Shah Raichand Amulakh (decd.-by His Heir v. Union Of India

P.N. BHAGWATI

(1.) These Revision Applications raise an interesting question of law relating to the scope and ambit of former sec. 77-now re-numbered as sec. 78B-of the Indian Railways Act 1890 The facts giving rise to these Revision Applications are similar and it would therefore be convenient to state the facts of only one Revision Application namely Civil Revision Application No. 819 of 1963. The petitioners in this Revision Application are Commission Agents carrying on business in Surendranagar. One consignment of 110 bags of sugar was despatched to the petitioners by rail from Sawan to Surendranagar under Railway Receipt No. 951943 dated 3rd August 1951. The petitioners took delivery of the consignment at Surendranagar but in unloading the consignment and taking delivery there was delay on the part of the petitioners and both demurrage and wharf age charges therefore became payable to the railway administration. The railway administration demanded a particular amount from the petitioners in respect of demurrage and wharf age charges before giving delivery of the consignment. This amount according to the petitioners was in excess of that permissible under law but the petitioners were constrained to pay this amount since otherwise they would not get delivery of the consignment. The petitioners therefore paid up this amount and then filed Small Cause Suit No. 407 of 1964 in the Court of the Civil Judge Senior Division Surendranagar claiming refund of the overcharge recovered by the railway administration. Similar suits were also filed by the petitioners in other Revision Applications. Apart from disputing the claim on merits the Union of India which is the respondent in these Revision Applications as the owner of the railway administration raised certain preliminary objections. These preliminary objections were formulated as Issues Nos. 1 to 5 and these issues were tried by the learned Civil Judge as preliminary issues. Issues Nos. 1 5 and 6 are not material as they were decided in favour of the petitioners but issues Nos. 2 3 and 4 were decided against the petitioners and resulted in dismissal of the suits. These issues raised the question whether the petitioners were entitled to maintain the suits without serving notice on the railway administration under sec. 77 of the Indian Railways Act. I am referring here to sec. 77 as that was the number of the relevant section at the time when the suits were filed. Subsequently as a result of Amending Act 39 of 1961 this section has been slightly modified and re-numbered as sec. 78B. The unamended section omitting portions immaterial provided inter a as under:-

77 A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss destruction or deterioration of animals or goods delivered to be so carried unless his claim to the refund or compensation has been refereed in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway. The contention of the respondent was that the claim in each of these suits was for refund of over-charge in respect of goods carried by railway and therefore in view of sec. 77 the petitioners were not entitled to maintain the suits in the absence of notice of claim given within six months from the date of delivery of the goods for carriage by railway administration This contention found favour with the learned Civil Judge and he accordingly decided these issues in favour of the respondent and dismissed the suits. Hence the present Revision Applications.

(2.) It was common ground between the parties that no notice of the claim made in any of the suits was given by the petitioners to the railway administration within six months from the date of delivery of the goods for carriage by railway and therefore if sec. 77 was applicable the suit would be clearly not maintainable. The controversy between the parties therefore centered round the question whether the claim made in the suits was covered by sec. 77. Was it a claim for refund of an overcharge in respect of goods carried by railway Two expressions here require interpretation. One is overcharge and the other is in respect of goods carried by railway. Overcharge is not a term of art. It is an ordinary word of the English language which according to its plain natural sense means any charge in excess of that prescribed or permitted by law. To be an overcharge a sum of money must partake of the same character as the charge itself or must be of the same genus of or class as a charge; it cannot be any other kind of money such as money recovered where nothing is due. Overcharge is simply a charge in excess of that which is due according to law. The claim made in the present suits was therefore indubitably a claim for refund of an overcharge. But that would not be enough to attract the applicability of sec. 7-/. The question would still remain whether the overcharge was in respect of goods carried by railway for unless this requirement is satisfied sec. 77 would not be attracted. The argument of the petitioners was that the words in respect of goods carried by railway had a limitative effect and they indicated that over charge contemplated in the section was an overcharge in respect of carriage of the goods so that it was confined to excess charge recovered by the railway administration in respect of freight for carrying the goods from one station to another and it did not comprise excess charge made by the railway administration in respect of demurrage and wharf age charges. The respondent on the other hand staked its claim on a plain literal construction of the language used by the Legislature and urged that overcharge made by the railway administration in respect of demurrage and wharf age charges was also within the ambit and coverage of the section since it was excess charge recovered in respect of goods which were carried by railway. These rival contentions raised an interesting question of construction which we shall now proceed to consider.

(3.) It is now a well settled rule of construction of a statute that in order to arrive at its proper meaning it is necessary to have regard not only to one language of the provision but also to the object and purpose to effectuate which it has been enacted. Sec. 77 enacts a mandatory provision for giving of notice of claim to the railway administration before any action can be instituted against it and as pointed out by Mudholkar J. in paragraph 20 of the judgment in Jetmull Bhojraj v. D. H. Railway A.I.R. 1962 S.C. 1879 the object of service of notice under this provision clearly is to enable the railway administration to make an inquiry and investigation as to whether the loss destruction or deterioration was due to the consignors laches or to the willful neglect of the railway administration and its servants and further to prevent stale and possibly dishonest claims being made when owing to delay it may be practically impossible to trace the transaction or check the allegations made by the consignor or the consignee. It is therefore apparent that the provision requiring that notice of claim must be given within six months even where the claim is for refund of an overcharge in respect of animals or goods carried by railway is intended to prevent stale and perhaps dishonest claims being made when by reason of lapse of time it may not be possible to inquire and find out whether the claim made is well-founded or not. If this be the object of the provision it is difficult to imagine any reason why the Legislature should have made a distinction between a claim for refund of an overcharge in respect of freight and a claim for refund of an overcharge in respect of demurrage and wharf age charges in relation to the same goods. If the railway administration requires to be protected against stale and dishonest claims in the former kind of cases does it not also require to be protected against such claims in the latter kind of cases If therefore the language of the section is capable of being construed so as to include not only overcharge in respect of freight but also overcharge in respect of demurrage and wharf age charges we should certainly be inclined to accept such construction in preference to that which excludes overcharge in respect of demurrage and wharf age from the ambit of the section. Now turning to the language of the section it is clear that the words used by the Legislature are clear and specific. There is no ambiguity about them. To bring the claim for refund within the mischief of the section the overcharge must be in respect of goods carried by railway. The words carried by railway qualify goods and if any overcharge is recovered in respect of goods which satisfy this description it would be overcharge by the railway administration in respect of demurrage and wharf age charges it is according to the plain and natural meaning of the words an overcharge in respect of goods which are carried by railway. I do not think it is possible to limit the ambit and coverage of the section by reading the words overcharge in respect of goods carried by railway as indicating that the overcharge must be in respect of carriage of the goods. To read these words in such a manner would be to refuse to give effect to their plain natural meaning and to re-write the section by substituting some such words as overcharge in respect of carriage of goods. That would be clearly impermissible under any cannon of construction.

(4.) This construction also becomes evident if the nature of demurrage and wharf age charges is examined. Demurrage is a charge levied on the goods not unloaded from the wagons within the free time allowed for unloading and wharf age is the charge levied on goods not removed from the railway premises after the expiry of the free time allowed for that purpose. Vide paragraph (7) of the judgment of Subba Rao J. in M/s. Raichand v. Union of India A.I.R. 1964 S.C. 1268. That is also how the words demurrage and wharf age are defined in sec. 46C clauses (d) and (h) of the Indian Railways Act 1890 Demurrage and wharf age charges are thus charges levied in respect of goods retained in the wagons or railway premises beyond the free time allowed for clearance under the Rules. Subba Rao J. speaking on behalf of the Supreme Court in Messrs. Raichand v. Union of India (supra) considered the question whether these charges are terminal charges and analysing the nature of these charges pointed out in paragraph (8) of the judgment at page 1271 of the report-Terminal charges are of two categories:- (1) charges for services and (2) charges for accommodation and appliances which facilitate business. The service terminals comprise of remuneration for the handling of goods at the terminal station i. e. where the railway employees are engaged in weighing loading unloading etc. As distinguished from this service terminals there are station terminals which are charges for providing accommodation incidental to the business of a carrier such as working charges repairs renewals insurance of station buildings sidings sheds platforms warehouses cranes hydraulic power fixed appliance etc. Both demurrage and wharf age would fall within the head of station terminal because they are charges levied for the use either of the wagon or of the platform or goods-shed after the transit or conveyance is complete and is not incidental to the conveyance as such. As the wharf age and demurrage are charges in respect of goods unloaded from wagons and kept at the station and also in respect of goods kept on platforms of the station the said charges could certainly be described as charges in respect of the station. Demurrage and wharf age charges are thus clearly terminal charges and though it is true that they are charges in respect of the period subsequent to the completion of the transit all the same they are incidental to the business of the railway administration as a carrier. These charges are therefore not unrelated to the business of a carrier carried on by the railway administration. The railway administration makes these charges because there is delay in unloading the wagon or removing the goods from the platform. These are clearly charges in respect of the goods carried by railway as much as freight and other charges. If therefore there is any overcharge made by the railway administration in respect of demurrage and wharf age charges a claim for its refund would clearly come within the scope and ambit of sec. 77. It would be a claim for refund of an overcharge in respect of goods carried by railway within the meaning of that section. The learned Civil Judge was therefore right in dismissing the suits on the ground that they were filed without giving the requisite notice to the railway administration under sec. 77.

(5.) In the result the Revision Applications fail and the Rule issued in each of the Revision Applications will stand discharged with costs. Applications dismissed.