Calcutta High Court (Appellete Side)
Union Of India vs Santi Ranjan Dutta on 31 March, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Rudrendra Nath Banerjee
F.M.A.T. No. 2371 of 2007
Re : C.A.N. 6946 of 2007
Union of India
Versus
Santi Ranjan Dutta
For the Appellant/Petitioner: Mr Soumendra Nath Das.
For the Respondent/Opposite Party: Mr Hironmoy Bhattacharya,
Mr Koushik Chatterjee.
Heard on: 14.03.2008.
Judgment on: 31st March, 2008.
Bhaskar Bhattacharya, J.:
When an application in connection with this first miscellaneous appeal preferred against an award passed by the Railway Claims Tribunal, Kolkata Bench, came up for hearing, Mr Bhattacharjee, the learned advocate appearing on behalf of the respondent, contended that this appeal is first required to be heard under Order XLI Rule 11 of the Code of Civil Procedure before any application is taken up for hearing. In this connection, he relied upon an unreported decision of a Division Bench of this Court in the case of Kananbala Biswas vs. Union of India in F.M.A.T. No.2362 of 2007. By the said decision, the Division Bench held that in view of the provision of Chapter V Rule 17(b) of the Appellate Side Rules, this type of appeals are required to be heard under Order XLI Rule 11 of the Code; in the judgment, however, no detailed discussion has been made why this type of appeal is required to face hearing under Order XLI Rule 11 of the Code. Mr Bhattacharjee, who also appeared before that Bench in the abovementioned matter, submits that in the Appellate Side Rules it is stated that the appeal under "the Railways Act, 1890" are not required to be heard under Order XLI Rule 11 of the Code, but after the repeal of the said Statute, the present appeal is not under the Railways Act, 1890, but it is under the Railway Claims Tribunal Act, 1987. According to Mr Bhattacharjee, after the repeal of the Railways Act, 1890, there has been no consequential amendment in the Appellate Side Rules and therefore, the appeal filed under the Railway Claims Tribunal Act, 1987 cannot be said to be an appeal under the Railways Act, 1890.
We have already pointed out that in the said order, the Division Bench simply gave reference of the decision of the Special Bench in the case reported in 2003(2) W.B.L.R. 179 wherein it was merely held that except the three types of appeals mentioned in Chapter V Rule 17 of the Appellate Side Rules, namely, appeals under 1) Workmen's Compensation Act, 2) under Motor Vehicles Act, 1939 and 3) the Railways Act, 1890, all other first miscellaneous appeals are required to be heard under Order XLI Rule 11 of the Code.
Therefore, the sole question that falls for determination before us is whether in view of coming into operation of the Railway Claims Tribunal Act, 1987 after repealing Section 82F of the Railways Act, 1890, an appeal preferred under Section 23 of the Act of 1987, should be treated to be an appeal under the Railways Act, 1890 as provided in the Appellate Side Rules so as to get exemption from the hearing under Order XLI Rule 11 of the Code.
It appears from record that the Railway Claims Tribunal Act, 1987 was enacted on 23rd December, 1987 and it was given effect to on 8th November, 1989. According to Section 13 of the said Railway Claims Tribunal Act, 1987, as it stood immediately after its incorporation, the provisions of the Railways Act, 1890 and the Rules made thereunder, so far as may be, would be applicable to the enquiry into and determination of any claim by the Claims Tribunal under the said Act. By Section 34 of the Railway Claims Tribunal Act, 1987, the Sections 82(B), 82(D) and 82(F) of the Railways Act, 1890 were omitted with effect from 8th November, 1989 and thus, the appeals under the Railways Act, 1890, after the coming into operation of the Act of 1987, were disposed of not by virtue of Section 82(F) of the old Act but by Section 23 of the latter Act, although the provision of the old Railways Act and Rules made thereunder were applicable in the matter of enquiring into and determining any claim by the Tribunal under the Act of 1987. Subsequently, the new Railways Act, 1989 was enacted and by Section 200 thereof, the Indian Railways Act, 1890, as it then stood, was repealed.
Therefore, the facts indicated above show that up to 8th November, 1989, the appeals against the decisions of the Claim Commissioners under the Railways Act, 1890 were preferred before this Court under provision of 82(F) of the old Railways Act and thereafter, by virtue of Railway Claims Tribunal Act, 1987, the provision of appeal in the old Railways Act were repealed vide Section 34 of the Act of 1987, as a result, the dispute of compensation under the then Railways Act were disposed of by the Tribunal created under the Act of 1987 and not by the Claim Commissioners as provided under the old Railways Act, and the appeals against the order of the Tribunal lay before this Court by virtue of the provision of Section 23 of the Act of 1987. Subsequently, the old Railways Act has been totally repealed and re-enacted as the new Railways Act, 1989.
The question before us is in view of the abovementioned change of law, whether the appeals under the Railway Claims Tribunal Act arising out of Railways Act, 1989 are now required to be heard under Order XLI Rule 11 of the Code, even though in the Appellate Side Rules, the reference of old Railways Act, 1890 is still there and not been replaced by the Railway Claims Tribunal Act, 1987.
To appreciate the previously mentioned question, it will be profitable to refer to the provision contained in Section 8 of the Central General Clauses Act, which is quoted below:
"8. Construction of references to repealed enactments. - (1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted."
(Emphasis given by us) Before we proceed further, we should bear in mind that the word "repeal" means abrogation of a Statute or part of a Statute by a subsequent Statute.
After going through the aforesaid provision, it is clear that although the provision of appeal before this Court in old Railways Act against the order of Claim Commissioner was repealed by giving the jurisdiction of the Claim commissioner to the Tribunal with effect from 8th November, 1989 by the Railway Claims Tribunal Act, yet, the forum of appeal against the order of the Tribunal remained with this Court as before by virtue of Section 23 of the Act of 1987. Thus, the Act of 1987 first repealed the right of the Claim Commissioner and conferred such right upon the Tribunal and at the same time, also repealed Section 82F of the old Railways Act, which provided appeals to this Court against the order of the Claim Commissioner and by the selfsame Act, maintained the provision of appeal against the order of the Tribunal under Section 23 thereof to this Court.
Therefore, in view of Section 8 of the General Clauses Act, the reference of old "Railways Act, 1890" mentioned in the Appellate Side Rules should be read as the Railway Claims Tribunal Act, 1987. Similarly, after the entire repeal of the old Railways Act, 1890 by the new Railways Act, 1989 the position has not been changed because of the provision of the Section 8 of the General Clauses Act.
We, therefore, find that notwithstanding the first repeal of the provision of appeal in Section 82(F) of the old Railways Act by Section 34 of the Railway Claims Tribunal Act and by subsequent repeal and re-enactment of Railways Act, 1890 through Railways Act, 1989, the reference of old Railways Act in Appellate Side Rules should be read as Railway Claims Tribunal Act, 1987 and therefore, the appeal arising out of the disputes under the Railways Act, 1890 since repealed and re-enacted as Railways Act, 1989 under the provision of Section 23 of the Railway Claims Tribunal Act, 1987 does not require hearing under Order XLI Rule 11 of the Code. It appears that the said Division Bench took no notice of the provision of Section 8 of the General Clauses Act and the various amendments mentioned above.
At this juncture, it will be appropriate to refer to the decision of the Supreme Court in the case of N. Bhargavan Pillai (dead) by L. Rs. and another v. State of Kerala reported in AIR 2004 SC 2317 where the question before the Court was whether the earlier judgement of the same Court in the case of Bore Gowda v. State of Karnataka, (2000) 10 SCC 260 was a binding precedent. In that context, the Apex Court made the following observations:-
"The decision in Bore Gowda's case (supra) does not even indicate that Section 18 of the Probation Act was taken note of. In view of the specific statutory bar the view, if any, expressed without analysing the statutory provision cannot in our view be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam."
The unreported Division Bench decision of this Court, relied upon by Mr Bhattacharya, not having taken note of the provision of Section 8 of the General Clauses Act nor having analysed the effect of the repeal of the provision of Section 82F of the Railways Act, 1890 by the provision of the Railways Claims Tribunal Act, 1987, cannot, therefore, be treated as valid precedent on this point.
Let the application be placed for hearing on next Monday.
(Bhaskar Bhattacharya, J.) I agree.
(Rudrendra Nath Banerjee, J.)