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PETITIONER: UNION OF INDIA,

       Vs.

RESPONDENT: MOTILAL PADAMPAT SUGAR MILLS CO. (P) LTD.

DATE OF JUDGMENT: 13/12/1968

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. BACHAWAT, R.S. HEGDE, K.S.

CITATION:  1969 AIR  630            1969 SCR  (3)  75  1969 SCC  (1) 320

ACT: Indian Railways Act (10 of 1940), ss. 29(2) & 41(1)(c)-Scope of-Jurisdiction of Railway Rates Tribunal to decide question not raised in pleading. Supreme Court-Appellate Jurisdiction Scope of.

HEADNOTE: The  Railway  enhanced  the  haulage  charges  for  shunting operations  done  at the assisted siding  provided  for  the respondent’s  factory.  The respondent filed a complaint  to the  Railway  Rates  Tribunal under s. 41  (1)  (e)  of  the Railways  Act which provides that the Tribunal shall  decide any  complaint of "any other charge which is  unreasonable". While  the complaint was pending the Railway  increased  the charges  for  maintenance  of  the  assisted  siding.    The Tribunal  determined  that  the  charges  that  were   being recovered by the Railway were unreasonable and  unjustified. In appeal to this Court, the appellant contended that (i) on the pleadings the Tribunal was not justified in adjudicating upon the charges levied for the maintenance of the  assisted siding;  (ii) this Court in Union of India v.  Indian  Sugar Mills Association, [1967] 3 S.C.R. 219, correlated s. 41 (1) (c)  to  s. 29(2) which empowers the Central  Government  to "fix the rates of any other charges", that the word  "rates" in s. 29(2) must be given the same meaning as the definition of the word "rate" in s. 2(13), namely, " rate’ includes any fare, charge or other payment for carriage of any passenger, animal or goods", and that therefore the jurisdiction of the Tribunal under s. 41(1)(c) is confined to carriage of  goods and  not  hauling charges; and (iii) the Tribunal  erred  in holding  that  the  Railway  was  not  entitled  to  haulage charges. HELD:     The appeal must be dismissed. (i)  The  rule  that no evidence can be looked into  upon  a plea  which was never put forward, has no application  to  a case  where  parties  go  to trial  with  knowledge  that  a particular  question is in issue, though no  specific  issue has been framed thereon, and when evidence relating  thereto had  been adduced.  In the present case, the Tribunal  found that the Railway was ready with the required evidence and no

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prejudice had been caused to it. [79 D] Nagubai Animal v. B. Shama Rao, [1956] S.C.R. 451,  referred to. Rani Chandra Kunwar v. Chaudhri Narpat Singh, (1906-7)  L.R. 34 I.A. 27, applied. Siddik  Mahomed  Shah v. Mt.  Saran, A.I.R.  1930  P.C.  57, referred to. (ii) The definition of ’rate’ in s. 2(13) cannot be  applied to the expression ’rates of any other charges’ in s.  29(2). Here  the word ’rates’ merely means the scale or  amount  of any other charges. [81 A-B] Union  of India v. Indian Sugar Mills Association, [1967]  3 S.C.R. 219, referred to. (iii)     No reason was shown for displacing the finding  of fact  by the Tribunal that the claim for the haulage  charge for shunting operation done 76 at  the assisted siding was unjustified  and  unsustainable. This Court is not sitting as a regular court of appeal  from decisions  of  the  Tribunal,  and in  such  case  does  not ordinarily go into questions of fact. [82 B]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 732 of 1966. Appeal  by special leave from the judgment and  order  dated March  25,  1965 of the Railway Rates  Tribunal,  Madras  in Complaint No. 3 of 1963. N.   S. Bindra and S. P. Nayar for the appellant. P.   K. Chatterjee, for the respondent. The Judgment of the Court was delivered by Sikri,  J. This appeal by special leave is directed  against the order of the Railway Rates Tribunal hereinafter referred to  as  the  Tribunal  at  Madras,  dated  March  25,  1965, determining reasonable rates at which siding charges can  be recovered  from  the complainants,  Motilal  Padampat  Sugar Mills  Co. (P) Ltd. now respondent before us.  The  Tribunal determined that the existing charges being recovered by  the North Eastern Railway were unreasonable, and unjustified and that the railway was not entitled to recover any charge  for the haulage of the wagons over the assisted siding. A similar appeal was decided by this Court in Union of India V. The Indian Sugar Mills Association(1).  It was decided in that  case that the complaint to the Tribunal was  competent under s. 41 (1) (c) of the Indian Railways Act, 1890. Mr.  Bindra,  the  learned counsel for  the  appellant,  has raised  in substance three points before us : ( 1 ) that  on the pleadings the Tribunal was not justified in adjudicating upon the charges levied for the maintenance of the  assisted siding;  (2) that the Tribunal had no jurisdiction under  s. 41 (1) (c) of the Act to determine the reasonableness of the charges levied for maintaining the assisted siding; and  (3) that the tribunal had erred in holding that the Railway  was not entitled to haulage charges for lines 3 and 4. In  order  to appreciate the points raised  by  the  learned counsel  it is necessary to give a few facts, as  determined by the Tribunal.  The respondent company was incorporated in the  year  1932 with its registered office at  Kamla  Tower, Kanpur, in the State of Uttar Pradesh.  The Company  erected a  sugar mill at Majhowlia in the district of  Champaran  in the  State of Bihar, and started manufacturing sugar in  the year 1933.  The bulk (1)  [1967] 3 S.C R 219.                              77

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of  sugarcane  required  for the manufacture  of  sugar  was transported  to  the respondent’s mill  from  the  sugarcane growing  areas  in  the neighbourhood of  Majhowlia  by  the appellant Railway.  When the respondent started  manufacture of  sugar  in the year 1933 the railway in that  region  was operated  by  the Bengal and North Western  Railway  Company Limited,  which  was later taken over by  the  Secretary  of State  in Council and is now owned and administered  by  the Government  of  India as the North Eastern Railway.   By  an agreement  dated November 25, 1933, between  the  respondent and the Bengal and North Western Railway Company Limited the Railway  agreed  to  provide  an  assisted  siding  at   the Majhowlia  railway station to afford better  facilities  for the delivery of goods consigned to the mill and for the des- patch  of goods sent out from the mill through the  Railway. Under  the  agreement the respondent had to pay  fixed  half yearly  charge amounting to Rs. 917.20, representing 10%  of the  capital invested by the railway in the construction  of the assisted siding, for its use.  This half yearly  payment continued  till 1958 when the Railway gave a notice  to  the respondent  on  February  8, 1958, intimating  that  on  the expiry  of  six months from the date of the receipt  of  the notice  revised  charges  at the following  rates  would  be levied in lieu of the fixed contribution that was being paid to the respondent railway :               (1)   Rs.  779.56  towards  interest  on   the               capital   and  cost  of  maintenance  of   the               permanent way, points and crossing  and               interlocking connected therewith; and               (2)   siding  charge at the rate of Re. 1  per               four  wheeled  wagon hauled  over  the  siding               subject to a minimum of Rs. 7 per shunt. These  new  rates  were enforced on the expiry  of  the  six months’  notice.  In March 1960, the Railway desired that  a fresh  agreement be entered into with effect from  April  1, 1960.  As the terms seemed onerous the respondent  protested and some correspondence ensued.  Ultimately the Railway,  by letter  dated August 21, 1962, intimated to  the  respondent that with effect from March 1, 1963, the old agreement dated November  25,  1933, would stand terminated and  the  siding facilities would be withdrawn.  The respondent had no option but  to pay the new charges claimed by the Railway  and  the new charges were as follows -                (1) fixed charges of Rs. 779.56 for each half               year; and               (2)   siding charges at the rate of Re.  1 per               loaded   four  wheeled  wagon  subject  to   a               minimum,charge   per  trip  arrived,   at   by               multiplying  the average time taken per  shunt               by the cost of shunting engine hour. 78 On  July 4, 1963, the respondent filed the  complaint  dated June  26,  1963, before the Tribunal.  While  the  case  was pending  -  the Railway increased the fixed  charge  of  Rs. 779.56 to Rs. 3,134.88 per annum with effect from August 17, 1963. The  description  of the railway station and  the  lines  is given  by  the Tribunal thus : Exhibit R. 2  is  the  sketch showing  the position of the several lines at the  Majhowlia station  and also of the station buildings and  goods  shed. Lines numbers 1 and 2 marked in this sketch are the  running lines.   Lines numbers 3 and 4 are the transfer lines  which constitute the assisted siding.  Admittedly, lines numbers 3 and  4  are within railway premises and  are  completely  on railway  property.  From the junction where these two  lines

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meet  there is another line proceeding to the  complainants’ factory.  This line is entirely within the property owned by the  complainants and it is the private siding of  the  com- plainants. Coming  to  the first point raised by the  learned  counsel; this point was debated before ’the Tribunal.  The  Tribunal, after examining the original complaint, the amendments  made in  it,  and the evidence led by the Railway,  came  to  the conclusion  that  the respondent was entitled to  raise  the question  of the revision of hauling charges.  The  Tribunal after reviewing the pleadings observed :               "In seeking for such correction being made  in               the   complaint  the  complainants  were   not               obliged  to  attack  the  increase  under  the               aforesaid item as unreasonable particularly in               view  of  the  fact  that  this  increase  was               notified  to the complainants only  after  the               filing  of the complaint and also of the  fact               that there was already the general  allegation               in  the  complaint that the  increase  in  the               siding charges had been abnormal and unreason-               able.  Under these circumstances, it cannot be               said   that  the  allegations  made   in   the               complaint  would not cover the increase  under               the items of interest and maintenance  charges               also.   It has also to be mentioned  that  the               respondent was not, in any way, misled by  the               allegations  contained  in the  complaint  and               that no surprise was sprung on the  respondent               by pressing the complainants’ case against the               increase   on   account   of   interest    and               maintenance charges.  The respondent was fully               aware that the increase on account of interest               and   maintenance  charges  had  also  to   be               justified  on  the ground of increase  in  the               cost  of  working the assisted  siding.   Even               before  the commencement of the  recording  of               the evidence the respondent was ready with the                                     79               required evidence in that direction and  hence               it  cannot be said that the failure to  single               out the increase in the maintenance charge and               to  attack  the same in the  complaint  as  an               unreasonable levy has caused any prejudice  to               the  respondent .... Accordingly, I hold  that               the  reasonableness  or otherwise of  all  the               charges levied by the respondent in respect of               the assisted siding in question can and  ought               to be considered under issue number 4." The  learned counsel for the appellant has not been able  to show that the Tribunal has misdirected itself in any  manner in coming to the above conclusion.  He drew our attention to a  decision of the Privy Council in Siddik Mahomed  Shah  v. Mt.  Saran(1)  where  the Privy Council  observed  that  "no amount of evidence can be looked into upon a plea which  was never put forward." This Court in Nagubai Ammal v. B.  Shama Rao (2 ) discussed the scope of this observation and  stated the law thus:               "The true scope of this rule is that  evidence               let in on issues on which the parties actually               went   to  trial  should  not  be   made   the               foundation   for  decision  of   another   and               different issue, which was not present to  the               minds of the parties and on which they had  no               opportunity  of adducing evidence.   But  that

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             rule  has  no  application  to  a  case  where               parties  go  to trial with  knowledge  that  a               particular  question  is in issue,  though  no               specific  issue has been framed  thereon,  and               adduce  evidence relating thereto.   The  rule               applicable to this class of cases is that laid               down in Rani Chandra Kunwar v. Chaudhri Narpat               Singh(5)". In view of this decision we must overrule the contention  of the  learned counsel on this point because the Tribunal  has found that the Railway was ready with the required  evidence and no prejudice had been caused to it. Section  41 (1) (c) of the Indian Railways Act, 1890,  reads as follows : "41 (1) Any complaint that a railway administration- (a)  is contravening the provisions of section 28, or (b)  is  charging for the carriage of any commodity  between two stations a rate which is unreasonable, or (1) A.I.R. 1930 P.C. 57. (2) [1956] S.C.R. 451,461. (3)  [1906-07] L.R. 34 I.A. 27. 80               (c)   is  levying  any other charge  which  is               unreasonable may be made to the Tribunal,  and               the  Tribunal shall hear and decide  any  such               complaint in accordance with the provisions of               this Chapter."               Sections 29(1) and 29(2) read thus :               "29(1)  The Central Government may by  general               or special order fix maximum and minimum rates               for  the  whole or any part of a  railway  and               prescribe  the conditions in which such  rates               will apply;               (2)   The  Central Government may, by  a  like               order, fix the rates of any other charges  for               the whole or any part of  a    railway     and               prescribe  the conditions in which such  rates               of charges shall apply."               The word "rate" is defined in s. 2(13) thus               "  ’rate’  includes  any  fare,     charge  or               other   payment  for  the  carriage   of   any               passenger, animal or goods;" The  learned  counsel for the appellant contends  that  this Court in Union of India v. Indian Sugar Mills Association(2) correlated  S. 41 (1 ) (c) to "any other charges"  mentioned in S. 29 (2), and if the definition of the word ... rate" is applied  to  s. 29(2) it would mean that  only  charges  for carriage   of  goods  and  not  hauling  charges  could   be complained  against  under  s.  41  (1)  (c)  Bhargava,  J., speaking for the Court observed at p. 226               "It is clear that a complaint under s. 41  (1)               (b) relates to fixation of a rate relating  to               charges  mentioned  in  s.  29(1),  while   s.               41(1)(c) relates to a complaint in respect  of               any  other charge mentioned in s.  29(2).   It               appears  to us, in these  circumstances,  that               the  expression "any other charge" used in  S.                             29(2)  and  S. 41(1)(c) cannot  be  gi ven  the               narrow meaning of covering a charge in respect               of the statutory duty of the Railway so as  to               exclude charges made or levied by the  Railway               for all other services."               After  giving various reasons,  Bhargava,  J.,               concluded               "It is enough to hold for the purposes of this

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             case that at least the charges for carriage of               goods  from parts of the railway to points  or               places, not forming part of the railway,  will               certainly  be covered by the  expression  "any               other  charge" used in s. 41 (1) (c), so  that               the   complaint  in  the  present   case   was               competently entertained by the Tribunal." (1)  [1957] 3 S.C.R, 219, 81 It is true that the argument sought to be raised now has not been  dealt with before, but it seems to us that the  answer to  this  is  simple.  The definition of  "rate"  cannot  be applied  to the expression ... rates of any other  charges". Here  the word "rates" merely means the scale or  amount  of any other charges.  The definition of the word "rate" cannot possibly be applied to s.     29(2) of the Act. Coming to the third point, the Tribunal after reviewing the evidence came to the following conclusion .lm15 "  From the above discussions of the evidence, it  is  clear that  the  goods consigned to the  complainants’  mills  and despatched  from the mills cannot be effectively handled  at the  goods  shed  siding without the  use  of  the  assisted siding.  Under the existing facilities at the station it  is practically  impossible  to  deal  with  the   complainants’ traffic  at the goods shed.  Any attempt in  that  direction would  involve  very heavy expenditure on the  part  of  the railway  and  would also involve larger time  and  works  as compared  with  time and labour involved  in  handling  this traffic at the assisted siding.  In other words, by handling complainants’ traffic at the assisted siding the railway  is really incurring less of cost and less of work than it would have to incur in attempting to deal with the traffic at  the goods shed siding .... Additional charge can be levied  only for any special or extra service that may be rendered in any particular  instance.  The services rendered by the  respon- dent   railway   in   connection  with   the   handling   of complainants’ goods traffic at the assisted siding cannot be said to be any special or extra service because the services rendered in that connection have been found to be definitely less  than the services which the respondent railway had  to render for handling these goods at the goods shed siding  as a  statutory obligation even on the freight levied from  the complainants.   In  view  of the  conditions  prevailing  at Majhowlia  station the railway is really in an  advantageous position,  financially  and  otherwise,  in  handlings   the complainants’ goods at the assisted siding instead of at the goods   shed  siding.   It  follows,  therefore,  that   the respondent  railway is not entitled to levy any  charge,  in addition to the freight already levied, for the handling  of the  complainants’  goods  at the assisted  siding  at  this station  which involves only a portion of the service  which the railway is obliged to render in handling these goods  at the  goods shed siding.  In other words, the claim for  the, haulage 8 2 charge  for  the  shunting operation done  at  the  assisted siding is unjustified and unsustainable." This is a finding of fact made by the Tribunal and no reason has  been  shown for displacing this pure finding  of  fact. The  Tribunal  has mentioned ample evidence  from  which  it could  reasonably come to the conclusion arrived at  by  it. It  must be remembered that we are not sitting as a  regular court of appeal from decisions of the Tribunal, and in  such cases we do not ordinarily go into questions of fact.

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In the result the appeal fails and is dismissed with costs. Y.P.                                  Appeal dismissed 83