{"id":144412,"date":"1967-03-21T00:00:00","date_gmt":"1967-03-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-union-of-india-represented-by-vs-the-indian-sugar-mills-on-21-march-1967"},"modified":"2016-08-12T16:18:31","modified_gmt":"2016-08-12T10:48:31","slug":"the-union-of-india-represented-by-vs-the-indian-sugar-mills-on-21-march-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-union-of-india-represented-by-vs-the-indian-sugar-mills-on-21-march-1967","title":{"rendered":"The Union Of India, Represented By … vs The Indian Sugar Mills … on 21 March, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Union Of India, Represented By … vs The Indian Sugar Mills … on 21 March, 1967<\/div>\n
Equivalent citations: 1968 AIR 22, \t\t 1967 SCR (3) 219<\/div>\n
Author: V Bhargava<\/div>\n
Bench: Bhargava, Vishishtha<\/div>\n
           PETITIONER:\nTHE  UNION  OF INDIA, REPRESENTED BY  THE  GENERAL  MANAGER,\n\n\tVs.\n\nRESPONDENT:\nTHE INDIAN SUGAR MILLS ASSOCIATION, CALCUTTA & ANOTHER\n\nDATE OF JUDGMENT:\n21\/03\/1967\n\nBENCH:\nBHARGAVA, VISHISHTHA\nBENCH:\nBHARGAVA, VISHISHTHA\nWANCHOO, K.N.\n\nCITATION:\n 1968 AIR   22\t\t  1967 SCR  (3) 219\n CITATOR INFO :\n RF\t    1969 SC 630\t (2,11)\n RF\t    1973 SC1281\t (8)\n\n\nACT:\nIndian\tRailways Act, 1890, ss. 29 and 41--Charges  made  by\nRailways   for\tmaintenance,  etc.  of\t \"assisted   siding\"\nconstructed  to\t facilitate goods traffic and  for  shunting\nwagon  to  and\tfrom  companys'\t mill-Services\trendered  by\nRailways  not  under any statutory duty\t but  under  private\nagreement-Railways   giving   notice   of   enhancement\t  of\ncharges--Whether  such charges fall within  expression\t'any\nother  charge'\tin  ss. 29(2) and  41  (1)  (c).   Therefore\nwhether\t complaint  alleging  charges  unreasonable  can  be\nentertained by Railway Rates Tribunal under s. 41(1)(c).\n\n\n\nHEADNOTE:\nThe  predecessor  of the appellant Railway entered  into  an\nagreement  in November, 1933, with the\trespondent  company,\nwhich  bad a large sugar mill, for the construction  of\t two\n\"assisted  sidings\"  to\t facilitate the\t movement  of  goods\ntraffic\t to and from the sugar mill.  Under  the  agreement,\npart  of the expenditure was met by the company and  it\t was\nprovided  that the company would pay an annual\tcontribution\nto  the Railways for the use of the Railway portion  of\t the\nsiding\tand  in lieu of paying separately the  interest\t and\nmaintenance  cost  of the siding.  It was  further  provided\nthat  in the event of the contribution not being  sufficient\nto  meet the cost of the working of the siding, the  Railway\nwas  entitled, on giving six months' notice, to\t modify\t the\ncontribution and charge the company such higher amount as it\nmay  consider necessary.  By virtue of\tanother\t arrangement\nbetween\t the  Railway  and the\tCompany,  at  the  company's\nrequest,  the  Railway\twould arrange for  the\tshunting  of\nwagons from the Company's factory yard to the Railway  lines\nand  for doing so, the Railway would charge the\t company  -a\nshunting engine charge calculated at a fixed rate per hour.\n'In  February  1958, the Railway gave  notice  of  increased\ncharges\t to be paid instead of the fixed  contribution.\t  It\nalso  demanded\tan increased shunting  engine  charge.\t The\ncompany\t thereupon filed a complaint under s. 41( 1) (c)  of\nthe  Indian  Railways Act, 1890 before the  Railway  Rate,-.\nTribunal at Madras, claiming that the charges claimed by the\nRailway were unreasonable and requesting the Tribunal to fix\nreasonable charges in exercise of its powers under s.  41(3)\nof  the Act.  The complaint was contested by the Railway  on\nthe  grounds  (i) that the charges to  which  the  complaint\nrelated were in respect of services that the Railway was not\nunder  any statutory duty to render to the company  and\t was\nrendering  them\t under private agreement with  the  company;\nconsequently,\tsuch  charges  did  not\t fall\twithin\t the\nexpression any other charge' in s. 41 (1) (c) and  therefore\nno complaint could be filed under s. 41 challenging them  on\nthe  ground of being unreasonable; (ii) that the  burden  of\nproving\t the  charges were unreasonable was on\tthe  company\nwhich  had  not\t been discharged and the  Tribunal  was\t not\ncompetent   to\t call  upon  the  Railway   to\t prove\t the\nreasonableness\tof  the charges and to -reduce\tthe  charges\nonly on the ground that the Railway had failed to  establish\ntheir reasonableness; and (iii) that the charges demanded by\nthe Railway were\n220\nin fact reasonable and should not be reduced.  The  Tribunal\nrejected the Appellants' contentions and revised the charges\non  the basis of the evidence adduced before it.  On  appeal\nto this Court.\nHELD  :\t (i)  The charges in question were  covered  by\t the\nexpression  \"any  other charges\" in s. 41 (1)  (c)  and\t the\ncomplaint  in the present case 'was rightly  entertained  by\nthe Tribunal.\nThe  only  charges  which could be said\t to  relate  to\t the\ndischarge  by the Railway of its statutory duties  would  be\nthose  fixed  under  s. 29(1) of the Act  in  respect  of  a\ncommodity carried by the Railway over its own lines.  It  is\nclear  that a complaint under s. 41(1)(b) 'relates to  fixa-\ntion  of  a rate relating to charges mentioned\tin  s.29(1),\nwhile  s. 41(1)(c) relates to a complaint in respect of\t any\nother  charges mentioned in s. 29(2).  The  expression\t\"any\nother charge\" used in ss. 29(2) and 41(1)(c) cannot be given\nthe  narrow meaning of covering a charge in respect  of\t the\nstatutory duty of the Railway so as to exclude charges\tmade\nor levied for all other services.  It must necessarily cover\ncharges\t which are not included in s. 29(1 ) and s. 41 (1  )\n(b).  It was immaterial that the charges being levied by the\nRailway\t arose\tonly as a result of  a\tvoluntary  agreement\nwhich the Railway, at its option, might have refused\n-to enter into. [226H;\t 227B, E-F]\nHalsbury's Laws of  England,  2nd Edn,. Vol. 27,  Paras\t 434\nand 436\t  at p. 196; referred to.\n(ii) The figures of the\t proposed increase in charges  given\non  behalf  of the company,, which were\t challenged  in\t the\ncomplaint, did prima facie indicate that the rates fixed and\ndemanded were unreasonable.  It could not therefore be\theld\nthat  the  Tribunal committed any error in  going  into\t the\nevidence  given\t on behalf of the Railway  and\tarriving  at\nreasonable rates after a full consideration of that evidence\nand  the evidence tendered on behalf of the company.  [229E,\nF-G]\n(iii)\t  It was necessary to include a margin of profit  in\nthe \"shunting engine charge\" fixed by the Tribunal and (upon\nan examination of the evidence to revise the siding charges.\nthe  Court therefore itself fixed the rates for the  charges\nto be levied by the Railway.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 610 of
\n1965.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nDecember  31, 1963 of the Railway Rates Tribunal, Madras  in
\nComplaint No. 1 of 1962.\n<\/p>\n
N.   S.\t Bindra,  R. H. Dhebar for R. N. Sachthey,  for\t the
\nappellant.\n<\/p>\n
A.   K.\t Sen, B. P. Maheshwari and R. K. Chaudhary, for\t the
\nrespondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nBhargava,  J.  Belsund Sugar Co.  Ltd.,\t Riga,\t(hereinafter
\nreferred  to as “the Company”) was incorporated in the\tyear
\n1932.\tSoon  after the incorporation of  the  Company,\t the
\nCompany\t established a fairly large sugar mill near  railway
\nstation Riga.  This
\n221<\/span>
\nstation\t was  on the railway line of the  Bengal  and  North
\nWestern Railway which, at that time, was owned by a  limited
\nCompany\t known\tas  the Bengal\tand  North  Western  Railway
\nLimited.  At Riga railway station, the Railway had two\tmain
\nlines running one along the passenger platform, and  another
\nforming a loop against it running parallel to the first line
\nwith  points on both sides of the platform for\t-taking\t the
\nrailway trains to line 2 when arriving from either direction
\nat  Riga railway station.  For the sake of convenience,\t the
\nline  along  the passenger platform will be referred  to  as
\nline 1, and the other main line forming the loop as line  2.
\nIn  addition, there was a goods platform and a line was\t run
\nconnecting line 1 to the line along the goods platform\tfrom
\nboth directions.  That line is to be referred to hereinafter
\nas  line  5.  Since the sugar factory  of  the\tCompany\t was
\nestablished  close  to\tRiga  station,\tconsiderable   goods
\ntraffic\t started being received for the Company and, at\t the
\nsame time, goods traffic was also booked by the Company\t for
\noutward transmission from this station.\t During the crushing
\nseason, a large number of wagons loaded with sugarcane\tused
\nto be received and, under the existing constructions of\t the
\nRailway, delivery of the sugarcane had to be taken from\t the
\ngoods  wagons  on line 5 at the goods platform.\t  Since\t the
\ntraffic\t was  considerable,  it\t became\t inconvenient\tand,
\nconsequently,  an arrangement was entered into\tbetween\t the
\nRailway\t and  the Company for construction of  two  sidings,
\ndescribed  as  assisted\t sidings.   In\tpursuance  of\tthis
\narrangement,  two  further lines  (hereinafter\treferred  to
\nlines  3  &  4)\t were laid between lines  2  and  5  running
\nparallel to these lines.  Trains from line 1 could be  taken
\nto lines 3 and 4 from both directions in the same manner  as
\nthey  could be taken to line 5. At the time of\tconstruction
\nof  these assisted sidings represented by lines 3 and 4,  an
\nagreement  was\tentered\t into between the  Railway  and\t the
\nCompany on 21st November, 1933.\t Under that agreement,\tpart
\nof  the\t expenditure on the construction of  these  assisted
\nsidings\t  was  met  by\tthe  Company,  while  part  of\t the
\nexpenditure  was incurred by the Railway.  It was agreed  in
\nthat agreement that the Company will pay in advance, in\t two
\nequal half-yearly installments on the first day of April and
\nthe  first day of October respectively in each half-year,  a
\nfixed  contribution  of\t Rs. 709\/8\/- per  half-year  to\t the
\nRailway\t for the use of the railway portion of\tthe  siding.
\nThe agreement proceeded to lay down that the payment of this
\ncontribution  by  the  Company was to be taken\tin  lieu  of
\npaying\tseparately for interest on, and cost of\t maintenance
\nof, the permanent-way, points and crossings and interlocking
\nconnected therewith and for freight on the traffic over\t the
\nsiding.\t  It  was further agreed that, in the event  of\t the
\nabove contribution not being sufficient to meet the cost  of
\nthe  working  of the siding, the Railway  was  entitled,  on
\ngiving\tsix  months’ notice of its intention to\t do  so,  to
\nmodify\tthe above contribution and charge the  Company\tsuch
\nhigher amount as it may
\n222<\/span>
\nconsider  necessary to meet the increased cost\tof  working.
\nFurther\t railway  lines\t were also laid\t from  Riga  railway
\nstation\t up to the factory of the Company.  A line ran\tfrom
\nthe  junction  of lines 3 and 4 on the western side  of\t the
\nstation in a semi-circular loop and then entered the factory
\nof  the\t Company  where\t the  line  was\t connected  to\tfour
\ndifferent lines.  This line, running from the junction up to
\na  point where there was further bifurcation of lines,\twill
\nbe  referred to as line 6. At the end of line 6,  this\tline
\nwas  connected to two lines, one situated to the south,\t and
\nthe  other  to the north.  There was also a loop  formed  by
\nconnecting the northern line to the southern line by another
\nconnecting line.  This loop is to be referred to as line  7.
\nLines  6  and 7 were laid at the cost of the  Company.\t The
\narrangement was that the Company was to take delivery of its
\nsugarcane wagons as well as all other goods on lines 3 and 4
\nat the assisted sidings.  Thereafter, it was the duty of the
\nCompany\t to unload the wagons there, or to have them  rolled
\ninto  their own factory yard.  It appears that\tthe  Company
\npurchased a railway engine and used it for taking the loaded
\nwagons to the factory and bringing back the unloaded  wagons
\nto these lines 3 and 4. For outward traffic also, the  empty
\nwagons\toften  used  to be loaded in the  factory  yard\t and
\nbrought\t by the factory engine to Riga railway station.\t  On
\nsome  occasions,  the wagons were taken by being  pushed  by
\nmanual\tlabour\tinstead\t of  using  the\t engine.   A   third
\nalternative  was that the Company would request the  Railway
\nto arrange for the shunting of their wagons from lines 3 and
\n4  to  the  factory yard.   Whenever  this  arrangement\t was
\nadopted,  the Railway charged the factory for  this  service
\nrendered.   It\tappears that between the  years\t 1956-57  to
\n1958-59, the Railway used to charge the Company at the\trate
\nof Rs. 18\/per hour, computing the time taken by the shunting
\nengine\tin  completing the work of the\tCompany.   The\ttime
\ncomputed began when the shunting engine came to lines 3\t and
\n4  to  take away the Company’s wagons, and  ended  when\t the
\nengine returned to the railway station after completing\t the
\nwork  of  shunting the wagons.\tSometimes,  on\treturn,\t the
\nengine\tbrought\t empty\twagons,\t but  this  was\t  considered
\nimmaterial, because the charge was made from the Company  by
\nthe  Railway on the basis of the time actually taken by\t the
\nshunting  engine calculated @ Rs. 18\/- per hour.  This\trate
\nof Rs. 18\/- per hour will be described hereafter as the rate
\nof the shunting engine charge.\tIt may be mentioned that, in
\nthe  year  1942, the Bengal and North  Western\tRailway\t was
\ntaken  over  by the Indian Government and, at  the  relevant
\ntime  in the year 1958, the Railway was owned by  the  Union
\nGovernment  and\t was  run under the name  of  North  Eastern
\nRailway, which is the name it continues to bear at present.
\nThe  arrangement,  mentioned  above  continued\tup  to\t 8th
\nFebruary,  1958.   On this date, a notice was given  by\t the
\nRailway
\n223<\/span>
\nto  the Company proposing enhancement of the charges  to  be
\nlevied in pursuance of the agreement which had been  entered
\ninto  on 21 St November, 1933, under which the\tRailway\t was
\nempowered  to  enhance\tthe charges,  if  it  considered  it
\nnecessary  to meet the increased cost of the working of\t the
\nassisted sidings.  By this letter dated 8th February,  1958,
\nthe  Railway gave six months’ notice of enhancement  of\t the
\ncharges, after mentioning that the fixed contribution of Rs.
\n709\/8\/- per half-year for use of the Railway portion of\t the
\nsiding\tin  lieu of paying separately for interest  on,\t and
\ncost  of  maintenance  of,  the\t permanent-way,\t points\t and
\ncrossings  and\tinterlocking  connected\t therewith  and\t for
\nfreight\t on the traffic over the siding was  not  considered
\nsufficient  to meet the cost of present-day working  of\t the
\nsiding.\t The charges to be levied in lieu of existing  fixed
\ncontribution  were  mentioned as a sum of  Rs.\t603.7nP\t per
\nhalf-year in respect of interest on the capital and cost  of
\nmaintenance  of the permanent way, points and crossings\t and
\ninterlocking  connected therewith, while for the freight  on
\nthe traffic over the siding, described as the siding charge,
\nthe Railway demanded Re. 1\/- per 4-wheeled wagon hauled over
\nthe siding, subject to a minimum of Rs. 7\/- per shunt.\t The
\nnew  rates  were to come into force with  effect  from\t10th
\nAugust, 1958.  Though the Company did not agree to these new
\nrates,\tthe  Railway demanded payment at  these\t rates\tand,
\nultimately, the Company was informed by the Railway that, if
\npayments  at  new rates were not made, the facility  of\t the
\nassisted  siding  would\t be  withdrawn.\t  The  Company\tmade
\npayments under protest.\t Further, the Railway also  enhanced
\nthe  rate  for\tthe shunting engine charge.   The  rate\t was
\nenhanced  to Rs. 28\/- per hour for the year 1959-60  and  to
\nRs. 30\/50nP per hour for the year 1960-61.\n<\/p>\n
The Company, being dissatisfied with these charges, filed  a
\ncomplaint under section 41(1)(c) of the Indian Railways Act,
\n1890  (hereinafter  referred  to as “the  Act”)\t before\t the
\nRailway Rates Tribunal at Madras (hereinafter referred to as
\n“the  Tribunal”)  against the enhancement  of  the  shunting
\nengine\tcharges\t from  Rs. 18\/- per hour  to  Rs.  28\/-\t and
\nsubsequently   Rs.  30\/50nP  per  hour,\t as  well   as\t the
\nenhancement of the siding charges by prescribing a scale  of
\npayment @ Re.  1 \/- per wagon with a minimum of Rs. 7\/-\t per
\nshunt.\t It appears that there were a large number of  sugar
\nmills situated along various railway stations served by\t the
\nNorth  Eastern\tRailway, and with them\talso  there  existed
\nsimilar\t arrangements  as  the one arrived  at\tbetween\t the
\nRailway\t and  the  Company  in\t1933  under  the   agreement
\nmentioned above.  All these sugar mills were members of\t the
\nIndian\tSugar  Mills  Association.   This  Association\talso
\njoined\tas  a complainant in the complaint  of\tthe  Company
\nrepresenting  all  its\tconstituent  sugar  mills.   In\t the
\nproceedings  before the Tribunal, however, the Indian  Sugar
\nMills Association did not take any active part and the\tcase
\nwas
\n224<\/span>
\nactually  fought  out by the Company.  It was urged  in\t the
\ncomplaint  that\t both the shunting engine  charges  and\t the
\nsiding charges at the enhanced rates claimed by the  Railway
\nwere  unreasonable  and the Tribunal was  requested  to\t fix
\nreasonable charges in exercise of its powers under s.  41(3)
\nof the Act.\n<\/p>\n
The complaint was contested by the Railway on three grounds.
\nThe  first  ground  was\t that  the  charges,  to  which\t the
\ncomplaint  related,  were in respect of services  which\t the
\nRailway\t was  not  bound to render to the  Company  and\t was
\nrendering  under  private agreements with the  Company\tand,
\nconsequently, no complaint could be filed under s. 41 of the
\nAct  challenging them on the ground of\tbeing  unreasonable.
\nThis  plea was taken on the basis that the  expression\t“any
\nother  charge” in s. 41(1)(c) of the Act could only cover  a
\ncharge made by the Railway in discharge of its duties  under
\nthe statute and could not cover a charge made by the Railway
\nfor voluntary services which the Railway might render  under
\na  private  agreement of a commercial nature  to  any  other
\nparty.\tThe second ground was that the complainants had\t not
\nsucceeded  in  showing\tthat the  charges  demanded  by\t the
\nRailway\t were  unreasonable and, that burden  of  proof\t not
\nhaving been discharged by the complainants, the Tribunal was
\nnot  competent\tto  call  upon\tthe  Railway  to  prove\t the
\nreasonableness of the charges and to reduce the charges only
\non the ground that the Railway had failed to establish their
\nreasonableness.\t  The  third point of contest was  that\t the
\nrates,\tat which the charges were demanded by  the  Railway,
\nwere, in fact, reasonable and should not be reduced.
\nThe Tribunal held that the complaint was competent and\tthat
\nthe expression “any other charge” in s. 41(1)(c) of the\t Act
\ndid cover both these charges to which the complaint related.
\nThe  Tribunal  did  not, in specific words,  hold  that\t the
\ncomplainants   had   established  that\tthe   charges\twere
\nunreasonable,\t before\t   proceeding\tto    examine\t the
\nreasonableness\tof  the\t charges.  On the  other  band,\t the
\nTribunal  proceeded to examine the evidence of\tthe  parties
\nadduced\t before\t it and came to the finding  that,  in\tboth
\ncases,\t the  charges  being  demanded\twere   unreasonable.
\nFurther,  after\t examining in detail the evidence  given  on
\nbehalf\tof the Railway, and on making its  own\tcomputation,
\nthe  Tribunal  held that a sum of Rs. 20\/- per\thour  was  a
\nreasonable rate for the shunting engine charge.\t In  respect
\nof the siding charge, the Tribunal rejected the plea of\t the
\nRailway that this charge should also be levied on the  basis
\nof  the time taken in shunting the wagons of the Company  to
\nlines 3 and 4, after taking into account the shunting engine
\ncharge.\t  It  was held that, in the  original  agreement  of
\n1933, parties, had agreed to a lumpsum in respect of various
\nservices,   and\t the  subsequent  conduct  of  the   Railway
\nestablished  that. out of the total sum of Rs.\t1,419\/-\t per
\nyear, a sum of Rs. 1,206\/14nP per year represented-\n<\/p>\n
225<\/span><\/p>\n
sented\tcharges\t in respect of interest on the\tcapital\t and
\ncost  of  maintenance  of  the\tpermanent  way,\t points\t and
\ncrossing   and\t interlocking  connected   therewith.\t The
\nremaining  sum of Rs. 212 and odd was held to represent\t the
\nfreight\t on  the traffic over the assisted sidings  and\t was
\ntreated\t as the siding charge.\tIn the absence\tof  reliable
\nmaterial  provided by the Railway for arriving at a  reason-
\nable  figure on any other basis, the Tribunal held that\t the
\nonly amount which the Railway could be permitted in  respect
\nof  the siding charge would be double the amount  originally
\nchargeable.  under the agreement of 1933 and,  consequently,
\nallowed\t the  Railway siding charge at a fixed rate  of\t Rs.
\n424\/- per year.\t It is against this decision of the Tribunal
\nthat the Railway has come up in this appeal to this Court by
\nspecial\t leave, and, in the appeal. has taken all the  three
\npoints, mentioned above, on the basis of which the complaint
\nbefore the Tribunal was resisted.\n<\/p>\n
Dealing with the first question, which was the only question
\nof  law raised in this case, learned counsel  appearing\t for
\nthe  Railway  drew  our\t attention  to\tthe  definition\t  of
\n“railway”  in  s.  3(4) of the Act and,\t in  particular,  to
\nclause\t(b) thereof under which the “railway” is defined  to
\ninclude all lines of rails, sidings or branches worked\tover
\nfor  the purposes of, or in connection with, a railway.\t  It
\nwas  urged that the assisted sidings, comprised of  lines  3
\nand  4,\t were  not worked over for the\tpurpose\t of,  or  in
\nconnection with, the work of the railway and,  consequently,
\nthese  assisted sidings could’ not be held to be a  part  of
\nthe  railway.\tAttention was also drawn L to S. 11  of\t the
\nAct,  which  lays down the duty of the Railway to  make\t and
\nmaintain  certain works, to show that there was no  duty  on
\nthe Railway to maintain the permanent way, points and cross-
\nings  and interlocking connections existing for the  service
\nof these, assisted sidings, lines 3 and 4. The duties of the
\nRailway\t in respect of goods traffic are laid down in s.  27
\nwhich\trequires  the  Railway\tto  afford  all\t  reasonable
\nfacilities  for the receiving, forwarding and delivering  of
\ntraffic\t upon and from the several railways belonging to  or
\nworked\tby  it and for the return of rolling  stock.   Under
\nthis  provision\t also, there was no duty on the\t Railway  to
\ngive delivery of’ goods to the Company on lines 3 and 4. The
\nduty  was to carry goods of the Company and to deliver\tthem
\non  line  5  which was the line maintained  by\tthe  Railway
\nitself\tfor delivery of goods.\tIt was urged that, in  these
\ncircumstances,\tit must be held that the charges  levied  by
\nthe  Railway for taking the wagons, containing the goods  of
\nthe  Company, to lines 3 and 4, as well as the\tcharges\t for
\ntendering-  the service of taking the wagons of the  Company
\nto the premises of its factory over lines 6 and 7 cannot  be
\nheld to be charges levied for tile purpose of performing any
\nduty cast on the Railway by the Act.  Section 29 of the\t Act
\nlays  down how rates are to be fixed.  Under s.\t 29(t),\t the
\nCentral\t Government  is\t empowered, by\tgeneral\t or  special
\norder, to fix maximum and minimum rates.\n<\/p>\n
for  the whole or any part of a railway, and  prescribe\t the
\nconditions  in\twhich such rates will apply.   Under  sub-s.
\n(2),  the Central Government is empowered, by a like  order,
\nto  fix the rates of any other charges for the whole or\t any
\npart  of a railway and to prescribe the condition  in  which
\nsuch  rates of charges are to apply.  It was urged that\t the
\ncharges\t now in dispute will not be ,charges -covered by  s.
\n29(1)  or s. 29(2) of the Act, and, on the same basis,\tthey
\nwill not be charges covered by s. 41(1)(b) or s. 41(1)(c) of
\nthe Act
\nWe are unable to accept this submission made on behalf of
\nthe  Railway.  It is correct that s. 29(1) of the  Act\twill
\napply to rates of charges for carrying goods from station to
\nstation over the railway itself, in such a case, the Central
\nGovernment  can fix the maximum and minimum  rates,  whereas
\nthe  actual rates to be charged can be fixed by the  Railway
\nAdministration\titself.\t If any person has a grievance\tthat
\nthe  rate being charged by the Railway is excessive, he\t can
\ncomplain to the Tribunal, and the complaint would be covered
\nby  the provisions of s. 41(1)(b) of the Act.\tThis  charge
\nfor carriage of goods over the railway or part of a  railway
\nis  the\t only charge in respect of goods which\tcan  be\t the
\nsubjectmatter  of a complaint under s. 41(1)(b) of the\tAct.
\nThe  language  of  s. 41 (1)(b),  by  itself,  excludes\t its
\napplicability to passenger fares. ,Charges are often made by
\nthe Railway for wharfage and demurrage, but the jurisdiction
\nof  the Tribunal to deal with the fixation of these  charges
\nis  expressly  taken  away  by\ts.  45(1)(b)  of  the\tAct.
\nConsequently,  it  appears that, in respect of\ta  commodity
\ncarried\t by a railway over its own railway lines,  the\tonly
\ncharge\tthat  the  Railway can levy, and which\tcan  be\t the
\nsubject-matter of a complaint under s. 41(1)(b), will be the
\ncharge\tfor carriage of the ,commodity between two  stations
\nand  it would be in respect of the discharge by the  Railway
\nof  its\t statutory duty of carrying goods  between  stations
\nmaintained  by\tit.  There does not appear to be  any  other
\nstatutory duty in respect of which any other charge could be
\nlevied\tby  the Railway, and, consequently,  if\t the  inter-
\npretation  sought  to  be put on behalf of  the\t Railway  is
\naccepted,  the\tresult would be that s.\t 29(2)\twill  become
\nineffective  and redundant, because there would be no  other
\ncharges in respect of which fixation of rates by the Central
\nGovernment  would  be required.\t  Similarly,  the  provision
\ncontained  in s. 41(1)(c) would also be redundant, as  there
\nwould  be no other charges in respect of which\ta  complaint
\ncould  be  filed under this provision.\tIt is clear  that  a
\ncomplaint  under s. 41(1)(b) relates to fixation of  a\trate
\nrelating to charges mentioned in s. 29(1), while s. 41(1)(c)
\nrelates\t to  a\tcomplaint in respect  of  any  other  charge
\nmentioned  in  s.  29(2).   It\tappears\t to  us,  in   these
\ncircumstances,\tthat the expression “any other charge”\tused
\nin  s.\t29(2)  and s. 41(1)(c) cannot be  given\t the  narrow
\nmeaning of covering a charge in respect of the
\n227<\/span>
\nStatutory duty of the Railway so as to exclude charges\tmade
\nor  levied by the Railway for all other services.   In\tthis
\nconnection,  the language used in clauses (b) and (c) of  S.
\n41(1)  is  significant.\t  Section  41(1)(b),  as  has\tbeen
\nmentioned earlier, covers a complaint in respect of a charge
\nfor carriage of any commodity between two stations at a rate
\nwhich  is  unreasonable, while S. 41(1) (c) relates  to\t the
\nlevy  of  any  other  charge  which  is\t unreasonable.\t The
\nexpression “any other charge” in clause (c) must, therefore,
\ncover charges which are not included in clause (b).   Clause\n<\/p>\n
(b)   specifically  mentions  charges  for  carriage  of   a
\ncommodity  between two stations, and, hence, the  expression
\n“any  other charge’ in clause (c) must\tnecessarily  include
\nwithin\tit  a charge for carriage of any  commodity  between
\nplaces\tother than two stations.  In the present  case,\t the
\nshunting engine charge and the siding charge are both  being
\nlevied by the Railway for carrying goods from the railway to
\nsidings not forming part of the railway.  In bringing  goods
\nfrom other stations to Riga station on lines 1, 2 or 5,\t the
\nrailway\t would only be carrying the goods between  stations.
\nIt  is only thereafter, when the wagons are shunted  by\t the
\nrailway\t to  lines  3 and 4 or over lines 6  and  7  to\t the
\nfactory\t of the Company, that the railway will\tbe  carrying
\ngoods  between\ta station and another place or\tbetween\t two
\ndifferent places which cannot either of them be described as
\nstations.  ‘This charge for carriage of the commodity in the
\ncontext\t in which the expression “any other charge” is\tused
\nin  s.\t29(2)  and  s. 41(1)(c), must  be  covered  by\tthis
\nexpression.   It  appears to us to be  immaterial  that\t the
\ncharge being levied by the Railway for taking the wagons  to
\nthe assisted sidings or to the factory of the Company arises
\nonly  as  a result of a voluntary agreement by\tthe  Railway
\nwhich  the  ,Railway, at its option, might have\t refused  to
\nenter into.  It is correct that the Railway was not bound to
\nagree  to  carry the goods of the Company  to  the  assisted
\nsiding or to the factory of the Company; but it seems to  us
\nthat,  once  the Railway did, in fact, agree and  decide  to
\ncharge the Company for it, the Railway became bound to\tmake\n<\/p>\n
-the  charge in accordance with s. 29 (2) of the Act.  If  a
\nrate of charge is prescribed by the Central Government under
\nS. 29(2) for such voluntary service and the person receiving
\nthe service feels aggrieved, he can complain to the Tribunal
\nunder  S. 41(1)(c) of the Act and have the  reasonable\trate
\ndetermined.   Even if no rate is prescribed by\tthe  Central
\nGovernment  under  S. 29(2) and the Railway  levies  such  a
\ncharge,\t it  will be competent for the person  aggrieved  to
\nfile  the  complaint against the rate of charge\t before\t the
\nTribunal under S. 41(1)(c).\n<\/p>\n
In this connection, it was urged by learned counsel that the
\nexpression  “any  other charge” should not be given  a\tvery
\nwide  meaning  and he cited before us instances\t of  various
\nother charges being made by the Railway, such as charges for
\nadvertisement on L5 Sup.  C. 1.167-2
\n228<\/span>
\nrailway\t premises, catering charges, retiring  room  charges
\nand time-table charges, to urge that at least these  charges
\nwould not be covered by the expression “any other charge” in
\ns. 41(1)(c) of the Act.\t It seems that, in this case, it  is
\nnot  at all necessary for us to examine whether\t charges  of
\nthis nature mentioned by learned counsel will or will not be
\ncovered\t by the expression “any other charge”.\tIn fact,  we
\ndo not think it to be advisable that we should try to define
\nthe full scope of the expression “any other charge” in\tthis
\ncase.\tIt is enough to hold for the purposes of  this\tcase
\nthat  at least the charges for carriage of goods from  parts
\nof the railway to points or places, not forming part of\t the
\nrailway,  will certainly be covered by the  expression\t“any
\nother charge” used in s. 41(1)(c), so that the complaint  in
\nthe   present  case  was  competently  entertained  by\t the
\nTribunal.\n<\/p>\n
This  view  that  we have arrived at is\t in  line  with\t the
\nprinciples laid down in England as noted in Halsbury’s\tLaws
\nof  England, 2nd Edn., Vol. 27, in paras 434 and 436  at  p.\n<\/p>\n
196.  In para 434, the principle noted is that “loading\t and
\nunloading,  covering  and  uncovering in classes  7  to\t 21,
\nthough\tperformed  at  the  private  siding,  are   services
\notherwise  provided  for in the standard  charges,  and\t the
\ncompany\t must  charge for these either the  standard  or  an
\nexceptional rate.  And where the Railway Rates Tribunal have
\nby  order  fixed  charges  for\tservices  not  included\t  in
\nconveyance  and\t terminals,  as long  as  the  order  stands
\nunchallenged the company may only exact the charges fixed by
\nthe Tribunal and not what the company thinks are  reasonable
\ncharges”.   Then, in para 436, it is said : “So,  even\twhen
\nthe  carriage  charges are paid by a siding  owner  who\t has
\nentered\t into  an  express  agreement  to  pay\ta  fixed  or
\nascertainable  sum for the private siding services,  he\t may
\nstill  refer the matter to the Railway Rates  Tribunal……
\nThe Tribunal may consider from a business point of view what
\nis  the\t money value of the services rendered  or  they\t may
\nascertain  the\ttotal cost of the services over a  year\t and
\ndivide\tit  by the number of tons carried  during  the\tsame
\nperiod\tto  give  an  addition\tto  the\t Rates\tTribunal  if
\ncompetentto  determine\tthe reasonableness of  charges\tfor
\nservices bya railway even on private sidings. The  same
\nprinciple is incorporated in s. 41(1)(c) of the Act  in
\nIndia by empowering a complaint to complain to the Tribunal,
\nif any charges, other than acharge    for   carriage\tof
\ncommodity between stations, is found tobe unreasonable. The
\npreliminary legal objection raised on behalf of the  Railway
\nwas, therefore, rightly rejected by the Tribunal.
\nOn the second question, we find that, in the pleadings taken
\nbefore\tthe Tribunal,-the Railway did not in so\t many  words
\nspecifically  raise  the issue that,  before  proceeding  to
\nexamine the rea-\n<\/p>\n
229<\/span><\/p>\n
sonableness  of\t the  rates demanded  by  the  Railway,\t the
\nCompany should be called upon to show that those rates\twere
\nunreasonable, though the issues, which were framed both with
\nregard to the siding charges as well as the shunting  engine
\ncharges,  were\tcouched in language  enquiring\twhether\t the
\nrates demanded by the Railway were unreasonable.  It appears
\nthat, in the complaint, the Company had mentioned figures on
\nthe  basis  of which the Company requested the\tTribunal  to
\nhold  that these charges were unreasonable.  In\t respect  of
\nthe  shunting  engine  charges, the pleading  was  that\t the
\nRailway had been charging the Company at a rate of Rs.\t18\/-
\nper  hour  for the years 1956-57 to 1958-59 and\t had,  then,
\nsuddenly raised the charges to Rs. 28\/- per hour without any
\njustification.\t This sudden enhancement from Rs. 18\/to\t Rs.
\n28\/-  per  hour in the year 1959-60 was alleged\t to  be\t un-
\nreasonable.  In the case of siding charges, the pleading was
\nthat the Company had been paying earlier a fixed sum of\t Rs.
\n212\/per\t year,\twhile, after the enhancement by\t the  notice
\ndated 8th February, 1958, the charges were so fixed that the
\nburden\ton  the Company rose to amounts in  the\t next  three
\nyears varying between Rs. 7,752\/- to Rs. 9,676\/-.  According
\nto the Company, thus, the siding charges were fixed in\tsuch
\na manner that, after enhancement, the charges payable became
\n70  to\t80 times the charges originally\t payable  under\t the
\nagreement  of 1933.  These figures, given on behalf  of\t the
\nCompany did, prima facie, indicate that, the rates fixed and
\ndemanded,  which  were\tchallenged in  the  complaint,\twere
\nunreasonable.\tFurther, the new rate of Re.  1\/- per  wagon
\nwas,  per se unreasonable inasmuch as the cost\tincurred  by
\nthe  Railway on shunting the wagons could not be in  propor-
\ntion  to the number of wagons shunted and could not, in\t any
\ncase, be so high as to justify this rate even in cases\twhen
\na large number of wagons were shunted together in one single
\nshunt.\t Consequently, it was competent for the Tribunal  to
\ncall  upon the parties to adduce evidence and  to  determine
\nwhat would be the reasonable rates according to the Tribunal
\nitself.\t  That\tbeing the factual position, we\tcannot\thold
\nthat  the  Tribunal committed any error in  going  into\t the
\nevidence given on behalf of the Railway and arriving at\t the
\nreasonable  rates,  after  a  full  consideration  of\tthat
\nevidence and the evidence tendered on behalf of the Company.
\nIt  is to be noted that the necessary facts for\t determining
\nwhat  expenses\tthe Railway must be incurring  in  order  to
\nrender the services for which they were demanding charges at
\nthe  impugned  rates were in the special  knowledge  of\t the
\nRailway\t  authorities\tonly   and,   consequently,    When,
\nsubsequently,  the  Tribunal  examined\tthis  question,\t  it
\nproceeded  rightly  in carefully scrutinising  the  evidence
\ntendered on behalf of the Railway.\n<\/p>\n
On the merits, it appears to us that, so far as the shunting
\nengine\tcharges\t are concerned, the decision  given  by\t the
\nTribunal
\nfor arriving at the figure of Rs. 20\/- per hour as the\tcost
\nincurred by the Railway does not suffer from any such  error
\nas would justify interference by us.  The Tribunal took into
\nconsideration,\tthe  figures, provided by  the\tRailway,  of
\nexpenditure incurred per hour on the running of all types of
\nengines,  and noticed the fact that the cost in the case  of
\nshunting  engines must be lower due to the inferior  quality
\nof  coal  consumed  in them, when  compared  with  the\tcoal
\nconsumed  in  engines attached to passenger trains  or\teven
\nengines pulling the regular goods trains.  It also took into
\naccount\t the  fact  that the calculation was  based  on\t the
\nassumption  that a shunting engine would be running,  on  an
\naverage,  @ 5 miles an hour for 12 hours a day, while,\twhen
\ncalculating  depreciation,  the documents  provided  by\t the
\nRailway\t itself\t showed that the average run of\t a  shunting
\nengine was calculated at 90 miles a day.  The basis of a run
\nof  60\tmiles a day of the shunting engine  adopted  by\t the
\nRailway\t  for  calculating  shunting  charges\tcould\tnot,
\ntherefore,  be\taccepted  as correct.  There  was  also\t the
\ncircumstance  that,  in\t making\t the  calculation,   certain
\nexpenses  had been included which were in no  way  connected
\nwith  shunting\t,operations,  such  as\texpenses  on  ticket
\nchecking staff.\t Taking those circumstances into account  on
\nthe one side, and keeping in view on the other side the fact
\nthat,  in the year 1959-60, there must have been a  rise  in
\nthe  cost of running the shunting engine, as  compared\twith
\nthe  rate which was fixed in the year 1956-57, the  Tribunal
\nestimated  that\t a reasonable rate for the  shunting  engine
\ncharges\t will Rs. 20.00 per hour.  We do not think that\t the
\nprinciples adopted by the Tribunal are in any way  incorrect
\nor suffer from any such error as would justify our examining
\nthe whole evidence considered by the Tribunal for  ourselves
\nand making fresh detailed calculations in order to find\t out
\nwhether\t this  figure of Rs. 20 per hour arrived at  by\t the
\nTribunal  should  be  varied  to  some\textent.\t  In   these
\ncircumstances,\twe do not think it necessary to\t discuss  in
\ndetail\tthe evidence given by the Railway which\t was  placed
\nbefore\tus by learned counsel for the Railway  to  challenge
\nthe finding arrived at by the Tribunal.\t The finding of fact
\nrecorded by the Tribunal does not suffer from any such error
\nas  could  induce us to go into this question as  a  regular
\nCourt  of fact.\t Consequently, we think that the  figure  of
\nRs. 20\/per hour arrived at by the Tribunal, as\trepresenting
\nthe cost of the Railway for running the shunting engine must
\nbe accepted.\n<\/p>\n
There  is, however, one aspect which the Tribunal  seems  to
\nhave  lost-sight of.  According to the admitted case of\t the
\nparties, there is no obligation on the Railway to render the
\nservice\t of carrying the wagons of the Company from lines  3
\nand 4 to their factory premises, nor is there any obligation
\nto  bring  back the empties or wagons  loaded  with  outward
\ntraffic\t goods\tfrom  the  Company’s  yard  to\tthe  railway
\nstation.  In fact, the Company had an engine
\n231<\/span>
\nof  its\t own for a number of years and a second\t engine\t was
\npurchased  by  the  Company in the year\t 1962.\t Apart\tfrom
\ncarrying  out  these operations itself by the use  of  these
\nengines,  the  Company also, on occasions,  had\t the  wagons
\nhand-shunted.\tThe  Railway  undertook\t the  work  only  on
\noccasions  when the Company made a specific request  to\t the
\nRailway\t to do so.  In thus agreeing to undertake the  work,
\nthe  Railway voluntarily entered into transactions with\t the
\nCompany\t partly\t to assist the Company and partly  with\t the
\nobject of expanding its commercial activities.\tIn fact, the
\ncharges\t were levied by the Railway, because the Railway  is
\nrun  as a commercial undertaking for the purpose of  earning
\nprofits\t and,  consequently,  the Tribunal,  in\t fixing\t the
\nreasonable rate for shunting charges, should have taken into
\naccount\t the  profit-making motive of the Railway  also\t and
\nshould\tnot  have confined the charges to  the\tactual\tcost
\nincurred by the Railway in rendering this service.  We think
\nthat,  in these circumstances, there is\t full  justification
\nfor increasing the rate chargeable for rendering the service
\nof shunting the wagons from lines 3 and 4 to the yard of the
\nCompany over its private lines and it should be fixed at Rs.
\n22\/-  per hour, giving a margin to the Railway of  10%\tover
\nits actual cost.\n<\/p>\n
On  the\t merits of the rate fixed by the  Tribunal  for\t the
\nsiding\tcharges, we find that the criterion adopted  by\t the
\nTribunal  is not justified.  As has been mentioned  earlier,
\nthe  case of the Company was that the fixed contribution  of
\nRs.   709\/8\/-  per  half-year,\tor  Rs.\t 1,419\/-  per\tyear
\nrepresented   the  consolidated\t charges  in  lieu  of\t the
\nCompany’s  paying  separately for interest on, and  cost  of
\nmaintenance of, the permanent way, points and crossings\t and
\ninterlocking  connected\t therewith and for  freight  on\t the
\ntraffic\t over the siding, and that a sum of Rs. 603\/7nP\t per
\nhalf-year,   or\t Rs.  1,206\/14nP  per  year  out   of\tthis
\nconsolidated amount represented charges in respect of  other
\nitems,\tbesides the freight on the traffic over the  siding.
\nIt  was\t on  this  basis that the  Company  pleaded  in\t the
\ncomplaint  that the freight on the traffic over\t the  siding
\nunder the agreement amounted to Rs. 212\/- per year only.  We
\nhowever,  find that, in the complaint, this break-up of\t Rs.
\n1,419\/-\t was  not specifically pleaded.\t  The  pleading\t was
\nthat,  by the notice dated 8th February, 1958,\tthe  Railway
\nhad  itself levied the charge in respect of interest on\t and
\ncost  of  maintenance  of, the\tpermanent  way,\t points\t and
\ncrossings and interlocking connected therewith at Rs.  603\/7
\nnP per half-year, and that Rs. 212\/per year was the original
\ncharge in respect of freight on the traffic over the siding.
\nHow  this  figure  of  Rs. 212\/-  was  arrived\tat  was\t not
\nspecifically  indicated\t in the pleadings.  The\t result\t was
\nthat,  in the counter-pleadings put forward by the  Railway,
\nno specific pleas were taken challenging the correctness  of
\nthe  break-up of the sum of Rs. 1,419\/- now claimed  by\t the
\nCompany.  All that was
\n232<\/span>
\nstated\twas that, with effect from 10th August, 1958, a\t sum
\nof  Rs.\t 603\/7nP  per half-year was  levied  in\t respect  of
\ncharges\t for  interest on, and cost of\tmaintenance  of\t the
\npermanent   way,  points  and  crossings  and\tinterlocking
\nconnected therewith and that the levy for siding charges was
\nfixed  at Re.  1\/- per wagon with a minimum of Rs.  7\/-\t per
\nshunt.\t In  these circumstances, we do not think  that\t any
\ninference  can\tbe  justifiably drawn, as was  done  by\t the
\nTribunal, that the Railway, had itself pleaded the  break-up
\nof  Rs.\t 1,419\/-  as containing within it  the\tsum  of\t Rs.
\n1,206\/14nP  per\t year in respect of the\t fixed\tcharges\t for
\ninterest on, and cost of maintenance of, the permanent\tway,
\npoints\tand crossings and interlocking connected  therewith,
\nand  the balance of Rs. 212\/represented what  was  initially
\nfixed  as the amount chargeable for freight on\tthe  traffic
\nover  the siding.  The sum of Rs. 603\/7nP per half-year\t was
\nshown in the pleadings as the levy to be in force from\t10th
\nAugust,\t 1958, and was not accepted as being the  amount  at
\nwhich  the levy for the same items had been included at\t the
\ninitial\t stage\tat the time of the agreement in\t 1933.\t The
\nTribunal  was  not,  in these  circumstances,  justified  in
\nproceeding  on\tthe  basis that the  charge  in\t respect  of
\nfreight on the traffic over the assisted siding was only Rs.
\n212\/- per year from 1933 up to 1958.  In fact, the charge in
\nrespect\t of  maintenance of the permanent  way,\t points\t and
\ncrossing and interlocking connected therewith, as originally
\nestimated  in 1933, must necessarily have gone up  with\t the
\nrise  in price index from 1933 to 1958, and the\t sum  levied
\nfor these items in 1958 must have been much higher than\t the
\nsum  which was included for these services in  the  original
\nagreement.   No doubt, one of the witnesses of the  Railway,
\nR.W.  5, C. R. Guha, Assistant Engineer of the\tRailway,  in
\nhis  evidence  made some statements which  might  lend\tsome
\nsupport to the plea of the Company that the sum of Rs. 603\/-
\nand  odd  per half-year represented the levy in\t respect  of
\ninterest and maintenance charges, etc., after excluding\t the
\nfreight\t on the traffic over the assisted siding; but we  do
\nnot think that those admissions can be held to be binding on
\nthe  Railway so as to lead to the conclusion that  this\t was
\nthe  amount  for such charges even at the inception  of\t the
\nagreement  in 1933.  The Tribunal, therefore,  committed  an
\nerror in proceeding on the basis that the original charge in
\nrespect\t of freight on the traffic over the assisted  siding
\nwas  a sum of Rs. 212\/and odd per year only in the  original
\nagreement is 1933.\n<\/p>\n
In  any case, it appears to us that this aspect of the\tcase
\nis  not very material, because, under the agreement  itself,
\nthe  Railway was given the right to enhance the\t charges  in
\norder to meet its actual cost on the working of the assisted
\nsidings.  The appropriate course, in these circumstances was
\nto find out what was the cost being incurred by the  Railway
\nin  taking  the\t wagons of goods of  the  Company  to  these
\nassisted sidings.\n<\/p>\n
233<\/span><\/p>\n
The Tribunal did not adopt this method and rejected the plea
\nof  the Railway that this method should be adopted,  on\t the
\nground that it was not possible to work out with  reasonable
\naccuracy the time that Would be taken by the shunting engine
\nin  doing the work of carrying the wagons of the Company  to
\nlines  3 and 4 which represented the assisted sidings.\t For
\nthis  view, the Tribunal relied on two aspects.\t  The  first
\nand the main reason was that, according to the Tribunal,  if
\nthese  assisted sidings had not been constructed, a  certain
\namount\tof shunting of the wagons of the Company would\thave
\nbeen  necessary\t in  order to give  delivery  at  the  goods
\nplatform on line 5, and it was not possible to estimate what
\nwas  the  extra time that would be needed  in  shunting\t the
\nwagons\tto lines 3 or 4 instead of line 5. The\tevidence  on
\nthe  record, however, shows that a certain amount  of  extra
\nshunting  is  bound to be necessary, if the  wagons  of\t the
\nCompany\t are  to be delivered on lines 3 and  4\t instead  of
\nbeing  delivered  on line 5. It would appear to\t be  correct
\nthat  if, on any particular train, the wagons  received\t for
\nthe  Company  were all loaded with sugarcane  and  no  other
\nwagons were received at Riga station containing other  goods
\nof the Company, or goods of other consignees, the amount  of
\nshunting needed to take those wagons to line 3 would not  be
\nmore  than that needed to take them to line 5.\tHowever,  if
\neven  one  wagon  of  goods for\t any  other  consignee\twere
\nreceived  with\tthose sugarcane wagons,\t the  shunting\twork
\nwould be doubled, because sugarcane wagons would have to  be
\ntaken  to  line 3 and that wagon of the other  consignee  to
\nline  5. Similarly, if the sugarcane wagons of\tthe  Company
\nwere  to  be  received with a wagon of\tthe  Company  itself
\ncontaining  other goods, the, shunting involved would  again
\nbe  doubled  because the sugarcane wagons would have  to  be
\ntaken  to  line 3, and the wagon containing other  goods  to
\nline 4. Further, if the wagons containing other goods of the
\nCompany or goods of other consignees be not attached at\t one
\nend of the sugarcane wagons, the amount of shunting required
\nwould  increase\t very considerably because  of\tthe  sorting
\nneeded in order to take the wagons of other goods either  to
\nline 4 or line 5, while taking the sugarcane wagons to\tline\n<\/p>\n
3.  The witnesses, no doubt, admitted that a certain  amount
\nof  marshalling\t was  being  done  by  the  Railway  at\t the
\ndespatching  stations,\tbut it is also clear that,  in\tthat
\nmarshalling,  all  that\t the Railway did was  to  place\t all
\nwagons\tmeant  to be detached at Riga in one  block  in\t the
\ntrain.\tThe marshalling at the despatching stations did\t not
\ninclude\t in it the sorting out of wagons of  sugarcane,\t the
\nwagons of other goods of the Company, or the wagons of other
\nconsignees  inter se.  In these circumstances, it  is  clear
\nthat  the agreement entered into by the Railway\t to  deliver
\nsugarcane  wagons  of  the  Company  on\t line  3  with\t the
\narrangement that wagons of the Company of other goods  would
\nbe  delivered on line 4 necessarily involved a\tconsiderable
\namount\tof extra shunting because of the different lines  on
\nwhich delivery had to be taken and
\neven further shunting if there, was need for sorting out  of
\nwagons.\t  On behalf of the Company, it was urged  before  us
\nthat  most of the sugarcane received by the Company used  to
\nbe brought to Riga railway station by cane specials or\tcane
\nshuttles  which would consist exclusively of  wagons  loaded
\nwith  sugarcane.  Learned counsel was, however, not able  to
\npoint out to us that there was any evidence to show that the
\nmajority  of sugarcane wagons received for the Company\twere
\nbrought\t to Riga station by cane specials or cane  shuttles.
\nHe  relied  on\tthe evidence of A.W. 2,\t Yognandan  Jha,  an
\nemployee  of  the Company, working as Rail  Cane  Inspector.
\nHe,  in his evidence, tried to support the case of the\tCom-
\npany  by stating that, during the season, a number  of\tcane
\nspecials were run and they contained only sugarcane  wagons.
\nThe evidence of this witness was not accepted in full by the
\nTribunal, nor are we inclined to place complete reliance  on
\nit.  On the other hand, witnesses examined on behalf of\t the
\nRailway\t have stated that, even when cane specials  or\tcane
\nshuttles were run for the purpose of bringing the  sugarcane
\nof the Company, they did not invariably consist of sugarcane
\nwagons\tonly and, often enough, wagons of other\t types\twere
\nalso  attached\tto them.  They gave  figures  showing  that,
\nduring\tthe  busy  season, the number  of  sugarcane  wagons
\nreceived per day for the Company used to be about 50, while,
\non  an\taverage, one wagon per day was\treceived  for  other
\nconsignees,  and one wagon per day was received\t which\tcon-
\ntained\tother goods of the Company.  Whenever  these  wagons
\nwere  received,\t it  is clear that the\tamount\tof  shunting
\nneeded\twould  be much more than the shunting,\twhich  would
\nhave  been  required if delivery of all the goods  could  be
\ngiven  on  line 5 at the goods platform, without  having  to
\nsort  out the wagons and without having to  place  different
\nwagons\ton different lines.  In these circumstances,  we  do
\nnot think that the Tribunal had justification for  rejecting
\nthe  principle\tof calculation, suggested on behalf  of\t the
\nRailway,  of working out the cost on the basis of  the\ttime
\ntaken  in  shunting required for placing the wagons  of\t the
\nCompany\t on  the assisted sidings, when\t a  calculation\t was
\nalready\t available showing the cost incurred by the  Railway
\nper hour for working a shunting engine.\n<\/p>\n
Another\t aspect\t that  has  to be  kept\t in  view  is  that,
\naccording to the terms of the agreement of 1933, under which
\nthe  Railway is demanding the enhanced charges, the  Railway
\nwas  entitled to charge for freight on the traffic over\t the
\nassisted  siding.   This charge for freight on\tthe  traffic
\nover  the assisted siding was to be levied  irrespective  of
\nthe  fact  that,  in  some cases, the  Railway\tmay  not  be
\nincurring  extra  expenditure over and above what  it  would
\nhave  incurred if the delivery had been given at  the  goods
\nplatform on line 5. Since the claim is made under the  terms
\nand  conditions of the agreement, we hold that the  Tribunal
\nwas  wrong in rejecting the mode of calculation put  forward
\nby the Railway, on the ground that
\n235<\/span>
\nit  was\t not  possible to estimate the\tdifference  in\ttime
\nrequired  for shunting wagons to lines 3 and 4, as  compared
\nwith the shunting to line 5.\n<\/p>\n
On  behalf  of the Railway, evidence was  tendered  to\tshow
\nthat,. in the busy season, the shunting operations  required
\nto  bring the sugarcane wagons of the Company to line 3,  on
\nan  average,  took  18 to 20 minutes, while,  in  the  slack
\nseason,\t the  time would be about 10 minutes.  It is  to  be
\nremembered  that the majority of’ sugarcane wagons  must  be
\nreceived  by the Company in the busy season and very few  in
\nthe slack season.  It was on this basis that the Railway put
\nforward the plea before the Tribunal that the average amount
\nof  time taken for shunting should be 15 minutes per  shunt.
\nThe Tribunal was not inclined to accept this figure and, for
\nrejecting  it,\trelied\tmainly on the evidence\tof  R.W.  6,
\nUmeshwar Prasad, a Traffic Inspector of the Railway, who had
\nmade  a\t test-check of the shunting time  on  10th  October,
\n1959.\tAccording to the report submitted by  this  witness,
\nthe shunting operation at the time of the test-check, on the
\nwhole,\ttook 13 minutes.  This shunting operation  consisted
\nof taking wagons from line 1, placing them on lines 3 and 4,
\nand  bringing  back  the  engine with  empties\tto  line  1.
\nAccording  to him, the first operation of taking the  loaded
\nsugarcane  wagons  from line 1 to line 3 took  seven  wagons
\nfromline  3 to line 4, and another four minutes were  taken
\nin shuntingthe\tempties from line 4 back to  the  train.
\nThis whole operation of one shunt thus required 13  minutes.
\nThe  Tribunal, in considering the evidence of this  witness,
\nlaid  emphasis on the, fact that the time taken in  shunting
\nthe  engine on its return from line 4 to line I was  only  4
\nminutes, while, according to the Station, Master, R.W. 3, B.
\nL. Das, on whose evidence the Railway relied, this time must
\nbe at least 5 minutes.\tThis difference was, on, the face of
\nit,  not very material.\t In his evidence, R.W.\t6,  Umeshwar
\nPrasad,\t also stated that the average time for placement  on
\nlines  3 and 4 for both up and down trains should be in\t the
\nvicinity  of  18 to 20 minutes for the\tcomplete  operation.
\nOwing  to  the\tmention\t of both up  and  down\ttrains,\t the
\nTribunal held that this evidence given by the witness led to
\nthe  inference that only 9 to 10 minutes would be taken\t for
\nplacing\t the wagons from either up. or down train  alone  on
\nlines  3  and  4. We think the Tribunal\t committed  a  clear
\nerror.\t When  the  witness stated that\t the  time  for\t the
\nplacement  on  lines  3 and 4 for both up  and\tdown  trains
\nshould\tbe  in\tthe vicinity of 18 to  20  minutes  for\t the
\ncomplete operation, he clearly meant that this would be\t the
\ntime taken whether the train be an up train or a down train.
\nIt  is, on the face of it, impossible that there  should  be
\nsimultaneous shunting for two different trains, one up train
\nand  the  other down train, and that the witness  should  be
\nrequired to estimate the time which would be,
\n236<\/span>
\ntaken  in simultaneous shunting from two trains.   In  fact,
\nsimultaneous shunting from two trains is not possible.\t The
\nuse  of\t the conjunctive “and” between up and  down  in\t the
\nquestion put to him did not mean that he was being asked  to
\nestimate  the  time  for  simultaneous\tshunting  from\t two
\ndifferent  trains.   The  halving ,of the period  18  to  20
\nminutes by the Tribunal, in order to hold that the  estimate
\nof  average time of 15 minutes by the Railway, is too  high,
\nwas,  therefore, not at all justified.\tOn the other  hand,.
\nthe  evidence of this witness, Umeshwar Prasad, as  well  as
\nthe figures given by him from the test-check, appear to bear
\nout  the case. put forward by the Railway that\tthe  average
\ntime  taken will certainly be 15 minutes per shunt or  more.
\nIn  the test-check itself, the complete\t shunting  operation
\ntook  13  minutes.   In his evidence,  Umeshwar\t Prasad\t has
\nstated\tthat  this  test-check\twas  carried  out  in  ideal
\nconditions  of visibility and the time taken was also  less,
\nbecause the train was a non-vacuumed one.  Further, the test
\nwas  -carried out on 19th October, 1959, which\twas  clearly
\nslack  season, and the case of the Railway itself was  that,
\nin the slack season, the ,average time taken for a shunt was
\n10 to 12 minutes.  The Tribunal, in these circumstances, was
\nnot  justified in making the comment that the time of 18  to
\n20 minutes per shunt given by the Railway as the time  taken
\nduring\tthe  busy season was due to  inefficiency.   In\t any
\ncase,  the Railway, in calculating the charges,\t has  itself
\nvery reasonably suggested 15 minutes as the average time per
\nshunt,\tand  the  difference  of  2  minutes  between\tthis
\nsuggested,  -time  and the time of 13 minutes taken  in\t the
\ntest carried out under ideal conditions will not justify the
\nrejection  by the Tribunal of the figures suggested  by\t the
\nRailway.   It is also to be noted that in the  test  carried
\nout  no sorting operations were involved and that,  if\tsome
\nsorting\t had  also  been necessary,  the  time\ttaken  would
\ncertainly  not\thave been less than 15\tminutes,  completely
\njustifying  the average figure put forward by  the  Railway.
\nIt was’, therefore, clearly a case where the Tribunal  could
\nhave  and should have arrived at a finding on  the  evidence
\nthat,  on an average, the time taken per shunt, in order  to
\nwork over the assisted sidings consisting of lines 3 and  4,
\nwill  be  15  minutes; and, since such\ta  figure  could  be
\narrived at, the siding charges representing the freight\t on,
\nthe  traffic  over  the assisted sidings  should  have\tbeen
\ncalculated on this basis.  We have already held earlier that
\nthere  is no reason to vary the figure of Rs. 20\/- per\thour
\nas  the cost incurred by the Railway over a shunting  engine
\ncarrying  out shunting operations.  At this rate,  the\tcost
\nincurred  by the Railway per shunt for rendering service  on
\nthe  assisted sidings consisting of lines 3 and 4 works\t out
\nto Rs. 5\/-.\n<\/p>\n
This  cost  that has been worked out is,  according  to\t the
\nRailway\t -itself, the average cost, taking into account\t the
\ncircumstance that, in some of the shunting operations, there
\nmay be only one or two
\n237<\/span>
\nwagons,\t and, in others, the number of wagons may  be  large
\nand  as\t many as 20 or 25.  Since the cost  of\tthe  Railway
\ndepends on the time during which the shunting engine has  to
\noperate in order to complete the shunting of the wagons, and
\nthe  average time has been calculated by the  Railway  after
\nconsidering  shunts  which included any\t number\t of  wagons,
\nthere is clearly no justification for the Railway levying  a
\ncharge\ton  the basis of the number of wagons  shunted.\t the
\naverage\t cost  worked out will not exceed Rs.  51per  shunt,
\nthough,\t of  course,  in some particular  shunts  where\t the
\nnumber\tof wagons may be large and the\tshunting  operations
\nrequired  may be more complicated, the cost may work out  at
\nmore  than Rs. 51-.  On the other hand, there would also  be
\nsome  shunting\toperations in which, there being  no  wagons
\nexcept\tsugarcane  wagons,  or the number  of  wagons  being
\nsmall, the cost per shunt would be less than Rs. 5\/-.\tThis
\ncircumstance  justifies\t the view of the Tribunal  that\t the
\nRailway\t could not reasonably fix a rate for siding  charges
\non  the\t basis of a particular amount per wagon.   The\tonly
\nproper\tway of fixing the rate would be the amount  of\tcost
\nincurred   by  the  Railway  per  shunt.   Learned   counsel
\nappearing  for the Railway, in these circumstances,  himself
\nstated\tthat he will not press in this appeal the demand  of
\nthe Railway for a charge based on the number of wagons,\t and
\nthat the rate may be fixed only per shunt.  That rate has to
\nbe Rs. 5\/- per shunt.\n<\/p>\n
As  a result, the appeal is partly allowed.  It is  directed
\nthat the rate for the shunting engine charge is fixed at Rs.
\n22\/- per hour.\tThe siding charges in respect of freight  on
\nthe  traffic over the assisted sidings shall be\t payable  by
\nthe Company at the rate of Rs. 5\/per shunt, irrespective  of
\nthe  number  of\t wagons\t included  in  any  shunt,  a  shunt
\nconsisting  of the operation starting with the\tmoment\twhen
\nthe engine moves from the main lines 1 or 2 in order to take
\nthe wagons to lines 3, 4 or 5, and ending with the time when
\nthe engine returns to the train and is again attached to it.
\nIn the circumstances of this case, we direct parties to bear
\ntheir own costs of this appeal.\n<\/p>\n
R.K.P.S.\t\t\t\t     Appeal  allowed\nin part.\n338<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Union Of India, Represented By … vs The Indian Sugar Mills … on 21 March, 1967 Equivalent citations: 1968 AIR 22, 1967 SCR (3) 219 Author: V Bhargava Bench: Bhargava, Vishishtha PETITIONER: THE UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, Vs. RESPONDENT: THE INDIAN SUGAR MILLS ASSOCIATION, CALCUTTA & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-144412","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Union Of India, Represented By ... vs The Indian Sugar Mills ... on 21 March, 1967 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-union-of-india-represented-by-vs-the-indian-sugar-mills-on-21-march-1967\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Union Of India, Represented By ... vs The Indian Sugar Mills ... on 21 March, 1967 - 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