Judgment:
T.N. Singh, J.
1. On different grounds though, plaintiff and defendants have both appealed against the same judgment and decree passed on 30-8-1977 by Second Additional District Judge, Gwalior, in Civil Suit No. 3-A of 1972. Both appeals - F. A. No. 73/77, preferred by the plaintiff and F.A. No. 7/78, preferred by defendants are - heard analogously and are being disposed of by this common judgment.
2. Plaintiff/Company is aggrieved as its suit is partly decreed while the defandants, the Union of India and the Central Railway, contend that the suit ought to have been dismissed in toto. Plaintiffs claim in the suit filed on 28-7-1972, was based on an agreement which the Company had executed on 12-7-1941 with the Governor General of India for construction and maintenance of railway siding for transporting of goods of the Sugar Mills from inside the Company's campus, close to the Dabra Railway Station on the Central Railway. By the impugned decree, a declaration has been made that the defendants can claim shunting charges for placing and removing only loaded, and not empty, wagons into and from plaintiffs siding, calculated on the basis of shunting time of 20 minutes 45 seconds against plaintiff, claiming that shunting time was 20 minutes only per trip. Claim for refund of Rs. 14,780.21/- as excess paid for shunting charges was rejected; so also prayer for permanent injunction against defendants restraining them from suspending the siding facilities.
3. On merits, plaintiffs claim was resisted by the defendants relying on the provisions of Central Railway Supplementary Goods Tariff No. 2, submitting that although there were shunting trials on different dates for determining the shunting time, result of those trials could not affect the provisions of the Tariff Rules. Under those Rules the charge was fixed at Rs. 47.70 per trip and revised to Rs. 49/- w.e. from 15-12-1970. Importantly, however, objection was taken to Civil Court's jurisdiction to entertain the suit on the question of reasonableness of the rate charged because jurisdiction in that regard was vested Under Section 41 of the Indian Railway Act, 1890, for short, the 1890 Act, in the Railway Rates Tribunal, for short, the Tribunal. For that, reliance was also placed on Section 26 of the said Act. Additionally, special plea was raised to the maintainability of the suit on the ground that the notice served Under Section 80, Civil Procedure Code was invalid and the suit was premature. They also contended that permanent injunction, prayed by the plaintiff, could not be granted in the facts and circumstances of the case.
4. Although the trial Court upheld the plea founded on Section 80, Civil Procedure Code and rejected claim for refund prayed on the ground that the notice, Ex. P/36, dated 25-3-1972, was premature and the earlier notice (Ex. P/34), dated 15-10-1971 did not relate to that cause of action, the plea of maintainability of the suit in terms of Sections 26 and 41 of 1890 Act, was rejected. In this Court also, the main point for determination, counsel rightly concedes, is of maintainability of the suit although impact of the decision on that question may not extend to the relief for injunction.
5. Reference may be made first to Section 80, Civil Procedure Code notice, Ex. P/36. It is stated that under clause 12 of the Agreement dated 12-7-1941, shunting charges for shunting loaded wagon into and from the siding are only chargeable. However, from time to time, the minimum siding charge was revised, fixing Rs. 11/- per trip in 1958, Rs. 47.70 in 1961 against which, protest was lodged. The Railways replied on 26/28-12-1961 26/28-12-1961 that 'It takes one hour and five minutes for the placement and removal of wagons by the shunting engine and on the basis of the present cost per shunting engine hour viz. Rs. 44/- for Broad Gauge, the minimum charge for your siding has been worked out as Rs. 47.70 per trip.' Test check for shunting time was conducted and 'on account' payment was made from time to time against siding charges. Stand of the Company was, it stated, that time consumed in shunting empty wagon into or from the siding could not be taken into consideration in fixing the shunting charges. A notice Under Section 80, Civil Procedure Code was sent of 15-10-1971, but the Railway having made a fresh demand for payment on Rs. 16,427.70 and that being illegal, the plaintiff company proposed to file a suit in the Court of Additional District Judge, Gwalior, for the reliefs specified. One relief was of declaration in regard to shunting time of 20 minutes and another was for refund of excess payment of Rs. 14,780.21.
6. Obviously, the Tribunal came into existence under statutory provision much later and that was not in the contemplation of parties when the Agreement, Ex. P/l, was executed. Still, clause 12 contemplated that the freight would be levied 'in accordance with rates from time to time published in Goods Tariff of the Governor-General' in addition to the shunting charges contemplated thereunder. True, thereunder, revision was contemplated of those charges 'at the option of the administration should the cost of shunting fluctuate'. However, by that, Railway administration obviously could not and did not bind itself to the condition of not revising the charges statutorily. In Upper Doab Sugar Mill's Case, AIR 1963 SC 217, their Lordships traced the background history of constitution of Tribunals observing that earlier, 'the actions of 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 and that the provision in that regard for many years was made by contracts only'.
7. If, therefore, the plaintiff company had any complaint against railway administration that the shunting charge, revised by it from time to time, was 'unreasonable' that could be decided by the Tribunal Under Section 41 (c) of the Act. About the scope of Tribunal's jurisdiction thereunder the words 'levying any other charge' are themselves vocal, but those have also been judicially interpreted to include such charges as siding or shunting charges. In Union of India v. Indian Sugar Mills' Association, AIR 1968 SC 22, against Tribunal's decision, rendered Under Section 41(l)(c), appeal was heard by their Lordships. Before the Tribunal, Belsun Sugar Co. made complaint that shunting charges in respect of wagons brought and taken from the siding maintained by the Company had been unreasonably increased. It was held, 'the shunting engine charge and the siding charge are both being levied by the Railway for carrying goods from the Railway to sidings not forming part of the railway' and in regard thereto, a valid complaint could be entertained regarding the levy as 'any other charge' within the meaning of Section 41(l)(c) and also Section 29(2). It was further held that although such charges Under Section 29(2) are required to be fixed by the Central Government, levy of such charges by the Railway would still be competent in the absence of such a fixation. Another case of siding/shunting charges, decided by the Tribunal came up for their Lordships' consideration in Union of India v. Motilal Padampat Sugar Mills Co., AIR 1969 SC 630. The view taken in Indian Sugar Mill's case, was reiterated. Jaipur Udyog's Case, AIR 1975 SC 1056 is also on Tribunal's decision in regard to complaint against unreasonable charges demanded for placement and removal of wagons from appellant's siding.
8. However, the Court below has held the suit maintainable relying on the decision in Upper Doab's case (supra), wherein it was held that the Tribunal had no jurisdiction to order any refund and it had also no jurisdiction to deal with the complaint in connection with charges already made as Section 41(l)(c) vested Tribunal with jurisdiction to make orders prospectively. Even if the Tribunal could fix the rate from the date of complaint, that did not give any power to the Tribunal to order refund. Taking that view, the Court held that Section 26 of the Act did not bar a suit to claim refund and Tribunal's order impugned before their Lordships refusing to order refund was upheld. In Raichand Amulakh Shah v. Union of India, AIR 1964 SC 1268, the Court held that civil suit for refund of wharfage and demurrage charges collected by railway challenging the vires of rules and alleging excess realisation then legally leviable under the rules was maintainable. Construing Section 26, the Court held that the bar thereunder operates in respect of such matters for which the Act provided remedy, by stressing importance of the role of the opening clause 'Except as provided in this Act' immediately preceding the words 'no suit shall be instituted...' etc. In Union of India v. Modi Industries Ltd., (1973) 1 SCC 781, the suit was held maintainable wherein injunction was prayed against the railway to restrain it from realising illegally siding charges and from stopping supply of wagons in the railway siding of the plaintiff. The view expressed in the other three decisions herein discussed was reiterated.
9. It is crystal clear, therefore, that Civil Court's jurisdiction to entertain a suit for refund of charges realised by the Railway is invokable because Tribunal cannot grant that relief. True, the 'ground' for refund may vary from case to case. Evidently, if any 'complaint' which is pleaded as a 'ground' or cause of action for refund in the civil suit, can be enquired by Tribunal Under Section 41 of the Act, such a suit would be maintainable only when the special forum of Tribunal following special procedure for the enquiry under the Special law is unable to grant the consequential relief of refund even after holding the ground duly established in that enquiry. It follows, therefore, that if for any reason of statutory restraint, jurisdiction of Civil Court cannot be invoked to try the case in respect of the 'ground' or cause of action, its competence to grant the consequential relief would not vest in its jurisdiction to try the case to find out if the 'ground' was established. Reference may be made in this connection to Section 9, Civil Procedure Code, Order 7, Rule 11(d) and Order 2, Rules 3 and 6, Civil Procedure Code circumscribing a Civil Court's general jurisdiction under general law to try all suits in respect of causes of action of civil nature. If any objection is raised to its jurisdiction to try any particular cause of action, that cannot be bypassed and statutory provisions, whether of the Civil Procedure Code or of any other Special law made in that regard, cannot be overlooked.
10. If that view is not taken, it would permit a Civil Court to usurp the jurisdiction of the Tribunal and render otiose the provisions of Sections 26 and 41. Chapter V of the Act is in a sense, a self-contained Code with respect to disposal of complaints made against Railway administration in respect of any charge levied or collected in respect of goods traffic. On the one hand, Sections 39 and 41 create exclusive jurisdiction of the Tribunal to deal with those matters and on the other, Section 45 enumerates matters in regard to which Tribunal's jurisdiction is excluded conditionally. A Three-Member Tribunal is to consist of a Chairman who is or has been a Judge of the Supreme Court or a High Court and the other Members, having special knowledge of commercial, industrial or economic conditions of the country or of the commercial working of the railways. Power and procedure of the Tribunal are contemplated Under Sections 40 and 44 imaginatively. Section 46B makes executable as a decree by a Civil Court, any order passed by the Tribunal and Under Section 39, Central Government is also saddled with an 'obligation' to carry out orders which are passed against it. As held in Raichand Amulakh Shah's case (supra), the bar envisaged Under Section 26 has to be treated as barring impliedly remedies to be pursued in a Civil Court in respect of matters dealt with by the Tribunal. Reference may be appropriate in this connection to the decision also in the case of Raja Ram Kumar Bhargava's Case, AIR 1988 SC 750. The Court held that, '(if) a right pre-existing in Common law is recognised by the statute and a new statutory remedy for its enforcement provided without expressly excluding the Civil Court's jurisdiction, then both the Common law and statutory remedy might become concurrent remedies leaving open an element of election to the persons of inherence'. Scope of jurisdiction of special Tribunal under Special law vis-a-vis Civil Courts, was considered by the Constitution Bench in Dhulabhai's Case, 1969 MPLJ 1 (SC), AIR 1969 SC 78 and later the question was examined also in Premier Automobiles' Case, AIR 1975 SC 223. Evidently, when 'concurrent remedies' contemplated under Raja Ram Kumar's case (supra) are available to any plaintiff in any case and election is made by him to pursue one of his choice, he would be required also to fulfil all statutory conditions-precedent that may be prescribed for pursuing the chosen remedy. In the instant case, the plaintiff defaulted by not complying with the requirement of Section 80, Civil Procedure Code in filing a suit for declaration and refund as a result of which he was statutorily prohibited from establishing the 'ground' or cause of action for the refund.
11. Law indeed is well-settled that the provisions of Section 80, Civil Procedure Code, are mandatory. In State of Madras v. C. P. Agencies, AIR 1960 SC 1309, that position was emphasised referring to the language of Section 80 and approving Privy Council's view in the Bhagchand's Case, AIR 1927 PC 176, it was observed that in the notice must be stated 'facts on which the claim is founded and the precise reliefs asked for' so that the Government can decide whether the claim of the plaintiff should be accented or resisted. In Gangappa v. Rachawwa, AIR 1971 SC 442, at para 10, the Court held that it becomes the duty of the Court to reject the plaint when it does not show that notice Under Section 80, Civil Procedure Code, claiming relief was served in terms of the said section. A Constitution Bench's decision in Amar Nath Dogra's Case, AIR 1963 SC 424, discussed and approved the view expressed in Bhagchand and C. P. Agency's case (supra). It was observed further that the notice would be invalid if there was material variance in respect of any item of claim as made in the notice and in the plaint. When the amount claimed in the plaint in respect of any head of claim was not stated in the notice that, it was held, would be a fatal defect. Material facts and basis of cause of action in respect of each item of claim are to be stated in the plaint and set out also in the notice, albeit within the statutory time-frame. That is the settled law.
12. The suit for refund was rightly held not maintainable and that relief was refused because in the earlier Section 10 notice (P/34), that relief was not prayed while the later notice (P/36) was violative of the statutory time-frame. But, the trial Court acted illegally and without jurisdiction in trying the cause of action relating to declaration prayed (as to shunting time) and granting the same in violation of Section 42 of 1890 Act and of Section 34, Specific Relief Act which debars grant of declaration simpliciter when consequential relief can be, but has not been prayed. Evidently, Tribunal was competent to enquire and hold what could be the reasonable shunting time and shunting charges in respect of plaintiffs siding that could be claimed by the defendants although that decision or declaration could be prospective. Indeed, as held in Upper Doab's case (supra), the declaration could even relate back to plaintiffs complaint made to the Railway on which shunting 'trials' were ordered. Legislature has, happily, noticed the lacuna and Section 44, Railway Act, 1989 has provided that the Tribunal may 'direct a refund of amount, if any, as being the excess of the rate or charges fixed by the Tribunal.'
13. In the instant case, there is another fatal flaw in the notice and also the plaint which non -suits the plaintiff in regard to the relief of declaration and refund as respects the shutting/siding charges. No relief' is claimed challenging vires of Rule 6 of the Rules concerning 'Sidings' of Chapter X of Supplementary Goods Tariff No. 2. According to that Rule, 'when wagons are ordered in the siding but not loaded, they will be charged for at the siding charge leviable on loaded wagons'. Evidently, defence in the written statement was based on this provision, claiming that even for empty wagon, shunting charges are leviable. Trial Court has referred to the definition of the term 'trip' occurring in Rule 13 ibid and has yet, overlooked the provision of Rule 6; That apart, it appears, pursuant to Section 29(2) siding/shunting charge concerning plaintiffs 'assisted' (and private) siding, has been fixed under the same Rule. Item No. 128 of the relevant Schedule has been proved as Ex. D/2 by defendants. That entry is in the book published by the Central Railway as 'Supplementary Goods Tariff No. 2'. At col. 4, the charges are stated as Rs. 33.50 per trip and that is printed. However, in hand, corrections are made, stating Rs. 49/- w.e. from 15-12-1970 and then Rs. 75.50/- w.e. from 1-2-1974. In the same column, there is another entry that 'The Gwalior Agriculture Co. Ltd., have been permitted to use this siding on payment of the siding charges shown in item (i) above'. Clearly, therefore, the other permitted user of the siding could have similar grievance in respect of which complaint could be entertained by the Tribunal. In any case, so long as Rule 6 held the field, no declaration contrary to the provision thereof could be made. Ignoring that mandate, trial Court has passed decree in respect of the declaration claimed despite vires of Rule not being challenged.
14. As respects the relief of injunction, claim for that could be validly entertained and decided by the trial Court, but on facts, the trial Court validly found no case made out for injunction. Reliance of the Court below on clause 17 of the Agreement, I hold appropriate. The railway has bound itself to continue siding facilities to the plaintiff under conditions envisaged thereunder. It is only when the siding is not to be used or when any charges in regard thereto are not paid that the siding can be closed on giving three months' notice. It is also provided that even if the traffic on the siding is not sufficient to justify its retention, it may be kept open at the option of the plaintiff Company on payment of such additional expenses as are contemplated thereunder. There being no breach complained against the defendants of those terms and conditions, there could be no just ground for an order of permanent injunction to be passed. If the plaintiff itself had breached any of those terms and conditions, he could not enforce the provision in respect of siding facilities against the defendants. Indeed, according to Section 41, Specific Relief Act, even when there is a breach in performance of a contract, injunction is refused when that contract is not specifically enforceable in the facts and circumstances of the case.
15. In view of the findings and conclusions reached above, I am constrained to hold that plaintiffs suit ought to have been dismissed in toto. Reliefs of declaration (decreed) and refund (refused) were statutorily wrapped up and were inseparable. Jurisdiction of the trial Court to grant the declaration was dependent on the choice made by the plaintiff to seek that relief along with the relief of refund in the civil suit. It is clear, however, that while the condition-precedent for the exercise of the trial Court of its jurisdiction to grant the relief of declaration was interdicted mainly by Sections 26 and 41 of 1890 Act, as also by Section 34, Specific Relief Act, in respect of refund, Section 80, Civil Procedure Code similarly afflicted its jurisdiction due to plaintiffs own fault. Admittedly, in the instant case, the plaintiff failed to exercise its choice competently and effectively by which the jurisdiction of the trial Court to grant both reliefs of declaration and refund was equally impaired. That position, the trial Court failed to notice and acted without jurisdiction in separately decreeing one of the reliefs, namely, of declaration. In so far as the relief of injunction is concerned, for that, the plaintiff is found not entitled on facts and in that regard no interference is warranted with the trial Court's decree refusing the relief.
16. In the result, F. A. No. 73/77 fails and is dismissed. Defendants' appeal F. A. No. 7/78, is allowed. The suit stands dismissed. However, parties are left to bear their own costs in this Court.