October 21 v. UNION OF INDIA

SuBBA RAO J.-These six appeals filed by special leave raise a common question, namely whether the suits filed 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 whar fage 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 res pondent. Civil Suit No. 109 of 1957 was filed by the ap pellants in Civil. Appeal No. 149 of 1959 for recovery of a sum of R1:. 295 from the Union of India repre senting the Western Railway. The appellants are 150 SUPREME COURT REPORTS [1964] Rai Chand Amu-from Belanganj - v: 1963 Subba Rao J. a firm doing business in Surendranagar. The said firm received a consignment cf 125 bags of rice booked to Surendranagar railway station: lakh Shah At the time of effecting delivery of the said consign- ment, the Station Master at Surendranagar recovered Union of India a sum of Rs. 275-7-0 from the appellant-firm as It is alleged in the plaint that wharfage charges. 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 appellant firm 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 col" lected by the said railway. The . defendant denied either that the rules were ultra vires or that it col It pleaded lected the amount contrary to the rules. 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 pre ferred 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 pur pose of the present enquiry. - ~r ( :tf 5 S.C.R. SUPREME COURT REPORTS 151 Section 3(14) "terminals" includes charges in respect of stations, sidings, wharves, depots, warehouses, cranes and other similar matters, Raz Chand Amu- and of any services rendered thereat." 1963 . lakh Shah v. Section 26. "Except as provided in this Act, Union of India no suit shall be instituted or proceeding taken for anything done or any qmission made by Subba Rao J. a railway administration in violation or contra- vention 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 call ed the Railway Rates Tribunal, for the purpose of discharging the functions hereinafter speci fied in this Chapter. Section 41. administration- (i) Any complaint that a railway (c) is levying charges (other than standardised unreasonable, terminal charges) which are 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. 152 SUPREME COURT REPORTS [1964] 1963 · Provided that where a single member of the Tri- bunal has heard and decided any matter, he may, Rai Chand Amu- 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 Union of India a majority of the members thereof, as the case may lakh Shah v. Subba Rao J. 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 load ing 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 unreason able, an aggrieved party may file a complaint against the Railway Rates Tri the administration before bunal. 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 In regard to such violation, an ag of Chapter V. grieved party can only proceed in the manner provi ded 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 • 5 S.C.R. SUPREME COURT REPORTS 153 1963 lakh Shah v. to give Subba Rao J. If the opening words "Except as provided in Rai Chand Amu made by the railway administration in violation or contravention of any provisions of Chapter V of the Act. this Act" in s. 26 of the Act are ignored, the bar ap- pears to be comprehensive, for it may take in its sweep any dereliction of duty by the railway administra- Union of India tion in respect of matters covered by the provisions of the said chapter. But such an intention 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 opera- It can reasonably be interpreted to tion of the bar. 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 contra- vention of the provisions of Ch. V and (ii) the Act has provided a remedy in respect of that act or omis- It was argued that the charges levied by the sion. railway administration under the heads of "wharfage" and "demurrage" are "trerminals" 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 pre- scribed under the 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 In order to find out whether wharfage and apply. ' - 154 SUPREME COURT REPORTS [1964] 1963 lakh Shah v. demurrage charges come under the definition of "terminals", it is necessary to ascertain the meaning Rai Chand Arnu-of the words "wharfage" and "demurrage" as under stood by the Act and the rules made thereunder. There is no definition of "wharfage" in the Act. Union of India But s. 46C(d) defines demurrage to mean the charge levied after the expiry of the free time allowed for Subba Rao J. loading or unloading a wagon. But the rules, pre sumably 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 local ly 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 BJ~. & C.I. Railway, which is now named as the Western Railway. Clauses (A) and (B) thereof give the rates of wharfage and de murrage 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-light 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 5 S.C.R. SUPREME COURT REPORTS 155 the end of the day following that on which the free time of six daylight hours, expires. 1963 a a levied on the Rail c::~ ~mu- therefore a charge Demurrage 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 Union of India premises after the expiry of the free time allowed Subba Rao J. for that purpose. Indeed s. 46C(d) of the Act, which was ins1~rted by Act 65 of 1945, has practically adopted the definition of the word "demurrage" given in the said rule. Wharfage and demurrage are, there- fore, 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. v. , The question is whether such charges are "termi nals" as defined in the Act. The expression "terminal charges" was defined for the first time in the Indian It was taken from the defi Railways Act, 1890. nition in s. 55 of the English Railway and Canal Traffic Act, 1888. Terminal charges are of two categories: (I) charges for services, and (2) charges for accommodation and appliances which facilitate business. The "service terminals" comprise of re muneration 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 there are "station terminals" terminals" which are charges for providing accommo dation incidental to the business of a carrier, such as "working charges, repairs, renewals, insurance of sta tion 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 com plete 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 demt1rrage are charges in respect of goods unloaded from wagons and kept at the 156 SUPREME COURT REPORTS [1964] 1963 . - station, and also in respect of goods kept on platforms of the station, the said charges could certainly be des- Raz Chand Amu-cribed 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 lakh Shah v. Union of India in the Act. Subba Rao J. 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 wharfage 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 If the impugned charges are standardised the rules. terminal charges, the dispute in regard thereto falls outside s. 41 of the Act. If they are charges other than the standardised terminal charges, the jurisdic- tion of the Tribunal is confined only to the ques- tion 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 ap- pellants. 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 .I t' II 14111 L 5 S.C.R. SUPREME COURT REPORTS 157 s. 45 of the Act and, if so, whether the jurisdiction of the Tribunal could only be invoked in the manner prescribed thereunder. 1963 Rai Chand Amu- lakh Shah v. For the foregoing reasons we hold that both the High Court and the trial Court went wrong in dis- missing the suits on the ground that s. 26 of the Act Union of India was a bar against their maintainability. We, there- Subba Rao J. fore, 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 ex- pressed 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. 1963 October 22 ....... VORA ABBASBHAl ALIMAHOMED v. HAJI GULAMNABI HAJI SAFIBHAJ (A.K. SARKAR, J.C. SHAH AND RAGHUBAR DAYAL JJ.) Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947, s. 12-Protection against eviction-Scope ofs. 12 (1)-"May" in 12(3) (a) whether mandatory-Protection of 12(3) (h) when avail able-S. 12, Explanation, effect of-"Standard rent"-Meaning of-Revisional Jurisdiction of High Court when exercisable-Code of Civil Procedure 1908 (Act 5of1908), s. 115. The Appellant was the tenant of the respondent occupying of the latter premises at a monthly rental of Rs. 70. The appellant appealed to the Civil Judge for fixing standard rent under s. 11(1) and fo1 specifying interim rent under s. 11(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and deposited a ce1tain amount to the credit of the respondent. Subsequently the respondent filed a suit before the Civil Judge for evicting the appellant on the ground of non-payment of rent. The Civil