Judgment

RANGANATH MISRA, J. :- This appeal by certificate under Article 133(1)(a) and (c) of the Constitution is by the defendants against the reversing judgment of the Gujarat High Court. The plaintiff-respondent filed a suit in the Court of Civil Judge, Senior Division, at for :

(i) declaration that the contract dated 5th of May, 1943 between it and the ex-State of Bhavnagar valid for a period of 51 years commencing from 5th of May 1943 fixing the charges for carrying salt in wagons from the siding to the Concrete Jetty was binding on the defendants and they had no right to revise the terms thereof;

(ii) The agreement dated 29th of March, 1951, was valid, subsisting and binding on the defendants and the stipulated rates were not liable to be varied except in the manner provided in clause 8A of the agreement.

2. On the basis of the aforesaid contentions a claim for refund of Rs. 1,49,667.09 was made. The defendants maintained that the suit was not maintainable as under the provisions of the Indian Railways Act, 1890, the matter came within the purview of the Statutory Rates Tribunal; the agreement was not binding and at any rate was available to be unilaterally modified and the plaintiff had no cause of action.

3. The trial court dismissed the suit by finding all the material issues against the plaintiff but the High Court in appeal by the plaintiff reversed the judgment and decreed the suit for a sum of Rs. 1, 25,264.87.

4. The Company had entered into an arrangement with the ruler of the ex-Bhavnagar State relating to manufacture, sale and export of sale from the Bhavnagar State. Under the said contract, the haulage charges had been fixed. The Bhavnagar State Railway which was owned by the former State by that name, in 1948, came within the Kathiawar State which came to be known as the United State of Saurashtra. With the Constitution coming into force in 1950, the Saurashtra Railway was taken over by the Government of India and on 29th of March, 1951, an agreement was executed between the plaintiff and the defendants fixing the terms and conditions of working.

5. In December, 1951, the Saurashtra Railway merged into the Western Railway. Sometime in June 1955, the Western Railway intimated the respondents that Clause 8A of the 1951 agreement required revision and the rates stipulated therein were to be enhanced with reference to the placement charges and carriage from the railway siding to the Concrete Jetty. The charges were enhanced from time to time. The plaintiff entered into correspondence and raised objection and ultimately came before the Court alleging that the enhancement were illegal and payments had been made under compulsion and protest and sued for recovery by way of refund. It was the plaintiffs contention that the rates were not open to revision and the contractual rates of agreement of March 1951 were binding.

6. Three questions in the main arise for determination :

(1) Whether the claim was maintainable in Civil Court in view of the provisions contained in Chapter V of the Indian Railways Act, 1890 ?

(2) If the agreement of March 1951 was an independent one entered into between Western Railway and the plaintiff and not based upon the earlier agreement of 1943, and if it was an independent agreement, whether the Railways Act authorised variation of the Tariff ?

(3) Whether Javak No. 582 (Ext. 127) was at the most a licence and the powers exercisable by the then ruler were available to be exercised by the defendants? The terms of the Javak permitted variation and the defendants were, therefore, entitled to claim higher rates.

7. We have heard learned counsel for the parties at considerable length and are of the view that the trial court was right in its conclusion that Javak No. 582 and Order No. 57 of the ruler of Bhavnagar did not give rise to a contract and at the most amounted to a licence. The contents of these documents are on the record and it is not necessary to reproduce them. As early as 9th of January, 1950,