight and fare as were allowed to the other non-Government Railways. Mr. Lal Narayan Sinha submitted that except the net profit which has been earned by the petitioner company, all the other factors which have been taken into consideration by the Central Government in fixing the rates of freight and fare are irrelevant. According to learned counsel, even while calculating the net profit of the petitioner company, the railway Board have committed errors in not deducting the amount of money which was paid as Managing Directors' remuneration and the Director's commission.
39. As I have already stated, "reasonableness", "interest of the public" and "avoidance of discrimination" are the basic legislative policy behind the enactment as contained in Chapter V of the Act. I may state here that the 'general public interest' has been considered to be a valid ground for fixing the different rates both in England and America Vide Halsbury's Laws of England Volume 27, paragraph 514, (Second Edition) and Section 287 of Corpus Juris Secundum, Volume 13. Keeping in view the basic legislative policy of the Act in the matter of fixation of rates of freight and fare, I am of the view that the net profit earned by a particular company running a private railway is a relevant and important factor and fixation of rates of freight and fare on that basis cannot be said to be unreasonable or against the interest of the public. I, however, find it difficult to hold that the reserves accumulated by a company have any relevancy in the matter of fixation of rates of freight and fare. The 'reserves' represent the past profit of a company and as such it is unreasonable to take into consideration the reserves which a company has accumulated. As it has been admitted by the opposite party in the counter-affidavit that the over-all financial position of the petitioner company including its reserves has been taken into consideration in the matter of fixation of rates of freight and fare, it can-rot but be held that the Central Government have taken into consideration the irrelevant matter, namely, the reserves of the company, along with the relevant matter, namely, the net profit earned by the petitioner company. It is not very clear from the counter-affidavit whether the other factors which are mentioned in the chart (annexure C), namely, paid-up capital and total capital outlay, have also been taken into consideration by the Central Government. If, in fact, those factors have been taken into consideration, in my opinion, they are irrelevant.
As the declaration of dividend has a direct bearing on the actual net profit earned by a company it cannot be said that it is an irrelevant matter. I am not expressing any opinion on the question whether the Central Government were justified or not in not deducting the amount of money which was paid as Managing Directors' remuneration and the Director's commission, which is comparatively a negligible factor, while calculating the net profit of the petitioner company. In my considered opinion. however, the facts disclosed in the counter-affidavit establish that the Central Government have taken into consideration some irrelevant factors, specially the reserves of the company, in fixing the rates of freight and fare applicable to the petitioner company. An attempt was made by learned counsel appearing for the petitioner Company to show that even the figures shown as reserves in the chart (Annexure C) are not correct. It is not necessary to So into that question as I am of the view that the reserves of a company ought not to have been taken into consideration by the Central Government in fixing the rates of freight and fare of the petitioner company.
40. The next question which falls for consideration is whether the order of the Central Government as contained in Annexure 13, which is under challenge, should be struck down as invalid on the groun d that the Central Government have taken into consideration certain irrelevant matters in passing that order. Learned counsel appearing for the opposite party submitted that if a quasi-judicial order is based on several grounds and if some of the grounds are irrelevant, the order can be sustained on the basis of the relevant grounds. In support of his contention he relied on the decision of the Supreme Court in Civil Appeal No. 2340 of 1966 (SC) State of Maharashtra v. Babulal Kriparam Takkamore, decided on the 2nd February, 1967. In that case it was observed as follows:
"... An administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained if it be found that some of the grounds are non-existent or irrelevant, and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds. On the other hand, an order based on several grounds some of which are found to be non-existent or irrelevant, can be sustained if the court is satisfied that the authority would have parsed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existent grounds would not have affected the ultimate opinion or decision".
In the instant case I am of the opinion that it is difficult for the court to come to the conclusion that the Central Government would have passed the same order if they would have excluded out of consideration the irrelevant matters, specially the reserves accumulated by the petitioner company, and would have fixed the same rates of freight and fare as they have fixed by the impugned order (annexure 13). I am, therefore, of the opinion that the first part of the observation made in the case, referred to above, applies to the facts and circumstances of the instant case. As I have already stated, in the application the petitioner company has challenged the validity of the order (annexure 13). The petitioner company being not satisfied with the decision of the Railway Board as conveyed in the latter (Annexure 13) sent another representation on the 11th of May, 1968 (annexure 16). That representation, as it appears from the counter-affidavit, was ultimately rejected by the Railway Board by their letter No. TCR/ 1078/66 DRL, dated the 23rd of July, 1968 (annexure D). Annexure D is thus the final order of the Central Government by which the request of the peti-tioner company for enhancement in fares and freights has been rejected. The point which now falls for consideration is whether the impugned order (Annexure 13) or the final order (annexure D) dated the 23rd of July, 1968. in which that part of Annexure 13 which is adverse to the petitioner company stands merged should be quashed. By the order as contained in Annexure 13 the petitioner company has got at least some relief. If that order is struck down as invalid, some complications may arise. In the circumstances, I am of the opinion that it will be proper to strike down the final order dated the 23rd July, 1968, passed by the Central Government as contained in Annexure D to the counter-affidavit. There can be no legal objection to it as it is always open to the court to grant the appropriate relief on the facts pleaded.
41. For the reasons stated above, this application is allowed and the order dated the 23rd of July, 1968, of the Government of India, Ministry of Railways (Railway Board) Annexure D to the counter-affidavit is quashed by a writ of certiorari. A writ of mandamus is further issued on the opposite party to reconsider the representation of the petitioner Company in the matter of enhancement of rates of freight and fare in accordance with law after giving the petitioner company adequate opportunity to represent its case and to show that the facts and figures relied upon by the opposite party are not correct. If a prayer for oral hearing is made by the petitioner Company, the authorities would not deny it. In the circumstances of the case, this application is allowed with costs. Hearing fee Rs. 250/- only.
Shambhu Prasad Singh, J.
42. I agree.