Judgement

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.

2. 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.

3. Civil Suit No. 109 of 1957, was filed by the appellants in Civil Appeal No. 149 of 1959 for recovery of a sum of Rs. 295/- from the Union of India representing the Western Railway. The appellants are a firm doing business in Surendranagar. The said firm received a consignment of 125 bags of rice booked from Belanganj to Surendranagar railway station. At the time of effecting delivery of the said consignment, the Station Master at Surendranagar recovered a sum of Rs. 275-7-0 from the appellant-firm as wharfage charges. It is alleged in the plaint that 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 suit was filed for the refund of the amount collected 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.

4. 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.

5. 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.

Section 3. (14) "terminals" includes charges in respect of stations, sidings, wharves, depots, warehouses, cranes and other similar matters, and of any services rendered thereat."

Section 26. "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 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 ca