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1996 Supreme(MP) 43
1996 JLJ 204
D.M. Dharmadhikari and Fakhruddin, JJ.
Gwalior Sugar Co. Ltd. v. Union of India and another
L.P.A. No.3 of 1991; against the judgment passed by Hon‘ble Dr. T.N. Singh,
J. in First Appeal; Decided on 10.1.1996.
N.P. Mittal for appellant; H.D. Gupta for respondents.
Headnote:(1) Railways Act, 1890 -- Ss. 26 and 41 (1) (b) and (c) -- suit against unreasonable revision of tariff charges -- covered under S. 41 (1) (b) and (c)-civil suit to determine such question is barred under S. 26.
(2) Civil P.C., 1908 -- S. 9 -- special enactment barring jurisdiction of civil Court -- civil suit is not maintainable -- remedy provided under special enactment has alone to be invoked.
In the instant case, as rightly submitted on behalf of the Railways, clause 12 of the contract itself refers to Goods Tariff and reserves a power to the Railways to revise the charges in accordance with the tariff. The dispute raised is clearly for alleged unreasonable revision of rates for the loaded wagons and demanding also charges for shunting of empty wagons as was not originally envisaged or agreed under the terms of the agreement. It cannot, therefore, be held that the suit is founded purely on contract and required of the Civil Court, to interpret its terms and conditions. The nature of the controversy involved is with regards to the charges demanded under the Goods Tariff which was incorporated in the agreement for transportation of loaded wagons and empty wagons to the railway siding. It was, therefore, a subject-matter which fell within the exclusive jurisdiction of the Tribunal and is clearly covered by provisions of section 41 (1) (b) and (c) of the Act. (1973) 1 SCC 781 distinguished. [Para 18]
(3) Railways Act, 1890 -- Ss. 26, 41 and 29 -- agreement of tariff rate fixed in accordance with S. 29 -- dispute is to be decided by Tribunal under S. 41 (J) (c) -- jurisdiction of Civil Court is barred as provided under S. 26.
The rates fixed by the Central Government under the agreement for railway siding of the Company appear to us to be referrable to power under sub-section (2) of section 29 of the Act. In fact, the contract adopts the Goods Tariff of the Railways for the purpose of rates. The charges, therefore, demanded are in purported exercise of powers under section 29 falling within Chapter V of the Act. The Tribunal, therefore, had jurisdiction to entertain the dispute. AIR 1968 se 22 followed. (1973) 1 SCC 781 distinguished. [Para 19]
(4) Civil P.C., 1908 -- S. 9 -- two questions involved in civil suit -- first one triable by Tribunal and jurisdiction of Civil Court barred -- second question depending on answer of first question -- cannot be tried by Civil Court until first question is answered by Tribunal.
The other limb of the argument is that the suit for refund of the excess charges already collected atleast could not have been held as barred has also no merit. The learned Single Judge was right in holding that a dispute with regard to rates under the Goods Tariff and the second relief of refund of charges already collected were inter-linked as the latter was dependent upon the decision of the former question. It is only when the Tribunal had decided the controversy about the demand of enhanced rates that the claim for refund could arise. AIR 1964 SC 1268 and AIR 1963 SC 217 distinguished. [Para 20]
(5) Civil P.C., 1908 -- O. 7 R. 10 and S. 9 -- civil suit found to be barred by provisions of special Act -- plaint should be returned for presentation to the proper forum. [Para 21]
¼1½ jsy vf/kfu;e] 1890 & /kkjk 26 rFkk 41 ¼1½ ¼[k½ rFkk ¼x½ & VSfjQ çHkkj ds v;qfDr;qDr iqujh{k.k ds fo#) okn & /kkjk 41 ¼1½ ¼[k½ rFkk ¼x½ ds v/khu vkPNkfnr gS & ,sls ç‘u dk vo/kkj.k /kkjk 26 ds v/khu oftZr gSA
¼2½ flfoy çfØ;k lafgrk] 1908 & /kkjk 9 & flfoy okn dh otZudkjh fo‘ks"k vf/kfu;fefr & flfoy okn ugha pysxk & dsoy fo‘ks"k vf/kfu;fefr ds v/khu micaf/kr mipkj dk vkJ; fy;k tkuk gksxkA
bl ekeys esa] tSlk fd jsyos dh vksj ls Bhd gh fuosnu fd;k x;k gS] Lora= lafonk ds [kaM 12 esa eky VSfjQ dk funsZ’k fd;k x;k gS vkSj mlesa VSfjQ ds vuqlkj çHkkj ds iqujh{k.k dh ‘kfDr jsyos dks vkjf{kr gSA mBk;k x;k fookn Li"V :i ls Hkkfjr oSxuksa dh njksa ds vfHkdfFkr iqujh{k.k vkSj [kkyh oSxuksa ds ‘kafVax ds çHkkj dh ek¡x dk Hkh gS] tks djkj ds fuca/kuksa esa ifjdfYir ;k djkj ugha ik;k x;k Fkk blfy,] ;g vfHkfu/kkZfjr ugha fd;k tk ldrk fd okn fo‘kq) :i ls lafonk ij vk/kkfjr gS vkSj blds fuca/ku vkSj ‘krks± dk fuoZpu flfoy U;k;ky; ls visf{kr gSA varxZLr lafookn dk Lo:i eky VSfjQ ds v/khu ek¡xs x, çHkkj ds laca/k esa gS tks Hkkjr oSxuksa vkSj [kkyh oSxuksa ds jsyos lkbfMax rd ifjogu ds djkj esa varfoZ"V FkkA blfy,] ;g ,slk fo"k; Fkk tks vf/kdj.k dh vuU; vf/kdkfjrk ds v/khu vkrk Fkk vkSj vf/kfu;e dh /kkjk 41¼1½ ¼[k½ rFkk ¼x½ ls Li"Vr% vkPNkfnr gSA ¼1973½ 1 ,l lh lh 781 çHksfnrA ¿iSjk 18
¼3½ jsy vf/kfu;e] 1890 & /kkjk 26] 41 rFkk 29 & VSfjQ nj dk djkj /kkjk 29 ds vuqlkj fu;r & fookn vf/kdj.k }kjk /kkjk 41¼1½ ¼x½ ds v/khu fofuf‘pr fd;k tkuk gksxk & flfoy U;k;ky; dh vf/kdkfjrk] /kkjk 26 ds v/khu ;Fkk micaf/kr oftZr gSA
dsanzh; ljdkj }kjk daiuh dh jsyos lkbfMax ds fy, djkj ds v/khu fu;r njsa gesa vf/kfu;e dh /kkjk 29 dh mi/kkjk ¼2½ ds v/khu ‘kfDr;ksa dks funsZ‘kuh; çrhr gksrh gSaA oLrqr % djkj esa njksa ds ç;kstu ds fy, jsyos dk eky VSfjQ viuk;k x;k gSA blfy,] ek¡xs x, çHkkj vf/kfu;e ds v/;k; 5 ds varxZr vkus okyh /kkjk 29 ds v/khu ‘kfDr;ksa ds ç;ksx esa vk‘kkf;r gSA blfy,] vf/kdj.k dks fookn ij fopkj djus dh vf/kdkfjrk gSA , vkb vkj 1968 ,l lh 22 vuqlfjrA ¼1973½ 1 ,l lh lh 781 çHksfnrA ¿iSjk 19
¼4½ flfoy çfØ;k lafgrk] 1908 & /kkjk 9 & flfoy okn esa nks ç‘u varxZLr & çFke vf/kdj.k }kjk fopkj.kh; rFkk flfoy U;k;ky; dh vf/kdkfjrk oftZr & f}rh; ç‘u] çFke ç‘u ds mÙkj ij fuHkZj & vf/kdj.k }kjk çFke ç‘u dk mÙkj fn, tkus rd flfoy U;k;ky; }kjk fopkj.k ugha fd;k tk ldrkA
cgl dk vU; vax Hkh tks ;g gS fd de&ls&de igys gh olwy fd, x, vfrfjDr çHkkj ds çHkkj ds çfrnk; ds fy, okn oftZr vfHkfu/kkZfjr ugha fd;k tk ldrk Fkk] xq.kjfgr gSA fo}ku ,dy U;k;k/kh‘k us ;g Bhd gh vfHkfu/kkZfjr fd;k fd eky VSfjQ ds v/khu fookn vkSj igys gh olwy fd, x, çHkkj ds çfrnk; dk f}rh; vuqrks"k ijLij laca) Fks D;ksafd i‘pkr~orhZ ç‘u iwfoZd ç‘u ds fofu‘p; ij vkfJr FkkA vf/kdj.k }kjk c<+h gqbZ njksa dh ek¡x ds ckjs eas fookn fofuf‘pr fd, tkus ds i‘pkr gh çfrnk; dk nkok mn~Hkwr gks ldrk FkkA , vkb vkj 1964 ,l lh 1268 rFkk , vkb vkj 1963 ,l lh 217 çHksfnrA ¿iSjk 20
¼5½ flfoy çfØ;k lafgrk] 1908 & vk-7 fu-10 rFkk /kkjk 9 & flfoy okn] fo‘ks"k vf/kfu;fefr ds mica/kksa }kjk oftZr ik;k x;k & ifjokn] mfpr U;k;ky; esa miLFkkfir djus ds fy, okil fd;k tkuk pkfg,A ¿iSjk 21
D.M. Dharmadhikari, J. --1. This Letters Patent Appeal under Clause 10 of the Letters Patent, has been referred against the judgment dated 31.1.1991, passed by Dr. T.N. Singh, J. (as he then was), dismissing the appellant/plaintiff's suit as barred by the provisions of the Indian Railways Act, 1890 (repealed by the provisions of the new Act of the same name of the year 1989) for short, the 'Act'. The learned Single Judge also dismissed the suit for refund of alleged excess shunting charges levied by the Railways on the ground of non-compliance of section 80 of the Code of Civil Procedure.
2. The facts necessary for decision of the appeal are as under. The appellant Gwalior Sugar Company, Ltd., Dabra (for short, the 'Company') has a railway siding, partly constructed by it out of -its expenses connecting with the Railways for transportation of its goods. The siding facility was given by the Railways under a written agreement entered into between them on 12.7.1941. Clause 12 of the said Agreement which is relevant for the purposes of this case and which is said to be the foundation of the suit, reads as under :-
"Freight for all classes of goods upto and from the station at which the siding takes off, or from which wagons are worked to and from the siding will be charged in accordance with the rates from time to time published in the Goods Tariff of the Governor-General and, in addition for shunting loaded wagons into and from the siding the following charges will be made:-
Re. 1/- per 4-wheeled loaded wagon and Rs. 2/- per bogie loaded wagon subject to a minimum charge of Rs. 2/8/- per trip. The minimum charge per trip is subject to revision at the option of the Administration should the cost of shunting fluctuate. The Governor-General reserves the right to levy the above shunting charges also in respect of shunting trips required solely for the purpose of placing empty wagons into or removing empty wagons from the siding, if in the opinion of the Governor-General the applicant does not exercise reasonable care in regulating his demands for empty wagons so as to obviate, as far as possible, the necessity for such additional shunting trips."
In the course of transportation of goods from the railway siding under the terms of the contract, dispute arose between the Company and the Railways since the Railways subsequently started demanding shunting charges not only for placing to or removal of the loaded wagons from the railway siding, but also for removal of empty wagons from or to the siding.
3. According to the Company, the demand was unreasonable and contrary to the terms of the agreement. The Company sent protest letter and served registered notices under section 80, CPC, dated 15.10.1971 and 25.3.1972. As no relief was granted pursuant to the said notices, the Company instituted a suit on 28.3.1972, claiming the following reliefs:
"(1) That the Railways be directed to pay the plaintiff Company an amount of Rs. 14,780.21 and 6 percent interest from the date of the filing of the suit till the realisation and it be declared that the Defendants are not entitled to recover Rs. 11,634.15 as demanded through their letter No. C. 698/M/19/1, dated 8.3.1972 or any other amount thereafter.
(2) It be declared that under the agreement the Railways are entitled to count only time spent in shunting loaded wagons and not in transporting empty wagons.
(3) It be further declared that the Defendants are not entitled to charge for more than 20 minutes shunting time per shunting trip.
(4) That a permanent injunction be issued against the Railways directing them not to suspend the siding facilities given to the Plaintiff Company under the said agreement and continued upto-date."
4. The respondent Railways, apart from contesting the case on merit regarding additional charge levied for shunting empty wagons, raised a plea of bar of jurisdiction of Civil Court. The Railways pleaded that the reliefs claimed can exclusively be claimed by invoki
