1. On the materials before us it is quite impossible to dispose of the case. In the first place it must be shown that this particular Railway Company has made rules and that those rules have received the sanction of the Governor-General in Council and have been published in the Gazette of India. There is nothing on the record to show that that has been done. We have been referred to a general set of rules of the 3rd July 1902. But there is nothing there which shows that those were the rules made by this Railway Company, and until this matter is made clear, it is impossible for us on a reference under Section 69 to deal with the case.
2. [The case was sent back to the Small Cause Court, and the Chief Judge and the fourth Judge after taking additional evidence submitted this report to the High Court]
The High Court Bench before which this reference came has referred the matter back to this Court for a finding on the point whether this particular Railway Company has made rules and whether those rules have received the sanction of the Governor-General in Council and have been published in the Gazette of India. The Attorney for the defendant Company states to this Court that he is not in a position to give any further evidence on the point and that he is not able to show that these particular rules, qua rules of this Railway Company, have received such sanction or been published in the Gazette, otherwise than as rules imposed on all Railways by the Government by their Notification No. 231, dated 3rd July 1902.
Mr. Ridsdale, acting Goods Superintendent of the Railway Company, has been called and has given evidence of the existence of Rule No. 100 in the Goods Tariff of his Railway which, he states, was in force at the time of the matters in suit and by which the amount leviable by the Company is fixed at a rate within the rate sanctioned by the Government in the Notification above-mentioned. He further states that these wharfage Rules (of which No. 100 is one) have always been acted upon by the Company since April 1907, but his evidence is (and our finding must be in accordance with his statement) that they have not been published in the Gazette of India. To establish Government sanction to the rules in the Goods Tariff of his Railway he relies upon two letters which passed between the Agent and Chief Engineer of the B.N. Railway Company on the one hand and the Junior Consulting Engineer to Government of India for Railways on the other. The witness states that he is not in a position to show that the Government officer referred to had authority from the Governor-General in Council to convey sanction of this kind.
In returning the original reference we also forward the Goods Tariff and the letters spoken to by the witness.]
3. It now appears that the rules have not been published in the India Gazette in the manner prescribed by the Act. The plaintiff's contention must, therefore, succeed and we so answer the reference. We make no order as to costs.