l Appeal No 9 of 1962
Appeal by special leave from the judgment and order dated August 29 1961 of the Railway Rates Tribunal Madras in Complaint No 1 of 1960
Veda Vyasa and 1
N Shroff for the appellant
Niren De P C Chatterjee and section N Mukherjee for the respondents
April 23
The Judgment of the Court was delivered by DAs GUPTA J
This appeal by special leave arises out of a complaint made by the appellant the Upper Doab Sugar Mills Ltd Shamli to the Railway Rates Tribunal
The complaint as originally made was against the station to station rates on sugarcane on the Shahdara Delhi Saharanpur Light Railway imposed by the respondent the Railway Company
by their rates Circular No 8 of 1953 with effect from October 1 1953
The complaint was that these rates had been and were unreasonable
The Railway Company in their answer to the complaint pointed out that the rates imposed by the rate Circular No 8 of 1953 had long before the date of the complaint ceased to be in force and that subsequent to the decision of this Court in SS Light Railway Co Ltd vs Upper Doab Sugar Mills Ltd 1 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 1 336 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 21960 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 Railway Company with which we are concerned in the present appeal are 1 that the Tribunal had no jurisdiction to entertain the complaint as regards the reasonableness of rates prior to the institution of the complaint 2 that the Tribunal had no jurisdiction to grant any refund
These questions are raised in Issues Nos 6 and 9A and are in these words 6
Has the Tribunal jurisdiction to entertain or try the present complaint regarding reasonableness or otherwise of rates andor charges prior to the institution of this complaint or at any rate prior to 27 7 1958
9A Has this Tribunal jurisdiction to grant a refund
 The Tribunal rightly took up the consideration of these issues first
It held that it had no jurisdiction to entertain or try the complaint as regards the reasonableness or otherwise of rates and charges made prior to the institution of the complaint on 337 May 6 1960
It also held that it had no jurisdiction to grant any refund
In coming to these conclusions the Tribunal followed the decision of the Madras High Court in Southern Railways vs The Railway Rates Tribunal 1
It is contended before us in appeal that the Tribunal s decisions on these questions were wrong
It will be helpful to consider briefly the background in which the Railway Rates Tribunal came into existence
Till the establishment of these Tribunals the actions of the Government of India with regard to the regulations of rates and charges that may be charged by Railway Companies were largely influenced by the policy of laissez faire
The only provision as regards such a regulation was to be found for many years only in the contracts between the Government of India and the Railway Companies
One of the earliest contracts with the Madras Railway Company dated December 22 1852 had a provision that the Company could charge only such fares and tolls as might have been approved by the East India Company and that no increase in approved fares etc could be brought into effect without the previous sanction of the East India Company
In the contracts of most of the companies  there used to be a provision in the following terms The Secretary of State shall from time to time authorise maximum and minimum rates within which the Company shall be entitled to charge the public for services rendered by way of or in connection with the conveyance of passengers and goods on the undertaking and shall prescribe the several classes and descriptions of passengers and goods to which rates shall be respectively 1 AIR 1955 Madras 476
338 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 section 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
2Any complaint that a railway administra tion is contravening any order issued by the Federal Railway Authority in accordance with the provisions of this section shall be deter mind by that Authority
 Before this however as a result of the inves tigations made by the Acworth Committee a Railway Rates Advisory Committee had been established
This Committee was empowered to investigate and make recommendations on 1
Complaints of undue preference section 422 of the Indian Railways Act
Complaints that rates are unresonable in themselves
Complaints or disputes in respect of terminals section 46 of the Indian Railways Act
339 4
The reasonableness or otherwise of any conditions as to packing of articles specially liable to damage in transit or liable to cause damage to other merchandise 5
Complaints in respect of conditions as to packing attached to a rate and 6
Complaints that railways do not fulfll their obligations to provide reasonable facilities under section 42 3 of the Indian Railways Act
 It is to be noticed that this Committee could only make recommendations and could not make any effective order itself
The Railway Rates Tribunal come into existence as a result of the amendment of the Railways Act of 1890 in 1948 Act No 65 of 1948
Section 34 of the Act as amended provides that there shall be a Tribunal called the Rates Tribunal for the purpose of discharging functions specified in the Chapter
These functions were specified in sections 41  and 42 while section 39 empowered the Tribunal to pass interim and final orders
including orders for payment of costs for the purpose of exercising the jurisdiction conferred
The first sub section of section 41 set out a number of matters of which complaints might be made against a railway administration or jointly against two or more railway administrationsand states that such complaints shall be heard and decided by the Tribunal
The second sub section of section 41 provided that in the case of a complaint under cl
d of sub s 1 that is where the complaint is that a railway administration or rail
way administrations is or are unreasonably refusing to quote a now station to station rate the Tribunal may fix a now station to station rate
The first sub section of section 42 gave the Tribunal the exclusive 340 power to reclassify any commodity in a higher class but added that such power shall not be exercised except on the application of the Central Government
The third sub section of section 42 provided that the Tribunal as well as the Central Government would have power to re classify any commodity in lower class
In December 1949 the Indian Railways Act was further amended by the Act No 56 of 1949
Some changes were then made in section 41 which it is unnecessary 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  411 Any complaint that a railway administ ration a is contravening the provisions of section 28 or b it charging for the carriage of any com modity 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 sectionwhich 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 sub section 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 sub section 1 the Tribunal may fix such rate or charge as it considers reasonable Provided that the rate 341 to be fixed under cl
b of sub section I shall be within the limits of the maximum and minimum rates fixed by the Central Government under sub s1 of section 29 Section 41A which was added by the amending Act of 1957 gives the Tribunal a power to vary or revoke an order made by it on being satisfied on an application made by the Railway Administration that since the order was made there has been a material change in the circumstances on which it was based but such application cannot be made till the expiry of one year from the date of the order
The old section 42 was substituted by a new section in these words  The Central Government alone shall have the power to classify or reclassify any commodity b to increase or reduce the level of class rates and other charges
 It will be noticed that this amendment took away the power which the Tribunal formerly had in the matter of classification of commodities
The amendment of section 41 however gave the Tribunal jurisdiction to entertain and consider complaints in respect of standard terminal charges which had been excluded in the old section 41
At the same time it took away the Tribunal s jurisdiction to entertain any complaint that a Railway Administration has unreasonably placed a commodity in a higher class or that it was unreasonably refusing to quote a new station to station rate which it had under the old cls
d and e
Our first task is now to construe the words of cl
b and e of the first sub section of section 42
The question is what did the legislature mean by the words is charging in clause b and is levying in cl
c  The use of the present progressive tense is to denote something which is taking place at present
What has already taken place cannot be described by saying that it is taking place
 Just as one cannot say of a man who has ceased to 342 exist that he is existing so also one cannot say of a charge which has already been made that it is being made
 of the charge which has already been made a person aggrieved can complain that the Railway Administration has charged me at this rate  It will not be correct to say that the Railway Administration is charging me at this rate
 This it is true proceeds on the assumption that the words charging a rate was used by the legislature in its ordinary meaning of demanding a price
 This it is contended on behalf of the appellant is not however the only sense 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 to give the Tribunal jurisdiction over complaints in 343 connection with charges made in the past
In our opinion the words is charging in cl
b and is levying in cl
c must be construed to mean is demanding a price at the present time for services to be rendered
 The conclusion of the Railway Rates Tribunal that it had no jurisdiction to entertain or try the complaints as regards the reasonab leness or otherwise of rates and charges made prior to the institution of the complaint is therefore correct
When the Tribunal had no jurisdiction to consider the reasonableness or otherwise of any charges made prior to the institution
of the complaint it follows necessarily that it could have no occasion to order any refund
For the question of refund could arise only after a decision that the charges made were more than what was reasonable
It is clear however that even in respect of those charges and rates for which the Tribunal had jurisdiction to entertain a complaint the Tribunal had no power to order any refund
It is necessary to consider this question as the prayer for refund as made in the complaint was not only for charges already made but for charges that might be made in future under the rate Advice No 2A of 1960
On behalf of the appellant it has been urged that it would be inequitable for the Tribunal not to make an order of refund in respect of charges made after the date of the complaint if it comes to the conclusion that those charges were more than what was reasonable
The question of equity does not however arise
The Tribunal can have no more jurisdiction that what it is given by the Act whichbrings it into existences  and if on a properconstruction of the words of the statute we findthat the Tribunal was not given any such jurisdiction we cannot clothe it with that jurisdiction on any consideration of convenience or equity or justice
344 What the Tribunal has to do after a complaint is made is mentioned in section 41 1 itself
It is said there that the Tribunal shall hear and decide the complaint
The complaint being that something is unreasonable all that the Tribunal has to decide is whether that thing is unreasonable or not
A finding that it is unreasonable does not involve any consideration or decision of what would flow from the finding
In other words in making the complaint the complainant can ask only for a declaration that 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 section 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 the Central Government or the State Government as the case may be on whom any obligation is imposed by any such order to carry it out
 Is it neceserly 345 for the Tribunal to make the order for refund at least in respect of the charges made after the date of the complaint in excess of what is held to be reasonlable for the purpose of exercising the jurisdiction conferred on it The utmost that could be said is that the relief for making an order of refund has a connection with the order holding the rates already charged after the date of the institution of the complaint to be unreasonable
It is impossible to say however that such an order is necessary for the purpose of exercising the jurisdiction conferred that jurisdiction in connection with complaints being under a 41 only to arrive at a decision whether a certain rate was reasonable or not and if it was unreasonable to fix a reasonable rate
An order for refund can by no stretch of imagination be considered to be  necessary for the purpose of exercising the jurisdiction
Section 39 is therefore of no assistance to the appellant s contention
It was next urged that unless the Tribunal is held to have power to make an order of refund s46 B will be meaningless
Section 46 B provides that the Tribunal may transmit any order made by a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree
It is obvious that an order for payment of coati which may be made by the Tribunal could under a 46 B be transmitted to a civil court and executed by a civil court as if it were a decree
Even if the Tribunal can pass no other order which may require execution a 46 B  will serve its purpose in connection with the orders for costs
Nor is it necessary for us to speculate as to what other orders made by the Tribunal could require execution by the civil courts
For such considerations cannot in any way throw any light on the nature of the orders that can be made under a 39
It is hardly necessary to mention that a 39 does not 346 confer any jurisdiction but only provides for means for exercise by that Tribunal the jurisdiction which it has otherwise got under other sections
It is interesting to remember in this connection the words used by the British Parliament in section 196 3 of the Government of India Act 1935
The first sub section of section 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 docu ments 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 section 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 section 26 of the Act
Section 26 which is in the same words as the old 41 run thus  Except as provided in this Act no suit shall be instituted or proceeding taken for anything done or any omission made by a Railway Administration in violation or contravention of any provisions of this Chapter Ch V
The argument in that section 26 stands in the way of bringing any suit of the civil courts on a claim for refund of charges 347 made in excess of reasonable charges
This proceeds on the misconception that such a suit would be  for anything done or any omission made by a Railway Administration in violation or contravention of Ch
V of the Act
There is no provision in Ch
V however saying that unreasonable charges shall not be made by a Railway Administration
If therefore any Railway Administration has received payment of unreasonable charges or rates that is not anything done in violation or contravention of any provisions of Chapter V
If under the law apart from the Railways Act a consignor is entitled to obtain relief against unreasonable charges which he has paid in the past section 26 will not stand in his way
What his rights in law are in respect of such past charges and whether any claim for repayment of charges made in excess of reasonable charges can succeed in law in civil courts on the theory that as a common carrier the Railway is not entitled to charge anything more than reasonable rates and charges need not be examined here
As a suit on such a claim world not be on anything done or any omission made by the Railway Administration in violation or in contravention of any provisions of Ch
V the provisions of section 26 are quite irrelevant for the decision of the question whether the Tribunal has any jurisdiction to make an order for refund
Our conclusion therefore is that neither expressly nor by necessary implication has the Railway Rates Tribunal been given any jurisdiction to make any order for refund
The decisions of the Railway Rates Tribunal in the present case on both the issues are therefore correct
The appeal is accordingly dismissed with costs


Summary:
A complaint was made by the appellant to the Railway Rates Tribunal against station to station rates as being unreasonable on sugarcane imposed by the respondent Railway Co by their rates circular No 8 of 1953 with effect from October 1 1953
The Railway company in their answer pointed out that the rates imposed by the rates circular 8 of 1953 had long before the date of the complainant ceased to be in force and a new rate had come into operation from February 10 1960
Thereafter the complainant was allowed to amend the complaint
The prayers were for a declaration that the rates charged were unreasonable that a direction of refund of the excess collected or which may be collected after the date of the amendment of the complaint over the reasonable rates that may be fixed by the Tribunal and lastly for fixation of the rates
The main contentions of the respondent were that the Tribunal had no jurisdiction to entertain the complaint as regards the reasonableness of rates prior to the institution of the complaint and that the Tribunal had no jurisdiction to grant refund
The Indian Railways Act underwent several amendments and by the amendment in December 1957 section 41 was changed
As a result of the change cl
I of section 41 read thus Any com plaint that a railway administration a is contravening the provisions of section 28 or b is charging for the carriage of any commodity between two stations a rate which is unreasonable or is levying any other charge which is unreasonable shall hear and decide any such complaint in accordance with the provisions of this Chapter
 334 The Tribunal held that it had no jurisdiction to entertain or try the complaint as regards the rates and charges to prior to the institution of the complaint and it had no jurisdiction to grant any refund
The appellants came up in appeal to the Supreme Court
Held that the words is charging in clause b and is levying in clause c of section 41 1 of the Act must be construed to mean is demanding a price at the present time for services to be rendered
The Railway Rates Tribunal had no jurisdiction to entertain or try the complaint as regards the reasonableness or otherwise of rates and charges made prior to the institution of the complaint
When the Tribunal had no jurisdiction to consider the reasonableness or otherwise of any charges made prior to the institution of the complaint it follows necessarily that it could have no occasion to order any refund
For the question of refund could arise only after a decision that the charges made were more than what was reasonable
Held further that neither expressly nor by necessary implication has the Railway Rates Tribunal been given any jurisdiction to make any order for refund
 Southern Railway vs The Railway Rates Tribunal AIR 1955 Madras 676 referred to
After a complaint is made the Tribunal shall hear and decide the complaint
The complaint being that something is unreasonable all that the Tribunal has to decide is whether that thing is unreasonable or not
A finding that it is unreasonable does not involve any consideration or decision of what would flow from the finding
In otherwords in making the complaint the complainant can ask only for a declaration that the rate or charge is unreasonable andit 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 considers reasonable
 In the absence of any thing 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 incoporation 335