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PETITIONER: UPPER DOAB SUGAR MILLS LTD.

       Vs.

RESPONDENT: SHAHDARA (DELHI) SAHARANPURLIGHT RAILWAY COMPANY LTD.

DATE OF JUDGMENT: 23/04/1962

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS KAPUR, J.L. DAYAL, RAGHUBAR

CITATION:  1963 AIR  217            1963 SCR  (2) 333  CITATOR INFO :  RF         1973 SC1281  (8)  D          1975 SC1056  (6)

ACT: Railway  Tribunal-Complaint against railway  administration- Jurisdiction-If empowered to order refused-Interpretation of words  "is charging " and "is levying"-The  Indian  Railways Act,  1890  (9 of 1890) as amended by  the  Indian  Railways (Amendment) Act, 1957 (53 of 1957), s. 34, 41.

HEADNOTE: A  complaint was made by the appellant to the Railway  Rates Tribunal   against  station,  to  station  rates  as   being unreasonable on sugarcane imposed by the respondent  Railway Co.  by their rates circular No. 8 of 1953 with effect  from October  1,  1953.   The Railway  company  in  their  answer pointed  out that the rates imposed by the rates circular  8 of  1953 had long before the date of the complainant  ceased to  be in force and a new rate had come into operation  from February  10, 1960.  Thereafter the complainant was  allowed to amend the complaint.  The prayers were for a  declaration that  the rates charged were unreasonable, that a  direction of refund of the excess collected or which may be  collected after  the date of the amendment of the complaint  over  the reasonable  rates  that may be fixed by  the  Tribunal  and, lastly, for fixation of the rates. The  main  contentions  of  the  respondent  were  that  the Tribunal  had no jurisdiction to entertain the complaint  as regards the reasonableness of rates prior to the institution of  the complaint and that the Tribunal had no  jurisdiction to grant refund. The Indian Railways Act underwent several amendments and  by the  amendment  in December 1957, s. 41 was changed.   As  a result  of the change cl.  I of s. 41 read thus:  "Any  com- plaint that a railway administration-(a) is contravening the provisions of s. 28, or (b) is charging for the carriage  of any   commodity  between  two  stations  a  rate  which   is unreasonable  or  is  levying  any  other  charge  which  is unreasonable  shall  hear and decide any such  complaint  in accordance with the provisions of this Chapter." 334

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The  Tribunal held that it had no jurisdiction to  entertain or  try  the complaint as regards the rates and  charges  to prior  to  the institution of the complaint and  it  had  no jurisdiction to grant any refund.  The appellants came up in appeal to the Supreme Court. Held,  that  the words "is charging" in clause (b)  and  "is levying"  in  clause  (c) of s. 41 (1) of the  Act  must  be construed to mean "is demanding a price at the present  time for  services to be rendered".  The Railway  Rates  Tribunal had  no  jurisdiction to entertain or try the  complaint  as regards the reasonableness or otherwise of rates and charges made prior to the institution of the complaint. When  the  Tribunal  had no  jurisdiction  to  consider  the reasonableness,  or otherwise of any charges made  prior  to the  institution  of the complaint, it  follows  necessarily that it could have no occasion to order any refund.  For the question  of refund could arise only after a  decision  that the charges made were more than what was reasonable. Held,  further,  that  neither expressly  nor  by  necessary implication  has the Railway Rates Tribunal been  given  any jurisdiction to make any order for refund., Southern Railway v. The Railway Rates Tribunal, A.I.R.  1955 (Madras) 676, referred to. After a complaint is made the Tribunal shall hear and decide the  complaint.   The  complaint  being  that  something  is unreasonable all that the Tribunal has to decide is  whether that thing is unreasonable or not. A  finding  that  it is unreasonable does  not  involve  any consideration  or  decision  of what  would  flow  from  the finding. In otherwords,  in  making  the  complaint   the complainant can ask only for a declaration that the rate  or charge is unreasonable andit  is only  this  declaratory relief  which  the  Tribunal has been  authorised  to  give. There  is  no provision that the Tribunal can  also  give  a consequential relief. The only other thing which the Tribunal is authorised to  do in  connection  with the complaint is to fix "such  rate  or charge  as it considers reasonable." In the absence of  any- thing to indicate to the contrary it is reasonable to  think that  this  fixation can only be prospective, that  is,  the Tribunal in making this order fixing the reasonable rate or, charge  will  mention  a  future  date  for  this  to   come incoporation. 335

JUDGMENT: CIVIL APPELLATE   JURISDICTION: Civil Appeal No. 9 of 1962. Appeal  by special leave from the judgment and  order  dated August  29, 1961, of the, Railway Rates Tribunal, Madras  in Complaint No. 1 of 1960. Veda Vyasa and 1. N. Shroff, for the appellant. Niren  De.,  P. C. Chatterjee and S. N. Mukherjee,  for  the respondents. 1962.  April 23.  The Judgment of the Court was delivered by DAs  GUPTA, J.-This appeal by special leave arises out of  a complaint made by the appellant, the Upper Doab Sugar  Mills Ltd., Shamli, to the Railway Rates Tribunal.  The  complaint as originally made was against the- station to station rates on  sugarcane  on  the  Shahdara  (Delhi)-Saharanpur   Light Railway imposed by the. respondent, the Railway Company.  by their rates Circular No. 8 of 1953 with effect from  October 1,  1953.  The complaint was that these rates had  been  and were  unreasonable.  The Railway Company in their answer  to

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the complaint pointed out that the rates imposed by the rate Circular  No.  8  of 1953 had long before the  date  of  the complaint  ceased to be in force and that subsequent to  the decision  of  this Court in S.S. Light Railway Co.  Ltd.  v. Upper  Doab  Sugar Mills Ltd. (1) a new rate had  come  into operation  from February 10, 1960, under Local  Rate  Advice No.  2A  of  1960.   After this  the  complaint  prayed  for amendment  of  his complaint by adding a  complaint  against this  new  Advice  rate.   The  prayer  was  allowed.    The complaint as it stands after the amendment made on  February 3, 1961, is both against the rates imposed under Local Rates Advice (1)  [1960] 2 S.CR. 926. 336 No. 8 of 1953 and also the rates under the now Advice No. 2A of  1960  and  is  that these  rates  and  charges  are  all unreasonable. The  prayers  are:  (I ) for a declaration  that  the  rates charged  under the Local Rates Advice No. 8 of 1953 and  the surcharges  were unreasonable from 1-10-1953  to  10-2.1960; (2)  a  declaration that the rates  charged  from  10-2-1960 under rate Advice No. 2A of 1960 are also unreasonable;  (3) a  direction of refund of the excess collected or which  may be  collected  after  the  date  of  the  amendment  of  the complaint  on the basis of rate Advice No. 2A of  1960  over the  reasonable rates that may be fixed by the Tribunal  and (4) the fixation of the rates as mentioned in the  complaint as reasonable rates from various stations to Shamli. The  main contentions of the Railway Company with  which  we are  concerned  in  the present appeal  are:  (1)  that  the Tribunal  had no jurisdiction to entertain the complaint  as regards the reasonableness of rates prior to the institution of  the complaint (2) that the Tribunal had no  jurisdiction to  grant any refund.  These questions are raised in  Issues Nos. 6 and 9A and are in these words "6.  Has the Tribunal jurisdiction to entertain or  try  the present  complaint regarding reasonableness or otherwise  of rates  and/or  charges  prior to  the  institution  of  this complaint, or, at any rate, prior to 27-7-1958. 9A. Has this Tribunal jurisdiction to grant a refund." The  Tribunal  rightly took up the  consideration  of  these issues  first.   It  held that it  had  no  jurisdiction  to entertain or try the complaint as regards the reasonableness or  otherwise  of  rates  and  charges  made  prior  to  the institution of the complaint on 337 May  6, 1960.  It also held that it had no  jurisdiction  to grant  any  refund.   In coming to  these  conclusions,  the Tribunal  followed the decision of the Madras High Court  in Southern Railways v. The Railway Rates Tribunal (1).  It  is contended before us in appeal that the Tribunal’s  decisions on these questions were wrong. It  will  be helpful to consider briefly the  background  in which the Railway Rates Tribunal came into existence. Till the establishment of these Tribunals the actions of the Government of India with regard to the regulations of  rates and  charges that may be charged by Railway  Companies  were largely influenced by the policy of laissez faire.  The only provision  as regards such a regulation was to be found  for many  years only in the contracts between the Government  of India and the Railway Companies. One  of  the  earliest contracts  with  the  Madras  Railway Company,  dated December 22, 1852, had a provision that  the Company could charge only such fares and tolls as might have been approved by the East India Company and that no increase

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in approved fares etc., could be brought into effect without the  previous  sanction of the East India Company.   In  the contracts  of  most of the companies’ there used  to  be  a- provision in the following terms:-               "The  Secretary  of State shall from  time  to               time  authorise  maximum  and  minimum   rates               within which the Company shall be entitled  to               charge the public for services rendered by way               of, or in connection with, the conveyance of passengers               and goods on the undertaking,  and       shall               prescribe the several classes  and               descriptions of passengers and goods to  which               rates shall be respectively               (1)   A.I.R. 1955 (Madras) 476.               338               applicable."  (Srinivasan’s  Railway   Freight               Rates) The  maxima  were  fixed by the Local  Governments  for  the railways within their provinces in 1869 while the Government of India prescribed the maxima for good grains and coal, and fares for the lowest class of passengers only. Statutory  provisions for fixation of maxima and minima  for rates  and charges were first made the year 1939 by the  Act 33 of 1939 which introduced s. 42 (b) in these words:               "The Federal Railway Authority may be  general               or special order fix maximum and minimum rates               for the whole or any part of a railway,  other               than  a  minor  railway,  and  prescribe   the               conditions in which such rates will apply.               (2)Any complaint that a railway administra-               tion  is contravening any order issued by  the               Federal  Railway Authority in accordance  with               the provisions of this section shall be deter-               mind by that Authority."               Before this however, as a result of the inves-               tigations  made  by the Acworth  Committee,  a               Railway  Rates  Advisory  Committee  had  been               established.  This Committee was empowered  to               investigate and make recommendations on:               1.    Complaints of "undue preference"-section               42(2) of the Indian Railways Act.               2.    Complaints that rates are unresonable in               themselves.               3.    Complaints  or  disputes in  respect  of               terminals-section  46 of the  Indian  Railways               Act.               339               4.    The  reasonableness or otherwise of  any               conditions   as   to  packing   of   articles,               specially  liable  to  damage  in  transit  or               liable to cause damage to other merchandise;               5.    Complaints  in respect of conditions  as               to packing attached to a rate; and               6.    Complaints  that railways do not  fulfll               their   obligations  to   provide   reasonable               facilities under section 42 (3) of the  Indian               Railways Act." It  is  to be noticed that this Committee  could  only  make recommendations  and  could  not make  any  effective  order itself. The  Railway Rates Tribunal come into existence as a  result of  the amendment of the Railways Act of 1890 in  1948  (Act No. 65 of 1948).  Section 34 of the Act as amended, provides that there shall be a Tribunal called the Rates Tribunal for the  purpose  of  discharging  functions  specified  in  the

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Chapter.  These functions were specified in ss. 41’ and  42, while s. 39 empowered the Tribunal to pass interim and final orders.  including  orders  for payment  of  costs  for  the purpose of exercising the jurisdiction conferred.  The first sub-section  of s. 41 set- out a number of matters of  which complaints might be made against a railway administration or jointly  against  two or  more  railway  administrations.and states  that such complaints "shall be heard and decided  by the  Tribunal".   The second sub-section of s.  41  provided that  in the case of a complaint under cl. (d) of  sub-s  1, that   is,   where   the  complaint  is   that   a   railway administration  or  rail.  way  administrations  is  or  are unreasonably  refusing  to quote a now  station  to  station rate,  the Tribunal may fix a now station to  station  rate. The  first  sub-section  of  s. 42  gave  the  Tribunal  the exclusive 340 power  to  reclassify any commodity in a  higher  class  but added  that such power shall not be exercised except on  the application  of  the  Central Government.   The  third  sub- section  of s. 42 provided that the Tribunal as well as  the Central  Government  would  have power  to  re-classify  any commodity  in  lower class.  In December, 1949,  the  Indian Railways Act was further amended by the Act No. 56 of  1949. Some changes were then made in s. 41 which it is unnecessary to set out.  There was amendment again in December, 1957, by Act No. 53 of 1957 by which amongst other changes, a. 41 was changed.  As a result of these changes cl. 1 of a.   41 reads thus :               "41(1) Any complaint that a railway  administ-               ration               (a)   is   contravening  the   provisions   of               section 28, or               (b)   it charging for the carriage of any com-               modity  between two stations a rate  which  is               unreasonable, or               (c)   is  levying  and other charge  which  is               unreasonable  shall hear and decide  any  such               complaint in accordance with the provisions of               this Chapter." The  second  sub-section(which was not changed by  the  1957 Act)  deals  with  the  question  of  burden  of  proof   in connection with complaints. under el. (a) of the first  sub- section  and  also  says that in deciding  whether  a  lower charge  to  any trader or class of traders  does  amount  to undue  preference  or  not  the  Tribunal  will  take   into consideration whether such lower charge is necessary in ’the interest of the public.  The third sub-section ruins thus :- "In the case of a complaint under el. (b) or cl. (c) of sub- s.  1  the  Tribunal  may fix such  rate  or  charge  as  it considers reasonable: Provided that the rate                             341 to  be fixed under cl. (b) of sub s. I shall be  within  the limits of the maximum and minimum rates fixed by the Central Government under sub s.1 of s. 29." Section  41A  which was added by the amending  Act  of  1957 gives  the Tribunal a power to vary or revoke an order  made by  it  on  being satisfied on an application  made  by  the Railway  Administration that since the order was made  there has been a material change in the circumstances on which  it was  based,  but such application cannot be  made  till  the expiry  of one year from the date of the order.  The old  s. 42  was substituted by a new section in these words  :  "The Central Government alone shall have the power to classify or reclassify  any  commodity, (b) to increase  or  reduce  the

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level of class rates and other charges." It will be  noticed that  this amendment took away the power which the  Tribunal formerly had in the matter of classification of commodities. The   amendment   of  s.  41  however  gave   the   Tribunal jurisdiction to entertain and consider complaints in respect of standard terminal charges which had been excluded in  the old  s.  41.  At the same time it took away  the  Tribunal’s jurisdiction  to  entertain  any complaint  that  a  Railway Administration  has  unreasonably placed a  commodity  in  a higher class or that it was unreasonably refusing to quote a new station to station rate which it had under the old  cls. (d) and (e). Our  first task is now to construe the words of cl. (b)  and (e) of the first sub-section of s. 42.  The question is what did  the  legislature  mean by the words  "is  charging"  in clause  (b)  and "is levying" in cl. (c) ? The  use  of  the present  progressive tense is to denote something  which  is taking  place  at  present.  What has  already  taken  place cannot  be  described by saying that "it is  taking  place." Just as one cannot say of a man who has ceased to 342 exist,  that  he is existing; so also, one cannot say  of  a charge which has already been made that "it is being  made." of the charge which has already been made a person aggrieved can complain that "the Railway Administration has charged me at  this  rate."’ It will not be correct to  say  that  ’the Railway Administration is charging me at this rate." This, it is true, proceeds on the assumption that the  words "charging  a  rate"  was  used by  the  legislature  in  its ordinary  meaning  of  "demanding  a  price."  This,  it  is contended  on  behalf of the appellant, is not  however  the only  sense  in  which the words "charging a  rate"  of  its senses,  it  is was demanded in the past". in  cl.  (c)  the words used are can be used; and one "Collecting a price that It is pointed out that "levying a charge" and ",levying" can certainly  mean "collecting." It will be legitimate,  argues the  learned Counsel, to think that the word  #charging"  in cl.  (b) and the word "levying" in el. (c) were used by  the legislature in the same sense.  According to him, both these words   should  be  construed  widely  so  as   to   include ,,collecting a price." The  words "charging" in cl. (b) and "’levying" in  cl.  (c) were  used  in  the  one and the same  sense.   We  find  it impossible  to agree however that they were used to  include "collecting".  It appears to be clear that if the  intention of  the  legislature was to give the  Tribunal  jurisdiction over complaints in connection with charges already made  the legislature  would have used the words "has charged  and  is charging"  and would not merely say "’is  charging"  Special jurisdiction of such a nature would be given clearly and the very fact that the words ,has charged" have not been used is sufficient   ground  for  thinking  that  it  was  not   the legislatures  intention  to give the  Tribunal  jurisdiction over complaints in 343 connection  with charges made in the past.  In our  opinion, the words ,,is charging" in cl. (b) and ,,is levying" in cl. (c)  must be construed to mean ,is demanding a price at  the present time for services to be rendered." The conclusion of the  Railway Rates Tribunal that it had no  jurisdiction  to entertain  or  try the complaints as regards  the  reasonab- leness  or otherwise of rates and charges made prior to  the institution of the complaint is therefore correct. When  the  Tribunal  had no  jurisdiction  to  consider  the reasonableness or otherwise of any charges made prior to the

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institution.  of the complaint, it follows necessarily  that it  could  have no occasion to order any refund.   For,  the question  of refund could arise only after a  decision  that the charges made were more than what was reasonable.  It  is clear  however  that even in respect of  those  charges  and rates for which the Tribunal had jurisdiction to entertain a complaint the Tribunal had no power to order any refund.  It is  necessary  to consider this question as the  prayer  for refund  as  made in the complaint was not only  for  charges already  made but for charges that might be made  in  future under  the  rate Advice No. 2A of 1960.  On  behalf  of  the appellant it has been urged that it would be inequitable for the  Tribunal not to make an order of refund in  respect  of charges made after the date of the complaint, if it comes to the  conclusion that those charges were more than  what  was reasonable.  The question of equity does not however  arise. The  Tribunal can have no more jurisdiction that what it  is given by the Act whichbrings it into existences ; and  if on a properconstruction  of the words of the statute  we findthat  the Tribunal was not given any such  jurisdiction we   cannot  clothe  it  with  that  jurisdiction   on   any consideration of convenience or equity or justice. 344 What  the  Tribunal has to do after a complaint is  made  is mentioned  in s. 41 (1) itself.  It is said there  that  the Tribunal shall hear and decide the complaint.  The complaint being  that something is unreasonable all that the  Tribunal has to decide is whether that thing is unreasonable or  not. A  finding  that  it is unreasonable does  not  involve  any consideration  or  decision  of what  would  flow  from  the finding.   In  other  words, in  making  the  complaint  the complainant can ask only for a declaration that the rate  or charge  is  unreasonable  and it is  only  this  declaratory relief  which  the  Tribunal has been  authorised  to  give. There  is  no provision that the Tribunal can  also  give  a consequential relief. The only other thing which the Tribunal is authorised to  do in  connection  with the complaint is to fix "such  rate  or charge  as  it  consider reasonable".   In  the  absence  of anything  to  indicate to the contrary it is  reasonable  to think  that this fixation can only be prospective, that  is, the Tribunal in making this order fixing the reasonable rate or charge will mention a future date for this to come  .into operation.  Even if it was assumed for the sake of  argument that  the Tribunal can fix these rates from the date of  the complaint  that  would not give the Tribunal  any  power  to order refund. Mr.  Veda  Vyasa has argued that the power to  order  refund flows from s. 39 of the Act.  Section 39 is in these words : "For the purpose of exercising the jurisdiction conferred on it  by this Chapter, the Tribunal may pass such interim  and final  orders  as the circumstances may  require,  including orders  for the payment, subject to the provisions  of  this Chapter,  of costs; and it shall be the duty of the  Central Government  or the State Government, as the case may be,  on whom any obligation is imposed by any such order to carry it out." Is it neceserly                             345 for  the Tribunal to make the order for refund-at  least  in respect of the charges made after the date of the  complaint in excess of what is held to be reasonlable-"for the purpose of exercising the jurisdiction conferred on it?" The  utmost that could be said is that the relief for making an order of refund  has  a connection with the order holding  the  rates already  charged  after the date of the institution  of  the

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complaint  to  be  unreasonable.  It is  impossible  to  say however that such )an order is necessary for the purpose  of exercising  the jurisdiction conferred-that jurisdiction  in connection  with  complaints,  being under a.  41,  only  to arrive  at a decision whether a certain rate was  reasonable or not and if it was unreasonable to fix a reasonable  rate. An  order  for refund can by no stretch  of  imagination  be considered  to be "’necessary for the purpose of  exercising the jurisdiction".  Section 39 is therefore of no assistance to the appellant’s contention. It  was next urged that unless the Tribunal is held to  have power  to  make  an  order  of  refund,  s.46  (B)  will  be meaningless.  Section 46 (B) provides that the Tribunal  may transmit  any  order  made by a  civil  court  having  local jurisdiction and such civil court shall execute the order as if  it  were  a decree.  It is obvious  that  an  order  for payment  of coati; which may be made by the  Tribunal  could under a. 46 (B) be transmitted to a civil court and executed by  a  civil  court as if it were a  decree.   Even  if  the Tribunal  can  pass  no  other  order,  which  may   require execution,  a. 46 (B ) will serve its purpose in  connection with  the orders for costs.  Nor is it necessary for  us  to speculate as to what other orders made by the Tribunal could require   execution  by  the  civil  courts.    For.,   such considerations  cannot  in any way throw any  light  on  the nature  of the orders that can be made under a. 39.   It  is hardly necessary to mention that a. 39 does not 346 confer  any  jurisdiction; but only provides for  means  for exercise  by  that Tribunal the jurisdiction  which  it  has otherwise got under other sections. It  is interesting to remember in this connection the  words used  by  the  British  Parliament in  s.  196  (3)  of  the Government of India Act, 1935.  The first sub-section of  s. 196  provided for the constitution of the  Railway  Tribunal and then the third sub-section proceeded to say : "It  shall be  the  duty  of  the Railway  Tribunal  to  exercise  such jurisdiction as is conferred on it by this Act, and for that purpose the Tribunal may make such orders, including interim orders,  orders varying or discharging a direction or  order of the Authority,, orders for the payment of compensation or damages and of costs and orders for the production of  docu- ments and the attendance of witnesses, as the  circumstances of  the  case may require, and it shall be the duty  of  the Authority  and of every federated state and of  every  other person or Authority affect ed thereby to give effect to  any such order".  These important words ,,orders for the payment of  compensation  or  damages" have been  omitted  from  the present s. 39. Mr.  Veda  Vyasa  strenuously  contended  that  unless   the Tribunals be held to have jurisdiction to order refund,  the ’appellant  and others in his position would be deprived  of their  right to obtain relief against  unreasonable  charges already paid in view of the provisions of s. 26 of the  Act. Section  26 (which is in the same words as the old  41)  run thus   :   "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 provisions of this  Chapter"  (Ch. V).   The  argument  in  that s. 26 stands  in  the  way  of bringing any suit of the civil courts on a claim for  refund of charges                             347 made in excess of reasonable charges.  This proceeds on  the misconception that such a suit would be ,’for anything  done

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or  any  omission  made  by  a  Railway  Administration   in violation or contravention of Ch.  V of the Act".  There  is no  provision  in Ch.  V however  saying  that  unreasonable charges  shall not be made by a Railway Administration.   If therefore any Railway Administration has received payment of unreasonable charges or rates that is not "anything done  in violation or contravention of any provisions of Chapter  V". If  under the law, apart from the Railways Act, a  consignor is  entitled to obtain relief against  unreasonable  charges which he has paid, in the past, s. 26 will not stand in  his way.   What  his rights in law are in respect of  such  past charges: and whether any claim for repayment of charges made in excess of reasonable charges can succeed in law in  civil courts on the theory that as a common carrier the Railway is not  entitled to charge anything more than reasonable  rates and charges, need not be examined here.  As a suit on  ,such a  claim world not be on anything done or any omission  made by   the   Railway  Administration  in   violation   or   in contravention of any provisions of Ch. V, the provisions  of s. 26 are quite irrelevant for the decision of the  question whether  the Tribunal has any jurisdiction to make an  order for refund. Our  conclusion therefore is that neither expressly  nor  by necessary  implication has the Railway Rates  Tribunal  been given  any jurisdiction to make any order for  refund.   The decisions  of  the Railway Rates Tribunal,  in  the  present case, on both the issues are therefore correct. The appeal is accordingly dismissed with costs. 348