Heaton, J.
1. This is a case in which the plaintiffs have claimed damages from the Great Indian Peninsula Railway Company on account of certain goods which were destroyed after they had been placed on the Railway Company's premises and which the plaintiffs allege in effect had been delivered to the Company for the purpose of carriage by railway. The suit was disposed of by a Judge of the Court of Small Causes at Bombay in favour of the defendant, and after a hearing before the Full Bench the same conclusion was reached.
2. An application was made to this Court by the plaintiffs, a rule was issued and we have heard the matter fully argued. As neither the applicants nor the opponent have any objection to our disposing of this matter, I do not propose to say anything on the question of our jurisdiction except that so far as I am enabled to form an opinion in the absence of arguments, I do not see any serious reason to doubt that we have jurisdiction.
3. Section 72, so far as it covers this case, runs as follows :-
The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under Sections 152 and 161 of the Indian Contract Act, 1872.
4. A 'delivery to be carried by railway ' means something more than a mere depositing of goods on the railway premises: it means some sort of acceptance by the railway, a taking as well as a giving. When that taking occurs is a matter which depends on the course of business and the facts of each particular case; but it certainly may be completed before a railway receipt is granted. For by the instructions of the G.I.P. Railway 'a railway receipt would not be granted until the consignment has been loaded.' The loading, it seems to me, would indubitably finish the delivery. As to whether the delivery would be complete at some earlier stage, for example, by the weighment, I say nothing, for the Court below has held that a receipt is essential and that is the only matter we are called on to decide. But it is argued that Section 72 alone does not control the case, that the meaning of the section is modified by a rule made under Section 47. This rule runs:
Goods will in all cases be at owner's risk until taken over by the Railway administration for despatch and a receipt in the prescribed form has been granted duly signed by an authorised railway servant.
5. If that rule is good then the decision of the Court below is correct. Is it good I think not. Its effect is to define and by defining change what otherwise would be the meaning of Section 72.
6. The provision to make rules which we are concerned with is contained in Section 47 and is as follows :-
47 (f)-'Every railway company... shall make general rules consistent with this Act...for regulating the terms and conditions on which the railway administration will warehouse or retain goods at any station on behalf of the consignee or owner.
7. This gives no express power to make rules regarding the liability of the railway and that liability it seems to me remains precisely as defined by Section 72. To hold otherwise would be to assume that the Legislature conferred, not expressly but indirectly or by implication, a power to modify by rule the natural meaning of a section of the Act. I think this cannot be so, firstly because it is a manner of making laws that I cannot attribute to a responsible Legislature: and secondly because I think it is directly against the provision that the rules must be consistent with the Act.
8. I would, therefore, make the rule absolute, set aside the decree of the lower Court and remand the suit to be disposed of with reference to the observations contained in our judgments in this matter.
9. Costs of this rule will be costs in the suit.
Shah, J.
10. The point argued in this case is whether rule No. 2 under Section 47, Sub-section (1), Clause (f), is consistent with the provisions of Section 72 of the Indian Railways Act or not, in so far as it makes the responsibility of the railway administration dependent upon a receipt being granted in the prescribed form.
11. The learned Judges of the Full Court have held that it is consistent with Section 72 of the Act. Their decision proceeds upon the assumption that the goods were marked and weighed after the consignment note was tendered to the Company by the plaintiff's agent.
12. I have considered whether a point of this kind could be appropriately decided in the exercise of the extraordinary jurisdiction of this Court. Having regard to the importance and nature of the point, as also to the fact that both the parties are willing that it should be decided, I think it is a fit case for our interference, if not under Section 115 of the Code of Civil Procedure, under the powers of superintendence which this Court has over the Presidency Small Causes Courts in virtue of Section 6 of Act XV of 1882 and of the provisions of 24 & 25 Vic. c. 104.
13. The goods in this case are said to have been brought on the railway premises and a consignment note given to the Company by the plaintiff's agent. The parties are not agreed as to whether the goods were marked and weighed, and there is no finding of the Full Court on the point. It is common ground that no receipt was given by the Company. It is urged on behalf of the applicant that the Company is responsible for the loss or destruction of the goods delivered to the Company to be carried by railway as a bailee under Sections 151, 152 and 161 of the Indian Contract Act-subject of course to the other provisions of the Indian Railways Act under Section 72 of the Act. Apart from the rule in question it is not seriously disputed-and in my opinion cannot be disputed-by the Company that there may be delivery of goods to be carried by railway within the meaning of Section 72 before any receipt is issued by the Company. The delivery contemplated by Section 72 is an actual delivery and marks the beginning of the Company's responsibility. That delivery would no doubt involve not merely the bringing of the goods on the railway premises but acceptance thereof by the Company for the purpose of carrying the same by railway. Such acceptance may be expressed or implied in a variety of ways by the usual course of business, and may be quite independent any receipt being granted by the Company. Of course it Will depend upon the circumstances of each case and the usual course of business of the railway administration as to whether the goods can be said to be delivered to be carried by railway under Section 72 of the Act.
14. This being my view of the meaning of the expression 'delivered to be carried by railway' used in Section 72, the question is whether Rule 2 limits or modifies it in any way, and if it does so, whether it can do so. In my opinion it does not and cannot do so. The rule provides that ' goods will, in all cases, be at owner's risk until taken over by the railway administration for despatch and a receipt in the prescribed form has been granted duly signed by an authorised railway servant.' This rule has been sanctioned by the Governor-General in Council and promulgated under Section 47, Sub-section (1), Clause (f), for regulating the terms and conditions on which the railway administration will warehouse or retain goods at any station on behalf of the consignee or owner. It relates to wharfage, and is one of the rules under the heading ' on goods for despatch waiting to be consigned.' The first rule relates in terms to goods brought to railway premises for despatch but not consigned, and to a period before he consignment note is received. If due regard is had to the context as well as to the purpose of the rule in question, it seems to me that it cannot be used as in any way affecting the Company's liability under Section 72 of the Act. It is true that the wording of the rule is rather wide and lends itself to the construction that no liability of the Company can arise unless and until a receipt has been granted by an authorised railway servant. Assuming, however, that the rule can be used for that purpose, it is necessary to consider whether it is consistent with the Act. If apart from the rule the goods can be delivered to be carried so as to render a railway administration liable as a bailee under Section 72 without any receipt being granted, the rule, which postpones the liability until a receipt is granted, seems to me to be inconsistent with Section 72. The liability defined by the Act cannot be thus modified by a rule, and the fact that the rule has received the sanction of the Governor General in Council cannot remove the inconsistency. The result of thus postponing the liability may be serious in some cases. If the rule be allowed to have the effect, which the Company contends in this case it has, the goods can practically remain in charge of the Company for an indefinite length of time without the owner having any control over them, and without the Company being in any way liable for their loss or destruction. It is a result which ought to be avoided as far as possible. The Act does not appear to me to contemplate any such result, and in my opinion it cannot be secured by the rule in question.
15. It is urged on behalf of the Company that the consequences of holding that there may be delivery of goods within the meaning of Section 72 before a receipt has been granted would be anomalous in those cases where the owner ultimately agrees to limit the responsibility of the Company as provided in Sub-section (2) of Section 72 inasmuch as there may be the liability of the Company before a receipt is granted, while after it is granted it would cease because of the agreement limiting the responsibility. I do not think that there is any anomaly in this nor can I think that the possibility of such an agreement being entered into in any case is any ground for not giving effect to the view that the rule in question is not consistent with the terms of Section 72. Mr. Binning has relied upon the decision of Banna Mal v. The Secretary of State for India in Council I.L.R. (1901) All. 367. Apparently the only ground urged and considered in that case was whether the rule, which was similar to the rule with which we are concerned in this case, was bad because it was inequitable. It does not appear to have been argued that the rule was inconsistent with the provisions of Section 72 of the Act. I am, therefore, unable to accept that case as any guide in deciding the question which has been argued in the present case.
16. It follows, therefore, that the commencement of the liability of the Company for goods delivered to be carried under Section 72 is in no way dependent upon the fact of a receipt having been granted, and must be determined on the evidence in the case quite independently of Rule 2 under Section 47, Sub-section (1), Clause (f).
17. For these reasons I concur in the order proposed by my learned brother.