' RUSTAM S. SIDHWA, J.---This is an appeal filed by the Chairman, Railway Board, Lahore and three other appellants, challenging the judgment of a learned Single Judge of the Peshawar High Court rejecting their appeal against the judgment and decree of the Senior Civil Judge, Peshawar dated 4-7-1975 granting a decree of Rs 40,706.13 to the respondent.
2. Leave was granted in this case to consider whether rule 1.34 of the Pakistan Western Railway Coaching Tariffs Rules was ultra vices the powers A under section 54 read with section 77 of the Railways Act.
3. The brief facts of the case for the determination of this appeal are that M/s. Wahabuddin & Sons, a firm carrying on business in Peshawar, ordered certain goods from the Harnai Woollen Mills Ltd., Harnai. The said goods were despatched by the Mills to the respondent firm on 13-104973 under different Railway receipts. The goods reached Peshawar on 31-10-1973. On 1-11-1973 the respondent firm's agent took delivery of the goods from the Railway Administration and transported them to its premises, where it was noticed, on opening the contents, that four bales were damaged on account of being soiled with oil. The respondent firm brought back the four damaged bales to the Parcel Office of the Railway Station and the same were shown to the Station Master, Peshawar Cantt, appellant 4, and also to the officials of the Parcel Office. The said bales were handed over to the Parcel office. Later, the respondent firm pressed its claim for damages. It instituted a civil suit which was contested on merits. The suit was decreed in favour of the respondent firm. The regular first appeal filed by the appellants in the High Court was also dismissed. The appellants thereupon preferred a petition seeking leave to appeal against the said judgment and decree, in which leave was granted purely on the legal point, as stated in para. 2 above.
4. Ch Fazle Hussain, Advocate, appears on behalf of the appellants. On behalf of the apellants it is submitted that under section 75 of the Railways Act, 1890, the value of the goods should have been declared at the time when they were booked at the Harnai Railway Station, as the value of the articles packed in each bale was over Three Hundred Rupees (300) and since this was not done, the Railway Administration was not responsible for the loss, destruction or deterioration of the bales in question. It is further submitted that rule 1.34 of the Pakistan Western Railway Coaching Tariff Rules has been framed by virtue of the power given to the Railway Administration under section 54 of the Railways Act, 1890, and that the said rule does not in any way impose any condition which can be treated as inconsistent with the Act or with any general rule thereunder with respect to the receiving, forwarding or delivering of any animals or goods. It is further submitted, on the basis of section 72 of the Railways Act, 1890, that the responsibility of the Railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by the railway was, subject to the other provisions of the Railways Act, 1890, that of a bailee under sections 151, 152 and 161 of the Contract Act 1872. Since the Railway administration took due care of the goods, no negligence can be imputed to them and therefore they were not liable.
5. Mian M.Ajmal, Advocate, appears for the respondent firm. One behalf of the respondent it is submitted that leave having been granted only to consider the legal point as stated in para 1 above, the appellants should not be permitted to take up other factual and legal matters. With regard to the legal point on which leave has been granted, it is submitted that rule 1.34 of the Pakistan Western Railway Coaching Tariff Rules clearly violates section 77 of the Railways Act, 1890, for whilst this section debars a person to claim compensation for destruction or deterioration of the goods delivered to the railway to be carried, unless its claim for compensation has been preferred in writing by him or on his behalf to the Railway administration within six months from the date of the delivery of the goods for carriage by railway, the rule debars him from claiming the compensation unless notice of damage to or loss of property has been given to the Station Master before delivery and removal from the Railway premises of the packages, the contents or part of the contents of which are alleged by the claimant to be damaged or lost. It is submitted that the rule is a bye-law and the same can only be framed under section 54 (1) of the Railways Act. 1890, subject to its being consistent with the Act. Where such rules or bye-laws are consistent with the other provisions of the Act, the same would be intra vires, and where they are inconsistent, or otherwise unreasonable, they would be ultra vires and not enforceable. In this connection, Azizul Rehman v.
The Bombay-Baroda and Central India Railway Company (1908 P R 353), Sohanpal Munnalal v. East Indian Railway (AIR 1922 Allahabad 9) and Secretary of State v. Anant Ram Chopra (AIR 1927 Allahabad 400) have been referred. It is lastly contended that the learned trial Judge reduced the claim of damages of the respondent firm from 18 per cent of the value of the goods to 10 per cent and since the appellants have indefinitely dragged the matter and have continued to do so, not only after decree was passed against them and their appeal was dismissed by the High Court, but when execution was sought, they obstructed realization on technical pleas and the decree has not been realized, the claim for damages should be granted at the rate of 18 per cent, as originally claimed by the respondent firm. In this connection, the learned counsel refers to Yadaorao Ganpatrao Kadu and another v. Ramrao Balasaheb Dhote (AIR (30) 1943 Nagpur 240), Pakistan v.
Waliullah Sufyani (PLD 1965 Supreme Court 310) and Trade and Industry Publications Ltd v. Universal Blocks (1986 CLC 1143).
6. We have given our anxious consideration to the arguments addressed by the learned counsel for the appellants and the respondent and have also perused the record. The main question on which leave has been granted is to consider whether rule 1.34 of the Pakistan Western Railway Coaching Tariff Rules is ultra vires the powers under section 54 read with section 77 of the Railways Act. To determine this matter, it is necessary to first reproduce sections 54 and 77 of the Railways Act and rule 1.34 of the Railways Coaching Tariff Rules, which we do so herewith :-- ' Section 54. Power for Railway administration to impose conditions for working traffic.
(1) Subject to the control of the Provincial Government, a Railway administration may impose conditions not inconsistent with this Act or with any general rule thereunder with respect to the receiving, forwarding or delivering of any animals or goods.
(2) The Railway administration shall keep at each station on its railway a copy of the conditions for the time being in force under subsection (1) at the station, and shall allow any person to inspect it free of charge at all reasonable times.
(3)
Section 77. Notification of claims to refunds of overcharges and to compensation for losses.
' A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the Railway administration within six months from the date of the delivery of the animals or goods for carriage by railway.
' Rule 1.34 Written notice of loss or damage. Railway will not be responsible for any damage to or loss of property unless notice of such is given in writing to the Station Master before delivery and removal from the railway premises of the property or of the package or packages, the contents or parts of the contents of which are alleged by the claimant to be damaged or lost, or of the rest of the consignment, a portion of which is alleged by the claimant to be lost, as the case may be. A written statement of the nature of the damage received or of the articles missing, must be sent to the Vice-Chairman (Commercial), Railway Headquarters Office, Lahore or the Divisional Superintendent, Karachi, in the case of station on that division.
7. Rule 1.34 of the Railway Coaching Tariff Rules exempts the Railway from responsibility for any damage to or loss of property unless notice of such damage has been given in writing to the Station Master before delivery and removal from the Railway premises of the goods, the contents of which are alleged by the claimant to be damaged or lost. Where the bales or packages received at the destination station are broken or open, one can perhaps give such a notice stating the nature of the damage or of the articles missing. But where bales or packages have been tampered with, broken open, goods have been removed therefrom and the bales or packages are again stapled or nailed and outwardly the bales or packages look as if they have not been tampered with, it is not possible to give such a notice, before taking delivery or removing the goods from the Railway premises. Again, bales or packages may appear to be stained outside, but it is not possible to determine, till the same are opened, whether goods therein have been soiled as a result of water or any other liquid in the train during transit. In such a case it would not be possible to give such a notice, for the said rule does not state that where outwardly the bales or packages give any indication from which it may reasonably be inferred that the goods within may be damaged, the same should be opened at the Railway premises, so that the damage can be examined and notice in writing given to the Station Master, before finally lifting the goods. In Sri Gangaji Cotton Mills Co.
Ltd v. East Indian Railway Company (AIR 1922 Allahabad 514) certain sidereal questions, such as whether a consignee had the right to demand that the goods had to be opened and inspected on the railway premises before he could be called upon to take delivery, or as to whether a railway company was obliged to make a note in its delivery register that the goods were in a damaged condition before delivery could be taken, came up for discussion, on which the learned Judges held : "A consignee has no right to demand that the goods shall be opened and inspected on the railway premises before he can be called upon to take delivery. There is no provision of law or any statutory rule which obliges a Railway Company to make or to allow to be made in its delivery register any note alleging that goods are in a damaged condition. A plaintiff cannot refuse to take delivery because the Railway Company refuses to make an entry in their books. The plaintiff cannot insist upon an entry. If he has any complaint he is entitled to make his representation to the Company in any other way."
' Rule 1.34 of the Coaching Tariff Rules seemingly appears to create an invidious distinction in respect of bales or packages which outwardly are broken, damaged or in an open state, and those which do not outwardly appear so, for in the case of the former notice can be given, whereas in the case of the latter it is not possible to give any such notice and no reasonable alternative procedure has been prescribed. Whether the rule is unreasonable, will therefore call for examination.
8. First, the question whether the rule is intra vires requires examination.
' By virtue of section 54 of the Railways Act, subject to the control of the Provincial Government, a Railway administration can impose conditions not inconsistent with the Railways Act or with any general rule thereunder, with respect to the receiving, forwarding or delivering of animals or goods.
Rule 1.34 of the Coaching Tariff Rules appears to have been framed under the said power. Rules or bye-laws should neither be in excess of the statutory power authorizing them, nor repugnant to that power, nor violate the limitations under which they have to operate, nor be unreasonable, nor deal with a subject not within their scope, nor exceed the prescribed limits within which the authority may be exercised. Byelaw, though framed under a particular provision of law, can be justified under any effective power under which it could he made. The first two cases cited by the learned counsel for the respondent cover the rule of ultra vires. This Court has also clearly held in the United Industrial Bank's case (PLD 1959 S.C. 296) and in the Hirjina Salt Chemical Company's case (1982 SCM R 522) that rules cannot be made to override their parent statutes, if inconsistency should arise between the two. The words "not inconsistent with this Act or with any general rule thereunder" place a limitation on the rules that the Railway administration may make under section 54, so that they do not conflict with any of the provisions of the Act or with any general rule thereunder. On behalf of the respondent it is stated that the said rule conflicts with section 77 of the Railways Act. Under the said section the only condition precedent for laying a claim for compensation for loss or damage to the goods with the railway is a written submission of claim with the railway within six months of the delivery of the goods to the railway. The bar imposed by rule 1.34 is that such a person claiming compensation for the loss or damage to the goods cannot get such compensation, unless he has, prior to the receipt or delivery of the goods, given in writing notice to the Station Master concerned about the particulars and nature of the damage sustained or of the goods missing. The said rule is inconsistent with the provision of section 77 of the Railways Act, because it not only curtails the period within which notice of claim can be given to the railway, as provided in the section, but imposes an intermediary condition for notice to be given to the Station Master before delivery and removal of the goods from the railway premises, which is not contained in the section. Since the rule is inconsistent with the provision of section 77 of the Act, it is ultra vires and therefore not enforceable.
9. One further question that remains for determination is whether rule 1.34 is unreasonable on the ground that in respect of bales and packages which outwardly are found broken, damaged or open, the rule is applicable, whereas in respect of bales and packages which appear to be in order, but the goods within are damaged or pilfered, the provision is silent and no reasonable alternative procedure is prescribed therefor. In respect of the receiving, forwarding or delivering of the goods, which is the subject covered by section 54 of the Act and in respect of which rules may be framed, it is not possible to cover all conceivable types of situations which may arise, in order to make them reasonable and intelligently workable. Where goods at the receiving station are found damaged, broken or in open condition or found to be lost, the damage or loss is manifest and no deeper inquiry is necessitated. In such cases the goods can be lifted or received, with corresponding notice to the Station Master regarding the nature of the damage or loss. If every bale or parcel is to be opened at the railway station before delivery is taken, so that any damage or loss within may be discovered, the whole parcel delivery office would be converted into a huge dumping ground, where thousands of packages would be held up for clearance, till survey is conducted, and the railway would have to provide extensive warehouse facilities. In these circumstances, the classification of the type of goods in respect of which summary notice can be given in writing to the Station Master in respect of the bales or packages which are found missing, damaged, broken or in an open state, appears to be reasonable and cannot be struck down as in any way being unjust or made in bad faith.
10. We would now turn our attention to the contention of the learned counsel for the appellant that section 75 of the Railways Act is applicable to the case of the respondent and as the value of each consignment covered by each separate bale was over three hundred rupees and the said value was not properly declared and proper charges paid thereon, the appellants are barred from recognizing the claim of the respondent. We may mention here that leave was not granted in this case to consider this question, but we would allow the same to be canvassed before us. However, the plea is untenable for more than one reason. This contention was not raised by the appellants in their written statement. Section 75 applies to articles mentioned in the Second Schedule. It is the case of the learned counsel for the appellants that item (c) contained in the Second Schedule of the Railways Act, which deals with "cloths and tissue and lace of which gold or silver forms part,...," covers the instant case and since the value of each parcel exceeded three hundred rupees which the Harnai Woollen Mills had not so declared, the Railway administration cannot be held responsible for its loss or destruction. A question under section 75 of the Act is obviously a mixed question of law and fact. The appellants not having taken this defence in the trial Court or in the appellate Court, cannot be permitted to do so now. This plea is therefore rejected.
11. We now turn to the claim of the learned counsel for the respondent that compensation for loss of profit granted by the trial Court and confirmed by the High Court should be enhanced. In this connection it is submitted that since the decree was passed, the rate of interest chargeable by Commercial Banks in respect of loans and commercial facilities has increased to almost 18% and cost of goods and services has increased over 200% to 300% and since the appellants have been holding on to the decretal amount since the date of the decree and have never cared to deposit the same in Court, but, on the contrary, when the respondent firm applied for the execution of the decree, the appellants spoked the same on technical pleas and have as yet resisted payment, the damages and/or compensation awarded require enhancement. Since the respondent firm did not file any counter-claim in this respect in this Court in time, we are afraid we cannot permit this plea to be canvassed before us. This prayer is therefore rejected.
12. This appeal is dismissed with costs.