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Shah Raichand Amulakh (Dead.) by His Heir Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR93
AppellantShah Raichand Amulakh (Dead.) by His Heir
RespondentUnion of India (Uoi) and ors.
Cases ReferredRaichand v. Union of India (supra
Excerpt:
.....parties that no notice of the claim made in any of the suits was given by the petitioners to the railway administration within six months from the date of delivery of the goods for carriage by railway and, therefore, if section 77 was applicable, the suit would be clearly not maintainable. ' but that would not be enough to attract the applicability of section 77. the question would still remain whether the overcharge was 'in respect of goods carried by railway' for unless this requirement is satisfied, section 77 would not be attracted. these rival contentions raised an interesting question of construction which we shall now proceed to consider. 3. it is now a well settled rule of construction of a statute that in order to arrive at its proper meaning it is necessary to have regard not..........part of the petitioners and both demurrage and wharfage charges, therefore, became payable to the railway administration. the railway administration demanded a particular amount from the petitioners in respect of demurrage and wharfage charges before giving delivery of the consignment. this amount, according to the petitioners, was in excess of that permissible under law but the petitioners were constrained to pay this amount since otherwise they would not get delivery of the consignment. the petitioners, therefore, paid up this amount and then filed small cause suit no. 407 of 1964 in the court of the civil judge, senior division, surendranagar, claiming refund of the overcharge recovered by the railway administration. similar suits were also filed by the petitioners in other revision.....
Judgment:

P.N. Bhagwati, C.J.

1. These Revision Applications raise an interesting question of law relating to the scope and ambit of former Section 77-now re-numbered as Section 78B-of the Indian Railways Act, 1890. The facts giving rise to these Revision Applications are similar and it would, therefore, be convenient to state the facts of only one Revision Application, namely, Civil Revision Application No. 819 of 1963. The petitioners in this Revision Application are Commission Agents carrying on business in Surendranagar. One consignment of 110 bags of sugar was despatched to the petitioners by rail from Sawan to Surendranagar under Railway Receipt No. 951943 dated 3rd August 1951. The petitioners took delivery of the consignment at Surendranagar but in unloading the consignment and taking delivery, there was delay on the part of the petitioners and both demurrage and wharfage charges, therefore, became payable to the railway administration. The railway administration demanded a particular amount from the petitioners in respect of demurrage and wharfage charges before giving delivery of the consignment. This amount, according to the petitioners, was in excess of that permissible under law but the petitioners were constrained to pay this amount since otherwise they would not get delivery of the consignment. The petitioners, therefore, paid up this amount and then filed Small Cause Suit No. 407 of 1964 in the Court of the Civil Judge, Senior Division, Surendranagar, claiming refund of the overcharge recovered by the railway administration. Similar suits were also filed by the petitioners in other Revision Applications. Apart from disputing the claim on merits, the Union of India which is the respondent in these Revision Applications, as the owner of the railway administration, raised certain preliminary objections. These preliminary objections were formulated as Issues Nos. 1 to 5 and these issues were tried by the learned Civil Judge as preliminary issues. Issues Nos. 1, 5 and 6 are not material as they were decided in favour of the petitioners but issues Nos. 2, 3 and 4 were decided against the petitioners and resulted in dismissal of the suits. These issues raised the question whether the petitioners were entitled to maintain the suits without serving notice on the railway administration under Section 77 of the Indian Railways Act. I am referring here to Section 77 as that was the number of the relevant section at the time when the suits were filed. Subsequently, as a result of Amending Act 39 of 1961, this section has been slightly modified and re-numbered as Section 78B. The unamended section, omitting portions immaterial, provided inter alia as under:

77. 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 or deterioration 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 to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway.

The contention of the respondent was that the claim in each of these suits was for refund of 'over-charge in respect of goods carried by railway' and, therefore, in view of Section 77, the petitioners were not entitled to maintain the suits in the absence of notice of claim given within six months from the date of delivery of the goods for carriage by railway administration. This contention found favour with the learned Civil Judge and he accordingly decided these issues in favour of the respondent and dismissed the suits. Hence the present Revision Applications.

2. It was common ground between the parties that no notice of the claim made in any of the suits was given by the petitioners to the railway administration within six months from the date of delivery of the goods for carriage by railway and, therefore, if Section 77 was applicable, the suit would be clearly not maintainable. The controversy between the parties, therefore, centred round the question whether the claim made in the suits was covered by Section 77. Was it a claim for refund of an 'overcharge in respect of...goods carried by railway'? Two expressions here require interpretation. One is 'overcharge' and the other is 'in respect of goods carried by railway'. 'Overcharge' is not a term of Article 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 of or class as a charge; it cannot be any other kind of money such as money recovered where nothing is due. Overcharge is simply a charge in excess of that which is due according to law. The claim made in the present suits was, therefore, indubitably a claim for refund of an 'overcharge.' But that would not be enough to attract the applicability of Section 77. The question would still remain whether the overcharge was 'in respect of goods carried by railway' for unless this requirement is satisfied, Section 77 would not be attracted. The argument of the petitioners was that the words 'in respect of goods carried by railway' had a limitative effect and they indicated that overcharge contemplated in the section was an overcharge in respect of carriage of the goods so that it was confined to excess charge recovered by the railway administration in respect of freight for carrying the goods from one station to another and it did not comprise excess charge made by the railway administration in respect of demurrage and wharfage charges. The ' respondent on the other hand staked its claim on a plain literal construction of the language used by the Legislature and urged that overcharge made by the railway administration in respect of demurrage and wharfage charges was also within the ambit and coverage of the section since it was excess charge recovered in respect of goods which were carried by railway. These rival contentions raised an interesting question of construction which we shall now proceed to consider.

3. It is now a well settled rule of construction of a statute that in order to arrive at its proper meaning it is necessary to have regard not only to the language of the provision but also to the object and purpose to effectuate which it has been enacted. Section 77 enacts a mandatory provision for giving of notice of claim to the railway administration before any action can be instituted against it and as pointed out by Mudholkar J. in paragraph 20 of the judgment in Jetmull Bhojraj v. D.H. Railway : [1963]2SCR832 , the object of service of notice under this provision clearly is to enable the railway administration to make an inquiry and investigation as to whether the loss, destruction or deterioration was due to the consignor's laches or to the wilful neglect of the railway administration and its servants and further to prevent stale and possibly dishonest claims being made when, owing to delay, it may be practically impossible to trace the transaction or check the allegations made by the consignor or the consignee. It is, therefore, apparent that the provision requiring that notice of claim must be given within six months even where the claim is for refund of an overcharge in respect of animals or goods carried by railway is intended to prevent stale and perhaps dishonest claims being made when, by reason of lapse of time, it may not be possible to inquire and find out whether the claim made is well-founded or not. If this be the object of the provision, it is difficult to imagine any reason why the Legislature should have made a distinction between a claim for refund of an overcharge in respect of freight and a claim for refund of an overcharge in respect of demurrage and wharfage charges in relation to the same goods. If the railway administration requires to be protected against stale and dishonest claims in the former kind of cases, does it not also require to be protected against such claims in the latter kind of cases? If, therefore, the language of the section is capable of being construed so as to include not only overcharge in respect of freight but also overcharge in respect of demurrage and wharfage charges, we should certainly be inclined to accept such construction in preference to that which excludes overcharge in respect of demurrage and wharfage from the ambit of the section. Now turning to the language of the section it is clear that the words used by the Legislature are clear and specific. There is no ambiguity about them. To bring the claim for refund within the mischief of the section, the overcharge must be in respect of goods carried by railway. The words 'carried by railway' qualify goods and if any overcharge is recovered in respect of goods which satisfy this description, it would be 'overcharge' by the railway administration in respect of demurrage and wharfage charges, it is according to the plain and natural meaning of the words, an overcharge in respect of goods which are carried by railway. 1 do not think it is possible to limit the ambit and coverage of the section by reading the words 'overcharge in respect of goods carried by railway' as indicating that the overcharge must be in respect of carriage of the goods. To read these words in such a manner would be to refuse to give effect to their plain natural meaning and to rewrite the section by substituting some such words as 'overcharge in respect of carriage of goods.' That would be clearly impermissible under any cannon of construction.

4. This construction also becomes evident if the nature of demurrage and wharfage charges is examined. Demurrage is a charge levied on the goods not unloaded from the wagons within the free time allowed for unloading and wharfage is the charge levied on goods not removed from the railway premises after the expiry of the free time allowed for that purpose. Vide paragraph (7) of the judgment of Subba Rao J. in Raichand v. Union of India : [1964]5SCR148 . That is also how the words 'demurrage' and 'wharfage' are defined in Section 46C Clauses (d) and (h) of the Indian Railways Act, 1890. Demurrage and wharfage charges are thus charges levied in respect of goods retained in the wagons or railway premises beyond the free time allowed for clearance under the Rules. Subba Rao J. speaking on behalf of the Supreme Court in Messrs, Raichand v. Union of India (supra) considered the question whether these charges are 'terminal charges' and analysing the nature of these charges, pointed out in paragraph (8) of the judgment at page 1271 of the report-

Terminal charges are of two catagories: (i) charges for services, and (2) charges for accommodation and appliances which facilitate business. The 'service terminals' comprise of remuneration for the handling of goods at the terminal station i.e. where the railway employees are engaged in weighing, loading, unloading etc. As distinguished from this 'service terminals' there are 'station terminals' which are charges for providing accommodation incidental to the business of a carrier, such as 'working charges, repairs, renewals, insurance of station buildings, sidings, sheds, platforms, warehouses, cranes, hydraulic power, fixed appliance etc' Both demurrage and wharfage would fall within the head of 'station terminal because they are charges levied for the use either of the wagon or of the platform or goods-shed after the transit or conveyance is complete and is not incidental to the conveyance as such. As the wharfage and demurrage are charges in respect of goods unloaded from wagons and kept at the station, and also in respect of goods kept on platforms of the station, the said charges could certainly be described as charges in respect of the station.

Demurrage and wharfage charges are thus 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 is 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 that section. The learned Civil Judge was, therefore, right in dismissing the suits on the ground that they were filed without giving the requisite notice to the railway administration under Section 77.

In the result the Revision Applications fail and the Rule issued in each of the Revision Applications will stand discharged with costs.


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