Madhya Pradesh High Court
Bharat Petroleum Corporation Ltd. vs Union Of India on 22 November, 2017
THE HIGH COURT OF MADHYA PRADESH
MA-2034-2016
(BHARAT PETROLEUM CORPORATION LTD. Vs UNION OF INDIA)
Jabalpur, Dated : 22-11-2017
Shri Kapil Jain, learned counsel for the appellant.
Shri Govind Prasad Patel, learned counsel for the
respondent.
The appellant has filed this appeal under Section 23 of Railways Claims Tribunal Act 1987, challenging the order dated 11.05.2016 thereby rejecting the application preferred by the appellant under Section 5 of the Limitation Act. Consequently, the appeal was also dismissed.
2. Brief facts of the case are that the appellant Bharat Petroleum Corporation Ltd. is a Government of India undertaking working under the aegis of Ministry of Petroleum & Natural Gas registered under the Companies Act 1913. The appellant has dispatched 21830 ltrs. of Furnace Oil under RR No. 371073, on 30.03.2005 from Haldia to Bhilai. The consignment was accepted by the respondent at Railways Risk, and was received at the destination with Top and Bottom seals missing and with the shortage of 10225 ltr.
3. The C.G.S. of South Eastern Claims Railway, Bhilai informed that Furnace Oil Booked vide RR No. 371073 dated 30.03.2005 for Bhilai, ex Haldia were not received till date and only 69 OT out of 70 were received and unloaded at Bhilai on 19.04.2005
4. The appellant thereafter, vide letter dated 13.07.2005 informed the Chief Commercial Manager (Claims), South Eastern Railway, Kolkata, informed that the Tank Wagon No. 78730 containing 21830 ltrs of Furnace Oil was not received at destination and, therefore, the appellant is lodging a claim of Rs. 3,16,935. Thereafter, the appellant informed the respondent that the Tank Wagon was delivered at Bhilai on 07.11.2005 i.e. after the lapse of 8 months with Top and Bottom seals missing and shortage of 10225 ltrs and, therefore, the claim as raised earlier was amended from 3,16,935/- to Rs. 1,48,450/-. Even after amending the claims, the claims of the appellant company was not settled. The appellant, therefore, filed an original application before the Railway Claims Tribunal on 16.07.2008 along with the application filed under Section 5 of Limitation Act, which was dismissed vide judgment dated 11.05.2016. Being aggrieved by that order, the appellant has filed the present appeal.
5. Learned counsel appearing on behalf the appellant submits that the tribunal has erred in rejecting the application preferred by the appellant under Section 5 of the Limitation Act. He submits that although the application has been filed under Section 5 of the Limitation Act, but mere quoting of wrong provision is not a ground for rejecting the application preferred by the appellant for condonation of delay. He further submits that the Section 17(2) provides for condoning the delay in filing an application before the Tribunal. He further argues that the good and sufficient grounds were made out by the appellant for condoning the delay, however, the same was not considered by the Tribunal by adopting the hyper-technical approach in not allowing the application.
6. On the other hand, learned counsel appearing on behalf of the respondent submits that no good and sufficient grounds have been made out by the appellant in condoning the delay, therefore the tribunal has rightly rejected the application submitted by the appellant for condoning the delay. Accordingly, he submits that the appeal is deserves to be dismissed.
7. Heard learned counsel for the parties and perused the record. From perusal of the record, it reveals that the Section 17 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as the 'Act') provides for the limitation. As per the said Section, the application is required to submit within a period of 3 years from the date, on which the goods in question were entrusted to the railway administration for carriage by railway and in case of the accident, the application is required to be submitted within one years from the date of occurrence of the accident. The sub-Section 2 provides that an application may be entertained after the period specified in sub-Section (1), If the applicant satisfies the Claims Tribunal that he had sufficient cause for not making the application within such period. Thus, as per sub- Section 2 of Section 17, the Tribunal has a power to condone the delay on showing the sufficient cause.
8. In the present case, the appellant instead of filing an application under Section 17(2) of the Railway Claims Tribunal Act has filed an application under Section 5 of the Limitation Act. The Apex Court in the case of P.K.Palanisamy Vs. N.Arumugham and another, (2009) 9 SCC 173 in para 27 and 28 are reads as under:-
27. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the Code.
Once the court granted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise of its power under Section 148 of the Code.
Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity. It is a well-settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and /or statutory authority had the requisite jurisdiction therefor. 28- In Ram Sunder Ram V. Union of India it was held: (SCC pp. 260-61 para 19) "19 It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act.
'9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.' (See N. Mani v. Sangeetha Theatre, SCC p.
280 para9.) Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act.
Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the learned counsel for the appellant."
Thus as per this judgment the mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor.
9. In the present case, the appellant has also quoted the wrong provision in the application for condoning the delay, therefore, the tribunal should have treated the application as filed under Section 17(2) of the Act. So far as, the cause of delay is concerned, the appellant has given the good and sufficient grounds for condoning the delay. Thus, the Tribunal has erred in dismissing the application preferred by the appellant under Section 5 of the Limitation Act.
10. Accordingly, the appeal is allowed. The impugned judgment dated 11.05.2016 passed by the Railway claims Tribunal is hereby set aside, and the delay caused by the appellant in filing the application before the Tribunal is hereby condoned and the Tribunal is directed to decide the application preferred by the appellant on its own merit. The record of the Claims Tribunal be sent back to the Tribunal immediately.
(MISS VANDANA KASREKAR) JUDGE