1 A.O. NO.56 OF 1995 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.56 OF 1995 Ashok Sahakari Sakhar Karkhana Ltd., At Ashoknagar, Taluka Shrirampur, District Ahmednagar. ... APPELLANT VERSUS Divisional Railway Manager, (Works), Central Railway, at Solapur. ... RESPONDENT ..... Shri S.D. Kulkarni, Advocate for the appellant Shri M.N. Navandar, Advocate for the respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 20th December, 2010 ORAL JUDGMENT : 1. Heard extensively. Rule was issued on 5.11.1997. Thereafter the matter was transferred to the learned District Judge, Shrirampur for hearing again, considering the orders/ directions of the Division Bench in Civil Application No. 500/2004 in First Appeal No.620/1994 (By Nagpur Bench). The appeal is re-transferred to this Court. 2. The appellant filed suit against Union of India, the Railways, with following divergent claims/ prayers : 2 A.O. NO.56 OF 1995 “23. The ASSK prays for a decree (A) For a declaration that - (1) The Railway has no legal right to bill and recover from the ASSK any money on account of the “establishment costs” of the railway staff working at the ASKG. (2) The Railway’s indulgence in billing and recovering from the ASKG full “establishment costs” of the railway siding staff for the days on which the same does not work at ASKG but somewhere else, contravenes quid. (3) the Siding Agreement dated 23.5.61 subsists and in law is not terminated as alleged by the Railway in its letter dated 5.1.93 and the notification if had been published in Railway’s official documents LRA/TRC etc. (4) the Railway’s refusal to accept “indents” for the supply of wagons to the ASKG for loading and booking ASSK’s outward traffic therefrom and for shunting the loaded inward wagons to and deliver the same to ASSK is in breach of the siding Agreement dated 23.5.61. (5) that the bills for the recovery of the payment of the alleged “establishment cost” contained in Railway’s bills dated 17.2.92 and 16.3.92 themselves are illegal and not recoverable. (6) The Railway Board’s order issued to the Railway refunded to in 9- dated 21.6.91 is beyond the scope of the siding Agreement dated 23.5.61. (B) For perpetual injunction restraining the Railway Board and DRM (W) or any other servants or agents thereof from : (1) billing and recovering from the ASSK any money on account of the “establishment costs” of the railway staff working at the ASKG. (2) billing and recovering from the ASSK the “establishment cost” of the railway siding staff for the days on which that staff does not work at ASKG 3 A.O. NO.56 OF 1995 but somewhere or remain idle. (3) from refusing to accept the ASSK’s “Indents” for the supply of wagons to the ASKG for loading and booking ASSK’s outward traffic therefrom and to shunt the loaded inward traffic to ASKG and to deliver the same to ASSK. (4) from treating the Siding Agreement dated 23.5.61 as terminated per the allegations made by the Railway in its letter dated 5.1.93 and per the notification if it had been published in the Railway’s official Gazettes – LRA/TRC etc. (5) from recovering from the ASSK the payment of the alleged “establishment cost” contained in its bills dated 17.2.92 and 16.3.92. (6) from implementing the Railway Board’s orders in respect of the billing and recovering from ASKG “establishment costs” in advance. (C) The Railway be ordered to refund to the ASSK a sum of Rs.1,54,533.88 as detailed in para 19 above. (D) The Railway be ordered to pay the ASSK ‘pendenti lite’ and future interest at 18% p.a. till realisation on the amounts decreed. (E) The costs of this suit may be awarded to the ASSK.” 3. The respondent moved an application before the learned Civil Judge, Senior Division on preliminary objection as to jurisdiction of Civil Court and considering the pleadings and provisions of law, the learned Civil Judge, Senior Division, Shrirampur, by his order dated 18.2.1995, returned the plaint for presentation to Railways Rates Tribunal, consequent upon the provisions enumerated in Order 7 Rule 10 of the Civil Procedure Code. 4 A.O. NO.56 OF 1995 4. The divergent prayers of the appellant are illustrated above. Let us consider its effect in the context of Railways Act. The relevant provision could be Section 36, 37, 38 and 44, which read thus: “36. Complaints against a railway administration.-- Any complaint that a railway administration -- (a) is contravening the provisions of section 70, or (b) is charging for the carriage of any commodity between two stations at a rate which is unreasonable; or (c) is levying any other charge which is unreasonable, may be made to the Tribunal, and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this Chapter. 37. Matters not within the jurisdiction of the Tribunal.-- Nothing in this Chapter shall confer jurisdiction on the Tribunal in respect of --- (a) classification or re-classification of any commodity; (b) fixation of wharfage and demurrage charges (including conditions attached to such charges); (c) fixation of fares levied for the carriage of passengers and freight levied for the carriage of luggage, parcels, railway material and military traffic; and (d) fixation of lump sum rates. 38. Powers of the Tribunal.-- (1) The Tribunal shall have the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) for the purposes of taking evidence on oath, enforcing the attendance of witnesses, compelling the discovery 5 A.O. NO.56 OF 1995 and production of documents, issuing commissions for the examination of witnesses and of review and shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Code of Criminal Procedure, 1973 (2 of 1974) and any reference in such section or Chapter to the presiding officer of a Court shall be deemed to include a reference to the Chairman of the Tribunal. (2) The Tribunal shall also have power to pass such interim and final orders as the circumstances may require, including orders for the payment of costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44. Reliefs which the Tribunal may grant.-- In the case of any complaint made under clause (b) or clause (c) of section 36, the Tribunal may -- (i) fix such rate or charge as it considers reasonable from any date as it may deem proper, not being a date earlier to the date of the filing of the complaint; (ii) direct a refund of amount, if any, as being the excess of the rate or charge fixed by the Tribunal under clause (i).” 5. Reading all the above provisions in juxtaposition, the divergent prayers referred to hereinbefore will hardly be contemplating within the sweep of Railways Act, 1989. The avenue under Section 36(c) could not be covering plaintiff’s claim. 6. The learned counsel for the appellant has relied on the judgment of the Division Bench of this Court in the matter 6 A.O. NO.56 OF 1995 of Ratnakar Tanbaji Itankar Vs. Union of India (1994 Mh.L.J. 634). Said matter was relating to provisions of Railways Claims Tribunal Railway Claims Tribunal Act (54 of 1987) and for jurisdiction of Railways Court and jurisdiction of Railway Claims Tribunal. It was a case where a passenger traveling in a train was pushed out of the bogie due to heavy rush. The passenger fell down and was caught in the space between the train and the platform and as a result died on the spot. The application for compensation was rejected by the registrar of the Railway Claims Tribunal and the Division Bench entertained the same and held that the Civil Court has jurisdiction. 7. In AIR 1953 SC 215 (Ram Prasad Narayan Sahi & anr. Vs. The State of Bihar & ors.), AIR 1968 SC 271 (The Pabbojan Tea Co. Ltd. etc. Vs. The Deputy Commissioner, Lakhimpur & ors.) and AIR 1969 SC 78 (Dhulabhai etc. Vs. State of Madhya Pradesh & anr.) the law on jurisdiction is explained. The ouster and jurisdiction of Civil Court not readily to be inferred even if it is so indicated. In the matter of Dhulabhai (supra), the Hon’ble Lordships have laid following principles : (1) Where the statute gives a finality to the orders if the special tribunals the Civil Courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such 7 A.O. NO.56 OF 1995 provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a Civil Suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of jurisdiction of the Civil Court is not 8 A.O. NO.56 OF 1995 readily to be inferred unless the conditions above set down apply : Case law discussed.” The cumulative effect of the pleadings is necessarily to be borne while adjudicating any objection to the jurisdiction of Civil Court. 8. Though pleadings as a whole are not referred, the ornamental prayer referred hereinbefore definitely illustrate and endorse what the plaintiff desired from the Civil Court. 9. The scope enumerated in Section 36 in (b) and (c) of the Railways Act has its inbuilt restricts which hardly will be covering or traveling to the prayers sought by the appellant. It may be that by efflux of time the prayers have become stale or have become inoperative to get redressal. It cannot be ignored, the appellant has claim subsistence of the agreement of dated 23.5.1961, and the rights and liabilities of the parties arising thereof, which would necessarily be in terms of the powers vested in Civil Court. The distinctive scope of Railways Act would not cover such powers in Tribunal, though it lays a procedure of Civil Court. Under Section 37 of Railways Act, the Tribunal has no jurisdiction of classification or re- classification of any commodity fixation of wharfage, demmurage charges. 9 A.O. NO.56 OF 1995 10. The rejection of the plaint by the learned Civil Judge, Senior Division is uncalled for. I hold the Civil Court has jurisdiction to entertain the case. Appeal from Order is allowed to the extent as above. Rule made absolute in above terms. No costs. The parties to appear before the learned Civil Judge, Senior Division, Shrirampur on 13th January 2011. 11. Considering the age of the suit, pending since 1993 and the scope of evidence between the litigants, the learned Judge seized with the matter shall ensure its disposal by 31st July 2011. K.U. CHANDIWAL JUDGE