# RAICHAND AMULAKH SHAH v. UNION OF INDIA

- **Citation:** [1964] 5 S.C.R. 148
- **Court:** Supreme Court of India
- **Decided:** 1963-10-21
- **Case number:** Civil Appeals /akh Shah Nos. 149 to 154 of 1959
- **Bench:** P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raichand-amulakh-shah-v-union-of-india-2967
- **Pages:** 10

## Headnote

Indian Railway Act, 1890, s. 26-Construction of-Suit for
refund of Wharfage and demurrage charges-If barred-" Wharfage"
and" demurrage" meaning of-If terminals.
Suits were filed against the Union of India representing the
Western Railway for the refund of amounts collected by the West-
'
cm Railway as wharfagc and dcmurrage charges from the appellants. It was alleged in the plaint that Railway notifications
and rules under which the Railway had charged the wharfage at
two annas to four annas per maund per day were illegal and ultra
vires and that in any view the railway had no power under the
-<
rules to collect charges from appellant-firm for the "free time"
under the head of wharfage charges. The respondent pleaded
that Civil Court had no jurisdiction to entertain the suits and
that rules were not ultra vires and money was not collected against
the rules. Suits were dismissed by the trial court on the ground
that they were barred under s. 26 of the Indian Railways Act.
Revisions were also dismissed by the High Court. The appellants
came to this Court by Special Leave. Accepting the appeals,
Held, that s. 26 of the Indian Railways Act is not a bar to the
maintainability of a suit for the refund of wh:- rfagc or demurrage
charged in excess. The bar under s. 26 is not comprehensive.
"
It is limited by the opening words "Except as provided in the Act"
in the section. Two conditions must be complied with before
applying s. 26. The railway administration should have done
an act or omitted to do an act in contravention of the provisions
of Chapter V of the Indian Railways Act and the Act should provide a remedy in respect of that act or omission. In the present
case, the Act does not provide for any remedy for an aggrieved
party to approach the Tribunal appointed under s. 34 of the Act
for the refund of the amount collected in excess by the Railway
Administration by way of wharfage or dcmurrage. The Tribunal has no jurisdiction .to decide whether the rules empowering
the administration to collect wharfage or demurrage charges
arc ultra vires or the amounts collected arc in excess of what is
leviable under the rules.
Wharfagc and .demurragc arc charges in respect of goods
unloaded from wagons and kept at the station and also in respect
of the goods kept on a platform of the station, beyond the free
time allowed for clearance under the rules. The said charges
,
r
5 S.C.R.
SUPREME COURT REPORTS
149
can certainly be described as charges ,in respect of the station
and are terminals within the meaning of the definition of the term
1963
in the Act.
Rai Chand AmuCIVIL APPELLATE JURISDICTION:
Civil Appeals
/akh Shah
Nos. 149 to 154 of 1959.
y,
Appeals by special leave from the judgment and Union of India
order dated February 25, 1958 of the former Bombay
High Court at Rajkot in Civil Revision Applications
Nos. 46, 49 ,55, 57, 58 and 59 of 1958.
S.P. Sinha, Shahzadi Mohiuddin and M.l. Khowaja,
for the appellants.
N.S. Bindra and R.N. Sachthey, for the respon·
dents.
October 21, 1963. The Judgment of the Court
was delivered by
SuBBA RAO J.-These six appeals filed by special
leave raise a common question, namely whether
the suits filed against the Western Railway for the
refund of amounts collected from the appellantfirm as wharfage or demurrage would lie in a Civil
Court.
Civil Appeals Nos. 152 and 153 of 1959 arise
out of the suits filed for the recovery of the amounts
collected from the appellant-firm by way of demurrage
and the other appeals are filed for the recovery of
amounts collected from the said firm by way of wharfage charges. It would be enough if we gave the
particulars of the claim in one of the suits, for it
was stated at the Bar that the claims for refund were
similar in all the other suits. Excepting the plaint
in Civil Suit No. 109 of 1957, the other plaints are
not placed before us.
We are, therefore, proceeding
on the assumption that the relevant allegations in
all the plaints are similar, particularly as the assertion
of

## Text

1963
October 21
148
SUPREME COURT REPORTS
RAICHAND AMULAKH SHAH
v.
UNION OF INDIA
(1964]
(P. B. GAJENDRAGADKAR, K. SUBBA RAO, K. N.
WANCHOO, N. RAJAGOPALA AYYANGAR AND
J. R. MUDHOLKAR JJ.)
Indian Railway Act, 1890, s. 26-Construction of-Suit for
refund of Wharfage and demurrage charges-If barred-" Wharfage"
and" demurrage" meaning of-If terminals.
Suits were filed against the Union of India representing the
Western Railway for the refund of amounts collected by the West-
'
cm Railway as wharfagc and dcmurrage charges from the appellants. It was alleged in the plaint that Railway notifications
and rules under which the Railway had charged the wharfage at
two annas to four annas per maund per day were illegal and ultra
vires and that in any view the railway had no power under the
-<
rules to collect charges from appellant-firm for the "free time"
under the head of wharfage charges. The respondent pleaded
that Civil Court had no jurisdiction to entertain the suits and
that rules were not ultra vires and money was not collected against
the rules. Suits were dismissed by the trial court on the ground
that they were barred under s. 26 of the Indian Railways Act.
Revisions were also dismissed by the High Court. The appellants
came to this Court by Special Leave. Accepting the appeals,
Held, that s. 26 of the Indian Railways Act is not a bar to the
maintainability of a suit for the refund of wh:- rfagc or demurrage
charged in excess. The bar under s. 26 is not comprehensive.
"
It is limited by the opening words "Except as provided in the Act"
in the section. Two conditions must be complied with before
applying s. 26. The railway administration should have done
an act or omitted to do an act in contravention of the provisions
of Chapter V of the Indian Railways Act and the Act should provide a remedy in respect of that act or omission. In the present
case, the Act does not provide for any remedy for an aggrieved
party to approach the Tribunal appointed under s. 34 of the Act
for the refund of the amount collected in excess by the Railway
Administration by way of wharfage or dcmurrage. The Tribunal has no jurisdiction .to decide whether the rules empowering
the administration to collect wharfage or demurrage charges
arc ultra vires or the amounts collected arc in excess of what is
leviable under the rules.
Wharfagc and .demurragc arc charges in respect of goods
unloaded from wagons and kept at the station and also in respect
of the goods kept on a platform of the station, beyond the free
time allowed for clearance under the rules. The said charges
,
r
5 S.C.R.
SUPREME COURT REPORTS
149
can certainly be described as charges ,in respect of the station
and are terminals within the meaning of the definition of the term
1963
in the Act.
Rai Chand AmuCIVIL APPELLATE JURISDICTION:
Civil Appeals
/akh Shah
Nos. 149 to 154 of 1959.
y,
Appeals by special leave from the judgment and Union of India
order dated February 25, 1958 of the former Bombay
High Court at Rajkot in Civil Revision Applications
Nos. 46, 49 ,55, 57, 58 and 59 of 1958.
S.P. Sinha, Shahzadi Mohiuddin and M.l. Khowaja,
for the appellants.
N.S. Bindra and R.N. Sachthey, for the respon·
dents.
October 21, 1963. The Judgment of the Court
was delivered by
SuBBA RAO J.-These six appeals filed by special
leave raise a common question, namely whether
the suits filed against the Western Railway for the
refund of amounts collected from the appellantfirm as wharfage or demurrage would lie in a Civil
Court.
Civil Appeals Nos. 152 and 153 of 1959 arise
out of the suits filed for the recovery of the amounts
collected from the appellant-firm by way of demurrage
and the other appeals are filed for the recovery of
amounts collected from the said firm by way of wharfage charges. It would be enough if we gave the
particulars of the claim in one of the suits, for it
was stated at the Bar that the claims for refund were
similar in all the other suits. Excepting the plaint
in Civil Suit No. 109 of 1957, the other plaints are
not placed before us.
We are, therefore, proceeding
on the assumption that the relevant allegations in
all the plaints are similar, particularly as the assertion
of learned counsel for the appellants to the said effect
was not questioned by learned counsel for the respondent.
Civil Suit No. 109 of 1957 was filed by the appellants in Civil. Appeal No. 149 of 1959 for recovery
of a sum of R1:. 295 from the Union of India representing the Western Railway. The appellants are
Subba RaoJ.
150
SUPREME COURT REPORTS
[1964]
1963
a firm doing business in Surendranagar. The said
firm received a consignment cf 125 bags of rice booked
Rai Chand Amu-from Belanganj to Surendranagar railway station:
lakh Shah
At the time of effecting delivery of the said consignv:
ment, the Station Master at Surendranagar recovered
Union of India a sum of Rs. 275-7-0 from the appellant-firm as
-
wharfage charges. It is alleged in the plaint that
Subba Rao J. the railway notifications and rules under which the
railway had charged the wharfage at two annas to
four annas per maund per day were illegal and ultra
vires and that in any view the railway had no power
under the rules to collect charges from the appellantfirm under the said rules for the "free time" under
the head of wharfage charges. On those allegations
the suit was filed for the refund of the amount col"
lected by the said railway. The . defendant denied
either that the rules were ultra vires or that it collected the amount contrary to the rules. It pleaded
that the civil court had no jurisdiction to entertain
the suit. Similar suits were filed in respect of other
amounts and similar contentions were raised. The
learned Civil Judge dismissed all the suits on the
ground that they were barred under s. 26 of the Indian
Railways Act, 1890 (Act IX of 1890), hereinafter
called the Act. The said firm in all the suits preferred revisions against the judgment of the Civil
Judge to the High Court of Bombay at Rajkot. The
High Court agreed with the view of the Civil Judge
and dismissed the revisions. Hence the appeals.
The only question raised before us is whether
s. 26 of the Act is a bar against the maintainability
of the said suits in a civil court for refund of the said
amounts collected from the appellant-firm by way
of wharfage and demurrage charges.
To appreciate the contentions of the parties it
is necessary to notice the relevant sections of the Act.
At the outset it may be mentioned that in the present
appeals the amounts were collected between the years
1953 and 1955 and, therefore, we will be ignoring
the later amendments made in the Act for the purpose of the present enquiry.
-
~r
(
:tf
•
5 S.C.R.
SUPREME COURT REPORTS
151
Section 3(14) "terminals" includes charges in
1963
respect of stations, sidings, wharves, depots,
.
warehouses, cranes and other similar matters, Raz Chand Amuand of any services rendered thereat."
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 contravention of any provision of this Chapter (Ch. V)."
Section 32. "The Central Government may, by
general or special order, fix the rates of terminal
and other charges for the whole or any part
of a railway, and prescribe the conditions in
which such rates will apply.
Section 34. (1) There shall be a Tribunal called the Railway Rates Tribunal, for the purpose
of discharging the functions hereinafter specified in this Chapter.
Section 41.
(i) Any complaint that a railway
administration-
(c) is levying charges (other than standardised
terminal charges)
which are
unreasonable,
may be made to the Tribunal, and the Tribunal
shall bear and decide any such complaint in
accordance with the provisions of this Chapter.
Section 45. Nothing in this Chapter shall confer
jurisdiction on the Tribunal in respect of scales
of charges levied by a railway administration
for the carriage of passengers and their luggage,
parcels, military traffic and traffic in railway
materials and stores, and demurrage charges,
except on a reference made to the Tribunal
by the Central Government.
Section 46A. The decision of the Tribunal shall
be by a majority of the members sitting and shall
be final.
152
SUPREME COURT REPORTS
[1964]
1963 ·
Provided that where a single member of the Tribunal has heard and decided any matter, he may,
Rai Chand Amu-in his discretion, give leave to any party to appeal
lakh Shah
to the Full Bench; and if an appeal is filed in pursuance
v.
of such leave, the decision of the Full Bench or of
Union of India a majority of the members thereof, as the case may
be, shall be final.
Subba Rao J.
Section 46B. The Tribunal may transmit any
order made by it to a Civil Court having local
jurisdiction and such Civil Court shall execute
the order as if it were a decree.
Section 46C. In this Chapter, unless there is
anything repugnant in the subject or context,-
( d) "demurrage" means the charge levied after
the expiry of the free time allowed for loading or unloading a wagon.
The scheme of the said provisions is clear. The
Central Government fixes the rates of terminal and
other charges for the whole or a part of a railway.
If a railway administration levies charges other than
the standardised terminal charges which are unreasonable, an aggrieved party may file a complaint against
the administration before the Railway Rates Tribunal. The decision of the Tribunal is final.
In
regard to 'demurrage charges mentioned in s. 45 of the
Act, the Tribunal has no jurisdiction to entertain
a claim in respect thereof, except by a reference made
to the Tribunal by the Central Government. Section
26 bars the jurisdiction of ordinary civil courts to
entertain a suit or a proceeding for anything done
or any omission made by the railway administration
in violation or contravention of any of the provisions
of Chapter V. In regard to such violation, an aggrieved party can only proceed in the manner provided by the Act.
The short question, therefore, is whether the
said claims for refund are covered by the bar imposed
by s. 26 of the act. As s. 26 bars the jurisdiction of
civil courts, its provisions must be strictly construed.
The bar is in respect of anything done or an omission
•
'
-
5 S.C.R.
SUPREME COURT REPORTS
153
made by the railway administration in violation or
1963
contravention of any provisions of Chapter V of the
Act. If the opening words "Except as provided in Rai Chand Amuthis Act" in s. 26 of the Act are ignored, the bar aplakh Shah
pears to be comprehensive, for it may take in its sweep
v.
any dereliction of duty by the railway administraUnion of India
tion in respect of matters covered by the provisions
of the said chapter. But such an intention to give
Subba Rao J.
a blanket licence to the railway administration to
contravene the provisions of Chapter V of the Act
shall not be attributed to the Legislature unless the
section is very clear to that effect. The opening
words "Except as provided in this Act" limit the operation of the bar. It can reasonably be interpreted to
mean that the bar of a suit is limited to matters in
respect whereof the Act has provided a remedy.
So construed, before we apply the provisions of
s. 26 of the Act, two conditions shall be complied
with, namely, (i) the railway administration shall
have done an act or omitted to do an act in contravention of the provisions of Ch. V and (ii) the Act
has provided a remedy in respect of that act or omission. It was argued that the charges levied by the
railway administration under the heads of "wharfage"
and "demurrage" are "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 prescribed 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
apply. In order to find out whether wharfage and
154
SUPREME COURT REPORTS
[1964]
1963
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 underlakh Shah
stood by the Act and the rules made thereunder.
v.
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, presumably made under the Act, give a clear idea of the
meaning of these words. The relevant rule is r. 85
and it reads:
"The actual wharfage and demurrage rules locally in force on different railways are published in
each Railway's Tariffs and may be ascertained on
application at stations.
The following wharfage and demurrage rules
were in force on the BJ~. & C.I. Railway, which is
now named as the Western Railway. Clauses (A)
and (B) thereof give the rates of wharfage and demurrage and clause (C) defines "demurrage" and
"wharfage". Clause (C) reads:
(i) When wagons required to be unloaded by
consignees are not unloaded within the free
time of six day-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
1963
the free time of six daylight hours, expires.
Demurrage is therefore a charge levied on the Rail c::~ ~mugoods not unloaded from the wagons within the
a
a
free time of six daylight hours and wharfage is the
v.
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, therefore, charges levied in respect of goods retained
in the wagons or in the railway premises beyond
the free time allowed for clearance under the rules.
The question is whether such charges are "terminals" as defined in the Act. The expression "terminal
charges" was defined for the first time in the Indian
Railways Act, 1890. It was taken from the definition in s. 55 of the English Railway and Canal
Traffic Act, 1888. Terminal charges are of two
categories: (I) charges for services, and (2) charges
for accommodation and appliances which facilitate
business. The "service terminals" comprise of remuneration for the handling of goods at the terminal
station i.e., where the railway employees are engaged
in weighing, loading, unloading, etc. As distinguished
from this "service terminals" there are "station
terminals" which are charges for providing accommodation incidental to the business of a carrier, such as
"working charges, repairs, renewals, insurance of station buildings, sidings, sheds, platforms, warehouses,
cranes, hydraulic power, fixed appliances etc." Both
demurrage and wharfage would fall within the head of
"station terminals", because they are charges levied
for the use either of the wagon or of the platform
or goods-shed after the transit or conveyance is complete and is not incidental to the conveyance as such.
Charges levied in respect of stations are included
in the definition of "terminals" under the Act. As
the wharfage and 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 desRaz Chand Amu-cribed as charges in respect of the station. If so,
lakh Shah
it follows that the said charges are "terminals" within
v.
the meaning of the definition of the said expression
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
the rules. If the impugned charges are standardised
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 jurisdiction of the Tribunal is confined only to the question of its reasonableness. It has no jurisdiction to
decide whether the rules empowering the railway
administration to levy a particular charge are ultra
vires or whether the railway administration collected
amounts in excess of the charges which it can legally
levy under a rule. If so, it is clear that no provision
has been made under the Act giving a remedy to an
aggrieved party to ask for a refund of amounts, such
as those alleged to have been collected from the appellants. Section 26, therefore, cannot be a bar
against the maintainability of the suits filed by the
appellants.
We do not propose to express our view in this
.I
case, as it has not been argued before us, whether
t'
the demurrage charges in question fell within the
II
meaning of the expression "demurrage charges" in
14111
L
.......
5 S.C.R.
SUPREME COURT REPORTS
157
s. 45 of the Act and, if so, whether the jurisdiction
1963
of the Tribunal could only be invoked in the manner
prescribed thereunder.
Rai Chand AmuFor the foregoing reasons we hold that both the
lakh Shah
High Court and the trial Court went wrong in disv.
missing the suits on the ground that s. 26 of the Act Union of India
was a bar against their maintainability. We, thereSubba 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 expressed any opinion on the other questions raised
in the suits. The respondent will pay the costs of the
appellants here.
The costs of the courts below will abide the result.
Suits remanded.
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 available-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
1963
October 22