K. C. JAGADEB ROY, J. ( 1 ) THE Union of India, who owns the South Eastern Railway as the petitioner has challenged the order of the Railway Rates Tribunal, Madras, Opp. Party No. 1 dated 31-3-1983 as per Annexure7 to this writ application and prayed for quashing the same. Opp. Party No. 2 is an industrial unit which was privately owned previously, but later, was acquired by the Industrial Development Corporation Ltd. , Orissa as one of its units and is served by the petitioner's branch line (Railways) passing through the Barbil Railway Station. ( 2 ) TO facilitate in flow of raw materials and outflow of finished products from Opp. Party No. 2's work, an application was made by the Opp. Party No. 2 to the Chief Commercial Superintendent, Railways (Administration), Calcutta when it was privately owned, for providing a temporary private siding at Barbil. At the time of application, Opp. Party No. 2 was known as Kalinga Industries Ltd. having its Head Office at 36 Chittaranjan Avenue. In the year 1960, this request of Opposite Party No. 2 was acceded to and facility of a temporary private siding was provided from the railway line at Barbil Railway Station to the Opp. Party No. 2's premises. The Opp. Party was communicated with the information by the Chief Commercial Superintendent that concerned Railway authorities were instructed that on traffic being booked from and to the aforesaid temporary private siding, a siding charge of Re. 1/- for four-wheeled wagon and Rs. 2/per loaded bogie subject to a minimum charge of Rs. 63/- per trip to be levied in addition to freight charge up to Barbil Station. Though a formal agreement was not executed between Opp. Party No. 2 and the Railway Administration, according to the petitioner the aforesaid letter dated 25-11-1960 of the Chief Commercial Superintendent on behalf of the Railway Administration having been accepted by Opp. Party No. 2 in their letter dated 29-11-1960, terms and conditions of the office to render service for consideration became binding contract between the parties. According to the Railway Administration, this siding charge which the Railway Administration was levying on Opp. Party No. 2 was for a special and exclusive service for hauling the wagons from the central Barbil station to the factory premises of Opp. Party No. 2 and back. The private siding of Opp. According to the Railway Administration, this siding charge which the Railway Administration was levying on Opp. Party No. 2 was for a special and exclusive service for hauling the wagons from the central Barbil station to the factory premises of Opp. Party No. 2 and back. The private siding of Opp. Party No. 2 started from the then existing railway line known as adjustment siding. The adjustment siding itself originated from junction of shunting neck of loop on which a hundred-ton way bridge was situated. Along with the adjustment siding another railway line which bifurcated to two other railway lines, namely, lines Nos. 5 and 6 originated from the point of shunting neck and are meant for loading iron ore at Barbil station. From this point, the wagons are drawn up to the adjustment siding from where this private siding of Opp. Party No. 2 is utilised for hauling wagons to and fro, to the factory premises. Lines Nos. 5 and 6 carry iron ore of different persons. A small sketch of the lines, adjustment siding, shunting neck and private siding of the company are shown below as reflected in the station diagram of Barbil station produced before us at the time of hearing of the writ application. The correctness of this is not disputed before us. From the year 1960 till 1967, wagons and rakes for Opp. Party No. 2's factory premises originated in the main line which was wired for electrical traction and was shunted by railway engine to the shunting neck and run to adjustment siding and thereafter to the private siding of Opp. Party No. 2. The Goods Platform of Barbil Station is at southern side of the railway station whereas the adjustment siding and line Nos. 5. and 6 meant for loading of iron ore are at northern side of the railway station. The siding charge was levied for sorting out the wagons on line No. 3 and taking the wagons from line No. 3 to the factory premises of Opposite Party No. 2 as it constituted special and exclusive services rendered by the railway from the mid point of Barbil Railway Station to the factory premises and back. This is not the service rendered as a common service by the railways. ( 3 ) IN the year 1967, Opp. This is not the service rendered as a common service by the railways. ( 3 ) IN the year 1967, Opp. Party No. 2 informed the authorities of Railway Administration that they have acquired shunting engines and movement to and from the adjustment siding to the Opp. Party No. 2's premises on the private siding of Opp. Party No. 2 would thereafter be undertaken by their own engine and requested the Railway Administration not to take the trouble of hauling wagons by use of their engine which proposal was accepted by the Railway Administration and the special and exclusive service for inward and outward journey from the adjustment siding to the factory premises was modified. According to the petitioner, it was agreed between the Railway Administration and Opposite Party No. 2 that the siding charges only be made upto to the take off point of private siding in addition to the freight charges upto Barbil Railway Station. This siding charges, however, are charged from time to time depending upon the actual expenses incurred on that account. The Opp. Party No. 2 for the first time in the year 1976 took a stand that levy of siding charges on the trip basis of Rs. 51/- per trip plus usual supplementary charges cannot be levied. It was stated that no siding charge was leviable, at all since Opp. Party No. 2 owned its own engine and was having the wagons from the adjustment siding which is a part of Barbil Railway Station as according to the Opp. Party No. 2 it was not special service as carrying the wagons to the adjustment siding do not amount to any special and exclusive service and is a part of common (normal service) of the railways, and desired refund of siding charge of Rs. 6,12,570/- collected by the petitioner by then. This representation of the Opp. Party No. 2 was rejected by the railway administration on the ground that the railway administration was placing wagons at a particular siding, solely for the convenience of Opp. Party No. 2 from where no other person receives service. According to the railway administration line Nos. 5 and 6 are public sidings and stand on different footings. It was stated in the writ application that several applications were made to different authorities of railway administration for withdrawing the siding charges all of which are rejected. Ultimately, Opp. Party No. 2 from where no other person receives service. According to the railway administration line Nos. 5 and 6 are public sidings and stand on different footings. It was stated in the writ application that several applications were made to different authorities of railway administration for withdrawing the siding charges all of which are rejected. Ultimately, Opp. Party No. 2 was compelled, finding no alternative, to file a complaint under Section 41 (1) (c) of the Indian Railway Act, 1980 (hereinafter to be referred as 'the Act') before Opp. Party No. 1, the Railway Rates Tribunal, Madras (hereinafter to be referred as 'the Tribunal), which was filed on 28-7-1982 and was registered as Complaint No. 7 of 1982. The Railway Administration on receipt of the notice of this complaint, had filed their answer to the complaint. ( 4 ) THE Indian Railways (Second Amendment) Act, 1948 was passed in September, 1948 establishing a Railway Rates Tribunal and laid down its constitution and powers. Section 34 of the Act provides for constitution of Railways Rates Tribunal and Sections 39, 40 and 41 of the said Act deal with jurisdiction, powers and complaints against the Railway Administration and Section 41-A deals with revision of orders by Tribunal. According to Section 41 of the Act any complaint against the railway administration in levying 'any other cahrge' 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-V. Section 41 (3) of the Act provides that in the case of a complaint under clause (b) or clause (c) of sub-s. (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-s. (1) shall be within the limit of the maximum and minimum rates fixed by the Central Government under sub-sec. (1) of S. 29 of the Act. In the complaint application, Opp. Party No. 2 made allegations which are summarised as follows : (1) The Railway Administration places the wagons of the Opp. Party No. 2 at the adjustment siding of the Barbil Railway Station from where Opp. Party No. 2 draws out the wagons on its private siding to the factory premises, unloads them and places the empty wagons back to the adjustment siding with their own locomotive, engines. Party No. 2 at the adjustment siding of the Barbil Railway Station from where Opp. Party No. 2 draws out the wagons on its private siding to the factory premises, unloads them and places the empty wagons back to the adjustment siding with their own locomotive, engines. The wagons, thereafter are taken away to the Barbil Railway Station by the Railway Administration using its own locomotive engines. The Railway Administration levied the siding charges for this placing and removal of the wagons from the adjustment siding which is collected from the Opposite Party No. 2 in addition to the normal freight for carrying of goods to the Barbil station. This siding charge has been increased from time to time and with effect from 1-7-1981, Rs. 129. 50 paise per trip was being charged which also had undergone a subsequent revision with effect from 1-5-1982. (2) The adjusting siding is within the Barbil Railway station. Placing at and withdrawing the wagons from the adjusting siding is less expensive and less time consuming for the railway administration that if they are placed at and withdrawn from the goods shed which is to the extreme south of the railway station as already stated. It was contend by Opp. Party No. 2 that the railway administration incurs less cost and undertakes lesser work in dragging the goods to the adjustment siding that it would have normally spent in dragging the goods to goods shed. Since no extra charge could be levied if the goods brought to the railway station are left in the goods shed and then accepted at the goods shed, there is no reason why a siding charge will be levied on Opp. Party No. 2 when no extra cost or labour or expense was involved in bringing the goods to the adjustment siding. Since adjustment siding is a part of the railway yard, it is unreasonable to levy any siding charge for placement and withdrawal of wagons therefrom. Further, it was sated by the Opp. Party No. 2 that adjustment siding was also used for M. M. T. C. for placement and withdrawal of wagons on line Nos. 5 and 6 at Barbil Railway Station and no siding charges was levied on M. M. T. C. and it was unreasonable and inequitable to levy the same on Opposite Party No. 2 alone. Party No. 2 that adjustment siding was also used for M. M. T. C. for placement and withdrawal of wagons on line Nos. 5 and 6 at Barbil Railway Station and no siding charges was levied on M. M. T. C. and it was unreasonable and inequitable to levy the same on Opposite Party No. 2 alone. The levy of siding charge on Opposite Party No. 2 is, therefore, discriminatory. The Railway Administration filed their reply in reply to the complaint petition and denied the allegations saying that there is no basis for such complaint. The railway administration in their reply has stated as follows : (a) According to the Railway Administration, it is not correct to say that the cost of carrying the wagons to the adjustment siding was less than the cost they would have incurerd had the wagons been taken to the goods shed and the siding charge was just and reasonable having regard to the service rendered to the present Opp. Party No. 2. The shunting of individual wagons meant for the siding is done at Barbil Railway Station or at the previous station. For the service of placement at and removal from the siding is extra service for which the Railway Administration was demanding the siding charges. Therefore, the allegation that the railway is not entitled to claim siding charges is not correct. The allegation that the temporary siding with adjustment siding is also used by M. M. T. C. is incorrect. Line Nos. 5 and 6 are railway lines on railway siding. Line Nos. 5 and 6 are also loading points for iron ore as there is no provision for loading iron ore from Goods shed. Therefore, this constitutes as a part of the Goods shed facility for which no separate siding charges are payable. There is no question of discrimination whatsoever as if the complainant wants to load iron ore and have acquired a commercial plot there for such loading, they would be entitled to load on line Nos. 5 and 6 without paying any siding charges. The allegation that freight charges include charges for placing is not correct. The siding is opened as any independent booking point Railway receipt and invoices are issued from this siding, but freight is always collected only upto Barbil station. The allegation that freight rate includes charges of placement and withdrawal from the siding is not correct. The allegation that freight charges include charges for placing is not correct. The siding is opened as any independent booking point Railway receipt and invoices are issued from this siding, but freight is always collected only upto Barbil station. The allegation that freight rate includes charges of placement and withdrawal from the siding is not correct. When a siding owner demands an extra service as compared to an ordinary trader using the goods shed, the railway administration is entitled to recover a charge/profit for the cost of service, for such special facilities as the same is within the railway administration's commercial activity. Delivery at the goods shed is a statutory obligation whereas the delivery at the commercial point is part of the commercial activity of the respondent-railway. The Tribunal, however, held that they are of the view that operational expediency and mutual convenience prompted the railway to use their adjustment siding which is not an assisted siding in correct sense of the term, as such, the decision in Riga's case which was a case of an assisted siding did not apply to the present case. According to the Tribunal, no special service was being rendered by the railway and no assistance was given by the railway. In popular sense of the term, it follows that there was no special service rendered to Opposite Party No. 2. The Tribunal found that placement and removal of wagons is not done at the point where there is the derailing switch opposite to the factory premises. On the other hand, the Company's engines carry the goods to the adjustment siding and take back the empties from there. According to the Tribunal, they arrived at conclusion on the assertions that the time taken for placement at and removal of wagons from the shunting neck to the centre of the goods shed and the centre of the adjustment siding would be the same. This is the inference the Tribunal drew from the evidence on record. if as a matter of fact, it is found that the trip time would vary to the advantage of the railway then a case can be made out for the imposition of siding charges. The Tribunal found that if there is difference in trip time between the two aforesaid operations, then siding charge could be levied for the railway on an application being made under Section 41-A of the Act. The Tribunal found that if there is difference in trip time between the two aforesaid operations, then siding charge could be levied for the railway on an application being made under Section 41-A of the Act. Until such review is made, the Tribunal was of the view that no siding charge could be demanded from the complainant. The Tribunal failed to find any supportable material to come to the conclusion that there was discrimination against the complainant, though an attempt was made by the complainant before the Tribunal to compare Opp. Party No. 2 with M. M. T. C. by drawing attention of the Tribunal to the operation at Jhinkpani station where according to the complainant no siding charge was demanded from M. M. T. C. The Tribunal, however, has observed in their order that they searched into the records and found no evidence touching upon the similarity of operations done at Barbil Station and at Jhinkpani Station, therefore, dismissed the allegation of discrimination as alleged by the complainant. Ultimately the Tribunal passed the order declaring that in respect of the traffic of the complainants goods at Barbil station, no siding charge is leviable on the Opposite Party No. 2 with effect from 22/04/1982. ( 5 ) DURING the argument, Mr. Pal, the learned counsel for the petitioner had urged that if the Opp. Party No. 2 company challenges the charge levied upon them as unreasonable, the onus to prove the alleged unreasonableness of the charge rests on the complainant and the complainant O. P. No. 2 having not made any effort to discharge that onus, their plea that rates are unreasonable must inevitably fail. From the complaint filed by the Opp. Party No. 2 under Section 41 (1) (c) of the Indian Railways Act, 1890, it is quite clear that the Opp. Party No. 2 - company was making an allegation that since they owned their own engines and were hauling the wagons from adjustment siding, which is a part of Barbil Railway Station to their own destination in the factory premises, they were receiving no special services from the railway authorities and were not at all liable for any siding charge and claimed the refund of the siding charge of Rs. 6,12,570/- already collected by the petitioner from them. 6,12,570/- already collected by the petitioner from them. While hearing this writ petition, this Court does not sit as a court of appeal against the order of the Tribunal nor this court will interfere in the finding of fact unless it is shown ex facie that the finding recorded is perverse. In this writ application, we are called upon to decide whether the siding charge was at all leviable on Opposite Party No. 2 in the facts and circumstances of the case and in case it is found to be leviable then we have to consider whether the charge levied is unreasonable. A similar matter came before the Supreme Court for consideration in a Civil Appeal against the decision of the Railway Rates Tribunal of Madras. Their Lordships of the Supreme Court in that case reported in AIR 1968 SC 22 came to hold that the Railways can levy "other charges" as distinguished from the normal charge of freight for special service to a party which can be subject matter of enquiry under Section 41 (1) (c) of the Railways Act. Their Lordships held in that case that charges for carriage of goods from parts of the railway to points or places not forming parts of railway will certainly be covered by the expression "any other charge" and, as such, can be the subject matter of complaint under section 41 (1) (c ). Even though a charge is levied by the railway as a result of voluntary agreement between the railway on the one hand and a private party on the other, still the said charge so agreed can also be challenged as unreasonable under section 41 (1) (c) of the Railways Act. It is because, this charge is bound to be made in accordance with section 29 (2) of the Act. Section 29 (2) of the Railways Act, 1890 reads as follows : "section 29 (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. Section 29 (2) of the Railways Act, 1890 reads as follows : "section 29 (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. " if no rate is prescribed by the Central Government under section 29 (2) and the railways levied such a charge, it will be still competent for the person aggrieved to file complaint against the said rate of charge before the Tribunal under section 41 (1) (c ). As already stated above, we are not going to the questions of the reasonableness of the charge at this stage since it may not be necessary if it is decided that the charge was not at all leviable. The Opposite Party No. 2 claims that the siding charge is not leviable as it was not receiving any special service since. The Opposite Party No. 2 was drawing the wagons from the adjustment siding of the Barbil Railway Station which admittedly is a part of Barbil Railway Station and draws the bogies on its own rail lines to the factory premises. The Hon'ble Supreme Court dealing with a near similar matter in the case referred to earlier, reported in AIR 1968 SC 22 (Union of India v. Indian Sugar Mills Association) wherein it held thus :" the expression "any other charge" in clause (c) must, therefore, cover charges which are not included in Clause (b ). Clause (b) specifically mentions charges for carriage of a commodity between two stations, and, hence, the expression "any other charge" in clause (c) must necessarily include within it, a charge for carriage of any commodity between places other than two stations. In the present case, the shunting engine charge and the siding charge are both being levied by the Railway for carrying goods from the Railway to sidings not forming part of the railway. In bringing goods from other stations to Riga Station onlines 1, 2 or 5 the railway would only be carrying the goods between stations. In the present case, the shunting engine charge and the siding charge are both being levied by the Railway for carrying goods from the Railway to sidings not forming part of the railway. In bringing goods from other stations to Riga Station onlines 1, 2 or 5 the railway would only be carrying the goods between stations. It is only thereafter, when the wagons are shunted by the railway to lines 3 and 4 or over lines 6 and 7 to the factory of the Company, that the railway will be carrying goods between a station and another place or between two different places which cannot either of them be described as stations. "in order to appreciate the reasoning in the judgment of the Hon'ble Supreme Court, it is necessary to have a clear picture of the Railway at Riga Station and the different sidings both of Railways and of the private party which are enumerated below. At Riga Railway Station, the Railway had two main lines running, one along the passenger platform and another forming a loop against it running parallel to the first line with points on both sides of the platform for taking the railway trains to line 2 when arriving from either direction to Riga Railway Station. The line along the passenger platform will be referred to as line No. 1 and the other main line forming the loop as line No. 2. In addition, there was a goods platform and a line was running connecting the line 1 to the line along the goods platform from both directions. That line is referred as line No. 5. Since the sugar factory of the company was established close to Railway Station, considerable goods traffic started being received for the company and at the same time, goods traffic was also booked by the company for outward transmission from that Station for which this Railway line No. 5 at the goods platform was being utilised. Since the traffic was considerable, it became inconvenient and consequently, an arrangement was entered into between the Railway and the sugar company for construction of two sidings described as "assisted sidings". Pursuant to this arrangement, two further lines were laid between the line Nos. 2 and 5 running parallel to these lines. They may be called line Nos. 3 and 4. Train from line No. 1 can be taken to line Nos. Pursuant to this arrangement, two further lines were laid between the line Nos. 2 and 5 running parallel to these lines. They may be called line Nos. 3 and 4. Train from line No. 1 can be taken to line Nos. 3 and 4 from both directions in the same manner as they can be taken to line No. 5. Under the agreement between the parties, part of expenditure of this construction of assisted sidings was met by the company while part of the expenditure was incurred by the Railways. Details of the agreement are not necessary for the purpose in this case. Later Railway lines were also laid from Riga Railway Station up to the factory of the company. The Railway line ran from the junction of line Nos. 3 and 4 on the western side of the Station in a semi circular loop and then entered the factory of the company where the line was connected to four different lines. This line running from the junction up to a point where there was further bifurcation of lines, be called line No. 6. At the end of line No. 6, this line was connected to two lines, one situated to south, and the other on the north. There was loop formed by connecting the northern line to the southern line by another connecting line and this loop be called line No. 7 and the lines 6 and 7, were laid at the cost of the company. In Riga's case, the Hon'ble Supreme Court held that the charges for carriage of goods from the parts of the railway to points of places, not forming the part of the railway will certainly be covered by the expression "any other charge" used in section 41 (1) (c ). The railway charge is a normal breight for carrying the goods from one Railway Station to another but in Riga's case services were something different from the normal and could be called a special service. Special charges, therefore, were levied for the purpose. These are called "other charges". The Hon'ble Supreme Court also accepted in principle the views adopted in England as noted in Halsbury's laws of England, 2nd Edn. , Vol. 27, in paras 434 and 436 at page 196 in these regards. Special charges, therefore, were levied for the purpose. These are called "other charges". The Hon'ble Supreme Court also accepted in principle the views adopted in England as noted in Halsbury's laws of England, 2nd Edn. , Vol. 27, in paras 434 and 436 at page 196 in these regards. Quoting the Halsbury's Laws of England, the Hon'ble Supreme Court observed that loading and unloading, covering and uncovering in clauses 7 to 21, though performed at the private siding, are services otherwise than provided for in the standard charges, and the company was entitled to charge for these either the standard or an exceptional rate but if the reasonableness of these charges is challenged, the money value of the services rendered, the total cost of services over a year and dividing it by the number of tons carried during the same period to give an addition to the tonnage rate can be considered in finding out the reasonableness of the charge. From this, the Hon'ble Supreme Court held that the Railway Tribunal is competent to determine the reasonableness of the charges for services by the Railway even on private siding. In Riga's case, as already indicated above, there were assisted siding which were only meant for serving the sugar company and the sugar company was, therefore, liable for a charge on that account as siding charges. But in the present case, there are no such assisted sidings. The adjustment siding was not created or constructed to serve Opposite Party No. 2 - company. It was there from where line Nos. 6 and 7 bifurcated and ultimately terminated at siding where iron ores were loaded and at the movement M. M. T. C. was utilising the said siding. The case of the Railway Administration is that these siding on Railway line Nos. 6 and 7 are not private siding but are part of the railway station where only iron ores are loaded and unloaded. The case of the Railway Administration is that these siding on Railway line Nos. 6 and 7 are not private siding but are part of the railway station where only iron ores are loaded and unloaded. The Hon'ble Supreme Court held in para 7 of the same judgment as follows :-" xx xx xx consequently, it appears that, in respect of a commodity carried by a Railway over its own Railway lines, the only charge that the Railway can levy, and which can be the subject-matter of a complaint under section 41 (1) (c), will be the charge for carriage of the commodity between two stations and it would be in respect of the discharge by the Railways of its statutory duty of carrying goods between Stations maintained by it. There does not appear to be any other statutory duty in respect of which any other charge could be levied by the Railway. . . . . . . . . " under Section 3 (4) of the Railways Act, the Railway is defined to include all lines of rail, sidings or branches worked over for the purpose of, or in connection with, a railway. Therefore, if the Railway authorities were only taking the wagons up to the adjustment siding which is admittedly a part of the Barbil Railway Station and was not specifically created for giving a special service to the Opposite Party No. 2 the said siding was used for other purposes of the fact that the Opp. Party No. 2 was carrying in the wagons from this point to the factory premises on their own line using their own engine and returning back the empty wagons to the point of adjustment siding, there were indeed no special services rendered by the Railway to the Opposite Party No. 2 and Opp. Party No. 2 was, therefore, not liable to any other charges and was liable to pay the normal charge for carrying the goods from any other station to the Barbil Railway Station as the normal freight. ( 6 ) IT is further contended by the Opposite Party No. 2 company that the Railway authorities incurred no extra expenses or lose more time in carrying the wagons from Central Barbil Railway Station to the adjustment siding that what it would have spent in taking them to the goods shed. ( 6 ) IT is further contended by the Opposite Party No. 2 company that the Railway authorities incurred no extra expenses or lose more time in carrying the wagons from Central Barbil Railway Station to the adjustment siding that what it would have spent in taking them to the goods shed. Though the Railway establishment is working for profit as a commercial concern it could not levy any additional charge, if they do not incur any extra expenditure in rendering any additional service to a party. The petitioner has failed to prove if any extra expenditure they had to incur in taking the wagons to the adjustment sidings instead of taking to the goods shed We, therefore, find that the Railway authorities had no legal right to levy the impugned charge, such as, the siding charge on the Opposite Party No. 2 - company and we do not find any justification in interfering with the order passed by the Railway Rates Tribunal as per Annexure 7. In view of our above finding, we need not go to the reasonableness of the charge. We accordingly dismiss this writ application. Hearing fee is assessed at Rs. 300 / -. ( 7 ) L. RATH, J. I agree. Petition dismissed.