# the provisions of this Chapter." · IHI -- - VHtr Doob Sutor Jt111, Ltd v. Sllal>licra ( Dtlhi) s.Jw-1.Uh• 111.1. C L1ii

- **Citation:** [1963] 2 S.C.R. 333
- **Court:** Supreme Court of India
- **Decided:** 1961-08-29
- **Bench:** L~ K.il>UB, K.C. DAs GUI'T.6, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-provisions-of-this-chapter-ihi-vhtr-doob-sutor-jt111-ltd-v-sllal-licra-2695
- **Pages:** 15

## Headnote

Rail.,,-ay Trib1mal-Oomplaint agaimt railway adminis·
tratio,._;,,urisdiclion-lf empowered to· order refmed-lnttrprotation of words "is charging" and "i• ~vying"-Tht Indian
Railways Act, 1890 (9 of 1890) iUJ amended by the Indian
Railways (Amendment) Act, 1967 ( 63 of 1957), •· 34, 41.
A complaint was made by the appellant to the Railway
Rates Tribunal against station to station rates as being
unreasonable
on sugarcane imposed
by the respondent
Rail way Co. by their rates circular No. 8 of 1953 with cll'ect
from October 1,
1953. The Railway company in their
answer pointed ·out that the rates impC>S..d by the rates
circular 8 of 1953 had long before the date of the complainant
ceased to be in force and a new rate had come into operation
from Feburary IO, 1960. Thereafter the complainant was
allowed to amend the complaint. The prayers were for a
declaration that the rates .charged were unreasonable, that a
direction of refund of the e:1ccss collected or which may be
collected after the date of the amendment of the complaint
over the reasonable rates that may be futcd by the Tribunal
and, lastly, for fixation of the rates.
The main contentions of the respondent were that the
Tribunal had no jurisdiction to entertain the complaint as
regards the reasonableness of rates prior to the institution of
the complaint and that the Tribunal had no jurisdiction to
grant -refund.
The Indian Railways Act underwent several amendments
and by the amendment in December 1957, s. 41 was changed.
As !'result of t~e change~!.. 1 of. s. 41 read_ thus: "Any complaint that a railway adm1mstrat1on-(a) 1s contravening the
provisions of•· 28, or (b) is charging for the carriage of any
commodity between two stations a rate which is unreasonable
or ( c} is levying any other charge which is unreasonable
-'I
shall hear and decide any such complaint in accordance with
the provisions of this Chapter."
·
IHI --
-
VHtr Doob Sutor
Jt111, Ltd.
v.
Sllal>licra ( Dtlhi)
s.Jw-1.Uh•
111.1. C.. L1ii.
334
SUPREME OOURT REPORTS [1963]
The Tribunal held that it had no jurisdiction to entertain or try the complaint as regards the rates and charges to
prior to the Institution of the complaint and it had no
jurisdiction to grant any refund. The appellants came up in
appeal to the Supreme Court.
Htld, that the words "is charging" in clause (b) and "is
levying" in clause (c) of s. 41 (I) of the Act must be construed
to mean "is demanding a price at the preient time for
services to be rendered''. The Railway Rates Tribunal had
no jurisdiction to entertain or try the complaint as regards the
reasonableness or otherwise of rates and charges made prior
to the institution of the complaint.
When the Tribunal had no jurisdiction to consider the
reasonableness or otherwise of any charges made prior to the
institution of the complaint, it follows necessarily that it could
have no occasion to order any refund.
For the question of
refund could arise only after a decision that the charges
made were more than what was reasonable.
Held, further, that neither expressly nor by necessary
implication has the Railway Rates Tribunal been given any
jurisdiction to make any order for refund.
Soullwn
Railway v. Tho Railu:ag llatu Trilnmal,
A.I.R. 1955 (Madras) 676, referred to.
After a complaint is made the Tribunal shall hear and
decide the complaint. The complaint being that something
is unreasonable all that the Tribunal has to decide is whether
that thing is unreasonable or not.
A finding that it is unreasonable docs not involve any
co:isideration or decision of what would flow from the Jinding.
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 provision that the
Tribunal caa also give a consequential relief.
The only other thing which the Tribuna I b authorised
to do in connection with the complaint b to fix "such rate or
c

## Text

·,
2 S.C.R.
SUPREME OOUR'.t REPORTS
UPPER DOAB SUGAR HILLS LTD.
ti.
SHAHDARA (DELHI) SAHARANPUR
LIGHT RAILWAY OOMPANY LTD.
(J,L~ K.il>UB, K.C. DAs GUI'T.6. and
RAGHUBAR DAYAL, JJ.)
Rail.,,-ay Trib1mal-Oomplaint agaimt railway adminis·
tratio,._;,,urisdiclion-lf empowered to· order refmed-lnttrprotation of words "is charging" and "i• ~vying"-Tht Indian
Railways Act, 1890 (9 of 1890) iUJ amended by the Indian
Railways (Amendment) Act, 1967 ( 63 of 1957), •· 34, 41.
A complaint was made by the appellant to the Railway
Rates Tribunal against station to station rates as being
unreasonable
on sugarcane imposed
by the respondent
Rail way Co. by their rates circular No. 8 of 1953 with cll'ect
from October 1,
1953. The Railway company in their
answer pointed ·out that the rates impC>S..d by the rates
circular 8 of 1953 had long before the date of the complainant
ceased to be in force and a new rate had come into operation
from Feburary IO, 1960. Thereafter the complainant was
allowed to amend the complaint. The prayers were for a
declaration that the rates .charged were unreasonable, that a
direction of refund of the e:1ccss collected or which may be
collected after the date of the amendment of the complaint
over the reasonable rates that may be futcd by the Tribunal
and, lastly, for fixation of the rates.
The main contentions of the respondent were that the
Tribunal had no jurisdiction to entertain the complaint as
regards the reasonableness of rates prior to the institution of
the complaint and that the Tribunal had no jurisdiction to
grant -refund.
The Indian Railways Act underwent several amendments
and by the amendment in December 1957, s. 41 was changed.
As !'result of t~e change~!.. 1 of. s. 41 read_ thus: "Any complaint that a railway adm1mstrat1on-(a) 1s contravening the
provisions of•· 28, or (b) is charging for the carriage of any
commodity between two stations a rate which is unreasonable
or ( c} is levying any other charge which is unreasonable
-'I
shall hear and decide any such complaint in accordance with
the provisions of this Chapter."
·
IHI --
-
VHtr Doob Sutor
Jt111, Ltd.
v.
Sllal>licra ( Dtlhi)
s.Jw-1.Uh•
111.1. C.. L1ii.
334
SUPREME OOURT REPORTS [1963]
The Tribunal held that it had no jurisdiction to entertain or try the complaint as regards the rates and charges to
prior to the Institution of the complaint and it had no
jurisdiction to grant any refund. The appellants came up in
appeal to the Supreme Court.
Htld, that the words "is charging" in clause (b) and "is
levying" in clause (c) of s. 41 (I) of the Act must be construed
to mean "is demanding a price at the preient time for
services to be rendered''. The Railway Rates Tribunal had
no jurisdiction to entertain or try the complaint as regards the
reasonableness or otherwise of rates and charges made prior
to the institution of the complaint.
When the Tribunal had no jurisdiction to consider the
reasonableness or otherwise of any charges made prior to the
institution of the complaint, it follows necessarily that it could
have no occasion to order any refund.
For the question of
refund could arise only after a decision that the charges
made were more than what was reasonable.
Held, further, that neither expressly nor by necessary
implication has the Railway Rates Tribunal been given any
jurisdiction to make any order for refund.
Soullwn
Railway v. Tho Railu:ag llatu Trilnmal,
A.I.R. 1955 (Madras) 676, referred to.
After a complaint is made the Tribunal shall hear and
decide the complaint. The complaint being that something
is unreasonable all that the Tribunal has to decide is whether
that thing is unreasonable or not.
A finding that it is unreasonable docs not involve any
co:isideration or decision of what would flow from the Jinding.
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 provision that the
Tribunal caa also give a consequential relief.
The only other thing which the Tribuna I b authorised
to do in connection with the complaint b to fix "such rate or
charge as it considers reasonable." In the absence of anything to indicate to the contrary it is reasonable to think that
this fixation can only be prospective, that is, the Tribunal in
making thiJ order fixing the reasonable rate OI' charge will
mention a future date for this to come inl<• "peradon.
,..
2 S.C.R.
CIVIL Al'PELLATE JurusDIOTION: Civil Appeal
No. 9 of 1962.
Appeal by special leave from the judgment
and order dated August 29, 1961, of the Railway
Rates Tribunal, MadraB" in Complaint No. l of
1960.
Veda Vyasa and/. N. Shroff, for the appellant.
Niren De., P.O. Chatterjee and S. N. M'lllc7wjee,
y
for the respondents.
1962. April 23. The Judgment of the Court was
delivered by
DAS GUPTA, l.-This appeal by special leave
DuiJ.
arises out of a complaint made by the appellant,
the Upper Doab Sugar Mills Ltd., Shamli, to. the
Railway Rates Tribunal. The complaint a.11 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
(186Ql 2 ••c::.L 92&.
lHI -
U#" DH' s.,.,
Urlll LU.
••
S,..,,.,o (D.IAi)
6.,..,_.. Lil"'
iq,. a •. w.
-
JINJ,
a36
SUPREME COURT REPORTs (1963)
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.
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.
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:-
"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.
DA. Has this Tribunal jurisdiction to grant a
refund."
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
.._
,..
v
2 S.C.R.
SUPREME OOURT REPORTS
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.
It will be helpful to consider briefly the background in which the Railway Rates Tribunal came
into existence.
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.
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:- .
"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
(1) A.1.a. 19S$ (Mldlu) i70.
1918
U/li<t DNI S.,.,
MUhLli.
-
DtMJ.
1161
UHP D.U Suga•
JliU. L".
••
si..i.-..,. (Ddhi)
Solt•- Li1h1
N!1. 0•. IM.
DuJ.
338
SUPREME OOURT REPORTS [1963)
applicable."
(Srinivasan's Railway. Freight
Rates)
The maxima wore fixed by the Local Governments for the railways within their provinces in
1869 while the Government of India proscribed the
maxima. for good grains and ·coal, and fares for the
lowest class of pa88engers only.
Statutory provisions for fixa•ion of maxima.
and minima for rates and charges were first made
the year 1939 by the Act 33 of 1939 which introduced s. 42 ( b) in these words:
"The Federal Railway Authority may be
general or special order fix maximum and
minimum rates for the whole or any part of a
railway, other than a minor railway, and pres·
cribe the conditions in which such rates will
apply.
(2) Any complaint that a railway administra·
tion is contravening any order isllued by the
Federa.J Railway Authority in accordance with
the provisions of this section aha.II be determind by that Authority."
Before this however, as a. result of the investigations ma.de by the Acworth Committee, a
Railway Rlltes Advisory Committee had ·been eata.-
blished. This Committee wae empowered to invesf
v
tigate and make recommendations on :
~
l. Compla.iDts of "undue preferenoe"-aeotion
42(2) of the Indian RailW1&ya Act.
2.
Complaints that rates a.re unresonable in
themselves .
•
3. Complaints or dispμtee in reepeot of terailla.ls ~seotion' 46· of the- Indian Rail-
..
ways Act.
2 s.c.R. SUPREME COURT REPORTS
339
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
merchandise;
'
5. Complaints in respect of conditions as to
pa.eking attached to a rate; and
6. Complaints that railways do not fulfil
their obligations to provide reasonable
facilities under section 42
(3) of the
Indian Railways Act."
It is to be noticed that this Committee could
only make recommendations and could not make
any effective order itself.
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 i. 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
19'2
UHer DH6 SW,..
MUii Lid
v.
Shohdaro (Oil/ti~
Sal>aNnP"" Lilfst
Bly; <le. Llil.
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·
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 :
"41(1) Any complaint that a railway administration
(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) is 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 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,
...
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.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).
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 a, man who has oea.eed. to
IHI
rJ#f'DulSMiJllLld.
••
S~a(DllAi)
S11MHnl111 Lil.hi
RIJ. Ce. Lt6.
D.,J.
1912
••
Sh.i.Mr• (DdAll
SoM<- Liv/ti
~/y, Co. Ltd.
n., J.
342
SUPREME OODRT REPORTS [1963]
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
"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 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 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 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 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.
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 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 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.
1961
U.»erD.,.6~
MilhLtl.
"
Shahdor• (D1l/ti)
Saluz~iW" Light
R{)i. Co. Ltd.
BuJ.
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 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.
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 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.
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
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
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.
/
"'<
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
-"
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
...J of the orders that can be made under. s. 39, It. is
hardly· neceasary to mention ·that s. 39 · does not
190
UH<rl>td8Mm. IA'-
•·
ShluloN ( D"4i)
S"'"'- l.;,ti1
B/1.Co .. LU.
DuJ.
-
UH« Do<b Sllf/<W
Mill1.l.MJ.
v.
SA.Man (Delhi)
s"""- u,111
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 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.
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 11. 26 standH in the way of bringing any suit in
the oivil oourts on a claim for refund of oharges
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 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.
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.
The appeal is accordingly dismissed with
costs.
196Z
Uppn- D..W Sugu
Mil/•.lJ<I •.
v.
Shalufara ( Jelfii)
Sahara,,,_, Light
Blj,Co. Ltd.
--
DasJ.