Calcutta High Court
State Of West Bengal vs Union Of India (Uoi) on 24 June, 1986
Equivalent citations: AIR1987CAL226, AIR 1987 CALCUTTA 226, (1986) 2 CAL HN 75 (1987) 91 CAL WN 376, (1987) 91 CAL WN 376
JUDGMENT A.M. Bhattacharjee, J.
1. This appeal arising out of a simple suit against the Railways for compensation for non-delivery of the goods consigned has involved several questions of law. The suit was filed on 27-2-1962 in the Court of the Subordinate Judge, 24-Parganas, on the allegation that a consignment of several drums of Caustic Soda, booked on 18-9-1948 for and on behalf of the then Province of West Bengal at Kantapukur Railway Station for carriage to Riyang Railway Station to be delivered to the Quinologist of the Government of West Bengal in Mungpoo, District Darjeeling, was never delivered.
2. The learned Subordinate Judge, who tried the suit, dismissed the suit on three grounds. The first ground was that the suit having been filed by the State of West Bengal against the Union of India could be taken cognisance of only by the Supreme Court in its original jurisdiction under Article 131 of the Constitution. The second gfound was that out of the four Railways sued in this case, no notice of claim under Section 77, Railways Act, was sent to three of them while the notice sent to the remaining Railway was bad not having been addressed to the the proper officer. And the third ground was that the contracting Railway not having been sued, none of the Railway Administrations sued in this case could be held liable as there was nothing on record to show that the loss occurred on the railway of any of them. The issues relating to limitation was, however, held by the learned Subordinate Judge in favour of the plaintiff-appellant, the State of West Bengal, and the defendant Union of India has filed a cross-objection on that score.
3. Mr. Sudhir Bose, the learned counsel for the plaintiff-appellant has firstly urged that the learned Judge having held that his Court had no jurisdiction to try the suit and that the suit was exclusively triable by the Supreme Court in its original jurisdiction under Article 131 of the Constitution, ought to have straightway returned the plaint for presentation to the proper Court without trying and dismissing the same on merits. The contention of Mr. Bose could have merited consideration if the suit was really triable by the Supreme Court in its original jurisdiction under Article 131 of the Constitution, as held by the learned Subordinate Judge. The relevant portion of Article 131 reads thus :--
"131. Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute-- (a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or(c) between two or more States; if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends".
4. The learned Subordinate Judge having decided the suit in 1965, his attention could not obviously be drawn to the decision of the Constitution Bench of the Supreme Court in State of Bihar v. Union of India, where the Supreme Court clearly ruled (at pp. 1450-1451) that "this much is certain that the legal right which is the subject of dispute must arise in the context of the Constitution and the Federalism it sets up". In the instant case, the dispute relating to the legal right of the State of West Bengal to sue for compensation for non-delivery of the goods consigned was not a dispute arising "in the context of the Constitution and the Federalism it sets up", but was merely a dispute arising from the legal rights of a private consignor/consignee of goods. That a dispute of such a nature, as in the instant suit, would not attract the provisions of Article 131 has now been finally settled by the Supreme Court in a rather recent decision in Union of India v. State of Rajasthan, which arose out of a suit filed by the State of Rajasthan in the ordinary Civil Court for damages for the loss suffered by it on account of the damage caused to the goods transported through the Railway Administration and it has been held that the claim was evidently a claim against the Railway Administration and cognizable by the ordinary Civil Court and the Union of India had to be impleaded and sued only because of its being the owner of the Indian Railways and of the provisions of Article 300 of the Constitution and "it could never have been the intention of the framers of the Constitution that any ordinary dispute of this nature would have to be decided exclusively by the Supreme Court". It has been further ruled (at p. 1679) (of AIR 1984 SC) that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the Constitutional relation that exists between them and the powers, rights, duties, immunities, liabilities, disabilities etc. flowing therefrom. This being the legal position, we must hold that the present suit was clearly cognizable by the Court of the Subordinate Judge and the learned Judge was wrong in holding that he had no jurisdiction to try the same as it was within the exclusive jurisdiction of the Supreme Court under Article 131. That being so, the contention on behalf of the plaintiff-appellant that the learned Judge, having found no jurisdiction to try the suit and having held the same to be within the exclusive jurisdiction of the Supreme Court, ought to have returned the plaint for presentation to the proper Court without deciding the suit on all the points, need not detain us.
5. The second ground on which the suit was dismissed by the trial Judge was that no notice of claim under Section 77 of the Railways Act, as it stood before the Railways (Amendment) Act of 1961, was served on the three out of the four Railways sued in this case and that in respect of the fourth one, the notice of claim was not addressed to any Manager as required under Section 140 of the Railways Act, as it stood before the Amendment as aforesaid. It is not disputed that the notice of claim having been served long before the replacement of Section 77 of the Railways Act by Section 78B and the amendment of S. 140 by the Amendment Act of 1961, was required to comply with the provisions of Section 77 and Section 140 as they stood at the relevant time. Whatever might be the position under the new Section 78B, the position under the old Section 77, as pointed out by the Supreme Court in Jetmull Bhojraj v. Darjeeling Himalayan Railways, , was that "a notice thereunder must be given to every Railway Administration against whom a suit is eventually filed" and that a suit against any such Railway Administration without such notice was to be dismissed. In that view of the matter, the suit was rightly dismissed by the learned Judge against the three Railway Administrations to whom no notice of claim under Section 77 was given. A notice of claim was, however, sent to one of the Railways Administrations, being the D. H. Railway, later succeeded by N.E. Railway, which was the destination Railway; but the notice was sent to the Traffic Superintendent of that Railway. And relying on the decision in Mohanlal Shrilal v. Union of India, (1965) 69 Cal WN 614 the learned Subordinate Judge held that such a notice to the Traffic Superintendent could not amount to a proper notice under Section 77 of the Railways Act in view of Section 140 thereof whereunder notice was to be sent to the Manager.
6. It has, however, been urged on behalf of the appellant that even if the notice of claim sent to the D.H. Railway, now represented by the N.E. Railway, was defective for not having been addressed to the proper officer, the defect was waived as the Railway Administration, far from throwing out the notice on the ground of such defect, entered into correspondence, assured enquiry and in fact proceeded with the enquiry into the matter. There are authorities for such a view and the Division Bench decisions of this Court in South Indian Co-operative Stores v. Union of India, and in Union of India v. Alliance Assurance Co., are such authorities. That such a notice can be waived can no longer be questioned in view of the decision of the Privy Council Vellayan Chettiar v. Province of Madras, AIR 1947 PC 197 at p. 199 and of the Supreme Court in Dhian Singh v. Union of India, where it has been ruled that a notice under Section 80 of the Code of Civil Procedure can be waived by the authorities. But in that case we would, as pointed out in South Indian Co-operative Stores (supra) (at 987 of 60 Cal WN), have to decide whether the Traffic Superintendent, to whom the notice was addressed, was competent to waive the notice or the defects therein to effectively bind the Railway Administration by such waiver. It is, however, not necessary for us to go into that question in this case as, even assuming that the defect in the notice was so waived by the destination Railway, the suit was nevertheless to fail on the third ground pointed out hereinabove and discussed hereinbelow.
7. Under Section 80 of the Railways Act, as it stood at the relevant time before the amendment of 1961, no Railway Administration, other than the one which booked the consignment, could be effectively sued unless the loss was proved to have occurred on its Railway. As pointed out by the Supreme Court in Jetmull Bhojraj (supra, at p. 1885), "under Section 80 of the Railways Act it is for the consignor to establish, if he wants to sue a Railway Administration other than the one which booked the consignment, that the damage had occurred on its system". Therefore, the D.H. Railway, later succeeded by the N.E. Railway, could not be sued unless it was shown that the loss occurred on its system. There is nothing on record to show that the consignment was duly delivered by the other Railways to the D.H. Railways and the loss occurred on that Railway. The D.H. Railway, later represented by the N.E. Railway, could not therefore be sued even if the protection of a notice under Section 77 was waived by it. The learned Judge was accordingly right in dismissing the suit.
8. This brings us to the cross-objection preferred by the defendant-respondent which has raised the question as to whether the suit was governed by Article 149 of the Limitation Act of 1908, as held by the learned Judge, providing a period of 60 years of limitation or by Article 30/31 thereof providing 1 year of limitation. The present suit having been instituted in 1962 before the commencement of the Limitation Act of 1963 was obviously governed by the Limitation Act of 1908 and that position has been made expressly clear by Section 31(b) of the present Act of 1963 providing that nothing in the Act of 1963 shall affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement. It is undisputed that the present suit having been filed in 1962 in respect of a consignment booked in 1948 was palpably barred by time, if Article 30/31 governed the matter. Article 149, however, provided a period of 60 years for "any suit by or on behalf the Central Government or any State Government, except a suit before the Supreme Court in the exercise of its original jurisdiction". The instant suit was one by a State Government, though it was against the Central Government also. But a suit by or on behalf of a State Government does not cease to be so solely because it is also a suit against another State Government or the Central Government. Article 149 (now Article 112 of the 1963 Act) would obviously apply whenever the suit is by or on behalf of a Government, whosoever might be the defendant, whether any other Government or a private citizen, unless the suit is one covered by Article 131 of the Constitution. The Legislature in enacting Article 149 of the Limitation Act of 1908 (as in enacting Article 112 of the present Act) carved out only one exception to the applicability of that Article in respect of suits before the Supreme Court in the exercise of its original jurisdiction and we would be indulging in legislation, so to say, if we carve out another exception to the operation of the Article in respect of suits by one Government against another Government even though not instituted in the original jurisdiction of the Supreme Court under Article 131 of the Constitution. It is true that the Railways being also carriers within the meaning of Article 30/31 of the Limitation Act (now Article 10/11 of the 1963-Act), the suit was also a suit against carriers within the meaning of those Articles. But those were general Articles meant to apply to all suits where the carriers were the defendants and had nothing to do with the character of the plaintiff. But Article 149 was a special Article meant to apply to any suit by the Government and it is settled law that if a special Article also applies to a suit, that alone would govern it and not the general Article. As the Maxim goes, Generalia Specialibus Non Derogant. It is also the settled law that if two Articles of limitation are wide enough to apply to a suit, and neither of them applies more specifically than the other, the Court should generally apply that Article which would keep alive rather than the one which would bar the remedy. We are accordingly of the view that the learned Judge was right in holding that the suit was governed by Article 149 of the Limitation Act and was not barred by limitation.
9. But, as already indicated, the suit in our view was rightly dismissed and we accordingly dismiss the appeal and for the reasons indicated in the preceding paragraph we also dismiss the cross-objection. We, however, make no order as to costs.
Sankari Prasad Das Ghosh, J.
10. I agree.