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Raichand Amulakh Shah and anr. Vs. the Union of India (Uoi) Representing the Western Railway - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR662
AppellantRaichand Amulakh Shah and anr.
RespondentThe Union of India (Uoi) Representing the Western Railway
Excerpt:
- - but the main relief sought in the suit is not that because the central government has failed to approve the rates the collections by certain railway authorities of demurrage is illegal. no exceptional provision contemplated in section 26 has been pointed out to me. sections 72 and 77 of the railways act are not one of the exceptional provisions contemplated in section 26. 4. i therefore allow the revision application with costs and hold that section 26 of the indian railways act docs not apply to the present case and the suit is not barred by that section......suit was barred under the provisions of section 26 read with section 3(14) and section 32 of the indian railways act. this view is now challenged in revision.the relevant provisions of the indian railways act read as follows:sec 26. bar of jurisdiction of ordinary courts in certain matters. 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in violation or contravention of any provision of this chapter.section 32 of the indian railways act has been repealed by the indian railways (amendment) act 1957 (58 of 1957). but the section as it stood before it was repealed read as follows:a railway administration may charge reasonable terminals.section 33 of the indian railways act as it stood before.....
Judgment:

V.B. Raju, J.

1. The applicants suit to recover Rs. 230/- from the Union of India as owning and representing the Western Railway on the ground that the amount was wrongfully recovered from the plaintiffs as wharfage and demurrage charges was dismissed by the trial Court on the ground that the suit was barred under the provisions of Section 26 read with Section 3(14) and Section 32 of the Indian Railways Act. This view is now challenged in revision.

The relevant provisions of the Indian Railways Act read as follows:

Sec 26. Bar of jurisdiction of ordinary Courts in certain matters. 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 provision of this Chapter.

Section 32 of the Indian Railways Act has been repealed by the Indian Railways (Amendment) Act 1957 (58 of 1957). But the section as it stood before it was repealed read as follows:

A railway administration may charge reasonable terminals.

Section 33 of the Indian Railways Act as it stood before it was repealed in 1957 by the Indian Railways (Amendment) Act 1957 (58 of 1957) reads as follows:

Any decision given by the Central Government the general controlling authority or the Provincial Government in accordance with the provisions of this Chapter shall be final and binding on all parties concerned.

The word terminals in Section 32 is defined in Section 3(14) of the Indian Railways Act as follows:

Terminals includes charges in respect of stations sidings wharves depots warehouses cranes and other similar matters and of any services rendered thereat.

The word demurrage has been defined in Section 46C (d) as under:

Demurrage means the charge levied after the expiry of the free time allowed for loading or unloading a wagon.

The word wharfage has been defined in Section 46C (h) as under:

Wharfage means the charge levied on goods for not removing them from the railway premises after the expiry of the free time allowed for such removal.

Section 47(1) of the Indian Railways Act reads as follows:

Every railway company and in the case of a railway administered by the Government an officer to be appointed by the Central Government in this behalf shall make general rules consistent with this Act for the following purposes namely....

Sub-sec. (3) of Section 47 of the said Act reads as follows:

A rule made under this section shall not take effect until it has received the sanction on the Central Government and been published in the Official Gazette.

2. Now the question is whether under Section 26 of the Indian Railways Act the suit in question is barred. The suit is in respect of demurrage and wharfage alleged to have been unlawfully charged. It is contended by the Learned Counsel for the railway that demurrage and wharfage are charged in view of Section 47(1)(f) of the Indian Railways Act. Section 47(1)(f) permits every railway company and in the case of a railway administered by the Government an officer to be appointed by the Central government to make general rules consistent with the Act for regulating the terms and conditions on which the railway administration will warehouse or retain goods at any station on behalf of the consignee or owner. In other words two annas or three annas per maund could be charged as contained in the rules. The Learned Counsel for the railway points out Notifications Nos. 1080T dated 18-2-1926 and 3017TT dated 15-9-43 referring to warehousing and retaining of goods as issued under clause(f) of Sub-section (1) of Section 47 of the Indian Railways Act. Charges of wharfage have been fixed by rules framed under Section 47 of the Railways Act which is in Chapter VI of the Railways Act. Section 26 of the Railways Act would not therefore apply to the present case as it is applicable only where there is an alleged act or omission in violation or contravention of any provision of Chapter V. In the present case the Rules framed under Section 47 are said to have been violated Therefore Section 26 of the Railways Act has no application where the alleged violation by the railway or contravention by the railway is of a provision contained in Chapter VI. In this view the suit would not be barred under Section 26 of the Railways Act.

It is also contended that Section 32 of the Railways Act gives powers to the Central Government to fix terminals and other charges but this section has been repealed by the Indian Railways (Amendment) Acts 1957 (58 of 1957) with effect from 27-7-58. Section 32 as previously stood before the repeal reads as follows:

A railway administration may charge reasonable terminals.

Now Section 32 was in Chapter V of the Railways Act. Even assuming that the expression rates of terminals and other charges would apply to demurrage and wharfage charges by collecting the demurrage or wharfage charges at rates different from those fixed by the Central Government the railway administration does not violate the provisions of Section 32 and therefore Section 26 would not apply.

3. In my opinion the expression rates of terminals and other charges would apply to demurrage and wharfage charges in view of the fact that the expression other charges has also been used but as observed above to collect demurrage and wharfage charges at rates different from those fixed under Section 32 would not be a violation of the provisions of Section 32 of the Railways Act. Section 32 only gives powers to somebody to do something. If somebody else does the same thing then there would be a violation of Section 32 of the railways Act. But in fact the Central Government has fixed the rates as provided in Section 32 of the Railways Act and there can be no violation of the provisions of Section 32. Section 32 of the Railways Act mentions the authority by whom the rates and other charges can be fixed and if some other authority fixes the rates and charges then there will be a violation of the provisions of Section 32 of the Railways Act. But if some authority collects rates and charges which are different from the charges prescribed in Section 32 of the Railways Act that would not be a violation or contravention of the provisions of Section 32 of the Railways Act. Section 26 of the Railways Act takes away the jurisdiction of the Civil Court and has to be strictly construed. The words in violation or contravention of any provision of this Chapter which are found in Section 26 of the Railways Act are therefore to be strictly construed.

It is true that in the plaint it is stated that the Central Government has not approved the increase of wharfage rates by the railway administration. No doubt what is alleged in the plaint amounts to an allegation that Section 32 has been contravened. But the main relief sought in the suit is not that because the Central Government has failed to approve the rates the collections by certain railway authorities of demurrage is illegal. It is not the case of plaintiffs that the recovery of wharfage at certain rates is a violation of the provisions of Chapter V of the Indian Railways Act. Moreover the recovery of wharfage or demurrage charges at a particular rate is not contravention or violation of any of the provisions of Chapter V of the Indian Railways Act and Section 26 of the Indian Railways Act does not come into play. No exceptional provision contemplated in Section 26 has been pointed out to me. Sections 72 and 77 of the Railways Act are not one of the exceptional provisions contemplated in Section 26.

4. I therefore allow the revision application with costs and hold that Section 26 of the Indian Railways Act docs not apply to the present case and the suit is not barred by that section. The lower Court is directed to decide the suit in accordance with law.


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