1. This revision petition is filed by the original defendant - Union of India - against the order passed by the learned Civil judge, junior Division, Dhrangadhra, in Civil Suit No. 63 of 1971, filed by the plaintiff-opponent against the petitioner for refund of an amount of Rs. 2,107.30 paise. The learned trial Judge decided issues Nos: 4 and 5 as preliminary issues and they have been decided against the petitioner. Those issues read as under:
'Issue No. 4: Whether this Court has no jurisdiction to entertain this suit as alleged by the defendant?
Issue No. 5: Whether no notice of claim was given by the plaintiff as required in law? If so, whether the present suit is tenable?'
The trial Court has held that it has got jurisdiction to entertain this suit. It is also held that no claim notice as contemplated under Section 78-B of the Indian Railways Act, 1890 (which will be hereinafter referred to as 'the Act'), was necessary as it was not a case of recovery of over charges. Non-giving of such a notice, therefore, was not fatal to the suit.
2. The material averments made in the plaint are, that the plaintiff booked salt from Kuda Salt Siding Station, on the line of Western Railway Administration, owned and represented by the Union of India (original defendant), to salt merchants at Dhrangadhra and at various other stations. That the said salt consignments are booked in wagon loads from Kuda Salt Siding Station. In para 12 it is averred that since 1-6-1961 the Western Railway Administration, in addition to charging usual freight on goods, traffic from and to Kuda Salt Siding Station, wrongly, illegally, arbitrarily and unreasonably levied an additional new charge by- way of siding charges or shunting charges or placement of wagon charges or removal of wagon charges. In paras 13 to 18, reference is made regarding the increases made, in those charges from time to time and such collections made. In para 26, it is averred that the, defendant Western Railway Administration charged freight on the wagon load salt consignment of the plaintiff from Kuda Salt Siding Station to destination and the said freight includes terminal charges for shunting, placement and removal of wagons at the place where, the salt, to be loaded, is stacked and hence the defendant-Western Railway Administration, in addition to freight, is not entitled to levy new charge with effect from 1-6-61 either as siding charges or as shunting charges or as placement charges or as removal charges or under the pretext of any other charge and the levy of the said new charge from the plaintiff with effect from 1-6-61 is wrong all the arbitrary, unauthorised and unreasonable and excessive and the plaintiff is entitled to the refund of this new charge paid by him to the defendant-Western Railway Administration. This also amounts to double taxation. In para 28 of the plaint, plaintiff actually refers to the total amount recovered in that manner. In the relief clause 33 prayer made is to recover the suit amount which includes the amount it paid by way of new charges as said earlier, and the notice charges, e no and it is in terms stated that it is a claim for refund of new charger by way of siding charges, shunting charges, placement charges received by the defendant Western Railway Administration from the plaintiff.
3.Petitioner-defendant, in Para 5 of its written-statement, contended inter alia, that the defendant-Administration charges freight from and to Kuda Salt Siding Station and passenger tickets are issued only for Dhrangadhra to Kuda and back to Dhrangadhra by the Guard working in the goods train meant to carry loaded salt wagons from Kuda, mainly for the convenience of salt merchants and their labourers and or staff, etc. In para 6, the contention is that the shunting and/or shifting and/or placement charges are rightly and legally levied to cover the additional or extra services rendered in dealing with salt wagons to and from the plots for sole benefit of the plot holders which is not covered by the freight and in fact the above said charges are rightly levied for the special services rendered by the Railway Administration in taking the empty wagons to the private Plots for loading of salt and bringing the wagons back after loading from the private plots to Kuda Salt Siding for onward despatch to Dhrangadhra or final destination and it is true that these charges have been increased as alleged from time to time to meet with the increasing costs incurred in, utilising the engine for shunting purpose's and the staff engaged for the said purposes, etc. In para 7, it is contended that the charges are correctly levied for the extra services rendered as mentioned by the defendant. It is further submitted in that very para that the proper forum for redress of the said grievance i.e. the charges are not proper or are disproportionate to the services rendered by the defendant, is taking the matter to the Railway Rates Tribunal (which will be hereinafter referred to as 'The Tribunal') ' and therefore, the Civil Court had no jurisdiction to bear such a suit in view of section 26 of the Act. In para 8-A, it is contended that the suit being one of refunds, notice of claim is necessary to be given before filing of a suit of this nature.
4. Both the contentions raised by the defendant-petitioner have been negatived by the trial Court.
5. Mr. Mangaldas .M. Shah, appearing for the petitioner, has urged that if the substance of the suit is taken into account, it is a suit for the refund of recovery of 'any other charges' on the basis, that those charges were unreasonable. It is not ft case that these charges were being recovered in excess of the powers of the defendant, meaning thereby, that such recovery was ultra vires. Such a complaint, submitted Mr. Shah, could be made only to the Tribunal constituted tinder Section 34 of the Act. The has invited my attention pointedly to Section 41 of the Act which deals with complaints against a railway administration.
6. Clauses (b) and (c) of sub-section (1) of Section 41 of the Act, which are material for our purposes, read:
'(1) Any complaint that a railway administration-
(a) xx xx xx
(b) i charging for the carriage of any common between two stations a rate which is unreasonable, or
(c) is levying any other charge 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.'
Sub-section (3) of it reads:
' (3) In the, case of a complaint under clause (b) or clause (c) of sub-section (1), the Tribunal may fix such rate or charge as it considers reasonable ..............
S. 26 of the Act deals with 'Bar of jurisdiction of ordinary Courts in certain matte&. It reads: 'Except 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 of provision of this Chapter.' Mr. Shah has submitted that according to the averments made in the plaint, the Railway Administration was recovering over-charges which were not reasonable. Such charges would be included in the freight charges paid. It would, therefore, mean that something was being done or was done by the railway Administration in violation or contravention of any provision of Chapter V which deals with 'Traffic Facilities', and Section 41 of the Act would suggest that the remedy is provided in that behalf by taking the matter to the Tribunal. That being the position, submitted Mr. Shah, the Civil Court had no jurisdiction, in view of the provisions of section 26 of the Act, to try the suit.
7. In reply to this argument, Mr. Agarwal, appearing for the plaintiff-opponent, urged that the Tribunal and no jurisdiction to decide any charges recovered in the past as unreasonable and furthermore, the Tribunal had no jurisdiction to refund such amounts recovered or even to refund the amounts that be recovered even if it reaches the conclusion that the charges are unreasonable.
8. I need not dilate further on this point, as there are two decisions of the Supreme Court which clearly cover the question in issue.
9. In Upper Doab Sugar Mill-, Ltd., Shamli (U. P.) v. Shahdra (Delhi) Saharannur Light Railway Co. Ltd., Calcutta, AIR J963 SC 217, the facts were as under:
'.......... The complaint as originally made was against the station to station rates on sugarcane on the Sliahdara (Delhi) Saharanpur Light Railway imposed by the respondent, the Railway Company, by their rates Circular No. 8 of 1953 with effect from October 1, 1953. The complaint was that these rates had been and were unreasonable. The Railway Company in their answer to the complaint pointed out that the rates imposed by the rate Circular No. 8 of 1953 bad long before the date of the complaint ceased to be in force and that subsequent to the decision of this Court in Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. Upper Doab Sugar Mills Ltd., Civil Appeal No. 347 of 1957 = (AIR 1960 SC 695) a new rate had come into operation from February 10, 1960, under Local Rate Advice, No. 2-A of 1960. After this complainant prayed for amendment of his complaint by adding a complaint against this new Advice rate. The prayer was allowed. The complaint as it stands after the amendment made on February 31 1961, is both against the rates imposed under Local Rates Advice No. 8 of 1953 and also the rates under the new Advice No. 2-A of 1960 and is that these rates and charges are all unreasonable.
The prayers are: (1) for a declaration that the rates charged under the Local Rates Advice No. 8 of 1953 and their surcharges were unreasonable from 1-10-1953 to 10-3-1960: (2) a declaration that the rates charges from 10-2-1960 under rate Advice No. 2-A of 1960 are also unreasonable; (3) a direction of refund of the excess collected or which may be collected after the date of the amendment of the complaint on the basis of rate Advice No. 2-A of 1960 over the reasonable rates that may be fixed by the Tribunal and (4) the fixation of the rates as mentioned in the complainant as reasonable rates from various stations to Shamli.'
Issues Nos. 6 and 9-A framed were in these words :
'6. Has the Tribunal jurisdiction to entertain or try the present complaint regarding reasonableness or otherwise of rates and/or charges prior to the institution of this complaint, or, at any rate, prior to 27-7-1958.
9-A Has this Tribunal jurisdiction to grant a refund.'
The Tribunal held that it had no jurisdiction to entertain or try the complaint as, regards the reasonableness or otherwise of rates and charges made prior to the institution of the complaint on may 6, 1960. It also held that it had no jurisdiction to grant any refund. Those findings of the Tribunal were challenged in the Supreme Court. After referring to the, relevant statutory provisions of the Act and also referring to the history, as to bow the Tribunal came into existence, at page 220, in para 15, the Supreme Court has observed:
'Our first task is now to construe the words of clauses (b) and (c) of the first subsection of Section 41. The question is what did the legislature mean by the words 'is charging' in, clause, (b) and 'is levying' in clause (c) The use of the present progressive tense is to denote something which is: taking place, at present. What has already taken Place cannot be described by saying that 'it is taking place just as one cannot say of a in an who has ceased to exist, that he is existing; so also one cannot say of a charge which has, already been made that 'it is being made'. Of the charge which has already been made a person aggrieved can complain that 'the Railway Administration has charged me at this rate. It will not be correct to say that 'the Railway Administration 'is charging me at this rate.
In para 17, the Supreme Court has reached the conclusion: 'The words 'charging' in clause (b) and 'levying' in clause (c) were used in the one and the same sense. We find it impossible to agree however that they were used to include 'collecting'. It appears to be clear that if the intention of the legislature was to give the Tribunal jurisdiction over complaints in connection with charges already made the legislature would have used the words 'has charged and is, charging', and would not mere y say 'is charging'. Special jurisdiction of such a nature would be given clearly and the very fact that the, words 'has charged' have not been used is sufficient ground for thinking that it was not the legislature's intention to give the Tribunal jurisdiction over complaints in connection with charges made in the past. In our opinion, the words 'is charging in clause (b) and 'is levying' in clause (c) must be construed to mean 'is demanding a price at the present time for services to be rendered' The conclusion of the Railway Rates Tribunal that it had no jurisdiction to entertain or try the complaints as regards the reasonableness or otherwise of rates and charges, made prior to the institution of the: complaint, is therefore correct.'
In para 18, it is observed:
'........ It is, clear however that even in respect of those charges and rates for which the Tribunal had jurisdiction to entertain a complaint the Tribunal had no power to order any refund. It is necessary to consider this question as the prayer for refund as made in the complaint was not only for charges already made but for charges that might be made in future under the, rate Advice No. 2-A of 1960.'
After referring to the provisions contained in Sections 41 and 46-B of the Act, the Supreme Court has reached the conclusion that the Tribunal had no jurisdiction to order any such refund. In Para 2.4, at page 222, the observations made are very useful for our purposes. It is, observed:
'Mr. Veda Vyasa strenuously contended that unless the Tribunals be held to have jurisdiction to order refund the appellant and others in his position would be deprived of their right to obtain relief against unreasonable charges already paid in view of the provisions of Section 26 of the Act. Section 29 (which is in the same words as the, old section 41) runs thus: 'Except as provided in this Act no suit shall be instituted or proceeding taken for anything done or any ommision made by a Railway Administration in violation or contravention of any provisions of this Chapter (Chanter V). The, argument is that Section 26 stands in the way of bringing any suit in the Civil Courts on claim for refund of charges made in excess Of reasonable charges. This proceeds on the misconception that such a suit would be for anything done or any ommision made by a Railway Administration in violation or contravention of Chapter V of the Act'. There is no provision in Chapter V however saying that unreasonable charges shall not be made by a Railway Administration. If therefore Railway Administration has received payment of unreasonable charges or rates that not anything, done, in violation or contravention of any provisions of chapter V. If under the law, apart from the Railways Act, a consignor is entitled to obtain relief against reasonable charges which lie has paid in the past, Section 26 will not stand in his-way. What his rights in law are in respect of such past charges; and whether aim for repayment of charges made in excess of reasonable charges can succeed in law in Civil Courts on the theory that as a common carrier the Railway is not entitled to charge anything more than reasonable rates and charges, need not be examined here. As a suit on such a claim would not be on any thing, done or any omission made by the Railway Administration in violation or in contravention of any provisions of Chapter V, the provisions of Section 26 are quite irrelevant for the decision of the question whether the Tribunal has any jurisdiction to make an order for refund.'
This decision clearly lays down that the Tribunal bad no jurisdiction to order any such refund for such charges collected in the, past or even for the charges that may be collected, even if the Tribunal reaches the conclusion that such charges are unreasonable.
10. Same position is reiterated in Union of India v. Modi Industries Ltd., ATR 1973 SC 1281. The observations, made by the Supreme Court in the aforesaid decision, referred to, by me have been quoted and in that behalf, the observations made are:
'According to the decisions of this Court referred to before it was hardly open to the plaintiff to file a complaint with regard to the reasonableness or otherwise of the, rates and charges which had already become due and payable. The plaintiff had no grievance whatsoever with regard to the charges which had been fixed with effect from April 1, 1956 by means of the letter, dated September 29, 1055 and therefore there was no question of its filing a complaint with regard to those charges. Its grievance was confined only to the amount which was being, demended on the basis: of the revised enhanced rates between the period December 1, 1949 and March 1, 1956. If that amount had actually been realised by the Railway authorities the plaintiff could only, file a suit for its refund and could not have laid a complaint under S. 41 of the Act before the Railway Tribunal. By analogy the plaintiff could not have, filed a complaint with regard to past dues as the Railway Tribunal could -not have given any relief in respect thereof following the law laid down by this Court.'
11. Mr. Agarwal has also invited my attention to the decision in The Bhopal Sugar Industries Ltd. v. The Union of India, 1968 Railway Rates Tribunal, Volume 15, page 27, Complaint No. 5 of 1965. At page 64, it is observed:
'Consequent on my finding under issue No. 2, the complainant is, entitled to a reduction in the maintenance charges as well as placement charges from the date of the complaint. However, in view of the decision of the Supreme Court, in Civil Appeal No. 9 of 1952 (1963 R. R. T. I at page 13) this Tribunal is not empowered to order a refund of any amount collected in excess prior to the date of this order.'
12. Mr. Shah has: invited my attention to the decision of the Supreme Court in Union of India v. West Coast Paper Mills Ltd., AIR 1971 SC 349. It is observed by the Supreme Court:
'Where the Railway Rates Tribunal constituted under Section 34 of the Railways Act, 1890 declares without giving any consequential relief that the charge made by the railway administration under the order of the Railway Board levying tariff at the standard rates but on the footing that for each kilometer the goods are transported the charge will be levied at three times, the standard rate is unreasonable and discriminatory, the Tribunal does not exceed its jurisdiction. The Tribunal is invested with the authority subject to the limitations contained in Section 29 (3) and Section 42 to entertain a complaint and to give relief in respect of rates which are found to be unreasonable between two stations. There is also nothing 4 the Rules under Goods Tariff No. 38 (as in force from 1-8-1950) which even indirectly affects the jurisdiction of the Tribunal to determine whether the rates for carriage of certain specified commodities between the stations are unreasonable.'
There is nothing laid down in this decision of the Supreme Court which goes contrary to the ratio laid down in the two Supreme Court decisions referred to by me above.
13. I, therefore, bold that the trial Court has rightly reached the conclusion that Section 26 of the Act does not come in the way of the plaintiff-opponent and the Civil Court has jurisdiction to entertain and try such a suit.
14. Coming next to submission No. 2 of Mr. Shah, that the suit was not maintainable on account of want of claim notice, as contemplated by Section 78-B of the Act, I find that there is no substance. The present suit cannot be said to be a suit relating to refund of the overcharges.
15. Mr. Shah has invited my attention to the decision of this Court in M/s. Shah Raichand Amulakh v. Union of India, 12 Guj LR 93. It is observed by Bhagwati C. J. (as he then was):
'Demurrage and wharfage charges are clearly terminal charges and though it is true that they are charges in respect of the period subsequent to the completion of the transit, all the same they are incidental to the business of the railway administration as a carrier. These charges are therefore, not unrelated to the business of a carrier carried on by the railway administration. The railway administration makes these charges because there is delay in unloading the wagon or removing the goods from the platform. These are clearly charges in respect of the goods carried by railway as much as freight and other charges. If, therefore, there in any overcharge made by the railway administration in respect of demurrage and wharfage charges, a claim for its refund would clearly come within the scope and ambit of Section 77. It would be a claim for refund of an overcharge in respect of goods carried by railway within the meaning of Section 77 now renumbered as Section 78-B of the Indian Railways Act, 1890, The petitioners were, therefore, not entitled to maintain a suit in the absence of a requisite notice to the railway administration under Section 77.'
It is further observed:
''Overcharge' is not a term of art. It is an ordinary word of the English language which according to its plain natural sense means any charge in excess of that prescribed or permitted by law. To be an overcharge, a sum of money must partake of the same character as the charge itself or must be of the same genus or class as a charge: it cannot be any other kind of money such as money recovered where nothing is due. Overcharge is simple a charge in excess of that which is due according to law.'
In the instant case, it is not the opponent's case that charges in excess of the prescribed charges were recovered from him and he wants refund of such charges. What lie claims is that the railway administration bad collected such charges, illegally, arbitrarily and unreasonably. These charges referred to as 'new charges' were levied-by the railway administration from time to time and such collections made in the past are challenged on the aforesaid grounds. In Try opinion, they cannot be termed 'overcharges', so as to attract the provisions of Section 78-B of the Act, the relevant part of which, for our purposes, reads:
' A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction, damage, deterioration or non-delivery of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf-
(a) to the railway administration to which the animals or goods were delivered, to be carried by railway, or
(b) to the railway administration on., whose railway the destination station lies, or the loss, destruction, damage or deterioration, occurred.
within six months from the date of delivery of the animals or goods for carriage by railway.'
The learned trial Judge has rightly, in my opinion, negatived the contention of the petitioner. Both the submissions made by the, petitioner, fail.
Revision petition is dismissed with costs. Rule is discharged.
16. Revision dismissed.