1. This is a civil suit filed by the Union of India owning and representing the Central and Western Railway Administrations, New Delhi, against one Shri R.C. Jali, an inhabitant of Indore, and the Amalgamated Coal Fields Limited, a corporation with its head office at Parasia, tahsil and district Chhindwara. The plaint was originally filed at Chhindwara in the Court of Civil Judge, Second Class, empowered under Section 19 of the Central Provinces Courts Act.
On an application made to this Court under Article 228 of the Constitution, one of us (Choudhuri J.) withdrew the case for trial in the High Court on the ground that important questions as to the interpretation of the Government of India Act, 1935, and the Constitution were involved. The case was also referred to a Division Bench, and it thus comes before us for final disposal. It may be pointed out that neither side led any evidence in the case, and the issues have been argued almost entirely as matters of law.
2. The facts as disclosed by the plaintiff are as follows : The plaintiff owns the Central Railway as well as the Western Railway Administrations, which were formerly known as the G. I. P. and the B.B. and C.I. Railway Administrations. In January and 'February 1947 the second defendant, The Amalgamated Coal Fields Ltd., booked to the first defendant R. C. Jail at Indore three consignments of coal from Junnor-Deo, a station on the Amla Parasia line.
These consignments were sent under railway receipts mentioned in paragraph 5 of the plaint, and the total amount of freight came to Rs. 535-6-0. There is no dispute as to these consignments nor as to the total amount of the freight. The dispute is as regards the cess which the Central Government was levying under' an Ordinance intituled the Coal Production Fund Ordinance, 1944 (No. 39 of 1944). Admittedly, this cess amounted to Rs. 81-4-0, which is the subject-matter of the claim here.
It is, however, pointed out by counsel that the decision in this case will govern numerous other levies of a like character, totalling over two to three lakhs of rupees; in other words, this is apparently a test case between the parties as to whether the levy can be made in view of the facts to be detailed hereafter.
3. The said ordinance came into force on 26th August, 1944. It was later repealed by the Coal Production Fund (Repealing) Ordinance, 1947 (No. 6 of 1947), from the first day of May, 1947. The present suit was filed on 24th April, 1953, and many objections have been raised by the defendants to the effect that the plaintiff is not entitled in law to recover the cess.
4. The issues which have been framed for the trial of the suit are many, but the main arguments which were advanced were with reference to the legality of the suit as well as the levy. We find it convenient, therefore, irrespective of the order in which the issues have been framed, to cover the entire ground first and then to give our findings on the issues.
5. The levy, as has already been stated, was to be made under Ordinance 39 of 1944. The imposition and collection of the levy was laid down by Section 2 of that Ordinance. Omitting certain matters with which we are not concerned, it reads as follows :
Imposition and collection of excise and customs duties.- (1) With effect from such date as the Central Government may, by notification in the official Gazette, appoint in this behalf, there shall be levied and collected as a cess for the purposes of this Ordinance, on all coal and coke despatched from collieries in British India a duty of excise at such rate, not exceeding one rupee and four annas per ton, as may from time to time be fixed by the Central Government by notification in the official Gazette : ........'
6. Another section to which we may refer is Section 5, which gave the power to the Central Government to make rules under the Ordinance. The relevant portions of that section are as follows :
'Power to make rules.-- (1) The Central Government may, by notification in the official Gazette, make rules to carry into effect the purposes and the provisions of this Ordinance.
(2) Without prejudice to the generality of the foregoing power, rules made under this section may provide for-
(a) the manner in which the duties imposed by this Ordinance shall be collected, the persons who shall be liable to make the payments, the making of refunds, remissions and recoveries, the deduction by collecting agencies of a percentage of the realisations to cover the cost of collection, and the procedure to be followed in remitting the proceeds to the credit of the Central Governments; .... .... ....
7. Under the authority of this Ordinance the Central Government made rules, which are called the Coal Production Fund Rules, 1944. Rule 3 deals with the recovery of the excise duty and provides as follows;
'Recovery of excise duty-
(1) The duty of excise imposed under subsection (1) of Section 2 of the Ordinance on Coal and Coke shall, when such coal or coke is despatched by rail from collieries or coke plants, be collected by the Railway Administrations by means of a surcharge on freight, and such duty of excise shall be recovered-
(a) from the consignor if the freight charges are being prepaid at the destination of the consignment;
(b) from the consignee if the freight charges are collected at the destination of the consignment;
(c) from the party paying freight if the consignment is booked on the 'Weight Only' system.
(2) In calculating the amount of duty of excise payable on any one consignment, fractions of an anna shall be rounded off to the nearest anna.'
8. The railway in pursuance of this started collecting the excise duty as a surcharge on freight and notified the stations from which bookings would be subject to such collections. No document was filed in support but it is admitted that Junnor-Deo was one of the stations at which the bookings of coal could be made and at which the recovery of this excise duty as surcharge on freight was to be made. There is a note appended in F. R. C. No. 5 (Goods) of 1944, Clause VI 2, which is as follows :
The, location of the destination station, i. e., whether it is situated in British India or in an Indian State can be ascertained by reference to the Alphabetical List of Railway Stations.'
The consignments in question were booked from Junnor-Deo to Indore. They were booked by the second defendant and were taken delivery of by the first defendant, and admittedly they were booked with 'Freight to Pay' condition. It appears that by some mistake or oversight the amount of surcharge was not collected from the consignee when the goods were delivered, and the present suit was, therefore, brought to recover the surcharge on freight representing the excise duty from these two defendants. This, in essence, is the main case.
9. When the two defendants appeared they raised a number of contentions, challenging the right to recover the amount. The main contention which they raised under the Constitution as it existed in 1947 and in 1953 is the gist of the matter, though there were other contentions raised as to joinder of parties, territorial jurisdiction of theCourt, and limitation. We shall deal with those points subsequently after we have disposed of the questions raised under the Constitutional law.
10. According to the defendants Ordinance 39 of 1944 under which the levy is being made was repealed in 1947 and the repeal being there, the surcharge on freight could not be recovered (a) because it was attempted to be recovered after the expiry of the Ordinance which repealed the first Ordinance and (b) because it altered the incidence of the tax which was an excise duty. It was contended also that though the railway could recover freight of any balance thereof left unrecovered, by way of a suit under Section 55(5) of the Indian Railways Act, the railways were not entitled to bring a suit for recovery of money which was a tax in the nature of an excise duty and for the recovery of which specific machinery sections had already been created and had to be followed.
In other words, according to the defendants the agency of the railway to recover the duty from the consignor or the consignee came to an end when the goods were delivered, and the machinery rules framed by the Central Government did not entitle the railway to recover the amount later by way of suit.
11. We shall deal, first with the effect of the repeal of the first Ordinance and the expiry of the second Ordinance. The first Ordinance was passed after the India and Burma (Emergency Provisions)! Act of 1940 was enacted and before the expiry of the emergency which had been declared under section 102 of the Government of India Act, 1935. The Ordinance must, therefore, be treated as equal to a perpetual Act and on a par with it. This was laid down by Spens C. J. in J.K. Gas Plant . v. King Emperor. 1947 FCR 141 : AIR 1947 FC 38 (A), and the dictum of the learned Chief Justice was approved by the Supreme Court recently in Hansraj Moolji v. The State of Bombay, (S) : 1957CriLJ599 (B).
According to the view of the Federal Court and the Supreme Court, the Ordinance passed by the Governor-General during the period between the Act mentioned and the expiry of the emergency was without any limitation as to duration and was in fact a perpetual measure. This leads us to the conclusion that the Coal Production Fund Ordinance (No. 39 of 1944) would still have been continuing as a measure today if it had not been repealed by the Governor-General in 1947. In this view of the matter it would have resembled the Ordinance referred to in the Supreme Court case above mentioned.
12. The position, however, was altered when the Governor-General repealed the Ordinance. The repealing Ordinance may now be referred to because its terms will have to be considered by us in attempting to find out as to how far the application of the repealed Ordinance was preserved. The repealing Ordinance, omitting the preamble etc. reads as follows;
1(1) This Ordinance may be called the Coal Production Fund (Repealing) Ordinance, 1947.
(2) It shall come into force on the 1st day of May, 1947.
'2. The Coal Production Fund Ordinance, 1944, shall be repealed, and for the avoidance of doubts it is hereby declared that the provisions of Section 6 of the Central Clauses Act, 1897 (X of 1897) shall apply in respect of such repeal.
'3. The unexpended balance, if any, at the credit of the Coal Production Fund constituted under the aforesaid Ordinance shall be applied tosuch purposes connected with the coal industry as the Central Government may direct.
Mountbatten of Burma,
Viceroy and Governor General
13. It will appear from this that Ordinance 39 of 1944 was repealed from 1st May, 1947. It also appears that Section 6 of the General Clauses Act was applied ex abundanti cautela to the repeal of that Ordinance. Indeed, there was no doubt about its applicability because under Section 30 of the General Clauses Act the word 'Act' includes an Ordinance except for the purpose of the sections mentioned therein. Section 6 of the General Clauses Act is not one of these sections.
In spite of this there was a difference of opinion among the High Courts in India as to whether Section 6 of the Genera] Clauses Act applied to the repeal of a temporary Ordinance. This conflict was not resolved by 1947, and therefore, the enactment of Section 2 of the repealing Ordinance cleared the ground by saying that there should be no doubt that Section 6 of the General Clauses Act applied.
14. No question was raised about the vires of the repealing Ordinance, nor was any contention put forward that Section 2 of the repealing Ordinance was defective for any other reason. We must, therefore, hold by virtue of Section 30 of the General Clauses Act as well as by the direct enactment by the Governor-General in S, 2 of the repealing Ordinance that Section 6 of the General Clauses Act applied to all transactions which had arisen under the repealed Ordinance.
The question is, however, whether after the expiry by efflux of time of the repealing Ordinance (6 of 1947) the enabling provisions of Section 6 continued to operate. If they did not, then undoubtedly the defendants must succeed; but if they did, then subject to whatever else may be urged against the plaint, the claim of the plaintiff must succeed.
15. This leads us to consider how far a temporary Act or Ordinance can repeal a perpetual Act. It used to be held at one time that when a temporary Act repealed a perpetual Act and itself expired by efflux of time, the perpetual Act revived. In England this was not possible after Lord Brougham's Act of 1850, and in our country it is not possible after 1897 when the General Clauses Act was passed. It is provided in the General Clauses Act that the repeal or expiry of a repealing Act does not ipso facto revive anything repealed thereby; in other words, when Ordinance 6 of 1947 expired by efflux of time, Ordinance 39 of 1944 was not ipso facto revived.
16. The next question is what was the effect of the expiry of ordinance 6 of 1947 upon the provision with regard to Section 6 of the General Clauses Act. Here the canon of construction is to find out the intention of the legislature in making the repeal. A temporary Act may either repeal a perpetual Act absolutely or only partially: see Craies on Statute Law, 5th edition, pp. 383 to 384.
If the intention be to repeal the perpetual Act absolutely, then the repeal operates notwithstanding the fact that it is done by a temporary Act; but if the repeal is not intended to operate absolutely, then it may operate only partially, and it is always a question of the intention as to which it is, to be gathered from the plain meaning of the repealing enactment.
17. Applying this test, therefore, we have to see to what extent the repealing Ordinance repealed the previous Ordinance. It is not open to us to question what the Governor-General said in the preamble namely that there was an emergency which necessitated - the repeal of the Coal Production Fund Ordinance of 1944 : see Bhagat Singh v. Emperor (C). He set the date from which the previous ordinance was to be repealed.
The intention, therefore, was clearly to repeal the previous Ordinance absolutely and finally from that date. Yet the Governor-General expressed himself in Section 2 to save certain transactions and to apply Section 6 of the General Clauses Act to them, albeit ex abundanti cautela. In other words, though the intention was to repeal the first Ordinance absolutely in respect of transactions following 1st May, 1947 there was also a declared intention not to repeal it in respect of transactions which had gone before.
Thus, within the terms of Section 6 of the General Clauses Act the first Ordinance was not repealed but was made to continue to govern such transactions. Applying this result to the facts of this case, it is apparent that if some excise duty remained to be collected it could be collected, whether under the machinery of the old law or under the general law, if applicable. We would give one example. Suppose goods had been consigned on 30-4-1947 with freight to be paid by the consignee, and the goods were in transit in the hands of the carrier on 1-5-1947 it could not be said that the amount of the surcharge could not be recovered at the delivery and from the consignee because the Ordinance had been repealed on 1-5-1947.
The same reasoning must hold good in respect of those cases in which the recovery ought to have been made but through neglect or mistake it remained to be made. For transactions of this character Ordinance No. 39 of 1944 was available by virtue of Ss. 6 and 30 of the General Clauses Act, read with Section 2 of the repealing ordinance, to enable the Government to make such recovery.
18. It was contended on the authority of State of U. P. v. Jagamander Das, : AIR1954SC683 (D), that the repealing Ordinance itself having expired the suit cannot now be brought and ought to have been brought during the life time of the repealing Ordinance. This argument is not sound. The previous Ordinance was a perpetual Ordinance and was as good a statute as any Act passed by the Central Legislature. It was repealed not completely but only prospectively in respect of future transactions, the door being left open for the prosecution of past transactions.
Section 6 of the General Clauses Act enables all investigations, proceedings and measures for enforcement of rights to be continued as if the repealing Ordinance had not been passed. In other words, the repealed Ordinance, though repealed for future transactions, continued for past transactions. A prosecution is on a different footing because the canon of interpretation is that all prosecution must be made and completed when the offence is existing: see Kay v. Goodwin, (1830) 6 Beng 476 (E).
But the canon of construction that operates here is that existing rights are not taken away by a repeal of a law unless the repeal itself shows that those existing rights have been taken away. There is a contrary intention in the repealing Ordinance, and that intention is that existing rights shall be enforceable if the repealing ordinance had never been passed.
19. This, however, does not entirely dispose of the matter because the second leg of Shri Chitale's argument was that the rules which were framed by the Central Government to convert the excise duty into a surcharge on freight were ultra vires. It was the contention of the counsel for the Union of India that the excise duty ceased to be duty in so far as the railway administration was concern-ed, and that by virtue of the rules it became a part of the freight and could be recovered as such under Sub-section (5) of section 55 of the Indian Railways Act.
We have thus to see whether the rules which have been framed under the Goal Production Fund Ordinance in any way go beyond the purpose and intent of the Ordinance. We need not refer to the authorities, which have been collected in a Division Bench case of this Court reported in Chhotabhai jethabhai Patel and Co. v. Union of India, AIR 1952 Nag 139 (F), that the incidence of a tax cannot be altered by the machinery section. In the present context of facts the tax was undoubtedly a duty of excise and was to be used as a cess for the purposes of a fund which was created.
It was not stated in the Ordinance that the tax was to be collected at the production stage and not at any subsequent stage. Shri Chitale conceded in the face of authorities that it is open to the legislature to collect an excise duty not only at the production stage but at any subsequent stage. He, however, contended that it was for the ordinance to disclose at what stage it should be collected.
20. The Ordinance provided for the levy of the excise duty as a cess, It did not lay down any machinery section of its own. It empowered the Central Government to frame rules for the collection etc. of the duty. Section 5, Sub-sections (1) and (2) (a), of Ordinance No. 39 of 1944 confer the power upon the Central Government to provide by rules the manner in which the duty imposed by the Ordinance was to be collected and the persons who should be liable to make the payment.
Considering the fact that this Ordinance was made by the Governor-General in exercise of his powers under Section 72 of the Ninth Schedule to the Government of India Act, 1935, for the peace and good government of the country, we must hold that all, and plenary, powers of legislation were centred in him. It has been ruled over and over again that the powers of the Governor-General to promulgate Ordinance for the peace and good Government of British India were powers of the most complete character possible, and on par with the powers of the British Parliament : see Riel v. The Queen, (1885) 10 AC 675 (G).
It was, therefore, open to the Governor-General, who was not restricted by any consideration, to invest in a subordinate agency the power to provide the machinery for collection of the duty. That machinery is contained in the rules, and they enact that the duty shall be collected either from the consignor at the forwarding end or from the consignee at the delivery end. We do not, therefore, think that the rules can be said to be beyond the purport of the Ordinance or its intention. In fact, the Ordinance itself contemplated that the Central Government was to determine the stage at which the duty was to be collected.
21. No doubt, normally an excise duty is recoverable only from the producer, though it may of course be passed on in the price up to the consumer. In the present case, however, the recovery is made not only from the consignor, who may be the producer, but also from the consignee. Shri Sen, who argued the case for the second defendant, correctly pointed out that entry No. 45 in List I of the Seventh Schedule to the Government of India Act, 1935, placed an excise duty on 'goods* manufactured or produced in India and not upon any individual person.
That being so, the duty was levied on coal which was transported by railway at the rate ofRe. 1-4-0 per ton of coal. The goods being in the possession of the railway which realized the freight, the railway was enabled to recover the duty as part of freight and as an agent of the Government. The goods are carried according to two different methods, (1), freight paid, and (2) freight to pay. Since the duty had to be recovered along with freight, necessarily the payment would be made either at the time of booking the goods or at the time the goods were delivered.
The goods while in the possession of the railway administration remained subject to the payment of the excise duty, and the rule making the recovery of the duty at the delivery end was not changing the incidence of the tax because it remained on the goods as before. In our opinion, the rule made by Government enabling the railway administration to recover the duty from the consignor or the consignee did not change the incidence of the duty, which remained a duty on coal.
22. It was contended that under the present Constitution, Article 265, no tax can be recovered except under authority of law. It was argued on the strength of the decision reported in State of Madras v. C. G. Menon : 1SCR280 (H), that article 372 preserves only the laws in force as explained in explanations I arid II to that article. The, Ordinance, under the authority of which the duty was being collected, came to an end in 1947, and in 1953 when the suit was filed there was no authority of law for the recovery of the duty from the defendants.
To that the answer has already been given. The answer was furnished by the ruling cited by the defendant's counsel himself that the Ordinance would have been a perpetual Ordinance but for the repeal. We have shown above that the repeal operated only in part, leaving past transactions to be enforced as if the repealing Ordinance had not been passed; in other words, there was authority of law in 1953 for the recovery of the duty.
23. It was argued that a cess can be levied only while the purpose for which the cess is created exists. A reference was made to three cases of the Supreme Court reported in Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar, : 1SCR1005 (I), Ratilal Panachand v. State of Bombay, : 1SCR1055 (T), and Sri Jagannath v. State of Orissa : 1SCR1046 (K), showing the distinction between a cess, a fee, and a tax. No doubt, in essence a cess is an imposition to achieve a particular purpose, and road and education cesses are familiar to us.
In the present case, the cess was being collected to establish a fund which was abolished from 1947. Shri Chitale argued that the cess could no longer be collected after the abolition of the fund itself, because the cess must be correlated to the purpose for which it is collected, and if the purpose has disappeared there can be no legality in collecting the cess. This is an argument which would have value but for the fact that the Governor-General provided by Ordinance 6 of 1947 that the Central Government may use the balance of the fund as it deemed fit.
There was nothing shown to us as to what directions had been issued by the Central Government and whether on the date on which the suit was filed there was not existing any direction by the Central Government. In the absence of any such knowledge we cannot hold that the cess was unconnected with any purpose. Indeed, the repeal of the first Ordinance was not without reference to thebalance of the fund. That balance would include not only the balance on hand, if any, but would include all that would thereafter be added to the balance by future recoveries.
The disposal was entrusted by the Governor-General to the Central Government, and in the absence of any evidence led in the case that there was no means of expenditure of that amount by the Central Government, we do not think we can entertain the argument.
24. It must thus be held that the enactment of the rules making the duty recoverable as a surcharge on freight was a valid piece of legislation and did not suffer extinction on the repeal of Ordinance No. 39 of 1944 in the year 1947 by the repealing Ordinance. In other words, the surcharge in respect of past transactions could be recovered by the railways as part of their freight. We may say here that it is customary for the railways and shipping companies to be agents for the collection of excise and customs duties, and in some countries these agents receive (as here) a commission on such recoveries.
Just as sales tax is recovered from the purchasers through the agency of the shop-keepers, so also terminal taxes, octroi, and customs dues are recovered through the agency of railways and shipping companies and there is nothing unusual or illegal about it.
25. It was contended that there was extra territoriality in the law inasmuch as an Indore subject was required to pay the duty. The goods were delivered to the first defendant at the premises of the Railway and that was British India. The next point, therefore, to consider is whether the recovery by way of a suit was possible. No doubt, the railway company would have been well advised in making the recovery from the consignee at thetime the goods were delivered to him, but it appears that there was some sad mistake of negligence and the non-inclusion of the surcharge resulted.
Having delivered the goods the question is whether the railway administration could bring a suit. Rules 6 and 7 of the rules printed at the back of the railway receipt give the right to the railway administration to detain the goods until allits dues are paid. They have been held not to be exhaustive of all the remedies which are open to the railway administration, and it has been ruled in Mutsadilal v. Union of India, (S) AIR 1955 Hyd 61 (L), that a suit even after the goods have been delivered is perfectly valid. We think for the reasons given in the said ruling that a suit to recover the surcharge on freight did lie.
26. It was contended that the suit was brought against a non-resident, who was not subject to the Ordinance of the Governor-General, and who in 1947, when the consignments were sent to him, was a foreign subject. Apart from the fact that that particular defendant appeared in answer to the notice and submitted himself to the jurisdiction of this Court, there is a request on the part of the plaintiff under Section 20(b) of the Code of Civil Procedure that permission be accorded to it to sue defendant No. 1 along with defendant No. 2.
There is no doubt whatever that the second defendant was working for gain within the jurisdiction of the trial Court and now, the suit having been withdrawn to this Court, within the jurisdiction of this Court. By passage of time and through an accident of history even Indore is today within the jurisdiction of this Court. We do not, however, express any opinion as to the effect the constitutional changes will have upon the array ofparties in a civil suit; but the request which has been made and which was not opposed is proper, and we allow it. Thus, under our orders defendant No. 1 can be sued along with defendant No. 2. This disposes of the question of territorial jurisdiction of the Court.
27. This brings us to the last contention, viz. limitation. Issue was joined here on the conflicting claims of Arts. 149 and 120 of the Indian Limitation Act. Article 149 reads as follows :
'Any suit by or on behalfof the Central Government or any Provincial Government except a suit beforethe Supreme Court in the exercise of its original jurisdiction.
When the period oflimitation would begin to run under this Act against a like suit by a privateperson.'
It was contended on the strength of column three of Article 149 that 60 years is substituted for the period of limitation provided in a like suit by a private person. It was contended that there is no article in the Limitation Act under which a private person can bring such a suit. Therefore, it was argued on the strength of three rulings, viz. Inder-chand v. Secretary of State : 9ITR673(Patna) (M), Secretary of State v. Guru 'Proshad, ILR 20 Cal 51, and Government of India v. Taylor, (1955) 27 ITR 356 (O), that the residuary Article 120 prescribing a period of six years' limitation is alone applicable. It was contended that the suit filed on the 24th April, 1953 in respect of consignments made in January and February, 1947 was patently out of time.
28. The contention of the defendant that 'a like suit' means 'an identical suit' is a fallacy and we say it with all due respect to the rulings cited. 'A like suit' means 'a suit of a similar character', and we have to see whether in the Indian Limitation Act there is an article under which a suit of a similar character can be brought by a private person and what is the limitation and the starting point of limitation for it, Now, a contract between a consignor and the railway administration is essentially one between a carrier and a consignor. A carrier offers to carry goods for payment.
In so far as the carrier is concerned, he putsat the disposal of the consignor vehicles in whichhe agrees to take the goods, subject to his freighthiring charges being paid. Under Article 50 of the,Indian Limitation Act we find that there is a threeyears limitation provided for hire of animals, vehicles, boats, or household furniture. The question is whether the railway administration puts at the disposal of the consignor any vehicle and whether thefreight which is charged is not the hire for thevehicle in which it is carried and the convenienceof having the goods carried by a vehicel. The Oxford Dictionary gives the meaning vehicle as.fellows :
A means of conveyance provided with wheelsor runners and used for the carriage of persons orgoods; a carriage, cart, wagons sledge, etc.
The essence of the transaction', therefore, was thehiring of railway wagons for the carriage of coalfrom Junnor-Deo to Indore. If a private personhad owned the railway, as indeed railways wereowned by private persons, the article to apply wouldhave been Article 50 of the Indian Limitation Act.Now that the railways are owned by the Union ofIndia, the only difference would be to substitutesixty years for three years in the article. Indeed,the first column of Article 149 is very important.
It begins with the words any suit by or on behalf of the Central Government' and they must be given their natural meaning and effect : See for example Ram Rattan v. Parma Nand (P). The generality of the first column taken with the analogy of Article 50 of the Indian Limitation Act shows that the UnionGovernment is entitled to use the 60 years' limitation to the exclusion of the residuary Article 120. Indeed, we would go so far as to say that Article 149 itself is a residuary article for the purposes of Government and creates a limitation ad hoc of 60 years for all kinds of actions that Government may choose to bring.
29. Lastly, it was contended that the suit as constituted is bad because in the cause title the Union of India is mentioned as owning the two railways. According to the definition of 'railway administration' in the Indian Railways Act and by virtue of the provisions of Section 79 of the Code of Civil Procedure the suit as framed was perfectly valid. Indeed, no authority was cited that the Union of India cannot sue as representing the railway administrations.
It is possible that the railway administrationscould also sue representing the Union of India. Butwhichever view of the matter is taken, the suit isi valid. Indeed, Shri Chitale was fair enough to saythat it is a matter of merely signing the plaint andthis defect could be rectified any time, and he didnot press his argument.
30. As regards defendant No. 2 its liability is obvious enough. It was the person who entered into a contract of carriage of goods with the railway. The collection of freight at the delivery end was at its request. It was, therefore, the main contracting party and freight including the duty could be recovered from it. The goods were delivered to defendant No. I, and the duty ought under the law to have been recovered from him at the time of delivery. Thus, both the defendants are jointly and severally liable to pay the amount.
31. Now we shall give our answers to the issues. In view of what, we have said above, andwhich has been sequentially said to enable a clearpicture of the case to be obtained, we give ouranswers to the issues framed as follows :
1. Where did the cause of action arise either wholly or in part ...... In Junnor-Deo in part.
2.(a) Did the Civil Judge, Second Class (empowered under Section 18, C. P. Courts Act), Chhindwara, possess territorial jurisdiction in the matter?...... Yes.
(b) If the answer is no, how does it affect the jurisdiction of this Court? .... Does not arise.
3. Is the first defendant liable to pay coal cess on coal despatched from collieries in the then British India to the Indore railway station for consumption in the Mills in that State? .... Yes.
4.(a) Is the first defendant liable to pay coalcess under the Ordinance XXXIX of 1944, being asubject of Holkar State? .... Yes.
(b) Is the Ordinance ultra vires because of its extra territorial nature, if any? .... No.
5 (a) Did the said Ordinance apply to the con- signments made on 1-1-1947, 1-2-1947 and 7/9-2-1947 which are the subject-matter of the suit?. .... Yes.
(b) When did the said Ordinance expire?..... 1-5-1947 but subject to Section 6 of the General Clauses Act.
6. Was there any implied agreement between the plaintiff and the first defendant to pay the said cess?. ..... Not necessary to decide.
7. Was the cess payable by the first defendant in Indore as a part of the freight and, if so, whether it remained to be -recovered due to mistake? ...... Yes and yes.
8. Is the claim within time and is there any cause of action against the two defendants or any of them? ....... Yes and yes.
9.(a) Has the plaintiff, the Union of India (owning and representing the Central and Western Railway administrations) a right of suit? .... Yes.
(b) Are the rules for collection of coal cessultra vires the Union Government on account ofextra territoriality? ...... No.
10. Relief and costs? ....... Suit decreed'with costs.
32. We are accordingly of the opinion that thesuit ought to succeed and should be decreed withcosts. We decree the claim against the two defendants jointly and severally. In view of the constitutional question involved we certify under articles 132(1) and 133 (1)(c) of the Constitution thatthe case is fit for appeal to the Supreme Court.