Calcutta High Court
Union Of India (Uoi) vs Ratan Lall Adukia And Ors. on 17 June, 1987
Equivalent citations: AIR1987CAL311, (1987)1CALLT354(HC), 92CWN166, AIR 1987 CALCUTTA 311, (1987) 2 CAL HN 95 (1987) 2 CALLJ 1, (1987) 2 CALLJ 1
JUDGMENT Mookerjee, C.J.
1. By an order dated 18th May, 1983, the Hon'ble Mr. Justice Anil Kumar Sen and the Hon'ble Mr, Justice S. N. Sanyal, JJ. (as their Lordships then were) referred to the Full Bench a group of Revisional Applications under S- 115 of the Code of Civil Procedure, 1908, for resolving the conflict in judicial views on the question whether or not the forum for a suit contemplated by the present Section 80 of the Indian Railways Act, 1890 (Which, with effect from 1st January, 1962, was substituted by Indian Railways (Amendment) Act, 1961) should be determined in terms of the said section and whether Section 20 of the Civil Procedure Code, 1908 should be deemed to be no longer applicable to such suits under Section 80 of the Indian Railways Act, 1890. The learned referring Judges had pointed out that the two decisions of this Court respectively in the cases of Oghadmal Choudhury v. Union of India, 1974 Cal LJ 420 and in the unreported case of Jagannath Chetram v. Union of India disposed of on April 18, 1979, had taken the view that Section 20 of the Code shall have no application for determination of the forum of a suit contemplated by Section 80 of the Indian Railways Act. But another Division Bench in the case of Bengal Coal Co. Ltd. v. Union of India, (1979) 2 Cal LJ 363 had taken a contrary view. The learned Judges had formulated the following question :
"Whether the forum for a suit contemplated by Section 80 of the Indian Railways Act can still be determined on application of the provisions of Section 20 of the Code of Civil Procedure or any of the clauses thereof or such forum is to be determined solely in the manner prescribed by Section 80 itself."
2. The said references were registered as Full Bench Reference No. 1 of 1983.
3. Myself sitting with my learned brother, the Hon'ble Mr. Justice A. C. Sengupta, by an order dated 20th November, 1986 had referred to the Full Bench a Revisional Application filed by the Union of India represented by the General Manager, Eastern Railway against the judgment and decree dated 3rd July, 1986, passed by the learned Judge 2nd Bench, Court of Small Causes, Calcutta, in Suit No. 3881 of 1986, filed against it by the plaintiff opposite party, Rakesh Kumar Misra. The points involved in the said Revisional Application were almost similar to those in the aforesaid Full Bench Reference No. 1 of 1983, save and except that by relying upon the provisions of Section 18 of the Presidency Small Cause Courts Act, 1882, the said suit was instituted in the Presidency Small Cause Court, Calcutta.
4. The suits out of which these Revisional Applications arise had been filed with the averments in the respective plaints either to the effect that the defendant, Railway Administration, had its headquarters within the territorial jurisdiction of the trial Court or that the cause of action, wholly or in part, had been within the territorial jurisdiction of the trial Court. It is not disputed that the suits in question were for recovery of compensation against the Union of India representing a Railway Administration/Administrations for loss, destruction, damage, deterioration or non-delivery of goods within the meaning of Section 80 of the Indian Railways Act, 1890.
5. In course of the hearing of this Full Bench Reference, we slightly re-formulated the point which requires decision by the Full Bench : --
"Whether the forums for classes of suits mentioned in Section 80 of the Indian Railways Act, 1890 are to be solely determined by the said Section 80 of the Act itself and whether Section 20 of the Civil Procedure Code, 1908 or Section 18 of the Presidency Small Cause Courts Act, 1882 are no longer applicable to the said classes of suits mentioned by Section 80 of the Indian Railways Act."
6. Section 14 of the Indian Railways (Amendment) Act, 1961 (Act 39 of 1961) had, inter alia, substituted the previous Section 80 of the Indian Railways Act, 1890, by the present provision. The present Section 80 of the Indian Railways Act is as follows : --
"A suit for compensation for loss of the life of, or personal injury to, a passenger or for loss, destruction, damage, deterioration or non-delivery of animals or goods may be instituted,
(a) if the passenger was, or the animals or goods were, booked from one station to another on the railway of the same railway administration, against that railway administration;
(b) if the passenger was, or the animals or the goods were, booked through over the railway of two or more railway administrations against the railway administration from which the passenger obtained his pass or purchased his ticket or to which the animals or goods, were delivered for carriage, as the case may be, or against the railway administration on whose railway the destination station lies, or the loss, injury, destruction, damage or deterioration occurred;
and, in either case, the suit may be instituted in a Court having jurisdiction over the place at which the passenger obtained his pass or purchased his ticket or the animals or goods were delivered for carriage, as the case may be, or over the place in which the destination station lies, or the loss, injury, destruction, damage or deterioration occurred."
7. The said substituted Section 80 of the Indian Railways Act does not expressly provide that in respect of suits for compensation for loss, destruction, damage, deterioration, nondelivery, etc. of passenger, animals or goods against the Railways, Section 20 of the Civil Procedure Code, 1908 or Section 18 of the Presidency Small Cause Courts Act, 1882 shall no longer be applicable. The point is whether by enacting ".....the suit may be instituted" in the Courts having jurisdiction over the places mentioned in the last part of Section 80 of the Indian Railways Act, 1890, the said section of the Railways Act by implication overrides Section 20 of the Civil Procedure Code, 1908 and Section 18 of the Presidency Small Cause Courts Act, 1882. The problem may be posed slightly differently. Whether in respect of the suits mentioned in Section 80 of the Railways Act the said section has created a new or special jurisdiction or a special or a particular procedure which must be followed and no others. Therefore, Section 20 of the Code of Civil Procedure and Section 18 of the Presidency Small Cause Courts Act, 1882 are no longer applicable to such suits.
8. In support of his submission that Section 80 of the Indian Railways Act does not impliedly override the provisions of Section 20 of the Code and Section 18 of the Presidency Small Cause Courts Act, Mr. Pal referred us to pp. 365 to 381 of Craies on Statute Law, 7th Edition, where the principles of implied repeal have been discussed. He also relied upon the decision on the point of implied repeal by the Supreme Court in the case of Municipal Council, Palai v. T. J. Joseph, . He submitted that there was no direct conflict between Section 20 of the Code and Section 18 of the Presidency Small Cause Courts Act, on the one hand, and Section 80 of the Indian Railways Act on the other, and there was no occupation of the same legislative field. Two sets of provisions were enabling and affirmative provisions and they were not repugnant to each other. The legislature could undoubtedly exercise power of repeal by implication but it was equally well settled that there was a presumption against implied repeal. Failure to add a repealing clause and use of the words "..... the suit may be instituted....." in Section 80 of the Railways Act, according to Mr. Pal, indicated that the Legislative intendment was not to repeal the existing legislature. Mr. Pal submitted that Section 80 of the Indian Railways Act has only created additional forum for instituting suits for compensation referred to in the said section. Therefore, in the matter of places of suing the Railways for compensation for loss, destruction, damage, etc., the provisions of Section 20 of the Code and Section 18 of the Presidency Small Cause Courts Act continue to co-exist with Section 80 of the Indian Railways Act.
9. The aforesaid principles relating to implied repeal are well settled. But "what words will establish repeal by implication is impossible to say from authority or decided cases." The Civil Procedure Code is a general enactment while the Indian Railways Act is a particular enactment. Both in the text-books and in the reported decisions on the point, emphasis has been therefore placed not upon 'the grammar' but upon the real intention in enacting a subsequent statute on a subject already dealt with by the earlier general enactment/enactments. By mentioning the Courts in which the suits for compensation may be filed, Section 80 of the Railways Act purports to deal with matters which have been dealt with in Section 20 of the Code and Section 18 of the Presidency Small Cause Courts Act. These two sets of laws deal with the same subject of territorial jurisdiction of Courts. We are, therefore, required to ascertain whether in respect of suits for compensation against the Railways, the intention was to override the general law. The legislative history, the state of affairs which existed prior to the date of substitution of Section 80 of the Railways Act, etc. may be also considered in order to understand the context in which the said substituted section of the Act for the first time mentioned the places at which suits for compensation referred to in the said section "may be instituted".
10. Before its substitution by Section 14 of the Indian Railways (Amendment) Act, 1961, Section 80 of the Indian Railways Act dealt only with through booked traffic, i.e., in respect of goods etc. carried through more than one railway system. Under the deleted Section 80 of the Indian Railways Act a suit for compensation for loss, destruction, damage, etc. could be instituted against the Railway Administration with which the passenger, animal or goods had been booked as well as against the Railway Administration which was to deliver the goods. The previous Section 80 of the Railways Act did not specify the places of suing for such suits for compensation in respect of loss, destruction, damage, etc. to through booked traffic. The repealed Section 80 of the Act did not deal with suits for compensation in respect of loss, destruction, damage, etc. of passenger, animals or goods carried by one single Railway Administration, i.e., when both the booking and the delivery places were within the same Railway Administration. In the absence of any special provision relating to places of suing for suits for compensation both in respect of through booked traffic and traffic carried over one single railway system, the general provisions relating to places of suing contained in Section 20 of the Code or in Section 18 of the Presidency Small Cause Courts Act, as the case might be, used to apply also to suits for compensation against the Railways.
11. Thus, before the insertion of substituted Section 80 of the Indian Railways Act, a suit for compensation against the Railway Administration could be instituted in a Court within whose jurisdiction the cause of action, wholly or in part, arose. By judicial interpretation the expression 'cause of action' had come to acquire a very wide meaning and the same included every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Therefore, to a suit for compensation against the Railways, the plaintiff of such a suit had a very wide choice and could institute his suits in a Court having jurisdiction over the place where a part of the cause of action had arisen and which might be far away from the places of booking or of delivery of the consignment in question. At one time there was some difference of view among the different High Courts as to whether Clause (a) of Section 20 of the Code could be also relied upon for instituting a suit against the Railways carried on by the Union of India in a Court having jurisdiction over the place where headquarter of the defendant Railways was situated. The Supreme Court in the case of Union of India v. Ladulal Jain, , affirmed the decision of the Assam and Nagaland High Court and held that the Railways can be said to be carrying on business at a place their headquarters were situated. Therefore, the Court within whose territorial jurisdiction the Railway's headquarters were located had jurisdiction to entertain a suit for compensation against the said Railways. This decision was rendered in a case which arose before the insertion of the new Section 80 of the Indian Railwwways Act.
12. Section 14 of the Indian Railways Act, 1961 which deleted the previous Section 80 of the Act and inserted in its place the new Section 80 no doubt, did not expressly provide that the said provision of Section 80 of the Act would override all other laws. But Section 80 of the the Indian Railways Act is in the nature of a special provision applicable only to suits for compensation against the Railways. The new Section 80 of the Railways Act has not only mentioned the class of the suits covered by the said provision but also indicated which of the Railway Administrations are to be made defendant in such suits. Thirdly, Section 80 mentioned the places where the said suits may be instituted. The use of the expression 'may be instituted' in Section 80 of the Railways Act was equivalent to 'shall be instituted'. Section 80 conferred right to institute suits for compensation against the Railways for breach of their obligations for carrying passengers, animals or goods specified in Chapter-VII of the Indian Railways Act. Both, the obligation on the part of the Railways and the right of the consignor and the consignee to institute suits, are now statutory in their nature. The clear intendement of the Legislature was that it would be obligatory for the plaintiffs to institute suits only in the courts mentioned in Section 80 of the Railways Act for enforcement of the claims for compensation against the Railways.
13. We are not prepared to accept the contention of Mr. Pal and Mr. Gupta that new Section 80 of the Railways Act did not indicate any scheme and, therefore, we ought to hold that Section 80 provided for additional forum for institution of suits for compensation against the Railways. In fact, there is a scheme discernible in the Section 80 of the Act. According to its objects and reasons, the Indian Railways (Amendment) Act, 1961 seeks to make Indian Railways responsible as common carrier over the portions of the carriage over Railways and the other amendments were intended to rectify certain defector ambiguities in the existing provisions of the Act which were revealed by the experience in its working. In the case of Union of India v. Steel Stock Holders Syndicate, Pune, , the Supreme Court dealt with inter alia, history and the various circumstances relating to the enactment of the Indian Railways Act, 1961. The Supreme Court had pointed out that originally under the unamended Indian Railways Act of 1890 the Railway's responsibility as a carrier of animals and goods were clearly that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act and the principles relating to common carrier were expressly made inapplicable to the Railways. By enacting the Indian Railways (Amendment) Act, 1961 a basic change was effected in the nature of the Railway's responsibility for the loss, destruction, damage, etc. of animals or goods carried by the Railways and the Railways assumed the responsibilities of a common carrier. Therefore, it would be more logical to hold that while by reason of insertion of new provisions in Chapter VII of the Indian Railways Act, the measure of the Railway's responsibility as a carrier was broadened by constituting them as common carriers, the substituted Section 80 of the Railways Act was enacted to specify which Railway Administration shall be made the defendants and to restrict the number of courts in which the suits for enforcement of the Railways' said responsibility may be enforced and for the compensation claimed. With reference to Section 20(a) of the Code, the Supreme Court at page 1683 of their judgment in the case of Union of India v. Ladulal Jain (supra), had, inter alia, observed that the principles behind the said provision was t hat the suit may be instituted at a place where the defendant would be able to defend the suit without undue trouble. The provisions in new Section 80 of the Railways Act relating to joinder of parties in a suit for compensation and the places of institution of such suits are closely connected The places where suits may be instituted have been selected with reference to the places where the defendant/defendants carry on their activities. Therefore, it would not be unreasonable to hold that by specifying the three courts in which suits for compensation may be instituted, the conveniences of the defendant Railways were kept in views and the courts were specified in Section 80 of the Railways Act in order to confine filing of three suits in those courts which would be in near proximity to places of booking, places of occurrence of loss, destruction, damage, etc. or the place of delivery.
14. Absence in Section 80 of the Railways Act of the express words overriding other provisions relating to places of institution of suits was not very material. We have already indicated that Section 80 of the Railways Act was a particular or special legislation. Section 80 of the Railways Act purports to deal with the subjet of places for instituting particular class of suits which was previously covered by Section 20 of the Code which was a general enactment. Two statutes cover the same field, i.e., territorial jurisdiction. Mentioning for the first time in Section 80 of the Railways Act of the places where suits for compensation may be instituted was itself 'introductive of a new law implying a negative'. When the same subject of territorial jurisdiction has been dealt with in the subsequent legislation (i.e., Section 80 of the Railways Act) the prior laws (Section 20 of the Code and Section 18 of the Presidency Small Cause Courts Act) on the same subject were not intended to subsist. In other words, Section 80 of the Indian Railways Act by requiring something special to be done repealed by necessary implication the former general statute relating to territorial jurisdiction of courts in so far as the suits for compensation against the Railways were concerned. We shall presently refer to the several reported cases which, in our view, have rightly approached the point from two aspects. Firstly, the enactment of a special provision relating to suits for compensation against the Railways in Section 80 of the Railways Act which was in the nature of a particular enactment (sic) implied repeal of Section 20 of the Code which was a general enactment. Secondly, if it was held that in respect of suits for compensation against the Railways both Section 20 of the Code and Section 80 of the Indian Railways Act continue to simultaneously remain in force, then provisions relating to places of suing in Section 80 of the Railways Act would be superfluous and redundant. If it was to be held that Clause (c) of Section 20 of the Code still applied to suits for compensation against the Railways, then the cause of action for the purposes of jurisdiction of courts would arise not only of the three places mentioned in Section 80 of the Act but at several other places. In other words the provisions of Section 80 of the Acts relating to places where the suits for compensation may be instituted would be, in that event, surplusage, and unnecessary. Section 80 of the Act is a special , provision relating to a particular class of suits for compensation against the Railways on account of loss of life or personal injury to a passenger or for loss, destruction, damage, etc. of animals or goods. Section 20 of the Code also lays down as to who may be joined as defendants in suits for compensation. Thirdly, by specifying the courts in which the said suits may be instituted, the legislature clearly intended to give the said courts exclusive territorial jurisdiction to entertain the suits against the Railways and to exclude territorial jurisdiction of other courts. For the same reasons, the Clauses (a) and (b) Section 20 of the Code would be also inapplicable to the aforesaid suits for compensation against the Railways specified in Section 80 of the Railways Act.
15. Mr. Pal had submitted that when Section 80 of the Railways Act does not contain any provision similar to Clauses (a) and (b) of Section 20 of the Code, we should hold that at least the said clauses of Section 20 continue to remain applicable to suits for compensation against the Railways. We regret, we cannot accept this submission. Once it is held that Section 80 is a special or a particular provision applicable to suits for compensation against the Railways it would only be logical to hold that the general provisions contained in all the three clauses of Section 20 of the Code have now become inapplicable to such suits. The very fact that Section 80 of the Railways Act does not at all refer to places at which Railway Administrations may be carrying on business clearly indicates that it was no longer permissible to institute suits for compensation mentioned in Section 80 of the Railways Act in courts within whose territorial jurisdiction the Railway Administrations carry on their business.
16. We have already held that Section 80 of the Railways Act is a special provision which will apply in exclusion of the general provisions of the Civil Procedure Code relating to joinder of parties in a suit for compensation against the Railways and in determining the territorial jurisdiction of courts. To entertain the said suits Section 20 of the Code is attracted only when the other provisions relating to territorial jurisdiction of courts are not applicable. Thus, Section 20 of the Code is a residuary provision. The opening words of Section 20 of the Code indicate that limitations upon its applicability have been imposed. The new Section 80 of the Railways Act having made special and specific provision regarding the territorial jurisdiction of courts to entertain suits for compensation against the Railways, the residuary provision of Section 20 of the Code could no longer apply to such suits. In the instant case, no question arises of barring the access to courts or of ouster of civil court's jurisdiction. Section 80 of the Railways Act does not deprive the right to institute a suit for compensation against the Railways. The substituted Section 80 of the Railways Act only specifies the courts which shall have territorial jurisdiction to entertain such suits. The special provision relating to territorial jurisdiction contained in Section 80 of the Railways Act adversely affect any substantive right to sue for compensation to only matters of procedure (sic). Therefore, the Legislature can curtail or restrict the choice of forum by the plaintiff and in the instant case, precisely the same has been done by mentioning in Section 80 of the Railways Act the courts in which the suits for compensation against the Railways may be filed.
17. Distinction has always been drawn between the provisions of law relating to court's territorial jurisdiction and those relating to the court's jurisdiction in respect of a particular subject matter of dispute. "Jurisdiction has been generally defined to be the power of a court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it, in other words, by jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision" (vide observations of Sir Asutosh Mookerjee, A.C.J. in the Full Bench case of Hriday Nath Roy v. Ram Chandra Barna Sarma, 24 Cal WN 732 : (AIR 1921 Cal 34). Jurisdiction of the court may be qualified or restricted by a variety of circumstances, i.e., it has to be considered with reference to place, value and nature of the subject matter(see judgment of Sir Asutosh Mookerjee J, in the Full Bench case of Ashutosh Sikdar reported in (1907) ILR 35 Cal 61 : 11 Cal WN 1011). The power of a court may be exercised within the defined territorial limits. It's cognizance may be restricted to subject matters of the prescribed value. The court may be competent only to deal with controversy of a specified character. While defects of territorial or pecuniary jurisdiction would be cases of irregularities relating to exercise of a Court's jurisdiction, taking cognizance of a suit whose subject matter is excluded from the court's jurisdiction would be an act of nullity. Defects in pecuniary and territorial jurisdictions of courts have been generally considered as defects of procedure. The pecuniary and territorial jurisdictions may be regulated for achieving proper distribution of cases and in order to ensure convenience of parties. Section 80 of the Railways Act, in effect, limits the application of Section 20 of the Code by specifying the courts which shall have jurisdiction over the suits whose subject matter is the claim for compensation against the Railways for loss of life or personal injury toa passenger or loss, destruction, damage, deterioration or non-delivery of animals or goods. We have already held that Section 80 of the Act, in other words, is in the nature of a special provision in respect of classes of suits mentioned in Section 80 of the Indian Railways Act. Therefore, all the three clauses of Section 20 of the Code would be no longer applicable to such suits for compensation mentioned in Section 80 of the Indian Railways Act. Section 80 of the Railways Act, in other words, provides self-contained provisions relating to places of suing of the class of suits specified in the said section itself.
18. Mr. Pal, who had made the main arguments on behalf of the plaintiff-petitioners, has tried to demonstrate before us that by reason of the provisions contained in Section 80 of the Railways Act there would be increase rather than reduction in the number of the Courts where suits for compensation may be instituted. While we cannot help admiring the ingenuity of this argument of Mr. Pal for the reasons already given, we are unable to hold that the object of enacting Section 80 of the Act was to provide additional forum for the institution of suits for compensation against the Railways. It would be more consistent to find that while enlarging the Railway's liability in respect of passengers, animals or goods carried by them on grounds of convenience, the legislature intended to specify which of the Railway Administrations may be sued and to restrict the places where such suits against the said Railways could be instituted. Until the places of suing were provided in the amended Section 80 of the Railways Act, the plaintiffs of the suits for compensation against the Railways had a very wide choice of the selection of the forum. Therefore, we cannot but hold that the object of enacting Section 80 was not only to provide as to who would be made defendants in suits for compensation for loss of life or injury to passengers or loss, destruction, damage, deterioration or nondelivery of animals or goods but also to lay down the exclusive places where such class of suits may be instituted.
18A. We proceed to consider some of the reported decisions on the point at issue. A Division Bench of the Assam and Nagaland High Court in the case of Assam Cold Storage Co. v. Union of India, AIR 1971 Assam 69, inter alia, held that Section 20 of the Code had not been impliedly repealed by Section 80 of the Railways Act. A Division Bench of this Court in the case of Bengal Coal Company v. Union of India, (1979) 2 Cal LI 363, without practically giving reasons of their own had followed the said Division Bench decision in the case of M/s. Assam Cold Storage Company (supra) inadvertently in the reports the name of this case has been wrongly mentioned). Another Division Bench of this Court in the case of Union of India v. Caminco Binani Zinc Ltd. 1978 Cal HN 546, had discharged the Rule obtained by the defendant, Union of India, against the trial court's order rejecting its objection to the territorial jurisdiction to try the suit. The Division Bench held that under Section 20 of the Code the trial Court had jurisdiction because the cause of action for the suit arose within Us territorial jurisdiction. Sankar Prasad Mitra, C.J. and A. K. Janah J. in the case of Oghadmal Choudhary v. Union of India, 1974 Cal LJ 420 however took a contrary view and held that Section 80 of the Railways Act had made Section 20 of the Code inapplicable to suits for compensation against the Railways.
19. Venkataramiah, J. (as he then was) in the case of Union of India v. C. R. Prabhanna, , differed from the decision of the Assam and Nagaland High Court in the case of Assam Cold Storage Company v. Union of India (supra) and held that section 80 of the Railways Act was a complete Code regarding courts before whom suits referred to therein can be filed. The special provisions enacted in Section 80 of the Railways excluded the operation of the general provisions of Section 20 of the Code. Consequently, Section 20 of the Code was no longer applicable to suits falling under Section 80 of the Railways Act after Act 39 of 1961 came into force.
20. We have given our own reasons for reaching the conclusion that Section 20 of the Code and Section 18 of the Presidency Small Cause Courts Act no longer apply to suits mentioned in Section 80 of the Railways Act. We respectfully agree with the view taken in the case of Union of India v. C. R. Prabhanna (supra) that the decision in the case of M/s. Assam Cold Storage Company (AIR 1971 Assam 69) (supra) and the cases which follow the said decisions do not lay down the correct law. The learned Judges who decided the case in M/s. Assam Cold Storage Company (supra) had purported to rely upon the decision of the Supreme Court in the case of Municipal Council Palai v. T. J. Joseph (supra), although the ratio of the said Supreme Court decision was inapplicable. In the case of Municipal Council, .Palai v. T.I. Joseph (supra) the question was whether provisions relating to construction of public halting places, etc. and levy of fees for the use of the sam contained in Travancore District Municipalites Act, 1941 which was a special statute was repugnant to Section 72 of the Travancore Cochin Motor Vehicles Act, 1950 which was a general statute and was enacted later in point of time. Upon consideration of the provisions of the said earlier enacted special legislature and the later enacted general law, the Supreme Court reached the conclusion that the provisions of Section 72 of the Travancore Cochin Motor Vehicles Act was not intended to replace the provisions of Travancore District Municipalities Act. The intention of the legislature appeared to be to allow both sets of provisions to co-exist because both were enabling ones. But the Supreme Court was also careful enough to add that although an implied repeal was not intended provisions of Section 72 of the Travancore Cochin Motor Vehicles Act represented the latest will of the legislature and will have overriding effect on the earlier provision in the sense that despite the fact that some action had been taken by Municipal Council by resorting to the earlier provision, the appropriate authority may nevertheless take action under Section 72 of the Travancore Cochin Motor Vehicles Act, the result of which would be to override the action taken by the Municipal Council under Section 287 of the District Municipalities Act. In the case before the Supreme Court it was noted that no action so far had been taken by the Government under Section 72 of the Motor Vehicles Act In the instant case before us, Section 20 of the Code was part of the general law of procedure enacted earlier in point of time. Section 80 inserted by Act 39 of 1961 in the Railways Act, was a subsequently enacted special provision relating to certain classes of suits and we have already indicated our reasons for holding that it should be inferred that the legislature thereby intended to make general provisions relating to territorial jurisdiction of courts inapplicable to su its for compensation against the Railways.
21. We respectfully differ from the two: Division Bench decisions of this Court in the cases of Bengal Coal Company v. Union of India (1979 (2) Cal LJ 363) (supra) and Union of India v. Cominco Binani Zinc Company (1978 Cal HN 546) (supra). In the said two reported cases the Division Bench had no occasion to fully consider the question of implied repeal and the effect of providing in Section 80 of the Railways Act a special or a particular procedure relating to suits for compensation against the Railways. The said two decisions of this Court accordingly may be held to have not been correctly decided. Mr. Pal, learned advocate for the petitioners has criticised some of the reasons given by the Division Bench in the case of Oghadmal Choudhary v. Union of India (1974 Cal LJ 420) (supra). Mr. Pal submitted that the Division Bench was not right in relying upon Section 4 of the Code in support of their view that Section 80 of the Railways Act overrides Section 20 of the Code. Section 4 of the Code is in the nature of a saving provision in respect of special or local laws which were in force at the time of the commencement of the Code and Section 4 of the Code saved the special jurisdiction or power conferred by any special law which was in force at the time of the commencement of the Code of Civil Procedure, 1908. Section 4 of the Code had no relevance in case one has to decide as to whether the general provisions of the Code have been impliedly repealed by any special law on the same subject matter passed subsequent to the date of the enactment of the Code. Even if some of the reasonings given by the Division Bench in the said case were open to such criticism, their ultimate decision in the said case was correct. It was rightly held in the said case that Section 20(c) of the Code did not any longer apply to suits for compensation against the Railways mentioned in Section 80 of the Indian Railways Act.
22. A Division Bench of the Delhi High Court in the case of New India Assurance Company v. Union of India, had elaborately discussed the question whether Section 80 of the Railways Act has now provided an exclusive forum for filing of suits for compensation. The learned Judges of the Delhi High Court followed the decision of the Karnataka High Court in the case of Union of India v. C. R. Prabhanna (supra) and had differred from the contrary views taken by the Assam and Nagaland High Court in the case of Assam Cold Storage Company v. Union of India (AIR 1971 Assam 69) (supra). We respectfully agree with the views taken in the case of New India Assurance Company v. Union of India (supra). It was correctly pointed out by the Division Bench of the Delhi High Court in the said reported case that in the instant case the principles relating to ouster of civil court's jurisdiction were not attracted. The only effect of mentioning in Section 30 of the Railways Act of the three courts in which suits for compensation may be filed was to restrict the plaintiffs' choice in the matter of filing such suits. The provision had some analogy to agreements by which parties might agree to subject themselves to the jurisdiction of one particular court for determination of their disputes. In the instant case the statute itself has made the choice of forum in respect of suits for resolving disputes relating to loss, destruction, damage, etc. of animals and goods carried by the Railways.
23. A Single Bench of the Bombay High Court in the case of Union of India v. Indian Hume Pipe Co. Ltd., , had also differed from the decision in the case of Assam Cold Storage Company v. Union of India (supra), and had followed the decision.
of the Karnataka High Court in the case of Union of India v. C. R. Prabhanna (supra). The learned Judge held that after insertion of new Section 80 of the Railways Act by Act 39 of 1961 a suit for compensation could not be filed against the Railways on the basis that the said Railways had their headquarters at Bombay. In respect of goods booked at Lucknow, Station of Northern Railway for delivery at Lalitpur Station of Central Railway, the suit could be filed either at Lucknow, Lalitpur or the place where the damage actually occurred.
24. Another Single Judge of the Bombay High Court (at Nagpur) in the case of South Eastern Railway Administration, Calcutta v. Govindlal Gopikisan Mundra, , considered at some length the two differing views respectively represented in the case of Assam Cold Storage Company v. Union of India (AIR 1971 Assam 69) (supra) and Union of India v. C. R. Prabhanna (supra) and held that Section 20 of the Code was no longer applicable to suits for compensation against the Railways. Therefore, the fact that the Railways receipt was negotiated within the jurisdiction of the trial court was no longer relevant for attracting to territorial jurisdiction of the, court to entertain the suit for compensation against the Railways. The suit ought to have been instituted either at the place where the goods were delivered for carriage or in the court having jurisdiction over the place where the goods were to deliver or in the court within whose jurisdiction the loss, destruction, damage etc. occurred Thus the view taken by us in the present Reference finds support in the majority of the reported cases of the different High Courts.
25. The Division Bench decision in the case of Jagannath Chentram v. Union of India (disposed of on April 18, 1979) was rendered in an appeal under Clause 15 of the Letters Patent against the decision of A. N. Ray J. (as he then was) in a suit filed in this Court under Clause 15 of the Letters Patent. It is unnecessary for us to elaborately deal with this Division Bench decision in the case of Jagannath Chentram v. Union of India (supra). The learned Judge had no doubt dealt with the provisions of Section 20 of the Code vis-a-vis Section 80 of the Railways Act and had concurred with the decision of the Karnataka High Court in the case of Union of India v. C. R. Prabhanna (supra). Obviously, Clause 12 of the Letters Patent was relied upon for instituting in the Original Side of this Court to the suit out of which the said appeal arose. It is not within the scope of this Reference to decide whether the provisions of Section 80 of the Railways Act also override Clause 12 of the Letters Patent. The said point not having been referred to us, we have refrained from examining the correctness or otherwise of the said reported decisions of this Court which have inter alia held that Section 80 of the Railways Act does not override Clause 12 of the Letters Patent.
26. For the foregoing reasons, we give the following answer to this Full Bench Reference :
"The forum(s) for the suits mentioned in Section 80 of the Indian Railways Act, 1890 are to be determined solely by the provisions of the said section of the Indian Railways Act 1890, and Section 20 of the Civil Procedure Code, 1908 and Section 18 of the Presidency Small Cause Courts Act, 1882, are no longer applicable to the suits mentioned in Section 80 of the Indian Railways Act, 1890. The said Section 80 of the Indian Railways Act has exhaustively mentioned the courts in which the suits for compensation against the Railways may be instituted."
27. We discharge the Civil Rule Nos. 75 of 1981 and 3803 of 1980. We also dismiss Civil Order No. 362 of 1982. We make Civil Rule Nos. 2938 to 2940 of 1981 absolute, set aside the orders complained of herein. We direct the trial Court to pass appropriate orders for the return of the plaints of the respective suits for presenting the same to the Courts in which suits should have been filed. We also allow the Civil Order No. 2537 of 1981 and the application under Article 227 of the Constitution of India filed by the Union of India against Rakesh Sharma and set aside the orders complained of. We direct the trial court to pass appropriate orders for return of the plaints for presenting the same in the competent court.
28. There will be no order as to costs.
29. Upon delivery of our judgment Mr. Pal has prayed for granting certificate under Articles 133 and 134(A) of the Constitution of India. We consider the points involved in this Reference to be of substantial question of law of general public importance to be considered by the Supreme Court of India For this reason, we grant certificate, as prayed for.
A.C. Sengupta, J.
30. I agree.
Susanta Chatterjee, J.
31. I agree.