UPPER DOAB SUGAR MILLS LTD versus SHAHDARA (DELHI) SAHARANPUR LIGHT RAILWAY COMPANY LTD.

DAS l.-This appeal by special leave arises out of a complaint made by the appellant, the Upper Doab Sugar Mills Ltd., Shamli, to. the Railway Rates Tribunal. The complaint origi· nally made was against the station to station rates on sugarcane on the Shahdara (Delhl)-Saharanpur Light Railway imposed by the respondent, the Railway Company. by their ra.tes'CiroUlar No. 8 of 1953 with effect from October I, 1953. The complaint was that these rates had been and were unreasonable. The Railway Company in their answer to the complaint pointed out that the rates imposed by the rate Circular No. 8 of 1953. had long before the date of the complaint ceased to be in.force. ·.and that subsequent to the decision of this Court in S.S. Light Railway Co. Ltd. v. Upper Doab Sugar Mil~ Ltd. (') a new rate had come into operatiOll fl:om February 10, 1960, under Local Rate Advice ~o. 2.A of 1960. After this the complaint prayed for amendment of his complaint by adding a complaint against this· new Advice rate. .Th,e prayer was allowed. The complaint as it &tl\nds· . after, 1tlae amendment made on Fe~ry 3, J.961, is bot)j. against the rates ~posed under.Local RMles Ad~ ll:l 2 ••c::.L No. 8 of 1953 and also the rates under the new Advice No. 2A of 1960 and is that these rates and charges are all unreasonable.

pp. 335–336

The prayers are: (I ) for a declaration that the rates charged under the l;ooal Rates Advice No. 8 of 1953 and the surcharges were unreasonable from 1-10-1953 to 10-2.1960; (2) a declaration that the rates charged from 10-2-1960 under rate Advice No. 2A of 1960 are also unreasonable; (a) a direction of refund of the excess e;ollected or which may be collected after the date of the amendment of the complaint on the basis of rate Advice No. 2A of 1960 over the reasonable rates that may be fixed by the Tribunal and ( 4) the fixation of the rates as mentioned in the complaint as reasonable rates from various stations to Shamli.

p. 336

The main contentions of the Railway Company with which we are conoerned in the present appeal are: ( 1) that the Tribunal had no jurisdiction to entertain the cQ.mplaint as regards the reasonablen688 of rates prior to the institution of the complaint (2) that the Tribunal had no jurisdiction to grant any refund. These questions are raieed in laBUes Noa. 6 and 9A and are in these words:-

p. 336, margin A

"6. Has the Tribunal jurisdiction to entertain or try the present complaint regarding reasonableneBB or otherwise of rates and/or charges prior to the institution of this complaint, or, at any rate, prior to 27-7-1958.

p. 336, margin A

DA. Has this Tribunal jurisdiction to grant a refund."

p. 336, margin A

The Tribunal rightly took up the consideration of these iseues first. It held that it had no jurisdiction to entertain or try the complaint as regards the reasonableness or otherwise ofratea and charges made prior to the institution of the complaint on May 6, 1960. It also held that it had no jurisdiction to grant any refund. In coming to these conclusions, the Tribunal followed the decision of the Madras High Court in Southern Railway& v. The Railway Rates Tribunal ('). It is contended before ue in appeal that the Tribunal's decisions on these questions were wrong.

pp. 336–337, margin A

It will be helpful to consider briefly the background in which the Railway Rates Tribunal came into existence.

p. 337

Till the establishment of these Tribunals · the actions .of the Government of India with regard to the regulations of rates and charges that may be charged by Railway Companies were largely influenced by the policy of laissez faire. The only prov:ision as regards such a regulation was to be found for many years only in the contracts between the Government of India and the Railway Compauiea.

p. 337

One of the earliest contracts with .the Madras Railway Company, dated Deoember 22, 1852, had a provision that the Company could charge only such fares and tolls as might have been approved by the East India Company and that no increase in approved fares etc., could be brought intO eft'ect without the previous sanction of the East India Company. In the contracts of most of the companies there used to be a provision in the following terms:- .

p. 337

"The Secret.ary of State ·shall from time to time authoriae maximum and minhnum rates within which the Company shall be entitled to charge the public for servioea rendered by way of, or In connection with, the · conTey- &noe of passenger& aud &<>ode on the under. Wring, and shall presoribe the aeveral classes and descriptions of paasengers and goods to which rates shall · be reepeotively applicable." (Srinivasan's Railway. Rates)

pp. 337–338

The maxima wore fixed by the Local Governments for the railways within their provinces 1869 while the Government of India proscribed maxima. for good grains and ·coal, and fares for lowest class of pa88engers only.

p. 338, margin F

Statutory provisions for fixa•ion of maxima. and minima for rates and charges were first the year 1939 by the Act 33 of 1939 which introduced s. 42 ( b) in these words:

p. 338, margin F

"The Federal Railway Authority may general or special order fix maximum minimum rates for the whole or any part railway, other than a minor railway, and cribe the conditions in which such rates apply. (2) Any complaint that a railway administra· tion is contravening any order isllued Federa.J Railway Authority in accordance the provisions of this section aha.II be mind by that Authority."

p. 338, margin F

Before this however, as a. result of the tigations ma.de by the Acworth Committee, Railway Rlltes Advisory Committee had ·been blished. This Committee wae empowered to tigate and make recommendations on :

p. 338, margin A

l. Compla.iDts of "undue preferenoe"-aeotion

p. 338, margin A

42(2) of the Indian RailW1&ya Act.

p. 338, margin A

2. Complaints that rates a.re unresonable

p. 338, margin A

themselves .

p. 338, margin A

3. Complaints or dispµtee in reepeot ailla.ls ~seotion' 46· of the- Indian ways Act.

p. 338, margin A

4. The reasonableness or otherwise of l'llY conditions as to packing of articles, specially liable to damage in transit or liable to ca.use d<image to other

p. 339

merchandise;

p. 339

5. Complaints in respect of conditions as to

p. 339

pa.eking attached to a rate; and

p. 339

6. Complaints that railways do not fulfil their obligations to provide reasonable facilities under section 42 (3) of the

p. 339

Indian Railways Act."

p. 339

It is to be noticed that this Committee could only make recommendations and could not make any effective order itself.

p. 339

The Railway Rates Tribunal come into existence as a result of the amendment of the Railways Act of 1890 in 1948 (Act No. 65 of 1948). Section 34 of the Act as amended, provides tha~ there ·shall be a Tribunal called the Rates Tribunal for the purpose of discharging functions specified in the Chapter. These functions were specified in ss. 41 and 42, while s. 39 empowered the Tribunal to pass interim and final orders including orders for payment of costs for. the purpose of exercising the jurisdiction conferred. The first sub-sect.ion of s. 41 set out a number of matters of which compla· ints might be made agai11st a railway administration or jointly against two or more railway administrations and states that such oomphi.ints "shall be heard and decided by the Tribunal". 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 railway administration or railway 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 power to re·claesify any commodity in a higher cl&SB but added that such power shall not be exer· cised exoept on the application of the Central Government. The third sub-section of s. 42 provided that the Tribunal as well as the Central Government would have power to re-cl&BBify any commodity in lower class. In December, 1949, 'the Indian Railways Act was further amended by the Act No. 56 of 1949. Some changes were .then made in s. 41 which it is 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 :

pp. 339–340

"41(1) Any complaint that a railway administration (a) is contravening the provisions of section

p. 340

28, or (b) it charging for the carriage of any com· modity between two stations a rate which

p. 340

is unreasonable, or (c) is levying any other charge which is unreasonable shall hear and decide any such complaint in accordance with the

p. 340

provisions of this Chapter."

p. 340

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 deciding 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, 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." ·

pp. 340–341

&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.ssifica.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 Tribunal'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 unrea.sona.bly refusing to quote a new station to station ra.te which it had under the old els. (d) and (e).

p. 341

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 levying" 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 man who has oea.eed. to 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."

pp. 341–342

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 "levying" can certainly mean "collecting." It will be legitimate, argues the learned Coullllel, to 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 price."

p. 342

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 they were used to include "collecting". It appears to be clear th'l.t if the intention of the legislature was to give the Tribunal jurisdiction over complaints in ponnection with charges already ma.de the legislature would have uAed the words ·•has charged and is charging" and would not merely say "is charging" Special jurisdiction of such 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 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 entertain or try the complaints as. regards the reasonableness or otherwise of rates and charges made prior to the institution of the complaint is therefore correct.

pp. 342–343

When the Tribunal had no jurisdiction to consider the reasonableness or otherwise of any 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 jurisdiction to entertain a complaint the Tribunal had no power to order any refund. It is neceSS&ry to consider this question 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 conclUBion that those charges were more than what . was reasonable. The question of equity does not however arise. The Tribunal can have no more . jurisdiction that what it is given by the Act 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.

p. 343

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 finding that it is unreailonable does not involve any consideration or decision of what would flow from the finding. In other words, in making the complaint the complainant can ask only for a declaration that the rate or charge is unreasonable and it is only this declaratory relief which the Tribunal has been authorised to give. There is no prov1s1on that the Tribunal oa.n also give a oonsequential relief.

p. 344

The only other thing which the Tribunal is authorised to do in connection with the complaint is to fix "such rate or charge it consider reasonable". In the absence of anything to indicate to the 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.

p. 344

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 u the oiroumBtanoes may require, including orden 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 by any 1uch order to carry it out." Ia it neceYary 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 reasonable-"for the purpose of exercising the jurisdiction . conferred . on it ?" The utmost that could be said is that the relief for making an order of refund has a connection with the order holding the rates already charged after the date of the institution , of the complaint to be unreasonable. It is impossible to say however that such an order is nece88&ry for the purpose of exercising the jurisdiction 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 is therefore of no aBBistance to the appellant's contention. /

pp. 344–345

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 a civil court having local jurisdiction and such 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

p. 345

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 execution by the civil .courts ... For, such considerations cannot in any way throw any light on the nature of the orders that can be made under. s. 39, It. is hardly· neceasary to mention ·that s. 39 · does not oonfer any jurisdiction; but only provides for means for exercise by that Tribunal the jurisdiction whioh it has otherwise got under other sections.

pp. 345–346

It is interesting to remember in this conneotion 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 documents and the attendance of witneSBes, as the 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 affected thereby to give effect to any such order". These important words "orders for the payment of compensation or damages" have been omitted from the present s. 39.

p. 346

Mr. Veda Vyasa strenuously contended that unl688 the Tribunals be held to have jurisdiotion to order refund, the appellant and others in his poeitfon 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 Administration in violation or contravention of any provi. sions of this Chapter" (Ch. V). The argument is that 26 standH in the way of bringing any suit in the oivil oourts on a claim for refund of oharges 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 contravention 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 Tribunal has any jurisdiction to make an order. for refund.

pp. 346–347

Our conclusion therefore is that neither expressly nor by necessary implication has the Railway Rates Tribunal been given any jurisdiction to make any order for refund. The decisions of the .Railway Rates Tribunal, in the present case, on both the issues are therefore correct.

p. 347

The appeal is accordingly dismissed with costs.

p. 347