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Vishvanath Ganesh Javdekar Vs. G.i.P. Railway - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 235 of 1920
Judge
Reported inAIR1921Bom73(1); (1921)23BOMLR809
AppellantVishvanath Ganesh Javdekar
RespondentG.i.P. Railway
DispositionAppeal dismissed
Excerpt:
.....grammatical and plain meaning of the words used, it seems to me that section 42(2) clearly lays 'down a limitation upon the general powers of the railway administration, and requires the administration not to show any such unreasonable or undue preference as is referred to in that sub-section. and it would not be right to restrict the scope of that limitation unless it were clearly justified .by the words of the section......the railway administration, and requires the administration not to show any such unreasonable or undue preference as is referred to in that sub-section. the principal question in this suit in substance is whether in reserving the compartment in the manner in which it was reserved, the railway administration showed any undue or unreasonable preference or advantage to any particular description of passenger traffic. that is a question in respect of which, the provisions of this chapter of the indian railways act show that the proper remedy for the person aggrieved is to apply to the governor-general in council, who can refer the complaint to the railway commission as provided in that chapter.16. it has been argued on behalf of the plaintiff appellant here in the hope of saving this suit.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff in this case is a pleader residing at Dhulia. On the 2nd March 1917 he took a third class ticket for Bhusawal at the Dhulia Station, He took his seat naturally, so the plaint says, in the third class compartment reserved for Europeans and Anglo-Indians of the railway train which was to start from Dhulia on the same evening. The Station Master thereafter illegally asked the plaintiff to quit the carriage on the ground that the said compartment was reserved by the Railway Company for Europeans and Anglo-Indians. The plaintiff, thereupon, in order to avoid disturbance, reluctantly got out of the carriage and took his seat in another compartment. He then filed this suit to recover from the defendant Railway Company Rs. 5 as damages and for a perpetual injunction restraining the Railway Company from preventing the plaintiff from entering a compartment of a railway carriage reserved for Europeans and Anglo-Indians.

2. The defendant Company by its written statement contended that the suit was not maintainable and that the Court had no jurisdiction to entertain it. The Company admitted the contents of the first clause of para 1 to the plaint to be substantially correct, but alleged that the plaintiff was in the compartment with two other companions and denied the plaintiff's allegation that he took his seat naturally in the compartment. The Company further alleged that the plaintiff intentionally entered the compartment well knowing that he had no right to go there and with the desire that the railway officials would remove him so as to enable him to bring the suit.

3. The first issue was, whether the question of the defendant Railway Company's right to reserve a saparate compartment for Europeans and Anglo-Indians could be tried by the Court. The second issue was, whether the jurisdiction of the Court was barred under Section 41 of the Indian Railways Act, 1890. The learned trial Judge found the first issue in the negative, the second issue, in the affirmative, and dismissed the suit. In Railway the decree of the lower Court was confirmed.

4. It will be seen that the only issue in the lower appellate Court was the issue of jurisdiction. The defendant contended that Section 41 of the Act did apply. That section says :-

Exoept as provided in this Act, no suit shall be instituted or proceeding taken for anything done or any omission made by a railway administration in violation or contravention of any provision of this Chapter or of an? order made thereunder by the Commissioners or by a High Court.

5. The following sections in Chapter V are headed 'Traffic Facilities'.

6. Under Section 42(1):-

Every railway administration shall, according to its powers, afford all reasonable facilities for the receiving, forwarding and delivering of traffic upon and from the several railways belonging to or worked by it and for the return of rolling-stock.

7. Under Section 42(2):-

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 traffics, in any respect what soever, 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.

8. The defendant Company contended that if the plaintiff had any grievance at all it was on account of undue or unreasonable preference or advantage being given to a particular class of persons and in that case the plaintiff's only remedy was to apply to the Governor-General in Council to refer the case to the Commissioners appointed by the Act under Section 36. It would certainly seem clear that the Railway Company by reserving a compartment for the use of any European or Anglo-Indian who might wish to travel by that train would be giving a preference or advantage to such persons, and if that advantage or preference could be considered undue or unreasonable, then it would be contrary to the powers given to the railway administration. Then the provisions of Section 41 come into operation and the jurisdiction of the Court to try that question is barred.

9. The appellant's pleader endeavoured to get out of that difficulty by arguing that Section 42(1) has nothing whatever to do with passenger traffic. It only deals with the traffic consisting of the carriage of animals and goods because the words receiving, forwarding, and delivering of traffic are not words which can or ought to be applied to human beings.

10. However if we turn to Section 3, the term 'traffic' includes rolling stock of every description-passengers, as well as animals and goods. There fore Section 42 clearly deals with the carriage of passengers. It would appear from the decision in Emperor v. Brijbasi Lal I.L.R (1920) All 32 that the learned Judges were of opinion that Sections 42 and 43 of the Act have no application to the case of the reservation of a particular carriage for the use of any particular class of the travelling public. That however, was a criminal case in which the accused was charged with having wilfully entered a third class compartment which was reserved by the railway authorities for Europeans and Anglo-Indians only. The accused was convicted under Section 109 of the Indian Railways Act, There the question which is now before us did not arise although in the argument a point was taken that such a reservation was a 'preference' forbidden by Sections 42 and 43 of the Act. Mr. Justice Walsh in his judgment says: 'In our view this contention is hardly worthy of notice. The sections referred to belong to a chapter of the Act which deals with goods traffic and rates charged upon traders, and a special tribunal is appointed for the decision of the questions thereunder 'Piggott J. at page 333 says:-' As regards the argument addressed to us based upon the wording of Section 42(2) of the same Act, I think it is to be noted that this section occurs in a chapter specially devoted to the question of the duties imposed upon railway companies and the nature of the control 6o be exercised over such companies 'by the Government of the country.' As I have pointed out, with all due respect, it does seem that Section 42 deals not only with goods traffic and the rates charged to traders but also its the traffic by the carriage of human beings. I may also point out that the word 'rate' which is used in Section 42 is defined in Section 3 as including any fare charged or payment made for any passenger, animals or goods. The argument, therefore, that Section 42 does not apply to the reservation by the railway authorities of a compartment for a particular class of passengers must fail.

11. This question was directly in point in Mathradas v. The Secretary of State for India (1913) 6 S.R. 42. The facts were exactly similar except that in that case the plaintiff had to be removed from the carriage At page 45 appears the following passage:

We have no doubt that the learned Judge was perfectly light in holding Section 41 to be a bar to any consideration by him of the question whether the reservation of the second class carriage for Europeans was or was not undue or unreasonable preference under Section 42 of the Railways Act IX of 1890, The Railway Company as carriers of passengers would no doubt have been at liberty to set apart whatever accommodation they might choose for the carriage of the various classes of their passengers apart from limitation imposed by Statute it is clearly not open to this Court either in its jurisdiction as a District or a High Court in view of the above provisions contained in Sections 26 to 41 of the Chapter to consider or express any opinion whatever cm the question whether there has been any undue or unreasonable preference within the meaning of 42 of chapter v. of the Railways Act IX of 1890.

12. The only other point argued for the appellant is that this reservation of a compartment by the Railway Company could not be considered as an act of undue or unreasonable preference, because it was not reserved for any particular passengers but only reserved for the benefit of any European or Anglo-Indian who might happen to be travelling or might want to travel by that train from some intermediate station. A reference has been made to Sections 64, 67 and 69. Undoubtedly under Section 64 the company is given express power to reserve in every train carrying passengers one compartment at least for the exclusive, use of females. But further the company has power to reserve accommodation for the use of particular passengers. Because under Section 109, a passenger having entered a compartment which is so reserved may be punished with a fine, and unless it can be and that the company has no power to reserve accommodation for such passengers as have already informed the company that they wish to travel by a particular train, then it must follow that the company have the power to reserve accommodation for a particular class of passengers who may want to travel on the line. The only question would be whether such reservation was an undue or unreasonable preference or advantage in favour of a particular class. It seems to me, therefore, perfectly clear that the decisions of the lower Courts on the issue with regard to jurisdiction were correct and that the plaintiff's suit must fail. The appeal is dismissed with costs.

Shah, J.

13. I desire to state briefly the grounds upon which, I think, the jurisdiction of the civil Courts is ousted in this case. The plaintiff filed this suit to recover Rs. 5 as damages and for an injunction against the Railway Company on the ground that he was illegally asked by the Railway Company to leave the compartment, which was reserved for Europeans and Anglo-Indians, and which, he alleged, he had lawfully entered. His main complaint in the suit was that the Railway Company had no legal right to reserve the compartment in the manner in which it had been reserved on that particular occasion.

14. It is common ground that there is no rule framed under Section 47 of the Indian Railways Act, entitling the Railway Company to reserve the compartment in that manner. If there had been such a rule there would have been no question as to the legality of the act of the Railway Company in reserving the compartment. In the absence of any such rule, the question as to whether the Railway Company has any power to reserve a compartment for the advantage of any particular class of passengers would necessarily arise. It appears from the provisions of Section 41 of the Indian Railways Act that the jurisdiction of the civil Courts is ousted where the act or omission of the railway administration in question is said to be in violation or contravention of any provision of Chapter V of the Act. In the Chapter under the sub-heading 'Traffic Facilities' by Section 42(2) it is provided that:

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.

15. Under the definition of the word 'traffic' 'passenger traffic' is included; and according to the grammatical and plain meaning of the words used, it seems to me that Section 42(2) clearly lays ' down a limitation upon the general powers of the railway administration, and requires the administration not to show any such unreasonable or undue preference as is referred to in that sub-section. The principal question in this suit in substance is whether in reserving the compartment in the manner in which it was reserved, the railway administration showed any undue or unreasonable preference or advantage to any particular description of passenger traffic. That is a question in respect of which, the provisions of this Chapter of the Indian Railways Act show that the proper remedy for the person aggrieved is to apply to the Governor-General in Council, who can refer the complaint to the Railway Commission as provided in that Chapter.

16. It has been argued on behalf of the plaintiff appellant here in the hope of saving this suit that Section 42 does not apply to passenger traffic. It seems to me that that argument cannot be allowed. Sub-section 2 of Section 42 lays down, in my opinion, limitation in the interests of the public at large upon the powers-of the railway administration; and it would not be right to restrict the scope of that limitation unless it were clearly justified .by the words of the section. In Emperor v. Brijbasi Lal I.L.R (1920) All, 327 it is suggested that Section 42 would not apply to such reservation for controlling the passenger traffic. But after a careful consideration of the arguments advanced in this case and of the provisions of the Act I am unable to accept that view. It is not justified by the definition of the word 'traffic' as used in the Act and it may involve an undue restriction of the proper scope of the limitation contained in Sub-section 2 upon the powers of the railway administration. In this case the question which the plaintiff seeks to raise is whether the railway administration had power to show any preference for a particular class of passengers. It is his case that the preference shown to Europeans and Anglo-Indians was either undue or unreasonable and that there was a corresponding prejudice or disadvantage to him and other passengers. That is a question, in respect of which the jurisdiction of the ordinary civil Courts is taken away by the Act, and I express no opinion whatever as to the merits of that question. If the plaintiff really thinks that in reserving the compartment for ' Europeans and Anglo-Indians an undue or unreasonable preference or advantage was given to a class of passengers, his proper remedy is, as I have stated, to apply to the Governor-General-in-Council in order that the complaint may be dealt with by the Commissioners under the Chapter.

17. The further question as to the power of the railway authorities to Call upon the plaintiff to leave the compartment, which, according to him, he had lawfully entered, arises in the suit. This question really depends upon the other question whether the railway administration had power to reserve the compartment. If the reservation was legal, undoubtedly the order to leave the compartment was legal. If, on the other hand, the railway administration had no legal power to reserve the compartment, the order by the railway authorities to the plaintiff to leave the compartment would not be legal. As I have pointed out, the question as to the legality of the reservation is outside the scope of the jurisdiction of the civil Courts. It follows that the question whether the railway administration acted within its legal rights in asking the plaintiff to leave the compartment also must be taken to fall outside the jurisdiction of the civil Courts.

18. I may add that whore any such conflict between any member of the travelling public and the railway administration arises, as in the present case, it is desirable for the railway administration, apart from the remedy which a particular individual may have under Chapter V, to have proper rules under Section 47 with a view to put an end to the possibility of any difference arisim, between the administration and the public as to its legal powers.

19. I agree that the appeal should be dismissed with costs.


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