1. Ranbir Singh Chadha filed a petition under Article 226 of the Constitution challenging the validity of the instructions issued by the Chief Commercial Superintendent (Rates) on 1-11-1957. This petition was dismissed by the learned Single Judge and the petitioner has now filed this appeal under Clause 10 of the Letters Patent.
2. The facts leading to this appeal are these. The petitioner imports white stone for manufacturing lime for chemical purposes from the quarries of A. Dean and Company situated in Dehra Dun district. In 1958 he placed an order with this Company to despatch one wagon load of this commodity to Delhi. The Railway Authorities classified it as marble ballast or chins and demanded freight on that basis. The importer, however, required it to be classified as lime stone and to be charged as such.
Admittedly the rate for marble ballast and chips is higher than those for lime stone. For this attitude, the Railway Authorities relied on the instructions issued on 1-11-1957. The petitioner thereupon filed this petition alleging that the commodity sought to be imported was in fact lime stone and further that the impugned instructions were discriminatory against him, thereby violating provisions of Article 14 of the Constitution.
The respondents pleaded that the commodity concerned was marble ballast and chips and that impugned instructions did not violate Article 14 of the Constitution inasmuch as preference was given to paper and sugar factories in public interest. The respondents further pleaded that there was no competition of the petitioner's trade with paper and sugar factories and, therefore, no question of discrimination against the petitioner arose in the case.
The learned Single Judge held that the impugned instructions were discriminatory against the petitioner but dismissed the petition on the ground that whether the commodity sought to be imported was marble ballast and chips or lime stone raised a disputed question of fact which could not be decided in those proceedings.
3. The learned Counsel for the appellant started to argue this appeal on the assumption that the commodity sought to be transported was marble ballast and chips as alleged by the Railway Authorities. The learned counsel for the respondents, however, objected to the appellant taking up this position and urged that the petition under Article 226 of the Constitution must first be amended before this new case arising out of facts stated in the written statement can be argued. This contention of the respondents had prevailed with the learned Single Judge and this is the first question that requires determination in this appeal.
4. The respondent's case is that it is well established that the disputed facts cannot be decided in proceedings under Article 226 of the Constitution and that such a petition fails on this ground alone. The learned Counsel further urged that such a petition cannot be decided on the facts given in the written statement unless the petitioner on the basis of these facts further obtained permission of the High Court.
5. Now there can be no doubt that the proceedings under Article 226 of the Constitution are summary in nature and a detailed enquiry into facts is ordinarily not Contemplated therein. There is, however, nothing in this article to indicate that the High Court in these proceedings is debarred from holding such an enquiry. The proposition that a petition under Article 226 must be dismissed simply on the ground that it cannot be decided without determining the disputed questions of facts is not warranted by any provision of law nor by any decision of the Supreme Court.
A rigid application of this proposition or to treat this proposition as an inflexible rule of law or of discretion will necessarily make the provisions of Article 226 wholly illusory and ineffective. Obviously High Court must avoid such consequences. Every petitioner in the nature of things seeks relief under Article 226 of the Constitution on the basis of allegations of facts.
Ordinarily most of these facts, though relevant or may be of only historical significance, are not essential for the relief sought in the petition but it Contains allegations of facts which must be accepted as correct before the petitioner can be held to be entitled to the relief sought by him. It is obvious that a dispute over non-essential facts should not prevent the High Court from deciding the petition on merits or from granting the relief sought if the petitioner is entitled to it on the proof of essential facts.
Thus far there can be no difference of opinion. Now allegations of essential or crucial facts in the petition may be denied in the written statement filed by the Tribunal or the Government concerned The question arises whether the High Court should take evidence by affidavit or otherwise to determine these disputed questions of facts. In my opinion, the High Court should exercise its discretion in the matter.
In some cases the dispute may be determined by the filing of an affidavit or one or more documents or by production of the record of a case. In such cases it will be unfair and unjust to dispose of the writ petition without going into the merits of the dispute. If, however, the dispute about an essential fact can be determined only after a lengthy and elaborate enquiry, then it is for the High Court to decide whether or not to hold such an enquiry.
In this context the existence of alternative remedy is an important factor. If the alternative remedy is available which is adequate and appropriate for deciding the dispute, then the High Court will more readily refrain from holding the enquiry than otherwise. The exercise of the discretion will depend on the nature of the enquiry to be held and on the nature of the alternative remedy available to the petitioner.
The course of the proceedings to be adopted in a given case thus depends on the facts of each case and it is improper to lay down any rigid and inflexible rule because no such rule can meet circumstances of all cases. The impression that if facts are disputed, then the High Court will not decide the petition under Article 226 of the Constitution on merits may have serious consequences.
This impression may persuade the respondents to file written statements with the object of defeating the petition rather than with a view to bring correct state of affairs before the High Court. The Government is as much interested in making constitutional provisions, including Article 226, effective as any private individual. I consider it sacred duty of the Government officials to give correct facts in clearest possible terms with a view to bring correct position before the High Court and not to file a reply with the sole purpose of defeating the petition.
After all the function of the High Court in proceedings under Article 226 of the Constitution is to see that the impugned orders do not violate statutory or constitutional provisions and in the effective performance of this function the Government is as much interested as the High Court. The Supreme Court in K. K. Kochunni v. State of Madras, AIR 1959 SC 725, has held that the Supreme Court in petitions under Article 32 of the Constitution is not debarred from determining a disputed question of fact and the ratio employed in this case fully applies to case under Article 226 of the Constitution, although the Supreme Court specifically does not decide the procedure to be adopted in such a dispute in petitions under Article 226 of the Constitution.
After all Article 226 of the Constitution is wider in scope than Article 32 and is not limited to violations of fundamental rights only. Under Article 226, besides fundamental rights, other legal rights are sought to be enforced and the High Court should not hesitate in proper cases to grant the required relief to aggrieved persons and should not refuse it on mere technical grounds of procedure.
At this stage it will not be out of place to point out that in the exercise of its discretion, it is always open to the High Court not to adjudicate a petition under Article 226 of the Constitution on merits if it comes to the conclusion that a petitioner had stated essential facts wrongly in a petition to gain collateral benefit or to mislead the High Court. For these reasons, I am of the opinion that it is in discretion of the High Court to decide or not to decide a disputed question of fact in a particular case and the exercise of this discretion depends on the circumstances of each case.
6. This conclusion brings me to the other aspect of the matter. 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 amendment of the petition can serve no useful purpose and can only result in delay in disposal of the petition on merits.
Such a delay is not desirable on such a technical ground. The acceptance by the petitioner of facts alleged by the respondent cannot in any way prejudice the respondent. In my view when the petitioner accepts the allegation of a fact or facts made by the respondent, though these allegations are contrary to his own allegations in the petition, then no disputed question arises in the case and the petition can be decided on the basis of facts admitted by the parties in the petition, replication or in Court.
7. It follows from the views given above that it was open to the petitioner in the present case to request the learned Single Judge to grant him the relief sought by him on the basis of the fact that the commodity sought to be transported by rail was marble ballast and chips as alleged by the respondents and that the petitioner's description thereof as lime stone should be ignored. This appeal can, therefore, also be argued on that basis.
8. On merits the appellant's case is that instructions dated 1-11-1957 violate Article 14 of the Constitution. These instructions relate to classification of stone booked from Dehra Dun area and were issued by the Chief Commercial Superintendent (Rates). A copy of these instructions was sent to the Secretary, Indian Sugar Mills Association, Calcutta, and also to Messrs. A. Dean and Company, Dehra Dun. These instructions read --
'Enquiries made show that white stone booked from Dehra Dun is actually marble and not lime stone. However, with effect from 26-10-1957 and till further orders it has been decided that white stone offered for despatch from Dehra Pun, Harranwala, Doiwala which is at present being charged as marble ballast or chips will be charged as lime or lime stone classified WL/C, or WL/CR, RR. L.C.C. when in wagon loads provided it is booked to sugar or paper mills.
Black variety of stone booked from above stations is already being charged as lime and lime stone.
Instructions have been issued to the staff accordingly.'
Under these instructions when marble ballast and chips are sought to be transported, the railway charges less from sugar and paper mills than from others. Obviously by these instructions the railway authorities have directed their officers as a matter of policy to charge freight rates for the transport of marble ballast and chips at a lower rate when sent to paper and sugar mills than to others.
9. The learned counsel for the appellant urges the these instructions clearly discriminate against the petitioner and in favour of sugar and paper mills. It appears to me that it is more correct to say that by these instructions the Railway Authorities treat the petitioner differently from sugar and paper mills. Every differential treatment is not necessarily discriminatory unless the two expressions are taken to be synonymous.
The expression 'discrimination' indicates an unjust, unfair or unreasonable bias in favour of one and against another which is not necessarily indicative of the expression 'differential treatment'. Article 14 of the Constitution does not prohibit differential treatment but guarantees equal treatment to all similarly circumstanced. Equal and same treatment to differently circumstanced person may well in some cases amount to unreasonable or undue discrimination or preference of one over another. The question arises whether this differential treatment in the present case is unreasonable.
10. Now under the English law the railway Companies are under a legal and statutory obligation to charge for the carriage of goods equally from all persons at the same rate for the same description of goods transported under the same circumstances and it is not open to them to make or give any undue or unreasonable preference to or in favour of any particular person or any particular traffic (Section 2, Railway and Canal Traffic Act, 1854).
Under the American Law also the duty of the common carrier is to serve the public impartially and without any unreasonable discrimination in any respect (vide Section 351 of Corpus Juris Secundum, Vol. 13). The carrier in that country is bound to carry at an equal rate for all customers for substantially similar services and under substantially similar conditions (vide Section 376 of Corpus Juris Secundum, Vol. 13). The same principle is laid down in Section 28 of the Indian Railways Act, 1890, which reads--
'Section 28. 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 or Railway Administration or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.'
This principle of equal treatment laid down in these laws is the same as is embodied in Article 14 of the Constitution and the only difference is that Article 14 is general in terms while Section 28 of the Indian Railways Act, 1890, is specific in its application.
11. Whenever there is a differential treatment by the Railway Company, then the question arises whether such treatment amounts to undue preference or unreasonable discrimination or distinction. There is no precise formula for determining this question with accuracy. There are many factors which must be taken into consideration for this purpose. It is impossible to describe the various factors which have to be taken into consideration for deciding this matter.
To give a few examples, different transport conditions, geographical location of stations, volume of traffic, facilities available at the destination station, and competition with other kinds of transport are some of the factors that require consideration for determining whether the distinctive or differential treatment is reasonable or not. The general public interest and the effect of charges on the development of the country as a whole has been considered to be good grounds for fixing differential rates both in England and America (Halsbury's Laws of England, Vol. 27. para 514, Second Edn. and Section 287 of Corpus Juris Secundum, Vol. 13). It has also been held that there can be no undue preference favoured and the persons put in a dis-advantageous position by the impugned fixation of rates. The last two grounds have been stated in the written statement as justifying differential treatment in the present case, though they are not mentioned in the directions given on 1-11-1957.
12. From the recital of factors to be considered in this connection, it is clear that an elaborate enquiry is necessary for determining this question of unreasonable discrimination by a railway company. This question can be decided by the Railway Rates Tribunal constituted under Section 34 of the Indian Railways Act. Undoubtedly it can also be decided by the High Court in a petition under Article 226 of the Constitution and by the Supreme Court under Article 32.
All the factors given above and also other relevant factors must be taken into Consideration whether the Railway Rates Tribunal or the High Court or the Supreme Court has been called upon to decide the matter. It appears to me that this question is of such a technical and complicated nature that it can be more appropriately decided by the Railway Rates Tribunal which is assisted by assessors who have special knowledge of the working of the Railways.
In England and America also a complaint of undue preference given by a carrier is primarily decided by special tribunals constituted for this purpose. Morever neither the papers and sugar mills nor their representatives are before us and our decision obviously affects them if we decide that the concession granted to them results in unreasonable discrimination against the petitioner. It is true, as stated by the learned counsel for the appellant, that it is impossible to implead all these factories in a writ petition but this only fortifies the conclusion that this Court is not an appropriate venue for deciding appellant's present grievance.
After all proceedings under Article 226 are of summary nature and such proceedings are not suited to decide this technical matter. It may be that the impugned instructions violate Article 14 of the Constitution but it has nowhere been laid down in the Constitution or elsewhere that this fundamental right can be protected and enforced only in proceedings under Article 226 or Article 32 of the Constitution and not in other proceedings.
In the present case the Indian Railways Act constitutes a special tribunal with power to follow a procedure which is appropriate and adequate for deciding this dispute. It is, therefore, only fair and proper that we decline to decide the present dispute in this writ petition and leave the petitioner to make a complaint to the Railway Rates Tribunal if so advised : Punjab Woollen Textile Mills v. Assessing Authority, Sales Tax, 1LR 1960 Punj 763.
13. For all these reasons, we dismiss this appeal but leave the parties to bear their own Costs.