V. K. KHANNA, J. ( 1 ) THE petitioner, U. P. State Electricity Board, has one of its power stations situated in Obra district Mirzapur. The Obra Thermal Power Station is engaged in generation of Hydel as well as Thermal power and the present writ petition relates to the two units generating thermal power and known as Obra "a" and Obra "b". For the purposes of running its thermal power stations it draws coal by rail from the neighbouring Singrauli Coal Field. On an average 6-7 rakes of about 40-44 Box Wagons each i. e. about 250 Box wagons per day is received by the aforesaid Thermal power station from the Railways. According to the petitioners, after arrival of the rakes the locomotive and staff of the Obra Thermal Power station pull out wagons for placing them on the wagons tippler siding. After unloading of the rakes the empty wagons are transferred to the railway yard for interchange. For calculating detention for purposes of levying demurrage the Railway Board in exercise of the powers conferred on it by clauses (f) and (g) of sub-section (1) of S. 47 of the Indian Railways Act, 1890 has prescribed rules for Warehousing and retaining of goods, wharfage on goods, luggage and parcels and also Demurrage on Goods wagons as follows: "ii. Rules for regulating the use of Rolling Stock, Engines and Trains. 6. Demurrage on Goods Wagons : Demurrage shall be charged at the following rates : circumstance time allowed free. Rate per tonne or part Remarks of a tonne on carrying capacity of the wagons per hour or part of an hour in excess of the free time. Remarks 1 2 3 4 (i) On wagons ordered In the case of a and waiting to be loaded by consignors or detained for consignment note or otherwise owing to default of or at the request of the consignor, in the case of a group of 20 Box wagons or more placed at a time for loading by one party 10 working hrs. from the time at which the wagons are placed in position for loading. 25 paise for the first day/30 ps for 2nd day and 40 paise for 3rd day and thereafter for all wagons except vegetable oil tank wagons 60 paise for all days for vegetable oil tank wagons. from the time at which the wagons are placed in position for loading. 25 paise for the first day/30 ps for 2nd day and 40 paise for 3rd day and thereafter for all wagons except vegetable oil tank wagons 60 paise for all days for vegetable oil tank wagons. The entire group of Box wagons placed for loading will be treated as 1 unit for the purpose of levy of demurrage charge i. e. even if one wagon out of group of 2 or more is detained for loading beyond the prescribed. later on, in Rule 6 of the Railways (Warehousing and Wharfage) Rules 1958, the following amendment was made in 1976 by the Railway Board by means of a notification dated 15/03/1976. The relevant portion of the amended Rule 6 runs as follows : "2. In rule 6 of the Railways (Warehousing and Wharfage) Rules 1958, in the table appearing, under the heading demurrage on goods wagons against item (1) in column 2 : i) For the existing entries (a) and (b) the following entries shall be substituted, namely; (a) in the case of a group of 20 Box wagons or more placed at a time for loading by one party 8 (eight) working hours from the time at which the wagons are placed in position for loading : (b) In the case of a group of 11-19 Box wagons placed at a time for loading by one party 6 (six) working hours from the time at which the wagons are placed in position for loading. (c) in the case of 1-10 Box wagons placed at a time for loading by one party 5 (five) working hours from the time at which the wagons are placed in position for loading. " the entire controversy in the present writ petition centres round the question as to whether the demurrage by the Railways can be charged on the basis of the rakes or it has to be charged on the basis of wagons. The controversy has arisen because in the free time allowed under the rules on many occasions the Obra Thermal power Station Staff of the petitioner is not able to empty the entire box wagons consisting the rakes. The controversy has arisen because in the free time allowed under the rules on many occasions the Obra Thermal power Station Staff of the petitioner is not able to empty the entire box wagons consisting the rakes. The railways are charging demurrage on the basis that the entire group of box wagons placed for loading/unloading as the case may be, will be treated as one Unit for the purposes of levy of the demurrage charge i. e. even if one wagon out of the group of 2 or mare is detained for loading/unloading as the case may be, beyond the prescribed free time, the demurrage will be levied on all the box wagons in the group. ( 2 ) THE petitioner, however, challenges the impugned rule as being void and ultra vires of the provisions of S. 46c (d) and also S. 47 (1) (f) and (g) of the Indian Railways Act. The precise argument raised is that the definition of demurrage has been given in S. 46-C (d) of the Act and charge of demurrage can be levied after the expiry of free time allowed for loading and unloading of the wagons. According to the petitioner it is apparent that the Act directs a wagon and not a rake to be treated as a single unit for the purposes of calculating detention and demurrage. It has also been urged that the impugned rule is not covered by S. 47 (1) (f) and (g) of the Act. 2a. Petitioner in this writ petition has also challenged the rules for regulating use of rolling Stock, engine and Trains as being discriminatory and arbitrary as the Steel plants situated on Eastern Railway are treated differently as in the case of steel plant a group of box wagons is not treated as a Unit whereas in the case of Obra Thermal Power plant all the wagons of a group (rake) are treated as one unit. It has also been stated that other allowances are also allowed to the steel plants which are similarly situated and thus the rules are liable to be struck down on the ground of being arbitrary and discriminatory. ( 3 ) A counter affidavit in this case has been filed by the Divisional Commercial Superintendent, Eastern Railway. It has also been stated that other allowances are also allowed to the steel plants which are similarly situated and thus the rules are liable to be struck down on the ground of being arbitrary and discriminatory. ( 3 ) A counter affidavit in this case has been filed by the Divisional Commercial Superintendent, Eastern Railway. According to the Railways a rake is a rake only and exclusively when the box wagon comprises therein are all booked to one and the same customer. Where different wagons are booked by different customers to different consumers such wagons go to comprise a goods train as distinguished from a rake. Different consideration arises in the two different situations. The freight charges from the individual small consumers and customers is more than the freight charged from bulk consumers. Accordingly the computation of demurrage charges are based on different considerations. The charges for carriage of goods in bulk are far less than the charges in case of piecemeal booking Bulk supply is made on the basis of rake system because the formation of rakes and the maintenance of the unity of rakes and identity of particular rakes expedites the carriage of goods. In piecemeal booking, delivery is taken in the goods yard and the carriage charges are far more than in the case of freight booking on regular basis. The rule authorising the charge of demurrage on rake basis is formed on reasonable considerations by way of a deterrent against causing unnecessary detention of wagons and avoiding dispensable causes of delay like mal-functioning of facilities for unloading or inadequate yard with the customers resorting to bulk booking. ( 4 ) IT has been stated that operationally it is very necessary that the unity and identity of a particular rake be maintained on its way back in a state of unloaded box wagons. If the rake is disturbed and another rake is formed by box wagons taken from different rakes, distinct one from the other, the shunting involved would cause delay which will result in loss of revenue to the Railway administration. In case of such constituents as the Obra Thermal Power station the recurring loss would be in astronomical figures. The demurrage charges is a fraction of the loss occasioned by losing operational hours in actual running of the rake as the goods train. In case of such constituents as the Obra Thermal Power station the recurring loss would be in astronomical figures. The demurrage charges is a fraction of the loss occasioned by losing operational hours in actual running of the rake as the goods train. Bulk supply is made on the basis of rake system because the formation of rakes and the maintenance of the unity of rakes and identity of particular rakes expedite the carriage of good. The delay caused by wholly uncalled for shunting operation involved in making an empty rake out of several originally loaded rakes will cause even the wagons released lying idle or in a state of shunting motion for considerable time within which, if put in productive movement as goods train would earn the Railway administration several times the money realised by way of demurrage. The petitioner got lot of concession due to booking in bulk and hence should be prepared to accept the liabilities attached to such bulk carriage and resulting from the non-compliance with the corresponding rule. Petitioner wants cheap tariff and hence necessarily he had to abide by the understanding of the Railway Board for cogent reasons, for maintenance of unity of rakes. They cannot have advantage of both the systems, viz. advantage of bulk users and of piecemeal users. ( 5 ) IT has been further stated that the situation prevail on the Singrauli Obra route which feeds the petitioners thermal plant with coal supply, it may be noted that the regular traffic of loaded box wagons from Singrauli to Obra of unloaded ones back from Obra to Singrauli, taking into account the factors involved in the movement of goods trains, the unity of rakes has to be maintained since keeping track of each wagon out of formation will be an impossible job and formation of trains of empty wagons would not only delay the process but bring in wholly unnecessary confusion. If a train comprises of one rake on its way to Obra, necessarily it has to compromise of the same on its way back in any empty state to ensure a running from Singrauli to Obra to supply the requisite quantity of coal. The simple fact is that a definite formation of wagons in a goods train comprising of definite number of box wagons must run to and from Singrauli and Obra. The simple fact is that a definite formation of wagons in a goods train comprising of definite number of box wagons must run to and from Singrauli and Obra. If even one wagon is not delivered in an empty state, the formation is disturbed. What is stated of train is true of a rake also. Operationally also it is very necessary that the unity and identity of a particular rake be maintained on its way back in a state of unloaded box wagons. If the rake is disturbed and another rake is formed by box wagons taken from different rakes, distinct one from the other, the shunting involved would cause unusual delay which will result in loss of revenue to the Railway administration. ( 6 ) ACCORDING to the respondents the rule framed by the Railway Board is in accordance with the definition of demurrage as contained in clause (d) of S. 46-C as a rake is nothing but plurality of wagons. On a reasonable and rational differential consideration based on factors which relate to payment of freight by bulk users, on the one hand and by piecemeal users on the other hand. The inference that the Act directs a wagon and not a rake to be treated as a single unit for purposes of calculating the detention and demurrage cannot be logically drawn from the definition of demurrage as contained in clause (d) of S. 46-C of the Indian Railways Act. ( 7 ) LEARNED counsel for the petitioner has placed strong reliance on a decision of the Andhra Pradesh High Court reported in E. I. D. Parry (India) Ltd. v. Union of India 1983 Acc CJ 617 in support of the argument that demurrage could not be charged on regular basis but has to be charged on the basis of individual wagons. ( 8 ) SO far as the case of E. I. D. Parry (India) Ltd. , (supra) is concerned we are of the opinion that it has no application to the present case. It has been held in the aforesaid decision that it is not difficult to hold that "wagon" includes "wagons". ( 8 ) SO far as the case of E. I. D. Parry (India) Ltd. , (supra) is concerned we are of the opinion that it has no application to the present case. It has been held in the aforesaid decision that it is not difficult to hold that "wagon" includes "wagons". However, it has been held that there is no special reason shown applying the definition to the facts if where (sic) then box wagons are contracted and five out of them were unloaded within free time allowed, by what reason or logic the demurrage is levied for wagons unloaded. It has been held that what is sought to be adopted by Railway is not in conformity of mercantile practice then the Act IX of 1890 should enable the Railways to frame a rule. To that effect, no provision is cited in the Act. There is thus no reason shown except to argue the rule is incorporated as a measure to protect the revenue of the railway administration. In the absence of any basis to support the above stand, of railway administration the conclusion is inescapable that the above paragraph in the Goods Tariff rules is ultra vires of the powers invested in the railway administration under the Indian Railways Act, IX of 1890. It is on that basis that the Goods Tariff Rules of the Southern Railway part I-A is ultra vires of the powers of Railways under Act IX of 1890. ( 9 ) THE demurrage as used in the Indian Railways Act came up for consideration before the Supreme Court in the case of The Trustees of the Port of Madras v. M/s. Aminchand Pyarelal, AIR 1975 SC 1935 . The Supreme Court held : "28. There is a fundamental aspect of the fixation of rates which the High Court has overlooked. What is the object and purpose of the rates which the Board charges to the importer? Port Trusts do not do the business of warehousing goods and the rates which the Board charges for storage of goods are not levied as a means of collecting revenue. The Board is under a statutory obligation to render services of various kinds and those services have to be rendered not for the period benefit of this or that importer but in the, larger national interests. The Board is under a statutory obligation to render services of various kinds and those services have to be rendered not for the period benefit of this or that importer but in the, larger national interests. Congestion in the ports affects the free movement of ships and of essential goods. The scale of rates has therefore to be framed in a manner which will act both as an incentive and as a compulsion for the expeditious removal of the goods, from the transit area. Ships like wagons, have to be kept moving and that can happen only if there is pressure on the importer to remove the goods from the Boards premises with the utmost expedition. . . . . . . . . . . ". 29. That takes us to the question whether the scale of rates fixed by the Board is beyond the power conferred on it by S. 42 of the Act. If S. 42 were to authorise the Board to fix rates of demurrage it might perhaps have been arguable that the scale of rates and the Statement of conditions must conform to the accepted meaning of the word demurrage. But the statute has placed no such limitation on the power of the Board to fix the rates. By S. 42 power is conferred on the Board to frame "a scale of rates at which and a statement of the conditions under which any of the services specified" in the section "shall be performed". And the Board has fixed the scale of rates and the statement of conditions for the services it may have to perform. It is difficult to see in what manner or respect the Board has exceeded its power under S. 42. " 30. The High Court seems to have thought that the Board had the limited right to fix rates of demurrage and therefore rates could only be levied on goods which were not removed from the Board premises due to some fault or negligence on the part of the importer or his agent. The High Court was probably misled in this conclusion by the use of word demurrage in clause (d) of S. 42. But demurrage is surely not a service to be performed by the Board and is, on any view, a charge leviable on goods. The High Court was probably misled in this conclusion by the use of word demurrage in clause (d) of S. 42. But demurrage is surely not a service to be performed by the Board and is, on any view, a charge leviable on goods. Clauses (a) to (d) of S. 42 refer to various services like transhipment of passengers, and goods, landing and shipment of passengers or goods, carriage or porterage of goods and wharfage or storage of goods. It is these services in respect of which S. 42 authorises the Board to frame a scale of rate and the statement of conditions. The circumstances that the Board has used the expression demurrage as a heading for chap. IV of the scale of Rates or that it has used that expression in R. 13 (b) and (c) cannot constitute a fetter on its powers to fix the rates. The validity of the exercise of that power has to be judged on the language of S. 42 which is the source of the power. 31. The High Court has cited many texts and dictionaries bearing on the meaning of "demurrage" but these have no relevance for the reason that demurrage being a charge and not a service, the power of the Board is not limited to fixing rates of demurrage. Besides, it is plain that the Board has used the expression demurrage not in the strict mercantile sense but merely to signify a charge which may be levied on goods after the expiration of free days. " ( 10 ) S. 42 of the Madras Port Trust Act is pari materia with the provisions of S. 47 of the Railways Act. S. 47 (1) (f) and (g) provides as under : "47. General Rules (1) The Central Government or in the case of a railway administered by a railway company, the Railway company shall make general rules consistent with this Act for this following purposes, namely : xxx xxx xxx xxx xxx xxx xxx (f) for regulating the terms and conditions of which the railway administration will warehouse goods or retain goods or animals at any station on behalf of the consignee or owner : (g) generally, for regulating travelling upon and the use working and management of the railway. " section 47 places a safeguard on sub-clause (3) when it says that a rule made under this section shall not take effect until it is published in the official Gazette and in the case of a rule made by a railway company unless before such publication it has also received the sanction of the Central Government. We are of the opinion that the demurrage is only a charge which is levied on goods, rakes or wagons after the expiration of free days. As has come in the counter affidavit that the demurrage is a charge which has to act as a deterent on the consignee not unnecessarily retaining the rake or the wagon as the wagons have to be kept moving for earning revenue for the railway and in case any condition is created that the movement of a rake is obstructed, the Board in our opinion was well within its jurisdiction to levy charges on the basis of rake even if one or more than one wagon is not transferred and the rake is not empted within the free time. The entity of the entire rake has to be kept for a smooth and quick running and proper utilisation of the rakes. In the case of a rake if a few wagons are not emptied the movement of the rake cannot take place unless the contents in those wagons have been emptied. We accept the contention of the railways that in such a contingency if the railways tries to form another rake after taking out few wagons, there would be enormous loss to the railways and would also result in unnecessary delay in free movement of empty wagons. In our opinion in the and circumstances of the case the charge would be on the rakes which be fixed either on peacemeal basis or basis for the purposes of collection of the word wagon which is will in our opinion, include plural specially in the circumstances when entire rake consisting of box wagons has been booked to a particular customer and the customer has the advantage in the tariff rate by adopting to that position. In our opinion it could not thus be said that the impugned rule is in any way beyond the powers of the Railway Board and is in conflict with any provision of the Railways Act. In our opinion it could not thus be said that the impugned rule is in any way beyond the powers of the Railway Board and is in conflict with any provision of the Railways Act. ( 11 ) WE have now to consider the last argument raised by the petitioner i. e. as to whether the petitioner are being discriminated as the steel plants which are similarly situated are charged demurrage on a different basis than the petitioner. In the counter affidavit it has been stated that the railways are applying the rate of charging demurrage in respect of the power houses in India on the same basis which has been applied to the petitioner. It has been stated that the petitioner cannot claim any parity from the steel plants. In the case of steel plants the most distinguishing feature is that after supply of coal to the power houses the rakes which are sent returned back empty as there is nothing with the power houses which can be sent to any destination. Now in the case of steel plants it has been stated that the rakes which carry coal after its unloading carries back the finished products of the steel plants to various destination. It has been strenuously urged that in the case of steel plants empty rakes are not returned and the railway earns revenue while delivering coal and also return carrying finished goods of the steel plants to various destinations. ( 12 ) IT has also been urged by the Railways that for the purposes of calculation of the charges of demurrage and fixation of other concessions like free timing and other things, Expert committees appointed by the Railway Board go into the various questions because for taking decision in these matters lot of factors have to be taken into consideration. It has been stated that in the case of the petitioner an Expert Committee was appointed and the petitioner was invited to participate in the aforesaid expert committee for the purposes of revision of rules in so far as the power houses are concerned if they make out a case for revision. According to the respondents, the petitioner did not participate. According to the respondents, the petitioner did not participate. ( 13 ) AFTER considering the cases put forward by the parties we are of the opinion that as has been stated by the Railways, in case the petitioner put up their representations before the competent authority of the Railway it will make a reference to the Expert committee appointed by the Railway Board, as stated by the Railway itself. The Expert committee or the Railway Board as the case may be, will go into the questions raised by the petitioner and will look into the charges which are being paid by the petitioners power house as demurrage. As the Railways and the petitioner power house both are public utility concerns we consider it necessary that if such a representation made by the petitioner, the respondents will get the same examined by the Expert committee at the earliest. ( 14 ) SUBJECT to the aforesaid observations we are of the opinion that the petitioners are not entitled to the quashing of the impugned rules on the grounds of being beyond the powers of the Railway Board or the Indian Railways Act. It is also held that on the facts land material which is before us it cannot be said that the rule is either discriminatory or arbitrary. The present writ petition is dismissed. However looking to the facts and circumstances of the case the parties shall bear their own costs. Petition dismissed. .