DHIRENDRA NATH MODAK Vs. DOMINION OF INDIA

JUDGEMENT

(1.) This Rule arises out of a suit by the present petitioner Dhirendra Nath Modak, against the Dominion of India -representing the East Indian Railway for refund of 8 annas alleged to have been realised by the East Indian Railway in excess of the actual fare. The facts which are not in dispute are briefly that on the 27th Jan., 1949, the plaintiff travelled in third class from the Kamar-Kundu Station on the Tarakeswar line to Rampurhat, a station of the same railway, by what is known as Howrah-Burdwan Chord, the distance between the two stations by this route being 108 miles. The maximum fare on that date was 4 pies per mile and the third class railway fare for 108 miles by the Chord, should have been Rs. 2|4| only, but the Railway charged and realised from him a fare of Rs. 2|12/- for 131 miles, that is, for the distance from Kamar-Kundu to Rampurhat over the main line. It is the case for the petitioner that the Railway having charged him for the longer route was bound to refund to him the excess charge. The defence of the Railway was simply this, that the Railway Company was authorised in 1916 when this Howrah-Burdwan Chord was opened to charge for the longer route, that is, the Railway Board authorised the Railway Administration to charge for passengers travelling by the Howrah-Burdwan Chord as though they were travelling by the main line and the Railway was following this practice from 1916 downwards. The learned trial Court as well as the learned Appellate Court dismissed the suit on the grounds that when the Railway charged the petitioner Rs. 2|12 for the journey, it did not do anything illegal and, secondly, that even if it could be found that it did something that was not legal, section 26 of the Railway Act was a bar to a civil suit. The first question for consideration in this Rule is whether a civil suit was barred. Sec. 26 is in these terms:

(2.) The provisions which according to the learned trial Court and the learned Appellate Court were contravened are contained in section 29 which runs as follows :

(3.) As already stated it is admitted that the Central Government fixed 4 pies per mile as the maximum rate for the third class at the relevant time. The fare, therefore, from Kamar-Kundu to Rampurhat by the shorter route would have been Rs. 2|4 only. But when the railway administration charged the petitioner Rs. 2|12 as though he was travelling by the longer route and covered a distance of 131 miles though in fact he did not cover more than 108 miles what the railway administration was in effect doing was to charge the petitioner for 108 miles at a higher rate although according to the defendant Railway they had charged him on the basis of 131 miles. This is obviously equivalent to charging the petitioner at a higher rate for the actual mileage covered by him. There is thus a contravention of the provisions of section 29 (1). That being so, section 26 of the Indian Railways Act seems to me to be an absolute bar to the maintainability of the suit. In this view it is hardly necessary to go into the merits of the question whether the railway administration did in effect illegally fix the higher fare.