TMI Blog1962 (4) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... Sugar Mills Ltd. ([1960] 2 S.CR. 926) a new rate had come into operation from February 10, 1960, under Local Rate Advice No. 2A of 1960. After this the complaint prayed for amendment of his complaint by adding a complaint against this new Advice rate. The prayer was allowed. The complaint as it stands after the amendment made on February 3, 1961, is both against the rates imposed under Local Rates Advice No. 8 of 1953 and also the rates under the now Advice No. 2A of 1960 and is that these rates and charges are all unreasonable. The prayers are: (I ) for a declaration that the rates charged under the Local Rates Advice No. 8 of 1953 and the surcharges were unreasonable from 1-10-1953 to 10-2.1960; (2) a declaration that the rates charged from 10-2-1960 under rate Advice No. 2A of 1960 are also unreasonable; (3) a direction of refund of the excess collected or which may be collected after the date of the amendment of the complaint on the basis of rate Advice No. 2A of 1960 over the reasonable rates that may be fixed by the Tribunal and (4) the fixation of the rates as mentioned in the complaint as reasonable rates from various stations to Shamli. The main contentions of the Rail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds on the undertaking, and shall prescribe the several classes and descriptions of passengers and goods to which rates shall be respectively applicable. (Srinivasan's Railway Freight Rates) The maxima were fixed by the Local Governments for the railways within their provinces in 1869 while the Government of India prescribed the maxima for good grains and coal, and fares for the lowest class of passengers only. Statutory provisions for fixation of maxima and minima for rates and charges were first made the year 1939 by the Act 33 of 1939 which introduced s. 42 (b) in these words: The Federal Railway Authority may be general or special order fix maximum and minimum rates for the whole or any part of a railway, other than a minor railway, and prescribe the conditions in which such rates will apply. (2)Any complaint that a railway administration is contravening any order issued by the Federal Railway Authority in accordance with the provisions of this section shall be determind by that Authority. Before this however, as a result of the investigations made by the Acworth Committee, a Railway Rates Advisory Committee had been established. This Committee was empowered to inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to set out. There was amendment again in December, 1957, by Act No. 53 of 1957 by which amongst other changes, a. 41 was changed. As a result of these changes cl. 1 of a. 41 reads thus : 41(1) Any complaint that a railway administration (a) is contravening the provisions of section 28, or (b) it charging for the carriage of any commodity between two stations a rate which is unreasonable, or (c) is levying and other charge which is unreasonable shall hear and decide any such complaint in accordance with the provisions of this Chapter. The second sub-section(which was not changed by the 1957 Act) deals with the question of burden of proof in connection with complaints. under el. (a) of the first subsection and also says that in deciding whether a lower charge to any trader or class of traders does amount to undue preference or not the Tribunal will take into consideration whether such lower charge is necessary in 'the interest of the public. The third sub-section ruins thus : In the case of a complaint under el. (b) or cl. (c) of subs. 1 the Tribunal may fix such rate or charge as it considers reasonable: Provided that the rate to be fixed under cl. (b) of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which the words charging a rate of its senses, it is was demanded in the past . in cl. (c) the words used are can be used; and one Collecting a price that It is pointed out that levying a charge and ,levying can certainly mean collecting. It will be legitimate, argues the learned Counsel, to think that the word #charging in cl. (b) and the word levying in el. (c) were used by the legislature in the same sense. According to him, both these words should be construed widely so as to include ,,collecting a price. The words charging in cl. (b) and 'levying in cl. (c) were used in the one and the same sense. We find it impossible to agree however that they were used to include collecting . It appears to be clear that if the intention of the legislature was to give the Tribunal jurisdiction over complaints in connection with charges already made the legislature would have used the words has charged and is charging and would not merely say 'is charging Special jurisdiction of such a nature would be given clearly and the very fact that the words ,has charged have not been used is sufficient ground for thinking that it was not the legislatures intention t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate or charge is unreasonable and it is only this declaratory relief which the Tribunal has been authorised to give. There is no provision that the Tribunal can also give a consequential relief. The only other thing which the Tribunal is authorised to do in connection with the complaint is to fix such rate or charge as it consider reasonable . In the absence of anything to indicate to the contrary it is reasonable to think that this fixation can only be prospective, that is, the Tribunal in making this order fixing the reasonable rate or charge will mention a future date for this to come .into operation. Even if it was assumed for the sake of argument that the Tribunal can fix these rates from the date of the complaint that would not give the Tribunal any power to order refund. Mr. Veda Vyasa has argued that the power to order refund flows from s. 39 of the Act. Section 39 is in these words : For the purpose of exercising the jurisdiction conferred on it by this Chapter, the Tribunal may pass such interim and final orders as the circumstances may require, including orders for the payment, subject to the provisions of this Chapter, of costs; and it shall be the duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 196 provided for the constitution of the Railway Tribunal and then the third sub-section proceeded to say : It shall be the duty of the Railway Tribunal to exercise such jurisdiction as is conferred on it by this Act, and for that purpose the Tribunal may make such orders, including interim orders, orders varying or discharging a direction or order of the Authority,, orders for the payment of compensation or damages and of costs and orders for the production of documents and the attendance of witnesses, as the circumstances of the case may require, and it shall be the duty of the Authority and of every federated state and of every other person or Authority affect ed thereby to give effect to any such order . These important words ,,orders for the payment of compensation or damages have been omitted from the present s. 39. Mr. Veda Vyasa strenuously contended that unless the Tribunals be held to have jurisdiction to order refund, the 'appellant and others in his position would be deprived of their right to obtain relief against unreasonable charges already paid in view of the provisions of s. 26 of the Act. Section 26 (which is in the same words as the old 41) run thus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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