Lawrence Jenkins, C.J.
1. This application arises out of a suit brought, against the Bengal-Nagpur Railway Company for the refund of wharfage charges alleged by the petitioner to have been illegally realized from him.
2. A decree was passed againt the Railway Company in petitioner's favour.
3. The Railway Company then obtained a Rule under Section 25 of the Provincial Small Cause Courts Act, 1887, questioning the validity of this decree, and it is with that application that we are now concerned.
4. Having regard to the circumstances of the case and the materials on the record, the only point that arises for decision is whether rules have been made, sanctioned and published as prescribed by Section 47 of the Indian Railways Act, 1890, which entitled the Railway Company to make the wharfage charges claimed by them.
5. Section 47 provides that every Railway Company...shall make general rules consistent with this Act.... (f) 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'. It is, however, enacted by Sub-section (3) that a rule made under this Section shall not take effect until it has received the sanction of the Governor-General in Council and been published in the Gazette of India.
6. The rules on which the Railway Company relies are those which were published in the Gazette of India on the 3rd of July 1902, and those rules were sanctioned by the Governor-General in Council.
7. But the question is whether they were made by the Railway Company.
8. Rules adopted by the Railway Company, though not originally prepared by it, would come within this description, and rules so adopted, if then sanctioned by the Governor-General in Council and published in the Gazette of India, would satisfy the requirements of Section 47.
9. It is not clear that the learned Judge considered the case from this paint of view. Moreover, he appears to have regarded the decision in Hari Lal Sinha v. The Bengal-Nagpur Railway Co. 13 C.L.J. 150 : 15 C.W.N. 195 : 9 Ind. Cas. 331 as in some measure governing this case.
10. But that is not so; that case came before the High Court on a reference under Section 69 of the Provincial Small Cause Courts Act with the limitations which that procedure implies, and the decision turned wholly on the Sending of the Small Cause Court that is had not been proved that there were rules made, sanctioned and published as required by the Act.
11. Here, on the other hand, the question is whether the rules were so made, sanctioned and published, and this question must be considered afresh by the Court of Small Causes in the light of the above remarks.
12. It is to be regretted that any doubt on this point should be permitted to continue.
13. The remedy is simple and it may reasonably be hoped that it will be applied, so that Railway Companies may be spared the expense and annoyance of that class of litigation of which the present suit is a type.
14. The Rule is, therefore, made absolute, the decree of the Small Cause Court is set aside, and the case sent back to the Small Cause Court for a fresh hearing in the light of the above remarks. The parties will be at liberty to adduce further evidence for the purpose of establishing or negativing the identity of the rules (if any) made by the Railway Company with those sanctioned and published; and I would here remark that it is not necessary, as the learned Judge seemed to suppose, that this identity should appear on the face of the Circular or the Gazette.
15. The costs of this application, which we assess at 2 gold mohurs, and of the suit up to this stage, will abide the result of the re-hearing.
N. Chatterjea, J.
16. I agree.