LexRAICHAND AMULAKH SHAH versus UNION OF INDIA
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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 appel- lants. 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 pro- vide 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 Tri- bunal 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 Amu- CIVIL 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 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 fo
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