1. This Rule is directed against the conviction of the petitioner under Section 109 of the Indian Railways Act, IX of 1890, At the hearing we have allowed the East Indian Railway Company to appear in support of the order of the Court below in view of the importance of the issues involved.
2. This case raises a question which has not yet been considered by this Court but has come under consideration of all the other chartered High Courts. The petitioner avowedly committed the offence with which he is charged in order to test the legality of the action of the East Indian Railway Company in reserving a third class compartment in some of their trains for the use of European passengers only. No other justification for the conduct of the petitioner has been pleaded or argued before us. The only question that we are called upon to consider is an unmixed question of law which may be stated in this form : 'Whether the act of the Railway Company in reserving a compartment in trains carrying passengers for Europeans only is illegal, unauthorized and ultra vires of the statutory powers conferred on the Railway Company by law. The facts of the case are not very material but they may be shortly stated in the words of the trying Magistrate. The accused B.K. Dutt was seen seated in a compartment of a third class Railway carriage marked for Europeans of the Up Bombay Mail at Howrah on 9th March, 1923, with some other Indian passengers all of whom were attired in Indian dress. They were asked by a ticket examiner to vacate the compartment as it was reserved for Europeans. The other Indian passengers occupying the said compartment vacated it but the accused did not, saying, he had as much right to occupy the said compartment as any 'European.' Subsequently the accused vacated the compartment stating that he courted the prosecution to make a test case of it. He was prosecuted and convicted as above and fined Rs. 5.
3. If this case is intended to take up the unfortunate question of racial distinction, it is indeed deplorable, but to my thinking it need not involve any such question. The setting apart of a compartment for Europeans is not apparently intended to accord invidious treatment to a particular class of passengers, but the object is to secure the convenience of the travelling public with due regard to the diversity of their habits, customs and prejudices. An European, specially of the class which ordinarily travels in such reserved third class compartments, may be more disagreeable to his Indian fellow passengers, particularly of the orthodox type and peaceful disposition. I may here remark, though it does not affect the question before us, except in so far as to dispel the suspicion of racial preferment, that an Indian in European dress may travel in such compartments without question or hindrance. Though I do not hold that the Railway Company by this arrangement intended to mark any difference between its Indian and European passengers, I cannot but feel that it is desirable that public bodies which exist for public convenience, derive their revenue from the general public and enjoy monopoly in their trade under the law of the land, should, take good care to remove any vestige of suspicion of preferential treatment of any particular class or community.
4. The case for the petitioner has been ably and forcibly argued by Mr. Taluqdar who has taken us through all the relevant; sections of the Act and all the reported decisions on this point. His first contention is that the conviction of his client under Section 109 of the Railways Act is bad in law. That section opens with the following words : ' If a passenger, having entered a compartment which is reserved by a Railway administration for the use of another passenger.' The learned Vakil maintains that the expression 'another passenger' does not include a class of passengers but contemplates only a case where a compartment has been reserved, for the use of a particular passenger or passengers, in consideration of payment or for other contingencies. This contention was raised in the case of Emperor v. Narayan 47 Bom. 465. The learned Acting Chief Justice, whose judgment Mr. Taluqdar regards as the sheet anchor of his case, has not been able to accept it. I had not been induced by anything that has been urged by the learned Vakil to hold a contrary view. The point seems to me so simple that it does not require serious consideration.
5. It is next contended that 'passenger' means a person who is travelling or is about to travel having purchased a ticket for the purpose or, in other words, a bona fide passenger and nod a person who may or is likely to travel by that train. It is admitted that at the time of occurrence there was no European passenger in the compartment travelling or about to travel. I am unable to accept this restricted sense of the term. Passenger has not been defined in the Act and is used in ordinary sense of the word including a possible traveller. To attach to it the restricted meaning con-bended for by the petitioner would render the provisions of Section 47(1)(b) of the Railways Act too narrow and unworkable for if the word 'passengers' in that clause Ware regarded as signifying passengers were are actually travelling by a particular train having purchased tickets therefor, an unreasonable demand would be made on the Railway Company to provide for the accommodation and convenience of passengers at the start of each train in view of the particular kind of passengers travelling by it. Besides, there may be passengers eligible to travel in that compartment waiting at some intermediate stations.
6. The next point pressed is that a Railway Administration has no power under the law to make a rule setting apart a compartment for particular passenger or passengers except in cases provided by the Act as in the case of female passengers under Section 64. No doubt every Railway Company is empowered under Section 47 to make general rules consistent with the Act for, inter alia, providing for the accommodation and convenience of passengers but such rules shall not take effect until they have received the sanction of the Governor-General in Council and been published in the Gazette of India; but the present rule is not so sanctioned and published. It; is submitted by the Railway Company that the departmental rule under which compartments are reserved for Europeans is not made under Section 47 of the Act; it is framed in exercise of the general power of administration of the Railway which the Company possesses as manager of the concern. In my view, if this particular rule which, as has been proved, is based on a recommendation to this effect by the Rail way Board is not inconsistent with any express provision of the law or the general scheme of the Act, it should not be held ultra vires of the powers of the Company in the absence of the Governor General's sanction. The petitioner has not succeeded in maintaining that this rule contravenes any specific provision of the law, leaving Section 42 of the Act out of consideration for the present which will be discussed later, but has argued on the general frame of the Act that the Company have not been vested with any such power. This argument is mainly founded on Section 64 which enacts that every railway administration shall, in every train carrying passengers, reserve for the exclusive use of females one compartment at least of the lowest class of carriage forming part of the train. It is argued that if the Railway Administration were free to arrange for the accommodation of a particular class of passengers, the Legislature would not have vested it with special power in favour of this particular section of the travelling public and therefore, according to the accepted canon of construction of statutes, this special authorization denies the general authority of the company in the cases of other classes. As I read the section, it helps the assertion of the Railway Company more than that of the petitioner. It acknowledges the right of the Company to secure reserved accommodation for females, which must exist in the Company as an ordinary right as Managers of the concern, but it makes obligatory on it to provide at least one compartment for female passengers. In the Company is vested the management of the Railway and ordinarily they should be deemed to have the power, unless expressly curtailed by law to make such arrangements as they consider necessary for the convenience of their customers and in their own interests. See the remarks of Lord Halsbury in Perth General Station Committee v. Boss (1879) A.C. 479 quoted by Oldfield J. in the case of Komaran in re A.I.R. 1922 Mad. 35. In coming to this conclusion I have not lost sight of the fact that the East India Railway Company are monopolists and a statutory body which exists for the benefit and convenience of the public and has more limited powers than those of a private concern. The action of the Company challenged in this case is not calculated to further its pecuniary interest - it is rather detrimental to it, but is taken, according to the view of the Company, as conducive most to public convenience and comfort.
7. The view that I have above expressed in regard to the general power of the Company to make arrangements for the accommodation and convenience of its passengers is strengthened by the wording of Section 109 of the Act which supposes in the Company the existence of such power, though there is no express authorization in that respect in the Act.
8. I now turn to the most substantial question in the ease, namely whether the departmental rule entitling the Railway Company to reserve a compartment for Europeans contravenes the provision of Section 42(2) of the Railways Act and consequently beyond the rule-making power of the Company as limited by Section 47. Section 42(2) is thus worded:
A Railway administration shall not make or give any undue or unreasonable preference or advantage to or in favour of any particular person...in any respect whatsoever, or subject any particular person...to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.
9. It is argued that the action of the Railway Company under consideration is calculated to give undue preference to a particular class of passengers to the undue prejudice of other passengers. The expression 'undue preference' has not been defined in the Railways Act. The definition of the term is to be found in the English Act known as the Railway and Canal Traffic Act, 1888 on which the Indian Act is modelled. Section 55 of that Act says,
The term 'undue preference' includes an undue preference or an undue or unreasonable prejudice or disadvantage, in any respect, in favour of or against any person or particular class of persons on any particular description of traffic.
10. It is conceded and it cannot be denied, that the action of the Railway Company to which exception is taken does tend to give preference to a particular class of persons, to the consequent prejudice or disadvantage to others. The controversy, therefore, turns on the question, whether the preference thus given is undue or unreasonable which two words stand as synonymous and explanatory of each other. Mr. Mookerjee who appears for the Railway Company, in his usual fairness, has conceded that the act of the Company in reserving a Railway compartment for any particular class of passengers may amount to undue preference provided other circumstances exist and are proved to render such act unreasonable and disadvantageous to other passengers, for instance, if it is proved that the train by which the petitioner wanted to travel was full and no room was available for him except in the reserved compartment. But as the petitioner, so argues the learned Vakil, has not alleged or proved any such circumstance, the question of undue preference or otherwise does not arise in this case. I have given this case my best consideration and I have come to the conclusion that the contention of the learned Vakil for the Railway Company must prevail. There is no evidence that the petitioner looked for and could not secure a seat in any other compartment nor has he proved any other circumstance showing his inability to travel by that train except in the compartment so reserved. As I have remarked above, he has rested his case solely on the question of law which I have formulated. I agree that in particular circumstances the reservation of a compartment for a class of passengers or intending passengers without remuneration may amount to undue preference within the meaning of Section 42(2) of the Railways Act and to this extent I am in full agreement with the view expressed by Shah, A.C.J. in re Emperor v. Narayan Krishna A.I.R. 1923 Bom. 1. I am unable to accept the view which has found favour with some of the Judges who are parties to the reported cases to which I propose to refer later that it is within the absolute right or power of the Railway Company to reserve a compartment for Europeans only. Now the effect of such reservation is that a European, or one who is included in that term, for whom a compartment is reserved may travel in any compartment he likes, but an Indian, suffering from the disability of not being classed as a European, is debarred from travelling in the European reserved compartment. I am unable to concede that such an apparently invidious distinction is not to be considered preference in favour of one community to the prejudice or disadvantage of another.
11. This question came up for consideration before the Allahabad High Court in the case of Emperor v. Brijbasi Lal (1920) 42 All. 327. Walsh, J., held that Section 42 of the Railways Act was no bar to the power of the Railway Company to reserve a compartment as in the present case, chiefly on the ground that that section concerned itself with facilities for (traffic) by which was understood the carriage of goods only and not of passengers. The attention of the learned Judge does not seem to have been drawn to the definition of the word 'traffic' in Section 3 of the Railways Act. This case was considered in Emperor v. Narayan Krishna A.I.R. 1923 Bom. 1 and expressly dissented from on this point. Its authority is accordingly so weakened that it may not be necessary to consider if further. In the case of Komaran in re A.I.R. A.C. 479 the point now before us did not actually arise and the judgment of Oldfield, J., - not necessary for the purposes. of that case, must be regarded as an obiter. The case in which the question directly came for consideration is that of Emperor v. Narayan Krishna A.I.R. 1923 Bom. 1. The two learned Judges who originally heard it came to different conclusions and it was referred to a third Judge who upheld the view in favour of the Railway Company. The only other case which has some bearing on the present question is that of Vishvanath Ganesh v. G.I.P. Ry. Co. A.I.R. 1921 Bom. 73. But there also, as in the Madras case, the expression of opinion was uncalled for. On a consideration of all these cases and of the full and elucidating arguments of the learned Vakils appearing on both sides, the conclusion I have come to is that the departmental rule enabling the Company to reserve a compartment for a class of ordinary passengers may be a violation of the term of Section 42(2) in certain circumstances, but the Company has a general power to regulate its traffic and arrange for the accommodation and convenience of its passengers so long as it does not bring itself within that section.
12. In the above view of the matter, this; rule fails and should be discharged.
13. The facts of the case in which this rule has been granted are these.
14. The petitioner one Bhupendra Kumar Dutt was e passenger by the train known as the 3 Up Bombay Mail from Howrah on the 9th March last. He intended to go to Dehri on Sone.
15. He got into a third class compartment which was labelled for Europeans. There were a number of Indian gentlemen already in the same compartment. The ticket examiner asked them to vacate the compartment as it was reserved for Europeans. The Indian gentlemen who were in the compartment did so. The petitioner apparently with the idea of, as he says, making a test case in order to dispute the right of the Railway Company to reserve a compartment for Europeans refused to do so. He was therefore ejected by the Police. He was prosecuted for obstructing a Railway Servant in the execution of his duty and was convicted and sentenced under Section 109/121 to pay a fine of Rs. 5. Mr. Taluqdar who has appeared in support of the rule argues that Section 109 of the. Railway Act (Act IX of 1890) does not. cover the present case. He contends that the expression 'passenger' as used in Section 109 does not include a class of passengers. That it only covers the case of a person who has taken or intends to take a ticket and for whom a compartment has been reserved and does not cover the case of a class of possible passengers who may or may not intend to travel by the train. That the only class of passengers for whom the Railway Company may reserve a compartment are females which power he contends is given by Section 64 of the Act. That Section 42(2) of the same Act; prohibits the Company from showing any undue or unreasonable preference to any particular person or any particular class of traffic, and to reserve a compartment for Europeans is showing undue preference. Now in the words of Lord Halsbury Perth General Station Committee v. Boss (1897) A.C. 479 'A Railway Company has an absolute right to regulate its own traffic in its own way, its own interest being the best security that its strict legal Height to do so will not be abused,' and I may add so long as it does not contravene any express provision of the law. It is one of the duties of the Company to see to the comfort and convenience of its passengers and as Oldfield, J., remarked, in making a reservation for a class of passengers it must be supposed to have acted as it is entitled to do on one or other of these motives : In re, Komaran A.I.R. 1922 Mad. 35.
16. Mr. Taluqdar argues that its power to reserve compartment for ladies only is given by Section 64 of the Act, and that as the Act here expressly gives the Railway powers to reserve compartment for ladies it must be held by implication that it has no power to reserve accommodation for any other class of passengers.
17. This argument is obviously based on a misreading of Section 64. Section 64 does not give the company power to reserve accommodation for ladies. It makes it compulsory to reserve at least one compartment of the lowest class in every train for females, failure to do which is punishable under Section 95 of the Act. This section certainly gives the company no powers to reserve 1st or 2nd class compartments for ladies.
18. There is no section in the Act which does give the company any powers to reserve accommodation for any one. But the fact that there are sections in the Act to punish persons who interfere with such reserved accommodation shows that by implication the Act recognizes the right of the Railway Company to reserve such accommodation It has been argued further that to reserve accommodation for a particular class of passengers is to show that class undue or unreasonable preference. Now Section 42(2) does not provide that the Railway shall not show prefer once to any passenger or class of passengers. It provides that it shall not show undue or unreasonable preference. What is or is not undue preference obviously depends on the facts of each particular ease. In the present case there is no evidence that there was not other equally good accommodation in the train which the petitioner could have availed himself of, if he had been so disposed. The evidence shows that one compartment alone-had been reserved for Europeans Mr. Taluqdar argues that he could have no-grievance whatever if some compartments were reserved for Indians only, and that if this were done, he could not argue that to reserve a compartment for Europeans-only was showing undue preference. II this is really a grievance the remedy, might well be sought for by a representation made in the proper quarter. It has nothing to do with the present question It is not likely that persons for whom a compartment is set apart will go and avail themselves of other accommodation to the exclusion of those entitled to that accommodation. It may be that some persons, owing to a difference in habits and customs will travel more conveniently both as regards themselves and also as regards, other people, if they travel by themselves and in making arrangements so that they, can do so, the Company had in mind not only their convenience but the comfort and; convenience of the entire body of passengers. The arrangements made admittedly, had the sanction of the Railway Board.
19. I am of opinion that the Railway-Company have not by making the reservation shown undue preference to any passenger or class of passengers.
20. The last argument to be considered is whether admitting that this company had the right to reserve such a compartment for Europeans, the petitioner by refusing to vacate such a compartment when required, to do so by the Railway authorities comes within the mischief of Section 109. Mr. Taluqdar contends that the expression. 'passenger' used in the sentence reserved by a railway administration for the use of another passenger means a definite person H6t whom that particular compartment has been reserved on the understanding that he would take a ticket and travel by that particular train and not for an in- definite person who may or may not avail himself of the accommodation provided.
21. I see no reason to restrict the expression 'passenger' in this way and I am of opinion that the expression 'passenger' in Section 109 includes 'a class of passenger'. This is the view that has commended itself to the High Courts of Bombay, Madras and Allahahad see A.I.R. 1923 Bom. 163 : A.I.R. 1922 Mad. 35 and 42 All. 327 and I see no reason to differ from it. Under Section 13 of the General Clauses Act (Act X of 1897) words in the singular include the plural. The expression 'another passenger' may therefore be read, as 'other passengers' and it is doing no violence, to the language to hold that other passengers includes a class of passengers. It seems to me that it does. An attempt has been made to convert what is clearly only a question of railway administration into a racial question. So far as lean see no racial question whatever is involved in this case, and it is to be regretted that attempts should have been made to make it one.
22. The order of the learned Magistrate is right and I would discharge the rule.