ORDER

1. The Union of India has filed this appeal against the order of the Railway Rates Tribunal, Madras. While examining the complaint filed by the respondent, the Tribunal framed the following issues:

"1. Is the complaint not maintainable in law?

2. Is the complaint beyond the competence and jurisdiction of this Tribunal?

3. Is the levy of freight charges in addition to siding charges in respect of haulage of wagons from Brajranager Station to the exchanges point on the siding leading to the complainants' mills, unreasonable?

4. What is the reasonable charge that can be levied for placing complainants' wagons at the exchanges yard?

5. To what relief, are the complainants entitled?"

2. On Issue 1, the Tribunal held that the complaint was maintainable.

Issue 2 was decided against the appellant and it was held that the Tribunal has the competence as well as the jurisdiction to try the issues. On Issue 3, it was held that the levy of freight charges in addition to siding charges was unreasonable. On Issues 4 and 5, it was held as under:

"In view of what has been stated above, the only reasonable charges leviable on such wagons, should the Railways choose to make the placement in the siding, would be siding charge. Given the above circumstances, the freight charges realised on such wagons for the period from the date of the complaint have to be refunded by the Railways to the complainants."

3. After hearing learned counsel for the parties, we do not find any infirmity in the order passed by the Tribunal on Issues 1-3. On Issues 4 and 5, we are satisfied that the Tribunal under Section 36 of the Railways Act, 1989 could not direct the appellant to refund the excess freight charged to the respondent. In this connection, a reference may be made to the judgment of this Court in Upper Doab Sugar Mills Ltd v. Shahdara (Delhi) Saharanpur Light Rly. Co. Ltd I wherein it was held that the Tribunal cannot order refund of the freight, already paid. Accordingly, the direction issued by the Tribunal on Issues 4 and 5 is set aside to the extent it directs the appellant to refund the excess freight charged for the past period, if any.

4. Appeal is partly accepted and disposed of in the above terms. There shall be no order as to costs.