Document Fragment View

Matching Fragments

"The history and the object with which the radical provisions of the new Act were intro- duced bear testimony to change of the nature of the liability of the railway administra- tion."
"We, therefore, agree with the learned counsel for the respondent that under the new Act the liability of the Railway has been increased so as to take upon itself the responsibility of a common carrier."

The new comprehensiveness of the scheme of the amend- ments was one of the circumstances that commended itself to the High Court to persuade it to hold that the new Section 80 in Chapter VII, constituted a complete and self-contained special law as to the place of suing respecting suits envis- aged by that Section derogating from the generality of the provisions of Section 20 of the Code of Civil Procedure or the provisions touching the jurisdiction of the Small Cause Courts and that with the enactment of the new Section 80 there was an implied repeal of those other provisions re- specting such suits.

"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 High Court took into consideration what, according to it, was the real intention in enacting the new Section 80 and was persuaded to the view that the Section brought about an implied repeal of the other provisions as to the juris- diction of Courts by itself providing a jurisdiction to these suits. It was observed:

11. The contention emphasised is that where a statute merely recognises a right pre-existing in common-law and provides a remedy, such a remedy, unless the statute ex- pressly bans or excludes other remedies, could only be an additional or concurrent one open to an election. It is true that where a statute does not itself bring into being a new right not a pre-existing right and also provides a remedy therefore so however that the right and the remedy cannot be said to have been brought into existence for the first time uno-flatu, such a remedy would not generally be held to be exclusive but only an additional and concurrent one, along with the pre-existing remedies, unless there are express indications to the contrary in the statute itself. In Municipal Council, Palai v. T.J. Joseph, [1964] 2 SCR 87, this Court considered the tests of repugnancy applied under Article 254(2) of the Constitution, relevant in the examination of circumstances bringing about an implied repeal. Strictly speaking the examination of the question whether an act of Parliament prevails against the law enact- ed by a State under Article 254, does not really involve any question of repeal. In Zaver Bhai Amaidas v. State of Bom- bay, AIR 1954 SC 752 this Court applied the test conversely, of the principle of implied repeal to cases of repugnancy under Article 254(2). It was observed:

"It is true, as already pointed out, that on a question under Art. 25(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises, but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question trader Art. 254(2) where the fur- ther legislation by Parliament is in respect of the same matter as that of the State law."