Allahabad High Court
M/S Krishak Bharati Co-Operative Ltd. vs Union Of India Through General Manager ... on 20 September, 2023
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:60610 Court No. - 19 Case :- FIRST APPEAL FROM ORDER No. - 476 of 2000 Appellant :- M/S Krishak Bharati Co-Operative Ltd. Respondent :- Union Of India Through General Manager N.E.R. Gorakhpur Counsel for Appellant :- A.K.Bhatnagar Counsel for Respondent :- A.S.G.I.,Anil Srivastava,Jyotesna Pal,Raj Kumar Singh Hon'ble Jaspreet Singh,J.
None appears for the respondent-Railway.
Heard Shri A.K. Bhatnagar, learned counsel for the appellant.
The instant appeal has been preferred U/s 23 of the Railways Claims Tribunal Act whereby the Tribunal dismissed the claim of the appellant solely on the ground of non-compliance of section 106 of the Railways Act.
The submission of the learned counsel for the appellant is that the appellant had issued a notice to the respondent by Registered Post AD dated 7.8.1992 in compliance of Section 106 of the Railways Act.
It is submitted that the same was served on the respondent but there was no compliance. It is further urged that there was no prescribed format for the notice and more so, when a shortage certificate was also issued by the respondent dated 28.6.1998, this in itself indicates that the shortage certificate was received only after the said notice was served.
Learned counsel for the appellant has drawn attention of the Court to a decision rendered by this Court in FAFO No. 475 of 2000 wherein the issue of notice U/s 106 of the Railways Act was considered and was found that since there was no prescribed format coupled with the fact that the shortage certificate would only be issued, once the notice was served and therefore taking note of the aforesaid decision, it is submitted that Section 106(2) of the Railways Act provides for deeming provision. Accordingly, the finding of the Tribunal is bad and the appeal deserves to be allowed.
The Court has considered the submissions made by the counsel for the appellant and also perused the material available on record.
It is not disputed by the counsel for the appellant that along with the claim petition, it was specifically mentioned that a notice U/s 106 of the Railways Act was served on the respondent-authorities. The notice dated 7.8.1992 was also filed along with the claim petition. The record further indicates that the shortage certificate which has been placed on record is dated 28.6.1992 i.e. at least a month and a half prior to the date of the alleged notice U/s 106 of the Railways Act. In this context, if the statement of the Union of India is received, it could reveal that the specific plea had been taken to the written statement in Para No. 6 denying issuance of notice as well as its receipt.
The record would further indicate that in the evidence filed by the appellant in shape of an affidavit, nothing has been brought on record as to how and when the said notice was served. In case, if the notice was sent by the Registered Post A.D., apparently a postal receipt or receiving would have been available to the appellant. However, the same has not been brought on record. This assumes significance since the respondents had clearly denied receiving of the said notice.
In the light of the aforesaid fact which is not disputed, this Court finds that the decision rendered by this Court in FAFO No. 475 of 2000 'Ms. Krishak Bharti Co-Operative Ltd. vs. Union of India' will not help the appellant for the reason that in the said case, the counsel for the Railway had clearly informed that the damage certificate was issued by the Railway administration, once the notice of the claimant was served.
In the instant case, the shortage certificate is dated 28.6.1992 and the alleged notice is dated 7.8.1992. Thus, the aforesaid proposition upon which the decision rendered in FAFO No. 475 of 2000 vide order dated 20.2.2020 was passed, the same is not available to the appellant in the instant case. The appellant has failed to establish that the notice U/s 106 of the Railways Act was ever issued. There has been no correspondence which can indicate that any reply was given by the Railway administration in compliance of the notice dated 7.8.1992.
This Court further finds that along with the memo of appeal, the appellant has annexed a copy of the notice dated 7.8.1992 as Annexure-1 as well as a typed copy of alleged letter dated 18.8.1992 which made a reference to the letter dated 7.8.1992 issued by the appellant. The fact remains that the aforesaid letter upon which reliance has been placed by the notice dated 18.8.1992 was not found on record of the Tribunal which has been perused by the Court. Moreover, what has been brought on record is a typed copy and nor it has been filed with an application under Order 41 Rule 27 CPC.
In view of the aforesaid, the said typed copy of the notice cannot be taken note of and since the appellant has failed to establish the issuance of notice U/s 106 of the Railways Act which is mandatory in nature, accordingly, this Court does not find that there is any error committed by the Tribunal while passing the award dismissing the claim of the appellant dated 4.8.1999 for want of compliance U/s 106 of the Railways Act.
In view of the aforesaid, the appeal is dismissed.
In view of the facts and circumstances, there shall be no order as to costs.
Let the record of the Tribunal be returned.
Order Date :- 20.9.2023 Shravan