IHI v. Sllal>licra ( Dtlhi)

The second sub·seetion of s. 4J :provided that in the case ·of a complaint under cl. (d) of sub-a 1, that is, where the complaint is that i. railway administration or rail way administrations is or are unreasonably refusing to quote a new sta~ion·to station rate the Tribunal may fix a new statiOti to station rate. The first l!\Jh•seotiOJl of e; 42 gave t1-e Tribulfal t4e exclileffe ,..,, _,.. • 11181 u,,..,. ~ s .. ,., JIUU Ll4. •• ~. (.LW.\I) s_ • ..,LifAl B41. C.. Ll4. D•J. 340 SUPREME OOURT REPORTS [1963] power to re·claesify any commodity in a higher cl&SB but added that such power shall not be exer· the application of the Central cised exoept on Government. The third sub-section of s. 42 provided that the Tribunal as well as the Central Government would have power to re-cl&BBify any commodity in In December, 1949, 'the Indian lower class. Railways Act was further amended by the Act No. 56 of 1949.

Some changes were .then made in s. 41 which it is unneOOBB&ry 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 s. 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) levying any other charge which is unreasonable shall hear and decide any such complaint in accordance with the provisions of this Chapter. " ... The second mb-seotion(which was not changed by the 1957 Act) deals with the question of burden of proof in connection with oomplaint.8 under ol. (a) of the first sub-section and also saya that in decid ing whether a lower charge to any trader or clasa of traders does amount to undue preference or not the Tribunal will take into consideration whether such fower charge is necessary in the interest of the public.

The third 1111b-eeotion runs thus : "In the case of a complaint under cl. ( b) or ol. ( c) of aub·e. l the Tribn11al may b such rate or charge u tt eo111icle11 reuonable: l'rovided tha\ tile pt, IHI rJ#f'DulS MiJllLld. •• S~a(DllAi) S11MHnl111 Lil.hi RIJ. Ce. Lt6. D.,J. 2 s.c.R. SuPREME COURT REPORTS Ml to be fixed under cl. (b) of sub s. l shall be within the limits of the maximum and minimum rates fixed by the Central Government under sub s. I of s. 29." · &lotion 4IA which was added by the amend· ing .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 RailwBy Adminis· tra.tion tha.t since the order· was made there has been a. material . change in the circumstances on which it wa.s based, but such application cam1ot be ma.de till the expiry of one year from the date of the order. The olds. 42 wa.s substituted by a. new section in these words : "The Central Government a.lone sha.11 ha.ve the power to classify or reclassify any commodity, (b) to increase or reduce the level of class rates a.nd other charges.

" It will be noticed tha.t this amendment took awa.y the power which the Tribunal formerly ha.d in the matter of cla.ss ifica.tion of commodities. The amendment of s. 41 however gave the Tribunal jurisdiction to entertain a.nd consider complaints in respect of standard terminal charges which had been excluded in the. old s. 41. At the same time it took a.way the Tribun al's jurisdiction to entertain any complaint tha.t a. Railway Administration has unreasonably placed a commodity in a higher class or that it wa.s unre a.sona.bly refusing to quote a new station to station ra.te which it had under the old els. (d) and (e). Our first ta.sk is now to construe the words of cl. (b) a.nd (o) of.the first sub-section ofs. 42. The question is what did the legislature mean by the words "is charging" in clause (b) and "is levy ing" in cl. (o) ? The use of the present progressive tense is to denote something whioh is taking place at present.

What has already taken · place cannot be described by saying that "it is taking place. " Jl\Bt as one oa.11,I\ot say of a, man who has oea.eed. to 342 SUPREME OODRT REPORTS [1963] 1912 •• Sh.i.Mr• (DdAll SoM<- Liv/ti ~/y, Co. Ltd. n., J. exist, that he is existing; so also, one cannot say of a charge which has already been ma.de that· "it is being made. " Of the charge which has already been ma.de a person aggrieved can complain that "the Railway Administration has charged me a.t 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 &88lllllption that the words "charging a re.to" was used by the legisla.tura in its ordinary meaning of "demanding a price. " Thi~, it is contended on behalf of the appellant, is not however the only sense in which the words "charging a rate" can be used; and ont' of its senses, it is urged; is "Collecting a. price that was demanded in tbe past.

" It is pointed out that in cl. ( c) the words used a.re "levying a charge" and It "levying" can certainly mean "collecting. " will be legitimate, argues the learned Coullllel, think that the word '•charging" in cl. (b) and the word "levying" in cl. (c) were used by the Iegis)a. ture 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 el. ( c) were used in the one and the same sense. We find it impossible to agree however that were used to include "collecting". It appears to be intention of the legislature was to clear th'l.t if the give the Tribunal jurisdiction over complaints in ponnection with charges already ma.de the legislat ure would have uAed 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 fa.ct that the words "haa charged" have not been used is sufficient ground for thinking that it was not the legislatures intent.ion to give the Trib1rnal juri1di1 tic n over complaints in ,.. .. 2 s.c.R. SUPREME COURT REPORTS 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 prioe at the present time for services to be rendered. " Tile conclusion of the Railway Rates Tribunal that it had no jurisdiction to enter tain 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. 1961 U.»erD.,.6~ MilhLtl. " Shahdor• (D1l/ti) Saluz~iW" Light R{)i. Co. Ltd. BuJ. When the Tribunal had no jurisdiction to reasonableness or otherwise of any consider the charges made prior to the institution of the com· plaint, it follows necessarily that it could have no occasiou to order any refund. For, the question of refund could arise only after a decision that the charges made were more than what was rea.sonable. It is clear however that even in respect of those charges and rates for which the Tribunal had jur the Tribunal isdiction to entertain a complaint had no power to order any refund.

It is neceSS&ry to consider this question 8<8 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 afte1' the date of the complaint, if it comes to the conclUB ion that those charges were more than what . was reasonable. The question of equity does not can have no however is given by more . jurisdiction the Act which brings it into e:itis~ce ; and if on a proper construction of the words of the statute we find that the Tribunal was not given any such jurisdiction we cannot clothe it with that jurisdiction on any consideration of convenience or equity or justice. arise. The Tribunal that what . ..) llD U-DWJS.,u Mill• LU y, S,..,,.,• (Ddlti) s.JG,..., Li1/d 111,. Co.

IM. Ih• J. 344 SUPREME OOURT R.EPOB.TB (196SJ What the Tribunal h&s to do after a complaint is made is mentioned in s. 41 (I) itself. It is said there that the Tribunal shall hear and decide the complaint. The complaint being that something is unreasonable ail that the Tribunal h&s to decide is whether that thing is unreasonable or not. A fin ding that it is unreailonable does not involve any consideration or decision of what would flow from In other words, in making the comp the finding. laint 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 prov1s1on that the Tribunal oa.n also give a oonsequential relief. The only other thing which the Tribunal is authorised to do in connection with the complaint is to fix "such rate or charge a.a it consider reasona In the absence of anything to indicate to the ble". contrary it is reasonable to think that this fixation 0an 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 &88Ullled for the sake of argument that the Tribunal can fiJ: these rate& 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. 3P of the Act. Section 39 is in these words : "For the purpose of exerci· sing the jurisdiction conferred on it by this Chapter, the Tribunal may pass such interim and final ordel'8 the oiroumBtanoes may require, including orden u for the payment, subject to the provisions of this Chapter, of coctB; and it shall be the duty of the Central Government or the State Government, as the oase may be, on whom any obligation is impoeed Ia it neceYary by any 1uch order to carry it out. " 190 UH<rl>td8- Mm. IA'- •· ShluloN ( D"4i) S"'"'- l.;,ti1 B/1.Co .. LU. DuJ. 2 S.O.R. · SUPREME COURT REPORTS 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 the purpose of exercising the reasonable-"for 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 insti tution , of the complaint to be unreasonable.

It is impossible to say however that such an order is nece88&ry for the purpose of exercising the jurisdic tion conferred-that jurisdiction in connection with !)Omplaints, being under s. 41, only to arrive at a decision whether a oertain 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 pnrpose of exercising the jurisdiction" Section 39 to the appellant's is therefore of no aBBistance contention. / -" "'< It was next urged that unleBB the Tribunal is held tO have power to make an order of refund, s.46 (B) will lie meaningleBB. Section 46 (B) provides that the Tribunal may transmit any order made by local jurisdiction and such a civil court having civil court shall execute the order as if it were a deoree. It is obvious that an order for payment of costs which may be made by the Tribunal could under s.

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, Ii. 46 (B) will serve its pur. pose in connection with the orders for coetli. Nor is it neoeBSary for us to speculate as to what Qther orders m~e by the Tribunal could require execu tion by the civil .courts ... For, such considerations cannot in any way throw any light on the nature It. is hardly· neceasary to mention ·that s. 39 · does not ...J of the orders that can be made under. s. 39, -UH« Do<b Sllf/<W s"""- u,111 Mill1.l.MJ. v. SA.Man (Delhi) R(1. 0•. LJd. DuJ. 346 SUPREME OOURT REPORTS [1963] oonfer any jurisdiction; but only provides for means for exercise by that Tribunal the jurisdiction whioh it has otherwise got under other sections. It is interesting to remember in this conneo tion the words used by the British Parliament in s.

196 (3) of the Government of India Aot, 1935. The first su'IH!eotion of s. 196 provided for the constitution of the Railway Tribune.I and then the third sub-seotion 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 makll such. orders, including interim orders, or<lers varying ·or discharging a direction or order of the Authority, orders for the payment of compensation or damages ancl of costs and orders for the production of docu the attendance of witneSBes, as the ments and ciroumstances_ 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 the payment of compensation or damages" have been omitted from the present s.

39. Mr. Veda Vyasa strenuously contended that unl688 the Tribunals be held to have jurisdiotion to order refund, the appellant and others in his poei tfon 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) run1 thua : "Except as provided in this Act no . suit shall be instituted or proceeding taken for anything done or any omission made by a Railway Adminis tration in violation or contravention of any provi. sions of this Chapter" (Ch. V). The argument is that 11. 26 standH in the way of bringing any suit in the oivil oourts on a claim for refund of oharges 196Z Uppn- D..W Sugu Mil/•.lJ<I •. v. Shalufara ( Jelfii) Sahara,,,_, Light Blj, Co. Ltd. --DasJ. 1 • 2 S.C.R. SUPREME COURT REPORTS 347 made in excess of reasonable charges. This prooe . eds on the misconception that such a suit would be "for anything done or any omission made by a Railway Administration in viOlation or contraven tion of Ch.

V of the Act". There is no provision in Ch. V however saying that unreasonable obarges shall not be made by a Railway Administration. If therefore any Railway Administration has ;eceiv· ed 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 wo'.lld not be on anything done or any omission made by the Railway Administration in violation or in contravention of any prov:isions of Ch.

V, the provisions of s. 26 are quite irrelevant for the decision of the question whether the Tribu nal has any jurisdiction to make an order. for refund. Our conclusion therefore is that neither ex pressly nor by necessary implication has the Rail way 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 costs. is accordingly dismissed with