Orissa High Court
Union Of India vs Steel Authority Of India Ltd. & Others on 30 September, 2014
Author: B.R.Sarangi
Bench: Amitava Roy, B.R.Sarangi
HIGH COURT OF ORISSA : CUTTACK
A.H.O. No. 85 of 1996
In the matter of an appeal under Clause 10 of the Letters Patent of Patna High Court
read with Clause- 4 of the Orissa High Court Order, 1948.
----------
Union of India ......... Appellant
-Versus-
Steel Authority of India Ltd. & others ......... Respondents
For Appellant : Mr. A.Pal
For Respondents : Mr. N.K.Sahu
(for Res. No.1)
PRESENT:
HONOURABLE THE CHIEF JUSTICE SHRI AMITAVA ROY
AND
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 17.09.2014 : Date of judgment: 30.09.2014
Dr. B.R.Sarangi, J.A judgment of the learned Single Judge of this Court dated 17.09.1996 passed in M.A. No. 172 of 1993 under Section 23(1) of the Railway Claims Tribunals Act, 1987 awarding Rs.1,32,87,749/- towards the claim made by the respondent is under challenge in this appeal.
2. The factual matrix is that the plaintiff-respondent used to get supply of imported coal for production of steel in its plant at Rourkela through Visakhpatnam Port. The coal was to be carried from Visakhpatnam to the Steel Authority of India Limited (SAIL), RSP change yard at Bandamunda. The shortest and cheapest route available on the railways from Visakhpatnam to Bandamunda is via Vijainagram-Titilagarh-Sambalpur-Jharsuguda-Rourkela the distance being 2 667 Kms. In the absence of any specific instructions of the sender, the goods are to be dispatched and charged in the shortest and cheapest route. But as per the provisions contained in Section 27-A of the Indian Railways Act, 1890, power is conferred on the Central Government directing the Railway Administration to carry any specific goods to a specific destination on a particular route known as "rationalized route". Such power being exercised by the Central Government in General Order No. 1 of 1986 directing the South Eastern Railway Administration that imported coal from Visakhpatnam Port to Rourkela Steel Plant has to be booked and routed through the rationalized route, namely via Vijainagaram- Khurda Road-Kharagpur-Tatanagar-Chakradharpur having a total distance of 1082 Kms, the rationalized scheme having been enforced when the relevant consignments were booked from Visakhpatnam for delivery at Rourkela. In the forwarding note, though it was noted forwarding station and destination station as Visakhpatnam and Rourkela respectively, it had not been indicated the route though which goods would be delivered, though the Railways authorities issued receipts showing Visakhpatnam being the booking station, Bandamunda via Kharagpur being designation. Accordingly charges calculated and collected from the plaintiff-SAIL. The plaintiff had neither choice of route nor any opportunity to it to know the actual route of transport which was within the special knowledge of the Railway authorities. The booking and dispatch in question were during the period from 15.04.1986 to 28.11.1986 and 05.01.1987 to 28.02.1987. As per the practice prevailing in the Railways, goods have to be carried in a shortest and cheapest route unless the consignor instructs otherwise. In view of the General Order No. 1 of 1986 making it compulsory for booking the consignment through rationalized route and in view of the railway receipts, the plaintiff-SAIL did not make any grievance for payment for the travel of goods through the rationalized 3 routes. As per the provisions contained in Rule 125(1)(h) of the Tariff Rules, the Railways is to book the consignment in the rationalized route and not in the shortest route and to carry the goods in the rationalized route. When the officers of the plaintiff came to know that charges were levied with freight on rationalized route basis instead of shortest and cheapest route, they objected to the same and stated that when the goods were to be dispatched through the shortest and cheapest route, there was no justification for carrying the same otherwise and saddle if with freight for rationalized route. Therefore, the very foundation of the Central Government General Order No.1 of 1986 was absolutely misconceived. Finding no other way out, the plaintiff-SAIL filed Money Suit No.115 of 1989 before the learned Sub-ordinate Judge, Rourkela seeking a decree for Rs.1,32,87,749/- with pendente lite and future interest thereon at the rate prevailing in the Nationalized Bank. When the matter was sub judice before the Subordinate Judge, Rourkela, due to establishment of the Railway Claims Tribunal, Bhubaneswar, the aforesaid Money Suit was transferred to the said Tribunal, which was registered as T.A. No. 289 of 1990. The learned Tribunal after due adjudication directed the defendant-appellant to refund a sum of Rs.1,32,87,749/- and costs amounting to Rs.1,51,608.75 towards Court fees and Rs.1,33,740/- towards lawyer's fees apart from pendente lite interest @12% per annum on the principal sum i.e. Rs.1,32,87,749/- from the date of filing of the suit, i.e. 14.08.1989, till the date of realization. Against the said judgment dated 08.01.1993 passed by the Railways Claims Tribunal, Bhubaneswar in T.A. No. 289 of 1990, the defendant-appellant preferred M.A. No.175 of 1993 before this Court. The learned Single Judge of this Court vide judgment dated 17.09.1996 dismissed the appeal confirming the order passed by the learned Railway Claims 4 Tribunal, reported in AIR 1997 Orissa 77. Hence the present Letters Patent Appeal.
3. While the matter was taken up for hearing, the respondent raised a preliminary objection with regard to maintainability of the present appeal. Therefore before going into the merits of the case, this Court is to decide whether against a judgment passed in Appeal under Section 23 of the Railway Claims Tribunals Act, 1987, the present Letters Patent Appeal is maintainable or not.
4. Mr. N.K. Sahu, learned counsel for the respondent, strenuously urged that intra Court appeal by invoking Clause-10 of Letters Patent read with Clause-4 of Orissa High Court Order, 1948 is not maintainable against the judgment of learned Single Judge arising out of an appeal under Section 23 of the Railway Claims Tribunals Act, 1987. Referring to Section 23 of the Railway Claims Tribunals Act, 1987 it is urged that intra Court appeal against the judgment of a learned Single Judge is not maintainable. In order to substantiate his submission, he has relied upon the judgments of the apex Court in Aswini Kumar Ghose and another v. Arabinda Bose and another, AIR 1952 SC 369, South India Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivandrum and another, AIR 1964 SC 207, Fuerst Day Lawson Limited v. Jindal Exports Limited (2011) 8 SCC 333, P.S.Sathappan (dead) by Lrs. v. Andhra Bank Ltd. and others, (2004) 11 SCC 672, Hari Khemu Gawali v. Deputy Commissioner of Police, Bombay and another, AIR 1956 SC 559.
5. Mr. A. Pal, learned counsel for the appellant, argued that the judgment relied upon in Fuerst Day Lawson Limited (supra) is not applicable to the present context. Making an analogy of the provisions, under Section 54 of the Land Acquisition Act vis-à-vis Section 23 of the Railway Claims Tribunals Act, 5 1987, Mr.Pal urged that this Letters Patent Appeal is maintainable. It is further urged that intra Court appeal to the Division Bench against an order passed by the learned Single Judge being a power vested with the Court under the chapter in which the High Court was established and this being a special power, the appeal is clearly maintainable as has been interpreted in various judgments of the apex Court. To substantiate his contention he has relied upon the judgments of the apex Court in Sharda Devi v. State of Bihar, (2002) 3 SCC 705, National Sewing Thread Co. Ltd. Chidambaram v. James Chadwick and Bros.Ltd, AIR 1953 SC 357, Girnar Traders v. State of Maharashtra and others (2007) 7 SCC 555, and P.S.Sathappan (supra).
6. On the basis of the aforesaid pleaded facts, the following points emerge for consideration.
(i) Whether the construction of Section 23 of Railway Claims Tribunals Act, 1987 contemplates intra Court appeal against the judgment of a learned Single Judge in view of Clause-10 of the Letters Patent?
(ii) Whether the provisions of Section 23 of Railway Claims Tribunals Act, 1987 can be construed to be in pari materia weith the provision of Section of Section 54 of the Land Acquisition Act, 1894 so as to bar all appeals against the judgment of a learned Single Judge under Clause-10 of the Letters Patent?
7. Referring to the statements of objects and reasons of the enactment of Railway Claims Tribunals Act, 1987, Mr. N.K. Sahu, learned counsel for the respondent submitted that the Railway Claims Tribunal Act being a complete Code adjudication of the grievance by the claims Tribunal is made subject to a solitary appeal to the High Court as provided under Section 23 of the Railway Claims Tribunal Act, 1987 under Chapter-V and no further, in order to 6 provide complete justice with speedy and effective remedy without lingering the longevity of the litigation. Section 23 of the Railway Claims Tribunals Act, 1987 read as follows:
"Appeals- (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in any other law, an appeal shall lie from every order, not being an interlocutory order, of the Claims Tribunal, to the High Court having jurisdiction over the place where the Bench is located.
(2) No appeal shall lie from an order passed by the Claims Tribunal with the consent of the parties.
(3) Every appeal under this section shall be preferred within a period of ninety days from the date of order appealed against."
8. Mr.Sahu has referred to Section 28 of the said Act which has provided overriding effect thereof any provisions of any other law, which are inconsistent with the Railway Claims Tribunals Act, 1987 and it is urged that on a bare reading of Section 23 of the said Act, except the prohibition of filing of an appeal against an order passed by the claims Tribunal, with the consent of the parties, all other procedures provided for filing of appeal under the Code of Civil Procedure or in any other law (which obviously include appeals under the Letters Patent), have been for all purposes taken away by necessary implication. As the aforesaid appeal provision starts with a non obstante clause, i.e., "notwithstanding anything contained with the code of Civil Procedure, 1908, or in any other law", only one appeal shall lie from every order of the Claims Tribunal to the High Court having jurisdiction. To reinforce the argument, Mr. Sahu has referred to various decisions of the apex Court interpreting the phrase "notwithstanding anything contained".
9. In Aswini Kumar Ghose case (supra) "notwithstanding contained" has been interpreted in respect of various provisions of different statute, wherein the apex Court in paragraph 27 held as follows: 7
" x x x x the non obstante Clause can reasonably be read as overriding "anything contained" in any relevant existing law which is inconsistent with the new enactment.......... The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for, even apart from such clause, a latter law abrogates earlier laws clearly inconsistent with it. "
10. The apex Court in South India Corporation (P) Ltd. (supra) while dealing with the dispute relating to the interpretation of the constitutional provision of Article 227, 278 and 372 of the Constitution of India brought out a distinction between the provision opening out with the expression "subject to" and a non obstante clause with the phrase "notwithstanding anything in the constitution" and held in paragraph-19 of the aforesaid decision as follows:
"That apart, even if Article 372 continues the pre-Constitution laws of taxation, that provision is expressly made subject to the other provisions of the Constitution. The expression "subject to" conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject. Further Article 278 opens out with a non obstante clause. The phrase "notwithstanding anything in the Constitution" is equivalent to saying that in spite of the other articles of the Constitution, or that the other articles shall not be an impediment to the operation of Article 278. While Article 372 is subject to Article 278, Article 278 operates in its own sphere in spite of Article 372. The result is that Article 278 overrides Article 372; that is to say, notwithstanding the fact that a pre-Constitution taxation law continues in force under Article 372, the Union and the State Governments can enter into an agreement in terms of Article 278 in respect of Part-B states depriving the state law of its efficacy. In one view Article 277 excludes the operation of Article 372, and in the other view, an agreement in terms of Article 278 overrides Article 372. In either view, the result is the same, namely, that at any rate during the period covered by the agreement the states ceased to have any power to impose the tax in respect of "works contracts."
11. In view of the aforesaid interpretations of the phrases, the expression "subject to" signifies yielding of place to the applicability of another provision or other provisions to which it is made subject. Similarly, the provisions starting with the phrase "notwithstanding anything contained in any other law"
conveys that the provisions starting with the aforesaid non obstinate clause would 8 only be operative with an overriding effect, thus overriding any other provisions sought to be excluded.
12. Referring to paragraphs 22 and 36 of the judgment in P.S. Sathappan case (supra) which was followed in Fuerst Day Lawson Ltd. case (Supra) in paragraph 36(vii), the apex Court held as follows:
"The exception to the aforementioned rule is where the special Act sets out a self-contained code and in that event the applicability of the general law procedure would be impliedly excluded. The express provision need not refer to or use the words "letters patent" but if on a reading of the provision it is clear that all further appeals are barred then even a letters patent appeal would be barred."
13. Therefore, it is pleaded that in view of the aforesaid clear position of law laid down by the apex Court and provisions contained under Section 23 of the Railway Claims Tribunal Act, the only reasonable interpretation can be given that the vested right of appeal and the forum of appeal provided to the High Court admits of only one appeal against the judgment of the Railway Claims Tribunal by excluding further intra Court appeal against the judgment of such appeal by taking recourse to clause-10 of the Letters Patent by necessary implication.
14. The applicability of Fuerst Day Lawson Ltd. case (supra) to the present context has been refuted by Mr. Pal, learned counsel for the appellant. He has referred to the provisions contained under Section 23 of the Railway Claims Tribunal Act and Section 54 of the Land Acquisition Act, 1894. Section 54 of the Land Acquisition Act reads as follows:
"Appeals in proceeding before court:- Subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 9 of the Code of Civil Procedure, 1908 (5 of 1908) and in order XLV thereof. "
15. Mr. Pal has also referred to Sections 37 and 50 of the Arbitration and Conciliation Act, which read as follows:
"37.Appealable orders.- (1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:---
(a) granting or refusing to grant any measure under section 9:
(b) setting aside or refusing to set aside an arbitral award under section 34.
(2) Appeal shall also lie to a court from an order of the arbitral tribunal----
(a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or
(b) granting or refusing to grant an interim measure under section 17.
(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or taken away any right to appeal to the Supreme Court.
50. Appealable orders.- (1) An appeal shall lie from the order refusing to--
(a) refer the parties to arbitration under section 45;
(b) enforce a foreign award under section 48 to the court authorised by law to hear appeals from such order.
(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court."
16. Referring to above mentioned provisions, it is urged that Section 23 of the Railway Claims Tribunal Act and Section 54 of the Land Acquisition Act both are akin to each other, whereas Sections 37 and 50 of the Arbitration and Conciliation Act, 1996 are different and have expressed words by which the jurisdiction of Second Appeal is taken away. Therefore, the distinction in the appeal provision has different implication so far as maintainability of the Letters Patent Appeals are concerned. Relying upon the judgment in National Sewing Thread Co. Ltd. Chidambaram case (Supra), he submitted that the apex Court held that once an appeal reaches the High Court, it has to be determined 10 according to the rules of practice and procedure of that Court and in accordance with the provisions of the Charter under which that Court is constituted, which confers on it the power in respect of the method and manner of exercising that jurisdiction. It has been further held that when a statute directs that an appeal shall lie to a Court already established, that appeal shall be regulated by the practice and procedure of that Court. It is further urged that the decision in Fuerst Day Lawson Ltd. case (supra) is not applicable to the present context. There is an express exclusion clause relating to Second Appeals under Section 37 and 50 of the Arbitration and Conciliation Act, 1996. Therefore, the express exclusion clause which bars a Second Appeal before the High Court would include the Letters Patent Appeal. In that context the apex Court in Fuerst Day Lawson Ltd. (supra), held that express exclusion clause bars Letters Patent Appeal also.
17. In the above view of the matter, now it is to be considered what actually "Letters Patent" means.
18. In Umaji Keshao Meshram v. Radhikabai, 1986 (Supp.) SCC 401 : AIR 1986 SC 1272, the apex Court held as follows:
"Letters Patent mean writings of the sovereign, sealed with the Great Seal, whereby a person or company is enabled to do acts or enjoy privileges which he or it could not do or enjoy without such authority. Letters Patent thus mean an instrument issued by the Crown or government (see Black's Law Dictionary, 5th Edn.) Letter Patent establishing the High Court issued by the Crown would thus fall within the meaning of the term "instrument" as used in Section 8(2) of the General Clauses Act".
19. In P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda, (2002) 5 SCC 548 : AIR 2002 SC 2445, the apex Court in para 36 held as follows:
"they are open letters; they are not sealed up, but exposed to view, with the great seal pendant at the bottom; and are usually directed or addressed by the king to all his subjects at large. And therein 11 they differ from certain other letters of the king, sealed also with the great seal, but directed to particular persons, and for particular purposes: which therefore, not being proper for public inspection, are closed up and sealed on the outside, and are thereupon called writs close, literae clausae, and are recorded in the close-rolls, in the same manner as the others are in the patent-rolls"
20. In Sharda Devi case (Supra), the apex Court held that a Letters Patent is a Special Law for the High Court concerned and the powers given to a High Court under the Letters Patent are akin to the constitutional powers of a High Court. Thus, when a Letters Patent grants to the High Court a power of appeal against a judgment of a Single Judge, the right to entertain the appeal would not get excluded unless the concerned statutory enactment excludes an appeal under the Letters Patent. Applying the principles laid down in the said case, it is urged by Mr. A. Pal that the said judgment is squarely applicable the reason being Section 23 of the Railway Claims Tribunal Act and Section 54 of the Land Acquisition Act are the similar provisions. He has referred to paragraphs 11, 14 and 15 of the said judgment, which read as follows:
"11. Mr Sharan submits that Section 54 of the said Act contains a non obstante clause. He submits that the words "notwithstanding anything to the contrary in any enactment for the time being in force" would also include the provisions contained in a Letters Patent. We are unable to accept this submission. A Letters Patent is not an enactment. It is the charter of the High Court. A non obstante clause of this nature cannot cover the charter of the High Court.
14. In our view, Mr Mathur is right. Section 26 of the said Act provides that every award shall be a decree and the statement of grounds of every award shall be a judgment. By virtue of the Letters Patent "an appeal" against the judgment of a Single Judge of the High Court would lie to a Division Bench. Section 54 of the said Act does not exclude an appeal under the Letters Patent. The word "only" occurring immediately after the non obstante clause in Section 54 refers to the forum of appeal. In other words, it provides that the appeal will be to the High Court and not to any other court e.g. the District Court. The term "an appeal" does not restrict it to only one appeal in the High Court. The term "an appeal" would take within its sweep even a letters patent appeal. The decision of the Division Bench rendered in a letters patent appeal will then be subject to appeal to the Supreme Court. Read in any other manner there would be a conflict between Section 54 12 and the provision of a Letters Patent. It is settled law that if there is a conflict, attempt should be made to harmoniously construe the provisions.
15. We, therefore, hold that under Section 54 of the said Act there is no bar to the maintainability of a letters patent appeal. We therefore agree with the view taken in Basant Kumar and others v. Union of India and Others,(1996) 11 SCC 542. The reference is answered accordingly."
Accordingly, it is stated that a Letters Patent Appeal cannot be ousted by implication but the right of an appeal under the Letters Patent can be taken away by an express provision in an appropriate legislation. Such express provision may not refer to nor use the word "Letters Patent", but if on a reading of the provision, it is clear that all further appeals are barred, then the embargo would be vis-à-vis even a Letters Patent Appeal as well.
21. Mr. Pal, learned counsel for the appellant referring to P.S. Sathappan case (Supra) submitted that the express provision of exclusion having been provided under Sections 37 and 50 of the Arbitration and Conciliation Act, 1996, in absence of such express provision of exclusion of further appeals under Section 23 of the Railway Claims Tribunals Act, Letters Patent Appeal is maintainable.
22. Per Contra, it is argued the judgment of the apex Court in Fuerst Day Lawson Ltd. (supra) has taken note of almost all the decisions in relation to filing of appeal taking recourse to the appeal provision provided under the Letters Patent and has laid down the law in paragraph-36 of the said judgment, which drawing support of the law enunciated in paragraphs 22 and 30 of the earlier judgment of the apex Court in P.S. Sathappan case (Supra) as follows:
"22. Thus the unanimous view of all courts till 1996 was that Section 104(1) CPC specifically saved letters patent appeals and the bar under Section 104(2) did not apply to letters patent appeals. The view has been that a letters patent appeal cannot be ousted by implication but the right of an appeal under the Letters Patent can 13 be taken away by an express provision in an appropriate legislation. The express provision need not refer to or use the words "letters patent" but if on a reading of the provision it is clear that all further appeals are barred then even a letters patent appeal would be barred.
Xx xx xx xx xx
30. As such if an appeal is expressly saved by Section 104(1), sub- section (2) cannot apply to such an appeal. Section 104 has to be read as a whole. Merely reading sub-section (2) by ignoring the saving clause in sub-section (1) would lead to a conflict between the two sub-sections. Read as a whole and on well-established principles of interpretation it is clear that sub-section (2) can only apply to appeals not saved by sub-section (1) of Section 104. The finality provided by sub-section (2) only attaches to orders passed in appeal under Section 104 i.e. those orders against which an appeal under "any other law for the time being in force" is not permitted. Section 104(2) would not thus bar a letters patent appeal. Effect must also be given to legislative intent of introducing Section 4 CPC and the words "by any law for the time being in force" in Section 104(1). This was done to give effect to the Calcutta, Madras and Bombay views that Section 104 did not bar a Letters Patent. As appeals under "any other law for the time being in force" undeniably include a letters patent appeal, such appeals are now specifically saved. Section 104 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in sub-section (1), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. We are not saying that a general exclusion would never oust a letters patent appeal. However, when Section 104(1) specifically saves a letters patent appeal then the only way such an appeal could be excluded is by express mention in Section 104(2) that a letters patent appeal is also prohibited. It is for this reason that Section 4 of the Civil Procedure Code provides as follows:
"4. Savings.--(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land."
As stated hereinabove, a specific exclusion may be clear from the words of a statute even though no specific reference is made to Letters Patent. But where there is an express saving in the statute/section itself, then general words to the effect that "an appeal would not lie" or "order will be final" are not sufficient. In such cases i.e. where there is an express saving, there must be an express exclusion. Sub-section (2) of Section 104 does not provide for any express exclusion. In this context reference may be made to Section 100-A. The present Section 100-A was amended in 2002. The earlier Section 100-A, introduced in 1976, reads as follows: 14
"100-A. No further appeal in certain cases.--Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal."
It is thus to be seen that when the legislature wanted to exclude a letters patent appeal it specifically did so. The words used in Section 100-A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the legislature knew that in the absence of such words a letters patent appeal would not be barred. The legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 CPC. Thus now a specific exclusion was provided. After 2002, Section 100-A reads as follows:
"100-A. No further appeal in certain cases.--Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge."
To be noted that here again the legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100-A no letters patent appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100-A nor Section 104(2) barred a letters patent appeal."
23. In view of the aforesaid provisions of law laid down by the apex Court and a bare reading of the provisions contained in Section 23 of the Railway Claims Tribunal Act, the only reasonable interpretation can be given that only one appeal against the judgment of the Railway Claims Tribunal to the High Court is provided by excluding further intra Court appeal against the judgment of such appeal by taking recourse to Clause-10 of the Letters Patent by necessary implication.
24. So far as reply to the second question, it appears that the learned counsel for the appellant had relied upon the appeal provision provided under Section 54 of the Land Acquisition Act, 1894 and has stated that the same is akin to Section 23 of the Railway Claims Tribunal Act. Referring to Sharda Devi 15 case (Supra), it is contended that Letters Patent Appeal is very much maintainable against the judgment of the learned Single Judge. Section 54 of the Land Acquisition Act, 1894 reads as follows:
"54: Appeals in proceedings before Court:- Subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in order XLV thereof. "
25. On perusing the above mentioned provision, the only interpretation possible to be given is that conferment of the appellate power to the High Court under the said provision takes within its sweep all other general power of appeal including the appeal under the Letters Patent under the Charter in which the High Court was established, inasmuch as the said provision starts with the phrase "subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) applicable to the appeals to the original decree and notwithstanding anything to the contrary in any enactment for the time being in force". The necessary corollary of this provision therefore is that the appellate power vested takes within its ambit all the provisions of the appeal provided under the Code of Civil Procedure along with the procedure for filing of further appeal which are vested under the Code of Civil Procedure along with the procedure of filing of further appeal, which are saved under Code of Civil Procedure notwithstanding anything to the contrary in any enactment.
26. A non obstante clause beginning with "notwithstanding anything contained in the Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force", is sometimes appended to a Section 16 in the beginning with a view to give the rest part of the section, in case of conflict, an overriding effect. This question has been considered by the apex Court in Union of India v. G.M Kokil, 1984 (Supp.) SCC 196: AIR 1984 SC 1022. It is identical to say that if a provision recites a non obstante clause, the text following it will have its full operation or that the provisions referred to in the non obstante clause will not be an impediment for the operation of the provisions, suffixed thereto.
27. The learned counsel for the appellant did also refer to Section 96 of the Code of Civil Procedure, which provides a procedure for filing of appeal against the original decree. The said provision in the Code of Civil Procedure is saved under Section 54 of the Land Acquisition Act because that provision starts with the phrase "subject to the provision of the Code of Civil Procedure". However Section 4 of the Code of Civil Procedure provides a savings clause. Therefore, on conjoint reading of Section 54 of the Land Acquisition Act, Section 96 and Section 4 of the Code of Civil Procedure, the appellate power under Clause 10 of the Letters Patent is also saved and will be made applicable against the judgment passed by the High Court in appeal filed under Section 54 of the Land Acquisition Act.
28. For the analysis made with regard to the provisions contained in Section 54 of Land Acquisition Act vis-à-vis Section 23 of the Railway Claims Tribunal Act, it cannot be construed that both the provisions are akin to each other and rather both are distinct and separate in view of the use of the phrase "subject to" in Section 54 vis-à-vis "notwithstanding anything contained" in Section 23 of the Railway Claims Tribunal Act starting with a non obstante clause. 17
29. Mr.Pal, learned counsel for the appellant has placed reliance on Girnar Traders case (supra) where the apex Court has held that only the ratio decidendi can act as binding or authoritative precedent not mere general observations or casual expression of the Court. In paragraph 46 of the said judgment, the apex Court held as follows :
"46. In Union of India v. Dhanwanti Devi, (1996) 6 SCC 44, a three-Judge Bench of this Court has observed as follows: (SCC pp. 51-52, paras 9-10) "9. ... It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates--(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject- matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. x x x"
It is therefore, urged that extracting a sentence here and there from a judgment, the respondent cannot build upon it the exposition of the whole law the same being erroneous because the essence of a decision is its ratio, not every observation found therein.
18
30. To controvert the aforesaid allegation, Mr.Sahu, learned counsel for the respondent has relied upon Hari Khemu Gawali case (supra), wherein in paragraph 10, the apex Court, has held as follows:
"x x x But arguments by analogy may be misleading. .........it is not safe to pronounce on the provision of one Act with reference to the decisions dealing with other Acts, which may not be in parimateria."
As it appears, the view expressed by the apex Court in Hari Khemu Gawali case (supra), is fully applicable to the present context to discard the contention raised by the appellant relying on Sharda Devi case (Supra) although the said decision was rendered by interpreting the appeal provision under Section 54 of the Land Acquisition Act.
In our considered opinion, the interpretation made in Sharda Devi case (Supra) is applicable to its own facts and circumstances and cannot have any application to the present context to give an effective and reasonable interpretation to the appeal provision under Section 23 of the Railway Claims Tribunal Act, which totally prohibits an appeal under the CPC or any other law, including appeals under the Letters Patent. Whereas Section 54 of the Land Acquisition Act completely saves all the procedures of appeal under the Letters Patent by virtue of Section 4 of the Code of Civil Procedure.
31. In view of the aforesaid facts and circumstances, taking into consideration the law decided in P.S. Sathappan case (Supra) and Fuerst Day Lawson Limited (supra) vis-à-vis Section 23 of the Railway Claims Tribunal Act and the interpretation of the non obstante clause mentioned as discussed, this Court holds that no appeal under Clause-10 of the Letters Patent read with Section 4 of the Orissa High Court Order, 1948 is 19 maintainable as Section 23 of the Railway Claims Tribunal Act only permits one appeal against the order/ judgment of the Railway Claims Tribunal before the High Court. The same remedy having already been exhausted, this AHO cannot be sustained in the eye of law.
32. The AHO therefore fails as not maintainable and is dismissed. No cost.
.............................
Dr.B.R.Sarangi, J.
Amitava Roy, C.J. I agree.
.............................
Amitava Roy,C. J.
Orissa High Court, Cuttack
The 30th September, 2014/ Ajay/PKSahoo