The General Manager, G.I.P. Railway vs Mst. Kiran Devi and Another

Gurtu, J.—By virtue of Section 47(1)(f) of the Indian Railways Act, Act No. IX of 1890, as in force in 1946, every Railway Company and in the case of a Railway administered by the Government, an officer to be appointed by the Central Government, in this behalf was empowered to make general rules consistent with the Act for, inter alia, regulating the terms and conditions on which the Railway administration would warehouse or retain goods at any station on behalf of the consignee or owner.

By Section 47, Sub-section (3) of the same Act a rule made u/s 47(1) would not take effect until it had received the sanction of the Central Government and had been published in the Gazette of India.

A rule was made under the above indicated power fixing warehousing charges at one anna per maund. Then subsequently the charge was increased to 3 annas per maund. The rule increasing the rate to 3 annas was not published in the Gazette of India and there is nothing to show that that rule was made by an officer appointed by the Central Government. The rule was published, however, in what is known as the Railway Gazette and it was also caused to be published in a local newspaper called "Sandesh" in the issue dated 22-10-1949.

The Railway demanded warehouse charges from the opposite parties to this revision at the rate of 3 annas per maund, which they paid under protest, because they considered that they were being over charged and were only liable at the rate of one anna per maund. Then the opposite parties filed a suit to recover Rs. 120 on account of what they said was illegal warehouse charge which had been charged from them in excess. The Railway defended the suit in the court of the Judge of Small Causes, but that court decreed the Plaintiffs claim to the extent or Rs. 78/6/- upon the finding that the opposite parties were not liable to pay at the enhanced rate of 3 annas per maund.

The Railway, aggrieved with that decision, has come up in revision before us.

It is not now contended that the charge for warehouse was increased from one anna to 3 annas under the provisions of Section 47 of the Indian Railways Act about which reference has been made--it being conceded that if the increase was under that section the increase would not be effective as there was no publication in the Gazette of India but it is contended that the increase wag made u/s 54 of the said Act and was valid. Reliance is placed on the wordings of Section 54(1) which run as follows:

Subject to the control of the Central Government, a railway administration may impose conditions not inconsistent with this Act or with any general rule thereunder, with respect to the receiving, forwarding or delivering of any animals or goods.

It was contended that any condition imposed u/s 54(1) did not require to be published in the Gazette of India and that, it was enough that condition should have been published either in the Railway Gazette or in a local newspaper. We will assume for the purposes of this case that this is the position so far as required publication u/s 54 is concerned. The question however, is whether the rule enhancing warehousing charge from one anna to 3 annas can be justified under this section and whether this section empowers the making of a rule fixing the rate of warehousing.

Having regard to the fact that Section 47(1)(f) specifically deals with warehousing, we do not think that it is open to us to say that Section 54(1) also gives the same powers which is given specifically by Section 47(1)(f). It is evident to us that Section 47(1)(f) is the provision which must be resorted to for the purpose of either fixing the rate for warehousing or altering the rate to a fresh rate. It has always been considered that Section 47(1)(g) which authorises the making of rules generally for regulating the travelling upon and the use, working and management of, the railway, is the provision under which the rates chargeable for the moving of goods and traffic are fixed. Obviously also Section 47(1)(f) must be utilised for the purpose of fixing the warehousing rate, particularly so as the rules made u/s 47(1)(f) have to be made by a specified authority, who may or may not be the same authority which has power to prescribe conditions u/s 54(1) of the Act.

It was contended that inasmuch as Section 54(1) empowered the making of a rule in regard to delivery of animals or goods, that power would include the power of fixing the chargeable rate for warehousing. We do not agree with this contention. Fixation of rates cannot, in our view, be deemed to be a condition of receiving, forwarding or delivering. The type of rules that may be made u/s 54(1) may be various, for example a rule may be made that delivery may not be effected unless warehouse charge is paid up, but we do not think that Section 54(1) can possibly empower the fixation of rates for warehousing and that can in our view, only be done u/s 47(1)(f) of the Act and in strict accordance therewith as it involves pecuniary liabilities. Where there is a specific section which is clearly attracted, it is not legitimate to stretch the language of a more general section; specially when the stretching of such language is not at all essential for carrying out the purposes of the Act.

Accordingly we feel that the court below was right in decreeing the suit and we dismiss this revision with costs.