Y.D. Desai, J.
1. The appellant-plaintiff filed a suit being City Civil Suit No. 184 of 1961 for a declaration that the freight rate charged by the Western India Railway in respect of the plaintiff's consignments of wood from Canada was unauthorised and wrongful and that the correct freight rate was Re. 0-12-1 and not the freight rate at Rs. 1-11-8 charged for carrying freight of maple wood. He, therefore, sued to recover Rs. 5349-3-0 by way of refund as being the excess amount of freight recovered from him.
2. The appellant had received a consignment of blocks of Canadian wood for manufacture of Bobbins from Canada. Those pieces of wood were despatched in 5 wagons from the Bombay Port Trust to the Railway Station at Kankaria between 27th to 31st October, 1955 and of the five receipts prepared one was made out describing the wood as 'brich maple wood blocks' and in the receipts regarding the four other consignments the wood was described to be 'brich wood'. It was claimed that the freight chargeable for birch wood would fall within category 2 on the basis 'not otherwise classified timber' and was chargeable at the rate at Re. 0-12-1 per Bengali Maund. It was, therefore, claimed that Rs. 1707-5-3 had been charged in excess.
3. Similarly consignment of birch wood and birch wood blocks were forwarded in 13 wagons to Kankaria Railway Station between 9th November 1955 to 28th March, 1956 but the wood despatched was classified as maple-wood and the freight rate charged was at the rate of Rs. 1-8-11 which was wrongly charged. He, therefore, claimed a total refund of Rs. 5349-3-0 from the Western Railway.
4. The claim was resisted inter alia on the ground that the Civil Courts' jurisdiction in the matter was barred under Section 26 of the Indian Railways Act.
5. The learned Judge was of opinion that the Court had no jurisdiction to hear the suit as the reliefs asked for fell within the ambit of Section 41 Clauses (c) and (e) of the Indian Railways Act as they stood before Section 41 came to be amended in 1957, and that with respect to such claim the jurisdiction of the Civil Court was barred under Section 26 of the Act. He held that what the respondent-plaintiff complained about was the classification in which the consignment of blocks of wood should be put by the railway authorities while charging freight for the same at a higher rate, by treating the wood blocks as of a higher class chargeable under Column 8 instead of treating the consignment as of timber wood falling under 'N.O.C. timber' for which the charges were only Re. 0-12-1 per Bengali Maund.
6. It is conceded by the learned advocates appearing for the parties that the provisions of Section 41 of the Indian Railways Act as it stood before its amendment by Act No. 10 of 1957 would govern the rates of the charges since the cause of action for the reliefs prayed related to events which took place before the amended Act came into force on 27-7-58 and as the suit had been filed on 1-4-1958.
7. Secyion 41 (i) of the Act provides that any complaint that a railway administration:
(b) in charging station to station rates of wagon load rates which are unreasonable owing to any condition attached to them regarding minimum weight, packing, assumption of risk or any other matters, or
(c) is levying charges (other than standardised terminal charges) which are unreasonable, or,
(d) has unreasonably placed a commodity in higher clause.
may be made to the Tribunal, and the Tribunal shall hear and decide any such complaint, in accordance with the provisions of this chapter (that is, chapter V of the Act). Then, Section 46C of the Act defines certain terms, such as 'classification' meaning the grouping of commodities into classes as notified in the Indian Railway Conference Association's Goods Tariff and as in force at the commencement of the Indian Railways (Second Amendment) Act, 1948, for the purpose of determining the rate to be charged.
8. The question for consideration is whether the allegations made in the plaint amounted to a complaint as would fall within the ambit of Section 41 Clauses (c) and (e) of the Act. In my opinion the simple grievance made therein is that blocks of Canadian wood imported for the purposes of manufacturing Bobbins could not have been charged freight on the basis that the consignments were of maple wood and birch wood and were wrongfully charged at a higher freight rate of Rs. 1-8-11 per Bengali Maund, that in fact the freight rate to be charged should have been on the basis of the blocks of wood being 'N.O.C. timber' for which freight payable was of the rate of Rs. 0-12-1 per Bengali Maund and claimed a refund on the ground that the correct freight rate had not been charged and it was illegal to do so. It is on that basis that the claim for refund of the amount illegally charged has been made. No doubt a relief for declaration is asked for that charges levied were illegal and wrongful but that is in relation to the aforesaid grievance rather than challenging the classification of different kinds of wood on ground of the classification being unreasonable. This relief is asked for the purpose of claiming refund rather than anything else. The appellant does not appear to challenge the rate to be charged in respect of carrying different kinds of wood on the ground that their classification was unreasonable or the freight rate fixed were also otherwise unreasonable. He does not complain about classification of maple wood as a commodity of a higher class or freight rate fixed in that behalf was in any way unreasonable. What he seems to be challenging is the category in which the blocks of wood should have been consigned for the purpose of charging the correct freight rate. In short his claim is that it was wrong to charge freight rate for class of timber for which a higher freight rate was payable on the basis that it was maple-wood. The unreasonableness complained of was in judging the quality of wood to be different from what is actually was and it was wrongful charge freight at a higher rate. The learned Judge was in error in holding that the complaint was in respect of classification in which the consignment of wood was placed and which was said to be wrongful and unreasonable or that the consignment in question was put on a higher category. In fact the railway authorities at the Bombay Port Trust Railway Station had no power or jurisdiction in the matter of classification of goods or prescribing freight rates. The error lay in charging freight for blocks or/on the basis that the blocks were of maple-wood whereas it was something else.
9. The learned Judge relied on the provisions of Section 41(1)(c) and (c) of the Act. With the amendment of this section Clause (c) of Section 41 as has been removed while Clause (c) thereof continues almost to be the same. The ambit of Clause (b) as amended appears to be a little wider in scope. We are, however, not concerned with that clause for the present purpose. The provisions of Section 41 Clauses (b) and (c) of the amended Indian Railways Act were examined in the ruling in U.D. Section Mills v. Shahdara (Delhi) Suharanpur Light Railway Co. Ltd. Calcutta : 2SCR333 . It was held that the words 'charging' in Clause (b) and 'levying' in Clause (c) were used in the one and the same sense. However, they were not used to include 'collecting'. 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'. It was further held that the Railway Rates Tribunal 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, and that it would necessarily follow that the Tribunal could have no occasion to order any refund, as the question of refund could arise only after a decision that the charges made were more than what was reasonable. It was further laid down that, 'in making the complaint the complainant can ask only for a declaration that the rate or charge is unreasonable and it is only this declaratory relief which the Tribunal has been authorised to give. There is no provision that the Tribunal can also give a consequential relief. The only other thing which the Tribunal is authorised to do in connection with the complaint is to fix 'such rate or charge as it considers reasonable'. In the absence of anything to indicate to the contrary it is reasonable to think that this fixation can only be prospective, that is, the Tribunal in making this order fixing the reasonable rate or charge will mention a future date for this to come into operation. Even if it was assumed for the sake of argument that the Tribunal can fix these rates from the date of the complaint that would not give the Tribunal any power to order refund.'
'An order for refund can by no stretch of imagination be considered to be 'necessary for the purpose of exercising the jurisdiction' within the meaning of Section 39. The utmost that could be said is that the relief for making an order of refund has a connection with the order holding the rates already charged after the date of the institution of the complaint to be unreasonable. It is impossible to say, however, that such an order is necessary for the purpose of exercising the jurisdiction conferred that jurisdiction in connection with complaints, being under Section 41, only to arrive at a decision whether a certain rate was reasonable or not and if it was unreasonable to fix a reasonable rate.'
'There is no provision in Chapter V saying that unreasonable charges shall not be made by a Railway Administration. If therefore any Railway Administration has received payment of unreasonable charges or rates that is not 'anything done in violation or contravention of any provisions of Chapter V. If under the law apart from the Railways Act, a consigner is entitled to obtain relief against unreasonable charges which he has paid in the past, Section 26 will not stand in his way.'
10. Their Lordships approved of the ruling in Southern Railways v. Railway Rates Tribunal : AIR1955Mad476 which has been referred to as writ petition by the learned Trial Judge in the course of his judgment.
11. It is thus clear that the Tribunal would have no jurisdiction in the matter of the refund of the amount claimed and, therefore, the provisions of Section 26 do not appear to stand in the way in bringing the suit of refund for charges levied in excess of reasonable charges since such a suit would not be for anything done or omissions made by the Railway Administration in violation or contravention of the provisions of Chapter V of the Act. There is nothing in the provisions contained therein saying that unreasonable charges cannot be levied by the Railway Administration. If the Railway Administration has received payment of unreasonable charges that is not 'anything done or omission made by a Railway Administration in violation or contravention of, of Chapter V of the Act.' It thus follows that there is a bar to matters for which the Act provides a remedy. Therefore, two conditions may have to stand satisfied before the provisions of Section 26 of the Act can apply, (1) that the Railway Administration has done an act or omitted to do so in contravention of provisions of Chapter V, (2) The Act provides a remedy in respect of the same. It is clear that there is no provision in the Act giving a remedy to an aggrieved party to ask for a refund. Such a power is not contemplated to be given to the Railway Rates Tribunal under Section 39 of the Act. Therefore, Section 26 of the Act is not a bar to the suit filed for the reliefs prayed for. The result, therefore, is that this appeal will have to be allowed and the matter remanded to the Trial Court for disposal of the other issue involved in the case according to law. It is proper that costs should follow the event.
The appeal is allowed and the matter is remanded to the trial Court for disposal of the other issues raised in the case according to law. The respondents will bear its costs and pay those of appellants.