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PETITIONER: THE  UNION  OF INDIA, REPRESENTED BY  THE  GENERAL  MANAGER,

       Vs.

RESPONDENT: THE INDIAN SUGAR MILLS ASSOCIATION, CALCUTTA & ANOTHER

DATE OF JUDGMENT: 21/03/1967

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA WANCHOO, K.N.

CITATION:  1968 AIR   22            1967 SCR  (3) 219  CITATOR INFO :  RF         1969 SC 630  (2,11)  RF         1973 SC1281  (8)

ACT: Indian  Railways Act, 1890, ss. 29 and 41--Charges  made  by Railways   for  maintenance,  etc.  of   "assisted   siding" constructed  to  facilitate goods traffic and  for  shunting wagon  to  and  from  companys’  mill-Services  rendered  by Railways  not  under any statutory duty  but  under  private agreement-Railways   giving   notice   of   enhancement   of charges--Whether  such charges fall within  expression  ’any other  charge’  in  ss. 29(2) and  41  (1)  (c).   Therefore whether  complaint  alleging  charges  unreasonable  can  be entertained by Railway Rates Tribunal under s. 41(1)(c).

HEADNOTE: The  predecessor  of the appellant Railway entered  into  an agreement  in November, 1933, with the  respondent  company, which  bad a large sugar mill, for the construction  of  two "assisted  sidings"  to  facilitate the  movement  of  goods traffic  to and from the sugar mill.  Under  the  agreement, part  of the expenditure was met by the company and  it  was provided  that the company would pay an annual  contribution to  the Railways for the use of the Railway portion  of  the siding  and  in lieu of paying separately the  interest  and maintenance  cost  of the siding.  It was  further  provided that  in the event of the contribution not being  sufficient to  meet the cost of the working of the siding, the  Railway was  entitled, on giving six months’ notice, to  modify  the contribution and charge the company such higher amount as it may  consider necessary.  By virtue of  another  arrangement between  the  Railway  and the  Company,  at  the  company’s request,  the  Railway  would arrange for  the  shunting  of wagons from the Company’s factory yard to the Railway  lines and  for doing so, the Railway would charge the  company  -a shunting engine charge calculated at a fixed rate per hour. ’In  February  1958, the Railway gave  notice  of  increased charges  to be paid instead of the fixed  contribution.   It also  demanded  an increased shunting  engine  charge.   The company  thereupon filed a complaint under s. 41( 1) (c)  of the  Indian  Railways Act, 1890 before the  Railway  Rate,-. Tribunal at Madras, claiming that the charges claimed by the

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Railway were unreasonable and requesting the Tribunal to fix reasonable charges in exercise of its powers under s.  41(3) of  the Act.  The complaint was contested by the Railway  on the  grounds  (i) that the charges to  which  the  complaint related were in respect of services that the Railway was not under  any statutory duty to render to the company  and  was rendering  them  under private agreement with  the  company; consequently,   such  charges  did  not  fall   within   the expression any other charge’ in s. 41 (1) (c) and  therefore no complaint could be filed under s. 41 challenging them  on the  ground of being unreasonable; (ii) that the  burden  of proving  the  charges were unreasonable was on  the  company which  had  not  been discharged and the  Tribunal  was  not competent   to   call  upon  the  Railway   to   prove   the reasonableness  of  the charges and to -reduce  the  charges only on the ground that the Railway had failed to  establish their reasonableness; and (iii) that the charges demanded by the Railway were 220 in fact reasonable and should not be reduced.  The  Tribunal rejected the Appellants’ contentions and revised the charges on  the basis of the evidence adduced before it.  On  appeal to this Court. HELD  :  (i)  The charges in question were  covered  by  the expression  "any  other charges" in s. 41 (1)  (c)  and  the complaint  in the present case ’was rightly  entertained  by the Tribunal. The  only  charges  which could be said  to  relate  to  the discharge  by the Railway of its statutory duties  would  be those  fixed  under  s. 29(1) of the Act  in  respect  of  a commodity carried by the Railway over its own lines.  It  is clear  that a complaint under s. 41(1)(b) ’relates to  fixa- tion  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  charges mentioned in s. 29(2).  The  expression  "any other charge" used in ss. 29(2) and 41(1)(c) cannot be given the  narrow meaning of covering a charge in respect  of  the statutory duty of the Railway so as to exclude charges  made or levied for all other services.  It must necessarily cover charges  which are not included in s. 29(1 ) and s. 41 (1  ) (b).  It was immaterial that the charges being levied by the Railway  arose  only as a result of  a  voluntary  agreement which the Railway, at its option, might have refused -to enter into. [226H;   227B, E-F] Halsbury’s Laws of  England,  2nd Edn,. Vol. 27,  Paras  434 and 436   at p. 196; referred to. (ii) The figures of the  proposed increase in charges  given on  behalf  of the company,, which were  challenged  in  the complaint, did prima facie indicate that the rates fixed and demanded were unreasonable.  It could not therefore be  held that  the  Tribunal committed any error in  going  into  the evidence  given  on behalf of the Railway  and  arriving  at reasonable rates after a full consideration of that evidence and  the evidence tendered on behalf of the company.  [229E, F-G] (iii)     It was necessary to include a margin of profit  in the "shunting engine charge" fixed by the Tribunal and (upon an examination of the evidence to revise the siding charges. the  Court therefore itself fixed the rates for the  charges to be levied by the Railway.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 610 of

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1965. Appeal  by special leave from the judgment and  order  dated December  31, 1963 of the Railway Rates Tribunal, Madras  in Complaint No. 1 of 1962. N.   S.  Bindra,  R. H. Dhebar for R. N. Sachthey,  for  the appellant. A.   K.  Sen, B. P. Maheshwari and R. K. Chaudhary, for  the respondents. The Judgment of the Court was delivered by Bhargava,  J.  Belsund Sugar Co.  Ltd.,  Riga,  (hereinafter referred  to as "the Company") was incorporated in the  year 1932.   Soon  after the incorporation of  the  Company,  the Company  established a fairly large sugar mill near  railway station Riga.  This 221 station  was  on the railway line of the  Bengal  and  North Western Railway which, at that time, was owned by a  limited Company  known  as  the Bengal  and  North  Western  Railway Limited.  At Riga railway station, the Railway had two  main lines running one along the passenger platform, and  another forming a loop against it running parallel to the first line with  points on both sides of the platform for  -taking  the railway trains to line 2 when arriving from either direction at  Riga railway station.  For the sake of convenience,  the line  along  the passenger platform will be referred  to  as line 1, and the other main line forming the loop as line  2. In  addition, there was a goods platform and a line was  run connecting line 1 to the line along the goods platform  from both directions.  That line is to be referred to hereinafter as  line  5.  Since the sugar factory  of  the  Company  was established  close  to  Riga  station,  considerable   goods traffic  started being received for the Company and, at  the same time, goods traffic was also booked by the Company  for outward transmission from this station.  During the crushing season, a large number of wagons loaded with sugarcane  used to be received and, under the existing constructions of  the Railway, delivery of the sugarcane had to be taken from  the goods  wagons  on line 5 at the goods platform.   Since  the traffic  was  considerable,  it  became  inconvenient   and, consequently,  an arrangement was entered into  between  the Railway  and  the Company for construction of  two  sidings, described  as  assisted  sidings.   In  pursuance  of   this arrangement,  two  further lines  (hereinafter  referred  to lines  3  &  4)  were laid between lines  2  and  5  running parallel to these lines.  Trains from line 1 could be  taken to lines 3 and 4 from both directions in the same manner  as they  could be taken to line 5. At the time of  construction of  these assisted sidings represented by lines 3 and 4,  an agreement  was  entered  into between the  Railway  and  the Company on 21st November, 1933.  Under that agreement,  part of  the  expenditure on the construction of  these  assisted sidings   was  met  by  the  Company,  while  part  of   the expenditure  was incurred by the Railway.  It was agreed  in that agreement that the Company will pay in advance, in  two equal half-yearly installments on the first day of April and the  first day of October respectively in each half-year,  a fixed  contribution  of  Rs. 709/8/- per  half-year  to  the Railway  for the use of the railway portion of  the  siding. The agreement proceeded to lay down that the payment of this contribution  by  the  Company was to be taken  in  lieu  of paying  separately for interest on, and cost of  maintenance of, the permanent-way, points and crossings and interlocking connected therewith and for freight on the traffic over  the siding.   It  was further agreed that, in the event  of  the above contribution not being sufficient to meet the cost  of

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the  working  of the siding, the Railway  was  entitled,  on giving  six  months’ notice of its intention to  do  so,  to modify  the above contribution and charge the  Company  such higher amount as it may 222 consider  necessary to meet the increased cost  of  working. Further  railway  lines  were also laid  from  Riga  railway station  up to the factory of the Company.  A line ran  from the  junction  of lines 3 and 4 on the western side  of  the station in a semi-circular loop and then entered the factory of  the  Company  where  the  line  was  connected  to  four different lines.  This line, running from the junction up to a  point where there was further bifurcation of lines,  will be  referred to as line 6. At the end of line 6,  this  line was  connected to two lines, one situated to the south,  and the  other  to the north.  There was also a loop  formed  by connecting the northern line to the southern line by another connecting line.  This loop is to be referred to as line  7. Lines  6  and 7 were laid at the cost of the  Company.   The arrangement was that the Company was to take delivery of its sugarcane wagons as well as all other goods on lines 3 and 4 at the assisted sidings.  Thereafter, it was the duty of the Company  to unload the wagons there, or to have them  rolled into  their own factory yard.  It appears that  the  Company purchased a railway engine and used it for taking the loaded wagons to the factory and bringing back the unloaded  wagons to these lines 3 and 4. For outward traffic also, the  empty wagons  often  used  to be loaded in the  factory  yard  and brought  by the factory engine to Riga railway station.   On some  occasions,  the wagons were taken by being  pushed  by manual  labour  instead  of  using  the  engine.   A   third alternative  was that the Company would request the  Railway to arrange for the shunting of their wagons from lines 3 and 4  to  the  factory yard.   Whenever  this  arrangement  was adopted,  the Railway charged the factory for  this  service rendered.   It  appears that between the  years  1956-57  to 1958-59, the Railway used to charge the Company at the  rate of Rs. 18/per hour, computing the time taken by the shunting engine  in  completing the work of the  Company.   The  time computed began when the shunting engine came to lines 3  and 4  to  take away the Company’s wagons, and  ended  when  the engine returned to the railway station after completing  the work  of  shunting the wagons.  Sometimes,  on  return,  the engine  brought  empty  wagons,  but  this  was   considered immaterial, because the charge was made from the Company  by the  Railway on the basis of the time actually taken by  the shunting  engine calculated @ Rs. 18/- per hour.  This  rate of Rs. 18/- per hour will be described hereafter as the rate of the shunting engine charge.  It may be mentioned that, in the  year  1942, the Bengal and North  Western  Railway  was taken  over  by the Indian Government and, at  the  relevant time  in the year 1958, the Railway was owned by  the  Union Government  and  was  run under the name  of  North  Eastern Railway, which is the name it continues to bear at present. The  arrangement,  mentioned  above  continued  up  to   8th February,  1958.   On this date, a notice was given  by  the Railway 223 to  the Company proposing enhancement of the charges  to  be levied in pursuance of the agreement which had been  entered into  on 21 St November, 1933, under which the  Railway  was empowered  to  enhance  the charges,  if  it  considered  it necessary  to meet the increased cost of the working of  the assisted sidings.  By this letter dated 8th February,  1958, the  Railway gave six months’ notice of enhancement  of  the

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charges, after mentioning that the fixed contribution of Rs. 709/8/- per half-year for use of the Railway portion of  the siding  in  lieu of paying separately for interest  on,  and cost  of  maintenance  of,  the  permanent-way,  points  and crossings  and  interlocking  connected  therewith  and  for freight  on the traffic over the siding was  not  considered sufficient  to meet the cost of present-day working  of  the siding.  The charges to be levied in lieu of existing  fixed contribution  were  mentioned as a sum of  Rs.  603.7nP  per half-year in respect of interest on the capital and cost  of maintenance  of the permanent way, points and crossings  and interlocking  connected therewith, while for the freight  on the traffic over the siding, described as the siding charge, the Railway demanded Re. 1/- per 4-wheeled wagon hauled over the siding, subject to a minimum of Rs. 7/- per shunt.   The new  rates  were to come into force with  effect  from  10th August, 1958.  Though the Company did not agree to these new rates,  the  Railway demanded payment at  these  rates  and, ultimately, the Company was informed by the Railway that, if payments  at  new rates were not made, the facility  of  the assisted  siding  would  be  withdrawn.   The  Company  made payments under protest.  Further, the Railway also  enhanced the  rate  for  the shunting engine charge.   The  rate  was enhanced  to Rs. 28/- per hour for the year 1959-60  and  to Rs. 30/50nP per hour for the year 1960-61. The Company, being dissatisfied with these charges, filed  a complaint under section 41(1)(c) of the Indian Railways Act, 1890  (hereinafter  referred  to as "the  Act")  before  the Railway Rates Tribunal at Madras (hereinafter referred to as "the  Tribunal")  against the enhancement  of  the  shunting engine  charges  from  Rs. 18/- per hour  to  Rs.  28/-  and subsequently   Rs.  30/50nP  per  hour,  as  well   as   the enhancement of the siding charges by prescribing a scale  of payment @ Re.  1 /- per wagon with a minimum of Rs. 7/-  per shunt.   It appears that there were a large number of  sugar mills situated along various railway stations served by  the North  Eastern  Railway, and with them  also  there  existed similar  arrangements  as  the one arrived  at  between  the Railway  and  the  Company  in  1933  under  the   agreement mentioned above.  All these sugar mills were members of  the Indian  Sugar  Mills  Association.   This  Association  also joined  as  a complainant in the complaint  of  the  Company representing  all  its  constituent  sugar  mills.   In  the proceedings  before the Tribunal, however, the Indian  Sugar Mills Association did not take any active part and the  case was 224 actually  fought  out by the Company.  It was urged  in  the complaint  that  both the shunting engine  charges  and  the siding charges at the enhanced rates claimed by the  Railway were  unreasonable  and the Tribunal was  requested  to  fix reasonable charges in exercise of its powers under s.  41(3) of the Act. The complaint was contested by the Railway on three grounds. The  first  ground  was  that  the  charges,  to  which  the complaint  related,  were in respect of services  which  the Railway  was  not  bound to render to the  Company  and  was rendering  under  private agreements with the  Company  and, consequently, no complaint could be filed under s. 41 of the Act  challenging them on the ground of  being  unreasonable. This  plea was taken on the basis that the  expression  "any other  charge" in s. 41(1)(c) of the Act could only cover  a charge made by the Railway in discharge of its duties  under the statute and could not cover a charge made by the Railway for voluntary services which the Railway might render  under

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a  private  agreement of a commercial nature  to  any  other party.  The second ground was that the complainants had  not succeeded  in  showing  that the  charges  demanded  by  the Railway  were  unreasonable and, that burden  of  proof  not having been discharged by the complainants, the Tribunal was not  competent  to  call  upon  the  Railway  to  prove  the reasonableness of the charges and to reduce the charges only on the ground that the Railway had failed to establish their reasonableness.   The  third point of contest was  that  the rates,  at which the charges were demanded by  the  Railway, were, in fact, reasonable and should not be reduced. The Tribunal held that the complaint was competent and  that the expression "any other charge" in s. 41(1)(c) of the  Act did cover both these charges to which the complaint related. The  Tribunal  did  not, in specific words,  hold  that  the complainants   had   established  that  the   charges   were unreasonable,    before    proceeding   to    examine    the reasonableness  of  the  charges.  On the  other  band,  the Tribunal  proceeded to examine the evidence of  the  parties adduced  before  it and came to the finding  that,  in  both cases,   the  charges  being  demanded  were   unreasonable. Further,  after  examining in detail the evidence  given  on behalf  of the Railway, and on making its  own  computation, the  Tribunal  held that a sum of Rs. 20/- per  hour  was  a reasonable rate for the shunting engine charge.  In  respect of the siding charge, the Tribunal rejected the plea of  the Railway that this charge should also be levied on the  basis of  the time taken in shunting the wagons of the Company  to lines 3 and 4, after taking into account the shunting engine charge.   It  was held that, in the  original  agreement  of 1933, parties, had agreed to a lumpsum in respect of various services,   and  the  subsequent  conduct  of  the   Railway established  that. out of the total sum of Rs.  1,419/-  per year, a sum of Rs. 1,206/14nP per year represented- 225 sented  charges  in respect of interest on the  capital  and cost  of  maintenance  of  the  permanent  way,  points  and crossing   and   interlocking  connected   therewith.    The remaining  sum of Rs. 212 and odd was held to represent  the freight  on  the traffic over the assisted sidings  and  was treated  as the siding charge.  In the absence  of  reliable material  provided by the Railway for arriving at a  reason- able  figure on any other basis, the Tribunal held that  the only amount which the Railway could be permitted in  respect of  the siding charge would be double the amount  originally chargeable.  under the agreement of 1933 and,  consequently, allowed  the  Railway siding charge at a fixed rate  of  Rs. 424/- per year.  It is against this decision of the Tribunal that the Railway has come up in this appeal to this Court by special  leave, and, in the appeal. has taken all the  three points, mentioned above, on the basis of which the complaint before the Tribunal was resisted. Dealing with the first question, which was the only question of  law raised in this case, learned counsel  appearing  for the  Railway  drew  our  attention  to  the  definition   of "railway"  in  s.  3(4) of the Act and,  in  particular,  to clause  (b) thereof under which the "railway" is defined  to include all lines of rails, sidings or branches worked  over for  the purposes of, or in connection with, a railway.   It was  urged that the assisted sidings, comprised of  lines  3 and  4,  were  not worked over for the  purpose  of,  or  in connection with, the work of the railway and,  consequently, these  assisted sidings could’ not be held to be a  part  of the  railway.   Attention was also drawn L to S. 11  of  the Act,  which  lays down the duty of the Railway to  make  and

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maintain  certain works, to show that there was no  duty  on the Railway to maintain the permanent way, points and cross- ings  and interlocking connections existing for the  service of these, assisted sidings, lines 3 and 4. The duties of the Railway  in respect of goods traffic are laid down in s.  27 which   requires  the  Railway  to  afford  all   reasonable facilities  for the receiving, forwarding and delivering  of traffic  upon and from the several railways belonging to  or worked  by  it and for the return of rolling  stock.   Under this  provision  also, there was no duty on the  Railway  to give delivery of’ goods to the Company on lines 3 and 4. The duty  was to carry goods of the Company and to deliver  them on  line  5  which was the line maintained  by  the  Railway itself  for delivery of goods.  It was urged that, in  these circumstances,  it must be held that the charges  levied  by the  Railway for taking the wagons, containing the goods  of the  Company, to lines 3 and 4, as well as the  charges  for tendering-  the service of taking the wagons of the  Company to the premises of its factory over lines 6 and 7 cannot  be held to be charges levied for tile purpose of performing any duty cast on the Railway by the Act.  Section 29 of the  Act lays  down how rates are to be fixed.  Under s.  29(t),  the Central  Government  is  empowered, by  general  or  special order, to fix maximum and minimum rates. for  the whole or any part of a railway, and  prescribe  the conditions  in  which such rates will apply.   Under  sub-s. (2),  the Central Government is empowered, by a like  order, to  fix the rates of any other charges for the whole or  any part  of a railway and to prescribe the condition  in  which such  rates of charges are to apply.  It was urged that  the charges  now in dispute will not be ,charges -covered by  s. 29(1)  or s. 29(2) of the Act, and, on the same basis,  they will not be charges covered by s. 41(1)(b) or s. 41(1)(c) of the Act We are unable to accept this submission made on behalf of the  Railway.  It is correct that s. 29(1) of the  Act  will apply to rates of charges for carrying goods from station to station over the railway itself, in such a case, the Central Government  can fix the maximum and minimum  rates,  whereas the  actual rates to be charged can be fixed by the  Railway Administration  itself.  If any person has a grievance  that the  rate being charged by the Railway is excessive, he  can complain to the Tribunal, and the complaint would be covered by  the provisions of s. 41(1)(b) of the Act.   This  charge for carriage of goods over the railway or part of a  railway is  the  only charge in respect of goods which  can  be  the subjectmatter  of a complaint under s. 41(1)(b) of the  Act. The  language  of  s. 41 (1)(b),  by  itself,  excludes  its applicability to passenger fares. ,Charges are often made by the Railway for wharfage and demurrage, but the jurisdiction of  the Tribunal to deal with the fixation of these  charges is  expressly  taken  away  by  s.  45(1)(b)  of  the   Act. Consequently,  it  appears that, in respect of  a  commodity carried  by a railway over its own railway lines,  the  only charge  that  the  Railway can levy, and which  can  be  the subject-matter of a complaint under s. 41(1)(b), will be the charge  for carriage of the ,commodity between two  stations and  it would be in respect of the discharge by the  Railway of  its  statutory duty of carrying goods  between  stations maintained  by  it.  There does not appear to be  any  other statutory duty in respect of which any other charge could be levied  by  the Railway, and, consequently,  if  the  inter- pretation  sought  to  be put on behalf of  the  Railway  is accepted,  the  result would be that s.  29(2)  will  become ineffective  and redundant, because there would be no  other

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charges in respect of which fixation of rates by the Central Government  would  be required.   Similarly,  the  provision contained  in s. 41(1)(c) would also be redundant, as  there would  be no other charges in respect of which  a  complaint could  be  filed under this provision.  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  given  the  narrow meaning of covering a charge in respect of the 227 Statutory duty of the Railway so as to exclude charges  made or  levied by the Railway for all other services.   In  this connection,  the language used in clauses (b) and (c) of  S. 41(1)  is  significant.   Section  41(1)(b),  as  has   been mentioned earlier, covers a complaint in respect of a charge for carriage of any commodity between two stations at a rate which  is  unreasonable, while S. 41(1) (c) relates  to  the levy  of  any  other  charge  which  is  unreasonable.   The expression "any other charge" in clause (c) must, therefore, cover charges which are not included in clause (b).   Clause (b)   specifically  mentions  charges  for  carriage  of   a commodity  between two stations, and, hence, the  expression "any  other charge’ in clause (c) must  necessarily  include within  it  a charge for carriage of any  commodity  between places  other than two stations.  In the present  case,  the shunting engine charge and the siding charge are both  being levied by the Railway for carrying goods from the railway to sidings not forming part of the railway.  In bringing  goods from other stations to Riga station on lines 1, 2 or 5,  the railway  would only be carrying the goods between  stations. It  is only thereafter, when the wagons are shunted  by  the railway  to  lines  3 and 4 or over lines 6  and  7  to  the factory  of the Company, that the railway will  be  carrying goods  between  a station and another place or  between  two different places which cannot either of them be described as stations.  ’This charge for carriage of the commodity in the context  in which the expression "any other charge" is  used in  s.  29(2)  and  s. 41(1)(c), must  be  covered  by  this expression.   It  appears to us to be  immaterial  that  the charge being levied by the Railway for taking the wagons  to the assisted sidings or to the factory of the Company arises only  as  a result of a voluntary agreement by  the  Railway which  the  ,Railway, at its option, might have  refused  to enter into.  It is correct that the Railway was not bound to agree  to  carry the goods of the Company  to  the  assisted siding or to the factory of the Company; but it seems to  us that,  once  the Railway did, in fact, agree and  decide  to charge the Company for it, the Railway became bound to  make -the  charge in accordance with s. 29 (2) of the Act.  If  a rate of charge is prescribed by the Central Government under S. 29(2) for such voluntary service and the person receiving the service feels aggrieved, he can complain to the Tribunal under  S. 41(1)(c) of the Act and have the  reasonable  rate determined.   Even if no rate is prescribed by  the  Central Government  under  S. 29(2) and the Railway  levies  such  a charge,  it  will be competent for the person  aggrieved  to file  the  complaint against the rate of charge  before  the Tribunal under S. 41(1)(c). In this connection, it was urged by learned counsel that the expression  "any  other charge" should not be given  a  very wide  meaning  and he cited before us instances  of  various other charges being made by the Railway, such as charges for

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advertisement on L5 Sup.  C. 1.167-2 228 railway  premises, catering charges, retiring  room  charges and time-table charges, to urge that at least these  charges would not be covered by the expression "any other charge" in s. 41(1)(c) of the Act.  It seems that, in this case, it  is not  at all necessary for us to examine whether  charges  of this nature mentioned by learned counsel will or will not be covered  by the expression "any other charge".  In fact,  we do not think it to be advisable that we should try to define the full scope of the expression "any other charge" in  this case.   It is enough to hold for the purposes of  this  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. This  view  that  we have arrived at is  in  line  with  the principles laid down in England as noted in Halsbury’s  Laws of  England, 2nd Edn., Vol. 27, in paras 434 and 436  at  p. 196.  In para 434, the principle noted is that "loading  and unloading,  covering  and  uncovering in classes  7  to  21, though  performed  at  the  private  siding,  are   services otherwise  provided  for in the standard  charges,  and  the company  must  charge for these either the  standard  or  an exceptional rate.  And where the Railway Rates Tribunal have by  order  fixed  charges  for  services  not  included   in conveyance  and  terminals,  as long  as  the  order  stands unchallenged the company may only exact the charges fixed by the Tribunal and not what the company thinks are  reasonable charges".   Then, in para 436, it is said : "So,  even  when the  carriage  charges are paid by a siding  owner  who  has entered  into  an  express  agreement  to  pay  a  fixed  or ascertainable  sum for the private siding services,  he  may still  refer the matter to the Railway Rates  Tribunal...... The Tribunal may consider from a business point of view what is  the  money value of the services rendered  or  they  may ascertain  the  total cost of the services over a  year  and divide  it  by the number of tons carried  during  the  same period  to  give  an  addition  to  the  Rates  Tribunal  if competentto  determine  the reasonableness of  charges  for services bya railway even on private sidings. The  same principle is incorporated in s. 41(1)(c) of the Act  in India by empowering a complaint to complain to the Tribunal, if any charges, other than acharge    for   carriage    of commodity between stations, is found tobe unreasonable. The preliminary legal objection raised on behalf of the  Railway was, therefore, rightly rejected by the Tribunal. On the second question, we find that, in the pleadings taken before  the Tribunal,-the Railway did not in so  many  words specifically  raise  the issue that,  before  proceeding  to examine the rea- 229 sonableness  of  the  rates demanded  by  the  Railway,  the Company should be called upon to show that those rates  were unreasonable, though the issues, which were framed both with regard to the siding charges as well as the shunting  engine charges,  were  couched in language  enquiring  whether  the rates demanded by the Railway were unreasonable.  It appears that, in the complaint, the Company had mentioned figures on the  basis  of which the Company requested the  Tribunal  to hold  that these charges were unreasonable.  In  respect  of the  shunting  engine  charges, the pleading  was  that  the Railway had been charging the Company at a rate of Rs.  18/-

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per  hour  for the years 1956-57 to 1958-59 and  had,  then, suddenly raised the charges to Rs. 28/- per hour without any justification.   This sudden enhancement from Rs. 18/to  Rs. 28/-  per  hour in the year 1959-60 was alleged  to  be  un- reasonable.  In the case of siding charges, the pleading was that the Company had been paying earlier a fixed sum of  Rs. 212/per  year,  while, after the enhancement by  the  notice dated 8th February, 1958, the charges were so fixed that the burden  on  the Company rose to amounts in  the  next  three years varying between Rs. 7,752/- to Rs. 9,676/-.  According to the Company, thus, the siding charges were fixed in  such a manner that, after enhancement, the charges payable became 70  to  80 times the charges originally  payable  under  the agreement  of 1933.  These figures, given on behalf  of  the Company did, prima facie, indicate that, the rates fixed and demanded,  which  were  challenged in  the  complaint,  were unreasonable.   Further, the new rate of Re.  1/- per  wagon was,  per se unreasonable inasmuch as the cost  incurred  by the  Railway on shunting the wagons could not be in  propor- tion  to the number of wagons shunted and could not, in  any case, be so high as to justify this rate even in cases  when a large number of wagons were shunted together in one single shunt.   Consequently, it was competent for the Tribunal  to call  upon the parties to adduce evidence and  to  determine what would be the reasonable rates according to the Tribunal itself.   That  being the factual position, we  cannot  hold that  the  Tribunal committed any error in  going  into  the evidence given on behalf of the Railway and arriving at  the reasonable  rates,  after  a  full  consideration  of   that evidence and the evidence tendered on behalf of the Company. It  is to be noted that the necessary facts for  determining what  expenses  the Railway must be incurring  in  order  to render the services for which they were demanding charges at the  impugned  rates were in the special  knowledge  of  the Railway   authorities   only   and,   consequently,    When, subsequently,  the  Tribunal  examined  this  question,   it proceeded  rightly  in carefully scrutinising  the  evidence tendered on behalf of the Railway. On the merits, it appears to us that, so far as the shunting engine  charges  are concerned, the decision  given  by  the Tribunal for arriving at the figure of Rs. 20/- per hour as the  cost incurred by the Railway does not suffer from any such  error as would justify interference by us.  The Tribunal took into consideration,  the  figures, provided by  the  Railway,  of expenditure incurred per hour on the running of all types of engines,  and noticed the fact that the cost in the case  of shunting  engines must be lower due to the inferior  quality of  coal  consumed  in them, when  compared  with  the  coal consumed  in  engines attached to passenger trains  or  even engines pulling the regular goods trains.  It also took into account  the  fact  that the calculation was  based  on  the assumption  that a shunting engine would be running,  on  an average,  @ 5 miles an hour for 12 hours a day, while,  when calculating  depreciation,  the documents  provided  by  the Railway  itself  showed that the average run of  a  shunting engine was calculated at 90 miles a day.  The basis of a run of  60  miles a day of the shunting engine  adopted  by  the Railway   for  calculating  shunting  charges   could   not, therefore,  be  accepted  as correct.  There  was  also  the circumstance  that,  in  making  the  calculation,   certain expenses  had been included which were in no  way  connected with  shunting  ,operations,  such  as  expenses  on  ticket checking staff.  Taking those circumstances into account  on the one side, and keeping in view on the other side the fact

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that,  in the year 1959-60, there must have been a  rise  in the  cost of running the shunting engine, as  compared  with the  rate which was fixed in the year 1956-57, the  Tribunal estimated  that  a reasonable rate for the  shunting  engine charges  will Rs. 20.00 per hour.  We do not think that  the principles adopted by the Tribunal are in any way  incorrect or suffer from any such error as would justify our examining the whole evidence considered by the Tribunal for  ourselves and making fresh detailed calculations in order to find  out whether  this  figure of Rs. 20 per hour arrived at  by  the Tribunal  should  be  varied  to  some  extent.   In   these circumstances,  we do not think it necessary to  discuss  in detail  the evidence given by the Railway which  was  placed before  us by learned counsel for the Railway  to  challenge the finding arrived at by the Tribunal.  The finding of fact recorded by the Tribunal does not suffer from any such error as  could  induce us to go into this question as  a  regular Court  of fact.  Consequently, we think that the  figure  of Rs. 20/per hour arrived at by the Tribunal, as  representing the cost of the Railway for running the shunting engine must be accepted. There  is, however, one aspect which the Tribunal  seems  to have  lost-sight of.  According to the admitted case of  the parties, there is no obligation on the Railway to render the service  of carrying the wagons of the Company from lines  3 and 4 to their factory premises, nor is there any obligation to  bring  back the empties or wagons  loaded  with  outward traffic  goods  from  the  Company’s  yard  to  the  railway station.  In fact, the Company had an engine 231 of  its  own for a number of years and a second  engine  was purchased  by  the  Company in the year  1962.   Apart  from carrying  out  these operations itself by the use  of  these engines,  the  Company also, on occasions,  had  the  wagons hand-shunted.   The  Railway  undertook  the  work  only  on occasions  when the Company made a specific request  to  the Railway  to do so.  In thus agreeing to undertake the  work, the  Railway voluntarily entered into transactions with  the Company  partly  to assist the Company and partly  with  the object of expanding its commercial activities.  In fact, the charges  were levied by the Railway, because the Railway  is run  as a commercial undertaking for the purpose of  earning profits  and,  consequently,  the Tribunal,  in  fixing  the reasonable rate for shunting charges, should have taken into account  the  profit-making motive of the Railway  also  and should  not  have confined the charges to  the  actual  cost incurred by the Railway in rendering this service.  We think that,  in these circumstances, there is  full  justification for increasing the rate chargeable for rendering the service of shunting the wagons from lines 3 and 4 to the yard of the Company over its private lines and it should be fixed at Rs. 22/-  per hour, giving a margin to the Railway of  10%  over its actual cost. On  the  merits of the rate fixed by the  Tribunal  for  the siding  charges, we find that the criterion adopted  by  the Tribunal  is not justified.  As has been mentioned  earlier, the  case of the Company was that the fixed contribution  of Rs.   709/8/-  per  half-year,  or  Rs.  1,419/-  per   year represented   the  consolidated  charges  in  lieu  of   the Company’s  paying  separately for interest on, and  cost  of maintenance of, the permanent way, points and crossings  and interlocking  connected  therewith and for  freight  on  the traffic  over the siding, and that a sum of Rs. 603/7nP  per half-year,   or  Rs.  1,206/14nP  per  year  out   of   this consolidated amount represented charges in respect of  other

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items,  besides the freight on the traffic over the  siding. It  was  on  this  basis that the  Company  pleaded  in  the complaint  that the freight on the traffic over  the  siding under the agreement amounted to Rs. 212/- per year only.  We however,  find that, in the complaint, this break-up of  Rs. 1,419/-  was  not specifically pleaded.   The  pleading  was that,  by the notice dated 8th February, 1958,  the  Railway had  itself levied the charge in respect of interest on  and cost  of  maintenance  of, the  permanent  way,  points  and crossings and interlocking connected therewith at Rs.  603/7 nP per half-year, and that Rs. 212/per year was the original charge in respect of freight on the traffic over the siding. How  this  figure  of  Rs. 212/-  was  arrived  at  was  not specifically  indicated  in the pleadings.  The  result  was that,  in the counter-pleadings put forward by the  Railway, no specific pleas were taken challenging the correctness  of the  break-up of the sum of Rs. 1,419/- now claimed  by  the Company.  All that was 232 stated  was that, with effect from 10th August, 1958, a  sum of  Rs.  603/7nP  per half-year was  levied  in  respect  of charges  for  interest on, and cost of  maintenance  of  the permanent   way,  points  and  crossings  and   interlocking connected therewith and that the levy for siding charges was fixed  at Re.  1/- per wagon with a minimum of Rs.  7/-  per shunt.   In  these circumstances, we do not think  that  any inference  can  be  justifiably drawn, as was  done  by  the Tribunal, that the Railway, had itself pleaded the  break-up of  Rs.  1,419/-  as containing within it  the  sum  of  Rs. 1,206/14nP  per  year in respect of the  fixed  charges  for interest on, and cost of maintenance of, the permanent  way, points  and crossings and interlocking connected  therewith, and  the balance of Rs. 212/represented what  was  initially fixed  as the amount chargeable for freight on  the  traffic over  the siding.  The sum of Rs. 603/7nP per half-year  was shown in the pleadings as the levy to be in force from  10th August,  1958, and was not accepted as being the  amount  at which  the levy for the same items had been included at  the initial  stage  at the time of the agreement in  1933.   The Tribunal  was  not,  in these  circumstances,  justified  in proceeding  on  the  basis that the  charge  in  respect  of freight on the traffic over the assisted siding was only Rs. 212/- per year from 1933 up to 1958.  In fact, the charge in respect  of  maintenance of the permanent  way,  points  and crossing and interlocking connected therewith, as originally estimated  in 1933, must necessarily have gone up  with  the rise  in price index from 1933 to 1958, and the  sum  levied for these items in 1958 must have been much higher than  the sum  which was included for these services in  the  original agreement.   No doubt, one of the witnesses of the  Railway, R.W.  5, C. R. Guha, Assistant Engineer of the  Railway,  in his  evidence  made some statements which  might  lend  some support to the plea of the Company that the sum of Rs. 603/- and  odd  per half-year represented the levy in  respect  of interest and maintenance charges, etc., after excluding  the freight  on the traffic over the assisted siding; but we  do not think that those admissions can be held to be binding on the  Railway so as to lead to the conclusion that  this  was the  amount  for such charges even at the inception  of  the agreement  in 1933.  The Tribunal, therefore,  committed  an error in proceeding on the basis that the original charge in respect  of freight on the traffic over the assisted  siding was  a sum of Rs. 212/and odd per year only in the  original agreement is 1933. In  any case, it appears to us that this aspect of the  case

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is  not very material, because, under the agreement  itself, the  Railway was given the right to enhance the  charges  in order to meet its actual cost on the working of the assisted sidings.  The appropriate course, in these circumstances was to find out what was the cost being incurred by the  Railway in  taking  the  wagons of goods of  the  Company  to  these assisted sidings. 233 The Tribunal did not adopt this method and rejected the plea of  the Railway that this method should be adopted,  on  the ground that it was not possible to work out with  reasonable accuracy the time that Would be taken by the shunting engine in  doing the work of carrying the wagons of the Company  to lines  3 and 4 which represented the assisted sidings.   For this  view, the Tribunal relied on two aspects.   The  first and the main reason was that, according to the Tribunal,  if these  assisted sidings had not been constructed, a  certain amount  of shunting of the wagons of the Company would  have been  necessary  in  order to give  delivery  at  the  goods platform on line 5, and it was not possible to estimate what was  the  extra time that would be needed  in  shunting  the wagons  to lines 3 or 4 instead of line 5. The  evidence  on the  record, however, shows that a certain amount  of  extra shunting  is  bound to be necessary, if the  wagons  of  the Company  are  to be delivered on lines 3 and  4  instead  of being  delivered  on line 5. It would appear to  be  correct that  if, on any particular train, the wagons  received  for the  Company  were all loaded with sugarcane  and  no  other wagons were received at Riga station containing other  goods of the Company, or goods of other consignees, the amount  of shunting needed to take those wagons to line 3 would not  be more  than that needed to take them to line 5.  However,  if even  one  wagon  of  goods for  any  other  consignee  were received  with  those sugarcane wagons,  the  shunting  work would be doubled, because sugarcane wagons would have to  be taken  to  line 3 and that wagon of the other  consignee  to line  5. Similarly, if the sugarcane wagons of  the  Company were  to  be  received with a wagon of  the  Company  itself containing  other goods, the, shunting involved would  again be  doubled  because the sugarcane wagons would have  to  be taken  to  line 3, and the wagon containing other  goods  to line 4. Further, if the wagons containing other goods of the Company or goods of other consignees be not attached at  one end of the sugarcane wagons, the amount of shunting required would  increase  very considerably because  of  the  sorting needed in order to take the wagons of other goods either  to line 4 or line 5, while taking the sugarcane wagons to  line 3.  The witnesses, no doubt, admitted that a certain  amount of  marshalling  was  being  done  by  the  Railway  at  the despatching  stations,  but it is also clear that,  in  that marshalling,  all  that  the Railway did was  to  place  all wagons  meant  to be detached at Riga in one  block  in  the train.  The marshalling at the despatching stations did  not include  in it the sorting out of wagons of  sugarcane,  the wagons of other goods of the Company, or the wagons of other consignees  inter se.  In these circumstances, it  is  clear that  the agreement entered into by the Railway  to  deliver sugarcane  wagons  of  the  Company  on  line  3  with   the arrangement that wagons of the Company of other goods  would be  delivered on line 4 necessarily involved a  considerable amount  of extra shunting because of the different lines  on which delivery had to be taken and even further shunting if there, was need for sorting out  of wagons.   On behalf of the Company, it was urged  before  us that  most of the sugarcane received by the Company used  to

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be brought to Riga railway station by cane specials or  cane shuttles  which would consist exclusively of  wagons  loaded with  sugarcane.  Learned counsel was, however, not able  to point out to us that there was any evidence to show that the majority  of sugarcane wagons received for the Company  were brought  to Riga station by cane specials or cane  shuttles. He  relied  on  the evidence of A.W. 2,  Yognandan  Jha,  an employee  of  the Company, working as Rail  Cane  Inspector. He,  in his evidence, tried to support the case of the  Com- pany  by stating that, during the season, a number  of  cane specials were run and they contained only sugarcane  wagons. The evidence of this witness was not accepted in full by the Tribunal, nor are we inclined to place complete reliance  on it.  On the other hand, witnesses examined on behalf of  the Railway  have stated that, even when cane specials  or  cane shuttles were run for the purpose of bringing the  sugarcane of the Company, they did not invariably consist of sugarcane wagons  only and, often enough, wagons of other  types  were also  attached  to them.  They gave  figures  showing  that, during  the  busy  season, the number  of  sugarcane  wagons received per day for the Company used to be about 50, while, on  an  average, one wagon per day was  received  for  other consignees,  and one wagon per day was received  which  con- tained  other goods of the Company.  Whenever  these  wagons were  received,  it  is clear that the  amount  of  shunting needed  would  be much more than the shunting,  which  would have  been  required if delivery of all the goods  could  be given  on  line 5 at the goods platform, without  having  to sort  out the wagons and without having to  place  different wagons  on different lines.  In these circumstances,  we  do not think that the Tribunal had justification for  rejecting the  principle  of calculation, suggested on behalf  of  the Railway,  of working out the cost on the basis of  the  time taken  in  shunting required for placing the wagons  of  the Company  on  the assisted sidings, when  a  calculation  was already  available showing the cost incurred by the  Railway per hour for working a shunting engine. Another  aspect  that  has  to be  kept  in  view  is  that, according to the terms of the agreement of 1933, under which the  Railway is demanding the enhanced charges, the  Railway was  entitled to charge for freight on the traffic over  the assisted  siding.   This charge for freight on  the  traffic over  the assisted siding was to be levied  irrespective  of the  fact  that,  in  some cases, the  Railway  may  not  be incurring  extra  expenditure over and above what  it  would have  incurred if the delivery had been given at  the  goods platform on line 5. Since the claim is made under the  terms and  conditions of the agreement, we hold that the  Tribunal was  wrong in rejecting the mode of calculation put  forward by the Railway, on the ground that 235 it  was  not  possible to estimate the  difference  in  time required  for shunting wagons to lines 3 and 4, as  compared with the shunting to line 5. On  behalf  of the Railway, evidence was  tendered  to  show that,. in the busy season, the shunting operations  required to  bring the sugarcane wagons of the Company to line 3,  on an  average,  took  18 to 20 minutes, while,  in  the  slack season,  the  time would be about 10 minutes.  It is  to  be remembered  that the majority of’ sugarcane wagons  must  be received  by the Company in the busy season and very few  in the slack season.  It was on this basis that the Railway put forward the plea before the Tribunal that the average amount of  time taken for shunting should be 15 minutes per  shunt. The Tribunal was not inclined to accept this figure and, for

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rejecting  it,  relied  mainly on the evidence  of  R.W.  6, Umeshwar Prasad, a Traffic Inspector of the Railway, who had made  a  test-check of the shunting time  on  10th  October, 1959.   According to the report submitted by  this  witness, the shunting operation at the time of the test-check, on the whole,  took 13 minutes.  This shunting operation  consisted of taking wagons from line 1, placing them on lines 3 and 4, and  bringing  back  the  engine with  empties  to  line  1. According  to him, the first operation of taking the  loaded sugarcane  wagons  from line 1 to line 3 took  seven  wagons fromline  3 to line 4, and another four minutes were  taken in shuntingthe  empties from line 4 back to  the  train. This whole operation of one shunt thus required 13  minutes. The  Tribunal, in considering the evidence of this  witness, laid  emphasis on the, fact that the time taken in  shunting the  engine on its return from line 4 to line I was  only  4 minutes, while, according to the Station, Master, R.W. 3, B. L. Das, on whose evidence the Railway relied, this time must be at least 5 minutes.  This difference was, on, the face of it,  not very material.  In his evidence, R.W.  6,  Umeshwar Prasad,  also stated that the average time for placement  on lines  3 and 4 for both up and down trains should be in  the vicinity  of  18 to 20 minutes for the  complete  operation. Owing  to  the  mention  of both up  and  down  trains,  the Tribunal held that this evidence given by the witness led to the  inference that only 9 to 10 minutes would be taken  for placing  the wagons from either up. or down train  alone  on lines  3  and  4. We think the Tribunal  committed  a  clear error.   When  the  witness stated that  the  time  for  the placement  on  lines  3 and 4 for both up  and  down  trains should  be  in  the vicinity of 18 to  20  minutes  for  the complete operation, he clearly meant that this would be  the time taken whether the train be an up train or a down train. It  is, on the face of it, impossible that there  should  be simultaneous shunting for two different trains, one up train and  the  other down train, and that the witness  should  be required to estimate the time which would be, 236 taken  in simultaneous shunting from two trains.   In  fact, simultaneous shunting from two trains is not possible.   The use  of  the conjunctive "and" between up and  down  in  the question put to him did not mean that he was being asked  to estimate  the  time  for  simultaneous  shunting  from   two different  trains.   The  halving ,of the period  18  to  20 minutes by the Tribunal, in order to hold that the  estimate of  average time of 15 minutes by the Railway, is too  high, was,  therefore, not at all justified.  On the other  hand,. the  evidence of this witness, Umeshwar Prasad, as  well  as the figures given by him from the test-check, appear to bear out  the case. put forward by the Railway that  the  average time  taken will certainly be 15 minutes per shunt or  more. In  the test-check itself, the complete  shunting  operation took  13  minutes.   In his evidence,  Umeshwar  Prasad  has stated  that  this  test-check  was  carried  out  in  ideal conditions  of visibility and the time taken was also  less, because the train was a non-vacuumed one.  Further, the test was  -carried out on 19th October, 1959, which  was  clearly slack  season, and the case of the Railway itself was  that, in the slack season, the ,average time taken for a shunt was 10 to 12 minutes.  The Tribunal, in these circumstances, was not  justified in making the comment that the time of 18  to 20 minutes per shunt given by the Railway as the time  taken during  the  busy season was due to  inefficiency.   In  any case,  the Railway, in calculating the charges,  has  itself very reasonably suggested 15 minutes as the average time per

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shunt,  and  the  difference  of  2  minutes  between   this suggested,  -time  and the time of 13 minutes taken  in  the test carried out under ideal conditions will not justify the rejection  by the Tribunal of the figures suggested  by  the Railway.   It is also to be noted that in the  test  carried out  no sorting operations were involved and that,  if  some sorting  had  also  been necessary,  the  time  taken  would certainly  not  have been less than 15  minutes,  completely justifying  the average figure put forward by  the  Railway. It was’, therefore, clearly a case where the Tribunal  could have  and should have arrived at a finding on  the  evidence that,  on an average, the time taken per shunt, in order  to work over the assisted sidings consisting of lines 3 and  4, will  be  15  minutes; and, since such  a  figure  could  be arrived at, the siding charges representing the freight  on, the  traffic  over  the assisted sidings  should  have  been calculated on this basis.  We have already held earlier that there  is no reason to vary the figure of Rs. 20/- per  hour as  the cost incurred by the Railway over a shunting  engine carrying  out shunting operations.  At this rate,  the  cost incurred  by the Railway per shunt for rendering service  on the  assisted sidings consisting of lines 3 and 4 works  out to Rs. 5/-. This  cost  that has been worked out is,  according  to  the Railway  -itself, the average cost, taking into account  the circumstance that, in some of the shunting operations, there may be only one or two 237 wagons,  and, in others, the number of wagons may  be  large and  as  many as 20 or 25.  Since the cost  of  the  Railway depends on the time during which the shunting engine has  to operate in order to complete the shunting of the wagons, and the  average time has been calculated by the  Railway  after considering  shunts  which included any  number  of  wagons, there is clearly no justification for the Railway levying  a charge  on  the basis of the number of wagons  shunted.  the average  cost  worked out will not exceed Rs.  51per  shunt, though,  of  course,  in some particular  shunts  where  the number  of wagons may be large and the  shunting  operations required  may be more complicated, the cost may work out  at more  than Rs. 51-.  On the other hand, there would also  be some  shunting  operations in which, there being  no  wagons except  sugarcane  wagons,  or the number  of  wagons  being small, the cost per shunt would be less than Rs. 5/-.   This circumstance  justifies  the view of the Tribunal  that  the Railway  could not reasonably fix a rate for siding  charges on  the  basis of a particular amount per wagon.   The  only proper  way of fixing the rate would be the amount  of  cost incurred   by  the  Railway  per  shunt.   Learned   counsel appearing  for the Railway, in these circumstances,  himself stated  that he will not press in this appeal the demand  of the Railway for a charge based on the number of wagons,  and that the rate may be fixed only per shunt.  That rate has to be Rs. 5/- per shunt. As  a result, the appeal is partly allowed.  It is  directed that the rate for the shunting engine charge is fixed at Rs. 22/- per hour.  The siding charges in respect of freight  on the  traffic over the assisted sidings shall be  payable  by the Company at the rate of Rs. 5/per shunt, irrespective  of the  number  of  wagons  included  in  any  shunt,  a  shunt consisting  of the operation starting with the  moment  when the engine moves from the main lines 1 or 2 in order to take the wagons to lines 3, 4 or 5, and ending with the time when the engine returns to the train and is again attached to it. In the circumstances of this case, we direct parties to bear

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their own costs of this appeal. R.K.P.S.                                     Appeal  allowed in part. 338