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Pallonji N. Metha Vs. State and anr. - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 1242 of 1951
Reported inAIR1952Bom421; (1952)54BOMLR428; ILR1953Bom36
ActsRailways Act, 1890 - Sections 47, 66, 68, 70, 109, 109(1), 113 and 120; Railway Administrative Rules - Rule 39
AppellantPallonji N. Metha
RespondentState and anr.
Appellant AdvocateA.G. Kripalani, Adv.
Respondent AdvocateH.M. Choksi, Govt. Pleader and ;K.J. Khandalawalla, Adv., i/b., Little & Co.
.....act (ix of 1890), sections 47, 113 - administrative rule 39(b) framed by railway company defining proper season ticket--rule requiring holder of ticket to sign, it and to mention his age on it--accused holding unsigned ticket not mentioning his age--whether accused liable to penalty under section 113.; the accused who held a season ticket was travelling between two stations of a railway company. when his ticket was checked, it was found that it was not signed by him and it did not mention his age, and it was not, therefore, a proper season ticket as defined by a rule framed by the railway company. this rule was not framed under section 47 of the indian railways act, 1890. on his refusal to pay the excess fare demanded, the accused was prosecuted under section 113 of the act. the accused..........and they are as follows. the accused travelled between dadar and byculla on 5-7-1951. he had a season ticket, and when his ticket was checked, he showed this ticket. this season ticket was not signed by him, and his age was not mentioned on it. he was thereupon asked to pay the travelling charges from dadar to victoria terminus. these charges amounted to re. 1-12-0. the accused refused to pay the charges. thereupon a case was filed by the railway company before the presidency magistrate to recover the fine, and the learned presidency magistrate convicted the accused and ordered him to pay a sum of re. 1-12-0.[4] the railway company has farmed a rule, which is rule 39 (b); and that rule provides that a season ticket will not be valid unless it is signed in ink by the person in whose.....

[1] This is an application in revision against the order of conviction and sentence passed by the learned Presidency Magistrate, first Additional Court, Victoria Terminus, Bombay.

[2] In this case, I have had the advantage of a very able judgment by the learned Presidency Magistrate, and also of the very able arguments at the bar, both by Mr. Kripalani and by Mr. Khandalawalla.

[3] The facts in this case are not in dispute, and they are as follows. The accused travelled between Dadar and Byculla on 5-7-1951. He had a season ticket, and when his ticket was checked, he showed this ticket. This season ticket was not signed by him, and his age was not mentioned on it. He was thereupon asked to pay the travelling charges from Dadar to Victoria Terminus. These charges amounted to Re. 1-12-0. The accused refused to pay the charges. Thereupon a case was filed by the railway company before the Presidency Magistrate to recover the fine, and the learned Presidency Magistrate convicted the accused and ordered him to pay a sum of Re. 1-12-0.

[4] The railway company has farmed a rule, which is Rule 39 (b); and that rule provides that a season ticket will not be valid unless it is signed in ink by the person in whose favour it is issued and his ago is entered in the space provided. Under Section 113, Railways Act, if a passenger travels in a train without having a proper pass or a proper ticket with him, he becomes liable to pay excess fare, and if he fails to pay the excess fare, that can be recovered as if it were a fine under Sub-section (4) by a case being preferred before a Presidency Magistrate. The contention of the Railway authorities is that, in view of Rule 39 (b), the season ticket which the accused had was not a proper pass, and inasmuch as he travelled without a proper pass, he contravened the provisions of Section 113 and became liable to pay the excess fare. Mr. Kripalani's contention on the other hand, is, that the railway company has not only framed Rule 39 (b), but has also enacted a penalty for the breach of that rule ; and Mr. Kripalani says that, unless the railway company frames a rule under Section 47, it cannot provide for a penalty for the breach of any rule framed by it otherwise than under Section 47.

[5] Now, Section 47 enables a railway company to frame general rules for various purposes defined in that section, A rule framed under that section cannot take effect unless it has received the sanction of the Central Government and has also been published in the Official Gazette ; and such a rule may provide that any person committing a breach of it shall be punished with a fine not exceeding Rs. 50. It is common ground that Rule 39 (b) has not been framed under this section. Now, as I shall presently point out from the authorities, it is well settled that a railway company can frame rules otherwise than under Section 47 to regulate its own traffic, and those rules can be framed in the exercise of the general powers of administration of a railway company. In order that these rules should be valid, two conditions have to be satisfied : one is that the rules must not be inconsistent with any provision of the statute or any rules framed under Section 47, and the other condition is that the rules must not be unreasonable. If these two conditions arc satisfied, then a railway authority has very wide powers to frame, what I might call, administrative rules for the day to day administration of the company and for regulating its traffic. It is clear why Courts of law here and in England have recognised this right of a railway company. Rules made under Section 47 involve a very cumbrous procedure, and the railway authority may require rules to be framed to meet the exigencies of a situation. Rules may have to be framed, and may have to be changed, from day to day or from week to week or from month to month, and it is impossible to expect the railway authority to go through the procedure required under Section 47. But I entirely agree with Mr. Kripalani that if an administrative rule is framed by the railway authority, the railway authority cannot by that rule provide that if the rule is contravened, the contravonor shall he liable to a particular penalty. The power to impose penalties is a power which only the legislature can exercise, and the railway authority has no such power delegated to it. It is only when a rule is framed under Section 47 that, by its very terms, the rule can provide a penalty for its breach. Now, it will be noticed that Rule 39 (b) itself does not provide any penalty for its breach. If the rule itself does not provide penalty for its breach and the contravention of that rule may result in the contravention of some provision of the statute, then I see no reason why a breach of that rule should not lie punished, not because the rule itself provided for the penalty, but because by contravening that rule the offender contravened some provision of the statute. That exactly is the position here.

[6] Now, it will be noticed that under Section 113, what is prohibited is, not travelling in a train without a pass or a ticket, but travelling in train without a proper pass or a proper ticket. ' A pro-per pass' or 'a proper ticket' has not been defined anywhere in the statute. Mr. Kripalani has drawn my attention to the relevant provisions with regard to the issue of a ticket or a pass. Section 66 provides that every person desirous of travelling on a railway shall, upon payment of his fare, be supplied with a ticket, specifying the class of carriage for which, and the place to which the fare has been paid, and the amount of the fare. Section 68 provides that no person shall, without the permission of a railway servant, enter or remain in any carriage on a railway for the purpose of travelling therein as a passenger unless he has with him a proper pass or ticket. And Section 70 provides that a return ticket or season ticket shall not be transferable and may be used only by the person for whoso journey to and from the places specified thereon it was issued. According to Mr. Kripalani, on his having tendered the necessary amount, the accused had a statutory right to the issue of a ticket or a season ticket; and once he was in possession of such a season ticket, he had a right to travel by the railway authority's train, and it he so travelled, it could not be said that under Section 113 he was travelling in a train without taking a proper pass or a proper ticket. In advancing his argument, Mr., Kripalani attaches no importance whatsoever to the expression 'proper' used by the legislature. It would be very difficult for a Court of law, unfamiliar with the needs and necessities of a railway authority, to decide objectively what a proper pass or a proper ticket was. In my opinion, if once it is conceded that the railway authority can make administrative rules for regulating its own traffic, it must be loft to the railway authority to decide what is a proper pass or a proper ticket in different circumstances. My attention has been drawn to the administrative rules framed by the G. I. P. Railway, and I find that these rules provide, with regard to each kind of train, what persons holding what tickets are entitled to travel by those trains. Therefore, according to these rules, a proper ticket or a proper pass varies with the train in which the holder of the ticket or the pass travels, and, obviously, for administrative reasons, it must be so. A passenger who holds a ticket from, say, Victoria Terminus to an intermediate station, would not be allowed to travel by a through or a mail train, because otherwise the mail train would get congested and serious inconvenience might be caused to persons who are travelling a long distance. I am only giving one instance to show how necessary it is for the railway authorities to frame rules as to what a proper pass or ticket is with regard to a particular train.

[7] Now, in this particular case, it has been pointed out in evidence that the reason which led the railway authority to frame this particular rule, that is, Rule 39 (b), was that they found that there were several instances where season tickets had been used by persons who were not entitled to them. Although Section 70, as I have just pointed out, provides that a return ticket or a season ticket shall not be transferable, still people permitted other persons to make use of their own season tickets. In order to prevent this, the railway company thought that a very good and safe device would be to insist upon the holder of the season ticket signing his name and giving his age, so that, when the season ticket was checked, it could be immediately discovered whether the person holding the season ticket was the person whose signature appeared on the season ticket and whoso age was indicated on the ticket. Therefore, in my opinion, this Rule 39 (b) is a very reasonable rule intended to carry out a provision of the Act, namely, the provision contained in Section 70. Nor is it inconsistent with any of the provisions of the Act. Far from being so, as I have just said, its very object is to carry out the very provision which the Legislature intended to be carried out. Therefore, it is not true to say that Rule 39 (b) not only enacts that a particular condition shall attach to the issue of a season ticket, but that it also provides that the contravention of that provision will be penal. The penalty to which the accused has subjected himself is not due to Rule 39 (b); it is the result of the statutory provision contained in Section 113. All that Rule 39 (b) does is to define what a proper season ticket is, and, inasmuch as the season ticket which the accused hold was not a proper season ticket in accordance with Rule 39 (b), ho subjected himself to the penalty imposed by Section 113. If the matter is looked at in that light, it is clear that B. 39 (b) ia not ultra vires, and that the conviction of the accused under Section 113 was fully justified.

[8] Mr. Kripalani has argued that the subject-matter of Rule 39 (b) fell within the terms of Section 47, and, therefore, there was nothing to prevent the railway authority from framing a rule under Section 47 and getting the necessary sanction published in the Gazette and making the breach of it penal. It is true that the railway authority could have framed this rule under Section 47. But that does not take away the authority and the power of the railway company to frame any rule for administrative reasons. I have already pointed out that it is not always easy to frame a rule under Section 47.

[9] Turning to the authorities, there are three decisions of this Court on which reliance has been placed. The first is Emperor v. Weir, 12 Bom. L. R. 930. In that case, the guard of the railway company failed to obey a certain rule which had been framed by the G. I. P. Railway; and it was pointed out that the rule framed was a valid rate because there was no inconsistency between that rule and the Act or the general rules under the Act. Mr. Kripalani is right that this case does not very much help the prosecution, because it was a mutter between an employer and an employee and the decision largely turned on the fact that, according to the terms of the employment, the guard was bound to obey any rules framed by the railway authority. But the importance of the decision lies in this, that a rule which was not framed under Section 47 was uphold by the Court because there was no inconsistency between the rule and the general provisions of the Act.

The next is a decision of Marten J., as he then was, to whom the matter was referred on a difference of opinion between Shah and Cramp JJ. and that is reported in Emperor v. Naryan Krishna, 47 Bom. 465. There a person, who was neither a European nor an Anglo-Indian -- and we were living in days in which it was of considerable political importance whether one belonged to that class or not -- entered a compartment reserved for Europeans and Anglo-Indians, and ho was convicted under Section 109, Indian Railways Act. The reservation of a compartment for Europeans and Anglo-Indians had been made by the railway company under administrative rules, and the question was whether the conviction was justified. Marten J., held that, as the rule did not give, undue preference nor did it cause undue prejudice to any particular passenger, it was properly made and the conviction was valid. In this case Marten J. cited with approval the observation of Lord Halsbury in Perth General Station Committee v. Ross, (1897) A. C. 479, in which the learned law Lord stated that he would be sorry to throw any doubt on the absolute right of the railway company in the first instance to regulate their own traffic in their own way.

The last decision is of Sir John Beaumont and Wassoodew J., reported in Emperor v. Mohammad Aurangzebkhan, 41 Bom. L. R. 916. That is & decision on which considerable reliance has been placed by Mr. Kripalani. In that case, a passenger, who bad reserved scats in a second class compartment and was allotted the upper berth occupied the lower berth in the same compartment. He was convicted under Section 100(1), Indian Railways Act, and Sir John Beaumont, delivering the judgment, held that the conviction was bad. Now, the railway company had passed rules and regulations for reservations of berths, and Sir John Beaumont pointed out, at page 918, that the power to punish for breach of any of the regulations or arrangements made by a railway company forms no part of the general powers of such company, and must be conferred by statute or rules made thereunder either by express words or by necessary implication. Therefore, Sir John Beaumont reiterated the principle which I have myself tried to set out, namely, that a railway authority has no power to punish the breach of any of its regulations. Then Sir John Beaumont points out that, under Section 109, a conviction can only be justified if a passenger enters a compartment which is reserved, and inasmuch as this particular compartment was not reserved, the conviction under Section 109 was obviously bad and the learned Chief Justice expresses surprise that there should be no provision in the Act by which a person occupying a berth other than the one reserved for him could be punished. Then the learned Chief Justice considered whether he could be convicted under Section 120(c), and he again came to the conclusion that, on the facts of the case, a conviction would not have been justified under Section 120(c). Thereupon, the learned Chief Justice came to the conclusion that the conviction of the accused was bad and set it aside. Now, the important point to note in this case is that the learned Chief Justice came to the conclusion that he did because the conviction of the accused could not be justified under any provision of the statute; and the learned Chief Justice, with respect, rightly hold that, if there was no provision in the statute which made the act of the passenger an offence, the railway company, by its rules, cannot make the act an offence.

The facts before me are entirely different. The conviction of the accused is justified under Section 118, because he has been travelling without a proper season ticket or a proper pass, and, as I said before he has not been convicted by reason of the fact that the railway company has made his act an offence when the statute did not make it an offence. It is the statute itself which lays down that travelling without a proper pass is an offence, and all that Rule 39 (b) did was to define what 'a proper pass'' was.

[10] Then my attention has been drawn by Mr. Khandalawalla to the observations of Oldfield J., in In re Komaran, 45 Mad. 215. There also the Madras High Court was considering the case of reservation of compartments for the use of Anglo-Indians. The rule reserving the compartment was not framed under Section 47, and Oldfield J., observes (p. 219) :

'... It is not obligatory to obtain that sanction, if the Railway sees its way to enforce the rule without it or a penalty is provided incidentally in some other portion of the Act.'

In the present case, the railway authority has seen its way to enforce Rule 39 (b) by relying upon the provisions of Section 113, and, therefore, it did not require the sanction of the Central Government for this rule, I must say that the accused was trying to assort the rights of the public, and no moral turpitude whatever attached to what he did. But as his act constitutes a contravention of Section 113, I must uphold the order passed by the learned Presidency Magistrate.

[11] Rule discharged.

[12] Rule discharged.

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