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PETITIONER: RAICHAND AMULAKH SHAH

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 21/10/1963

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GAJENDRAGADKAR, P.B. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1964 AIR 1268            1964 SCR  (5) 148  CITATOR INFO :  RF         1973 SC1281  (8)

ACT:     Indian  Railway Act, 1890, s. 26--Construction  of--Suit for  refund of Wharfage and demurrage charges--If  barred--" Wharfage" and "demurrage" meaning of--If terminals.

HEADNOTE:     Suits were filed against the Union of India representing the  Western Railway for the refund of amounts collected  by the  Western Railway as wharfage and demurrage charges  from the  appellants.  It was alleged in the plaint that  Railway notifications and rules under which the Railway had  charged the  wharfage at two annas to four annas per maund  per  day were  illegal  and  ultra rites and that  in  any  view  the railway had no power under the rules to collect charges from appellant-firm  for  the  "free  time"  under  the  head  of wharfage  charges.  The respondent pleaded that Civil  Court had  no jurisdiction to entertain the suits and  that  rules were not ultra rites and money was not collected against the rules.   Suits  were  dismissed by the trial  court  on  the ground  that  they  were barred under s. 26  of  the  Indian Railways  Act.  Revisions were also dismissed  by  the  High Court.  The appellants came to this Court by Special  Leave. Accepting the appeals,     Held, that s. 26 of the Indian Railways Act is not a bar to the maintainability of a suit for the refund of what fage or demurrage charged in excess.  The bar under s. 26 is  not comprehensive. It is limited by the opening words "Except as provided in the Act" in the section.  Two conditions must be complied   with   before  applying  s.  26.    The   railway administration  should have done an act or omitted to do  an act  in contravention of the provisions of Chapter V of  the Indian  Railways Act and the Act should provide a remedy  in respect  of that act or omission.  In the present case,  the Act  does not provide for any remedy for an aggrieved  party to  approach the Tribunal appointed under s. 34 of  the  Act for  the  refund of the amount collected in  excess  by  the Railway  Administration  by way of wharfage   or  demurrage.

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The Tribunal has no jurisdiction to decide whether the rules empowering  the  administration  to  collect  wharfage    or demurrage  charges are ultra vires or the amounts  collected are in excess of what is leviable under the rules.     Wharfage  and demurrage are charges in respect of  goods unloaded  from  wagons and kept at the station and  also  in respect  of  the goods kept on a platform  of  the  station, beyond the free time allowed for clearance under the  rules. The said charges 149 can  certainly  be described as charges in  respect  of  the station  and  are  terminals  within  the  meaning  of   the definition of the term in the Act.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION:  Civil Appeals  Nos.  149 to 154 of 1959.     Appeals  by  special leave from the judgment  and  order dated  February 25, 1958 of the former Bombay High Court  at Rajkot in Civil Revision Applications Nos. 46, 49,55, 57, 58 and 59 of 1958.     S.P. Sinha, Shahzadi Mohiuddin and M.L Khowaja, for  the appellants.     N.S. Bindra and R.N. Sachthey, for the respondents. October 21, 1963. The Judgment of the Court was delivered by     SUBBA  RAO J.--These six appeals filed by special  leave raise  a  common question, namely whether  the  suits  flied against  the  Western  Railway for  the  refund  of  amounts collected  from the appellant firm as wharfage or  demurrage would lie in a Civil Court.     Civil Appeals Nos. 152 and 153 of 1959 arise out of  the suits  filed for the recovery of the amounts collected  from the appellant-firm by way of demurrage and the other appeals are  filed  for the recovery of amounts collected  from  the said firm by way of wharfage charges.  It would be enough if we  gave the particulars of the claim in one of  the  suits, for it was stated at the Bar that the claims for refund were similar  in  all the other suits.  Excepting the  plaint  in Civil Suit No. 109 of 1957, the other plaints are not placed before us.  We are, therefore, proceeding on the  assumption that  the  relevant  allegations  in  all  the  plaints  are similar,  particularly as the assertion of  learned  counsel for the appellants to the said effect was not questioned  by learned counsel for the respondent.     Civil  Suit No. 109 of 1957 was filed by the  appellants in Civil Appeal No. 149 of 1959 for recovery of a sum of Rs. 295  from  the  Union  of  India  representing  the  Western Railway.  The appellants are 150 a  firm  doing  business in Surendranagar.   The  said  firm received  a  consignment of 125 bags of  rice  booked  -from Belanganj  to Surendranagar railway station. At the time  of effecting  delivery  of the said  consignment,  the  Station Master at Surendranagar recovered a sum of Rs. 275-7-O  from the   appellant-firm as wharfage charges.  It is alleged  in the  plaint that the railway notifications and  rules  under which  the railway had charged the wharfage at two annas  to four  annas per maund per day were illegal and  ultra  vires and  that  in any view the railway had no  power  under  the rules  to collect charges from the appellantfirm  under  the said  rules for the "free time" under the head  of  wharfage charges.   On those allegations the suit was filed  for  the refund  of  the amount collected by the said  railway.   The

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defendant  denied either that the rules were ultra vires  or that  it  collected the amount contrary to  the  rules.   It pleaded  that  the  civil  court  had  no  jurisdiction   to entertain the suit.  Similar suits were filed in respect  of other  amounts  and similar contentions  were  raised.   The learned  Civil Judge dismissed all the suits on  the  ground that  they  were barred under s. 26 of the  Indian  Railways Act, 1890 (Act IX of 1890), hereinafter called the Act.  The said  firm in all the suits preferred revisions against  the judgment  of the Civil Judge to the High Court of Bombay  at Rajkot.   The High Court agreed with the view of  the  Civil Judge and dismissed the revisions.  Hence the appeals.     The  only question raised before us is whether s. 26  of the  Act  is a bar against the maintainability of  the  said suits  in  a  civil court for refund  of  the  said  amounts collected  from  the appellant-firm by way of  wharfage  and demurrage charges.     To  appreciate  the  contentions of the  parties  it  is necessary to notice the relevant sections of the Act. At the outset  it may be mentioned that in the present appeals  the amounts were collected between the years 1953 and 1955  and, therefore, we will be ignoring the later amendments made  in the Act for the purpose of the present enquiry. 151                     Section   3(14)   "terminals"   includes               charges  in  respect  of  stations,   sidings,               wharves, depots, warehouses, cranes and  other               similar matters, and of any services  rendered               thereat."                    Section 26.  "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 provision of this Chapter               (Ch. V)."                     Section 32. "The Central Government may,               by general or special order, fix the rates  of               terminal  and other charges for the  whole  or               any  part  of  a railway,  and  prescribe  the               conditions in which such rates will apply.                     Section   34.  (1)  There  shall  be   a               Tribunal  called the Railway  Rates  Tribunal,               for  the purpose of discharging the  functions               hereinafter specified in this Chapter.                     Section  41.  (i) Any complaint  that  a               railway administration--                     (c)  is  levying  charges  (other   than               standardised  terminal  charges)   which   are               unreasonable,               may be made to the Tribunal, and the  Tribunal               shall  bear  and decide any such complaint  in               accordance   with  the  provisions   of   this               Chapter.                     Section  45.  Nothing  in  this  Chapter               shall  confer jurisdiction on the Tribunal  in               respect  of  scales  of charges  levied  by  a               railway  administration  for the  carriage  of               passengers   and   their   luggage,   parcels,               military   traffic  and  traffic  in   railway               materials  and stores, and demurrage  charges,               except on a reference made to the Tribunal  by               the Central Government.                     Section   46A.  The  decision   of   the               Tribunal shall be by a majority of the members               sitting and shall be final.

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152 Provided  that  where a single member of  the  Tribunal  has heard  and decided any matter, he may, ,in  his  discretion, give leave to any party to appeal to the Full Bench; and  if an appeal is filed in pursuance of such leave, the  decision of  the Full Bench or of a majority of the members  thereof, as the case may be, shall be final.                      Section 46B.  The Tribunal may transmit               any  order made by it to a Civil Court  having               local jurisdiction and such Civil Court  shall               execute the order as if it were a decree.                     Section  46C.  In this  Chapter,  unless               there is anything repugnant in the subject  or               context,--                 (d)   "demurrage"  means the  charge  levied               after the expiry of the free time allowed  for               loading or unloading a wagon. The  scheme  of the said provisions is clear.   The  Central Government fixes the rates of terminal and other charges for the   whole   or  a  part  of  a  railway.  If   a   railway administration  levies charges other than  the  standardised terminal charges which are unreasonable, an aggrieved  party may file a complaint against the administration before   the Railway  Rates  Tribunal.  The decision of the  Tribunal  is final.   In regard to ’demurrage charges mentioned in s.  45 of the Act, the Tribunal has no jurisdiction to entertain  a claim in respect thereof, except by a reference made to  the Tribunal  by  the Central Government.  Section 26  bars  the jurisdiction of ordinary civil courts to entertain a suit or a  proceeding for anything done or any omission made by  the railway administration in violation or contravention of  any of  the  provisions  of  Chapter  V.   In  regard  to   such violation, an aggrieved party can only proceed in the manner provided by the Act.     The  short  question,  therefore, is  whether  the  said claims for refund are covered by the bar imposed by s. 26 of the act. As s. 26 bars the jurisdiction of civil courts, its provisions must be strictly construed. The bar is in respect of anything done or an omission 153 made   by  the  railway  administration  in   violation   or contravention of any provisions of Chapter V of the Act.  If the opening words "Except as provided in  this Act" in s. 26 of the Act are ignored, the bar appears to be comprehensive, for it may take in its sweep any dereliction of duty by  the railway administration in respect of matters covered by  the provisions  of the said chapter.  But such an  intention  to give  a  blanket licence to the  railway  administration  to contravene the provisions of Chapter V of the Act shall  not be attributed to the Legislature unless the section is  very clear to that effect.  The opening words "Except as provided in  this  Act"  limit  the operation of  the  bar.   It  can reasonably be interpreted to mean that the bar of a suit  is limited to matters in respect whereof the Act has provided a remedy.  So construed, before we apply the provisions of  s. 26  of  the  Act, two conditions  shall  be  complied  with, namely,  (i) the railway administration shall have  done  an act  or  omitted  to  do an  act  in  contravention  of  the provisions  of Ch. V and (ii) the Act has provided a  remedy in respect of that act or omission.  It was argued that  the charges levied by the railway administration under the heads of  "wharfage" and  "demurrage"  are  "terminals" in  regard whereof  rules were framed by the Government under s. 32  of the  Act, that the complaint of the appellants was that  the rates were collected in excess of those prescribed under the

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rules and that, therefore, s. 26 bars a suit for recovery of the same.     The  first question, therefore, is whether wharfage  and demurrage  charges  are "terminals".  "Terminals"  has  been defined by s. 3(14) of the Act to include charges in respect of stations,  sidings,  wharves, depots, warehouses,  cranes and  other  similar matters, and of  any  services  rendered thereat.  Under s.32 of the Act the Central Government  may, by  general or special order, fix the rates of terminal  and other  charges for the whole or any part of a  railway,  and prescribe the conditions in which such rates will apply.  In order to find out whether wharfage and 154 demurrage charges come under the definition of  "terminals", it  is  necessary  to ascertain the  meaning  of  the  words "wharfage" and "demurrage" as understood by the Act and  the rules    made   thereunder.  There  is  no   definition   of "wharfage".  in the Act. But s. 46C(d) defines demurrage  to mean  the  charge levied after the expiry of the  free  time allowed  for loading or unloading a wagon.  But  the  rules, presumably  made  under the Act, give a clear  idea  of  the meaning  of these words.  The relevant rule is r. 85 and  it reads:                      "The  actual  wharfage  and   demurrage               rules  locally in force on different  railways               are  published in each Railway’s  Tariffs  and               may be ascertained on application at stations.     The following wharfage and demurrage rules were in force on  the  B.B.  & C.I. Railway, which is  now  named  as  the Western Railway.  Clauses (A) and (B) thereof give the rates of wharfage and demurrage and clause (C) defines "demurrage" and "wharfage".  Clause (C) reads:                  (i) When wagons required to be unloaded  by               consignees  are not unloaded within  the  free               time  of  six  day-tight  hours,  after  being               placed in position for unloading, demurrage as               per clause (B) (ii) above will be charged  for               such  time  above six daylight hours,  as  the               goods  remain in the wagon, and   wharfage  at               the rate notified as applicable at the station               will  be charged if the goods are not  removed               from  the railway premises by the end  of  the               day   following   that  on  which   they   are               unloaded."                  (ii)  When wagons requiring to be  unloaded               by  consignees  are unloaded within  the  free               time of six daylight hours, after being placed               in  position  for unloading, wharfage  at  the               rate  notified  as applicable at  the  station               will  be charged if the goods are not  removed               from the railway premises by               155               the end of the day following that on which the               free time of six daylight hours, expires. Demurrage  is  therefore a charge levied on  the  goods  not unloaded   from  the  wagons within the  free  time  of  six daylight  hours and wharfage is the charge levied  on  goods not  removed from the railway premises after the  expiry  of the free time allowed for that purpose, Indeed s. 46C(d)  of the  Act,  which  was  inserted  by  Act  65  of  1945,  has practically  adopted the definition of the word  "demurrage" given  in  the  said  rule.   Wharfage  and  demurrage  are, therefore,  charges levied in respect of goods  retained  in the  wagons or in the railway premises beyond the free  time allowed for clearance under the rules.

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   The question is whether such charges are "terminals"  as defined  in the Act.  The expression "terminal charges"  was defined for the first time in the Indian Railways Act, 1890. It  was  taken from the definition in s. 55 of  the  English Railway and Canal Traffic Act,  1888.  Terminal charges  are of  two  categories:   (1) charges  for  services,  and  (2) charges  for accommodation and appliances  which  facilitate business.  The "service terminals" comprise of  remuneration for  the  handling of goods at the  terminal  station  i.e., where  the  railway  employees  are  engaged  in   weighing, loading,   unloading,  etc.   As  distinguished  from   this "service   terminals"  there are  "station terminals"  which are  charges for providing accommodation incidental  to  the business  of a carrier, such as "working  charges,  repairs, renewals,  insurance of station buildings,  sidings,  sheds, platforms,   warehouses,  cranes,  hydraulic  power,   fixed appliances  etc."   Both demurrage and wharfage  would  fall within  the  head of "station terminals", because  they  are charges  levied  for the use either of the wagon or  of  the platform  or goods-shed after the transit or  conveyance  is complete  and is not incidental to the conveyance  as  such. Charges  levied in respect of stations are included  in  the definition  of "terminals" under the Act.  As  the  wharfage and demurrage are charges in respect of goods unloaded  from wagons and kept at the 156 station,  and also in respect of goods kept on platforms  of the  station, the said charges could certainly be  described as  charges  in respect of the station.  If so,  it  follows that the said charges are "terminals" within the meaning  of the definition of the said expression in the Act.     Let us now see whether any remedy is provided by the Act for  an aggrieved party to ask for a refund of  the  charges collected  on  the  ground mentioned  in  the  plaint.   The Tribunal constituted under s. 34 of the Act has jurisdiction to  decide  whether  the  charges  levied  by  the   railway administration other than the standardised terminal  charges were unreasonable.  The Act does not provide for any  remedy for an aggrieved party to approach the Tribunal for a refund of the amount collected by the railway administration by way of  wharf  age  or demurrage on the ground  that  the  rules empowering the said administration to do so are ultra  vires or  that the amounts so collected are in excess of  wharfage or  demurrage  leviable under the rules.   If  the  impugned charges  are standardised terminal charges, the  dispute  in regard thereto fails outside s. 41 of the Act.  If they  are charges  other than the standardised terminal  charges,  the jurisdiction  of  the  Tribunal  is  confined  only  to  the question  of its reasonableness.  It has no jurisdiction  to decide   whether   the   rules   empowering   the    railway administration  to levy a particular charge are ultra  vires or  whether the railway administration collected amounts  in excess  of  the charges which it can legally  levy  under  a rule.   If so, it is clear that no provision has  been  made under  the Act giving a remedy to an aggrieved party to  ask for a refund of amounts, such as those alleged to have  been collected  from  the  appellants.   Section  26,  therefore, cannot  be  a bar against the maintainability of  the  suits filed by the appellants.     We  do not propose to express our view in this case,  as it  has  not been argued before us,  whether  the  demurrage charges   in  question  fell  within  the  meaning  of   the expression "demurrage charges" in 157 s. 45 of the Act and, if so, whether the jurisdiction of the

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Tribunal  could  only be invoked in  the  manner  prescribed thereunder.     For  the  foregoing reasons we hold that both  the  High Court and the trial Court went wrong in dismissing the suits on the ground that s. 26 of the Act was a bar against  their maintainability.   We, therefore, set aside the judgment  of the High Court as well as that of the trial Court and remand the suits to the trial Court for disposal in accordance with law.   We should not be understood  to have   expressed  any opinion  on  the other questions raised in the  suits.   The respondent will pay the costs of the appellants here. The costs of the courts below will abide the result.                               Suits remanded.