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2008 DIGILAW 124 (CAL)

Mustafa Sk v. General Manager, Eastern Railway

2008-01-28

SUBHRO KAMAL MUKHERJEE

body2008
Judgment (1) THIS is a revisional application under Article 227 of the Constitution of India against judgment and order dated August 17, 2005 passed by the railway Claims Tribunal, Kolkata Bench, in Application No. A/789 of 2002. (2) BY the order impugned in this revisional application, the learned member of the Tribunal below rejected the prayer for condonation of delay in filing the claim petition on contest without costs. (3) BEING aggrieved, the claimant has come up with this revisional application under Article 227 of the Constitution of India. (4) AS to whether this revisional application is maintainable in view of the availability of the alternative remedy by way of an appeal under section 23 of the Railway Claims Tribunal Act, 1987,1 am to consider the provisions of Sections 13, 16, 17 and 23 of the said Act. (5) SECTION 13 of the said Act speaks regarding jurisdiction, powers and authority of the Claims Tribunal. The said section runs as under:- "13. Jurisdiction, powers and authority of Claims tribunal.-(1) The Claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority, as were exercisable immediately before that day by any Civil Court or a Claims Commissioner appointed under the provisions of the railways Act.- (a) Relating to the responsibility of the railway administration as carries under Chapter-VII of the Railways Act in respect of claims for- (1) Compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway; (ii) Compensation payable under Section 82-Aof the Railways act or the rules made thereunder; and (b) In respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway. (1-a) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Section 124-A of the Railways Act, 1989 (24 of 1989), all such jurisdiction, powers and authority as were exercisable immediately before that date by any Civil Court in respect of claims for compensation now payable by the railway administration under Section 124-A of the said Act or the rules made thereunder. (2) The provisions of the [railways Act, 1989 (24 of 1989)] and the rules made thereunder shall, so far as may be, be applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act. " (6) SECTION 16 of the said Act provides that a person seeking any relief in respect of the matters referred to in Section 13 of the said Act may make an application to the Claims Tribunal in such form, as may be prescribed. (7) SECTION 17 of the said Act prescribes about the limitation to seek any relief in respect of the matters referred to in Section 13 of the said act. However, under subsection (2) of Section 17 of the said Act, the tribunal is empowered to entertain any application made after the period specified in sub-section (1) of Section 17 of the said Act, if the claimant satisfies the tribunal that he had sufficient cause for not making the application within such period. (8) SECTIONS 16 and 17 of the said Act run as under:- "16. Application to Claims Tribunal.-(1) A person seeking any relief in respect of the matters referred to in sub-section (1) [or sub-section (1-A)] of Section 13 may make an application to the claims Tribunal. (2) Every application under sub-section (1) shall be in such " form and be accompanied by such documents or other evidence and by such fee in respect of the filing of such application and by such other fees for the service or execution of processes as may be prescribed: provided that no such fee shall be payable in respect of an application under sub-clause (ii) of Clause (a) of sub-section (1)[or, as the case may be, sub-section (1-A)] of Section 13. 17. 17. Limitation.-(1) The Claims Tribunal shall not admit an application for any claim- (a) Under sub-clause (i) of Clause (a) of sub-section (1) of section 13 unless the application is made within three years from the date on which the goods in question were entrusted to the railway administration for carriage by railway; (b) Under sub-clause (ii) of Clause (a) of subsection (1) [or, as the case may be, sub-section (1-A)] of Section 13 unless the application is made within one year or occurrence of the accident; (c) Under clause (b) of sub-section (1) of Section 13 unless the application is made within three years from the date on which the fare or freight is paid to the railway administration: provided that no application for any claim referred to in sub-clause (i) of clause (a) of sub-section (1) of Section 13 shall be preferred to the Claims Tribunal until the expiration of three months next after the date on which the intimation of the claim has been preferred under Section 78-B of the Railways Act. (2) Notwithstanding anything contained in subsection (1), an application may be entertained after the period specified in sub-section (1) if the applicant satisfies the Claims Tribunal that he had sufficient cause for not making the application within such period. " (9) SECTION 23 of the said Act provides for filing appeal against 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. Section 23 runs as under:- "23. 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 the order appealed against. " (10) AS I have indicated hereinabove, by the order impugned in this revisional application, the Claims Tribunal rejected an application for condonation of delay. (3) Every appeal under this section shall be preferred within a period of ninety days from the date of the order appealed against. " (10) AS I have indicated hereinabove, by the order impugned in this revisional application, the Claims Tribunal rejected an application for condonation of delay. In my view, the order declining to condone delay in filing the claim petition is not an interlocutory order, but, is a final order in the claim petition and, as such, the order is appealable before this Court under Section 23 of the said Act. (11) MR. Tapabrata Chakraborty, learned Advocate appearing for the petitioner, submits that the order declining to condone delay is an interlocutory order passed by the tribunal and there is no provision for appeal before this Court against such interlocutory order. Mr. Chakraborty refers to Paragraph-504 (Volume 26) from Halsburys Laws of England (Fourth Edition, 1979). The said paragraph runs as under:- "504. Final and interlocutory judgments and orders.-There is no definition in the Judicature Acts or the rules of Court made under them of the terms final and interlocutory, and a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. It is impossible to lay down principles about what is final and what is interlocutory. It is better to look at the nature of the application and not at the nature of the order eventually made. In general, orders in the nature of summary judgment where there has been no trial of the issues are interlocutory. " (12) MR. Chakraborty submits that the order impugned in this revisional application is in the nature of summary judgment, where there has been no trial of the issues and, as such, this is an interlocutory order. (13) MR. Chakraborty cites a decision of the Supreme Court of India in the case of Surya Dev Rai v. Ram Chander Rai and Ors., reported in AIR 2003 SC 3044 and draws my attention to the observation of the Supreme court of India that where remedy of revision has been excluded by the code of Civil Procedure, nevertheless, it is open to a person aggrieved to challenge the same in certiorari and supervisory jurisdiction of the High court. Mr. Mr. Chakraborty, however, in his usual fairness, draws my attention, also, to the observation of the Supreme Court of India that such exercise of power is discretionary, which will be governed solely by the dictates of judicial conscience. (14) MR. Chakraborty, also, cites a decision in the case of Sakina bibi v. Shipping Corporation of India, reported in 2006 (3) CHN 417 and submits that this Court entertained an appeal against an order of the learned Commissioner of Workmens Compensation, West Bengal, by which the learned Commissioner decided the prayer for condonation of delay as also the claim made by the workmen. (15) MR. Chakraborty, therefore, submits that since, in this case, the railway Claims Tribunal had no occasion to deal with the merits of the claim, but, had only rejected the application for condonation of delay in filing the claim petition, this revisional application under Article 227 of the constitution of India is maintainable. (16) I regret that I am unable to accept such contention of Mr. Chakraborty. There is a provision in the Act for filing of the claim petition in prescribed form. The Claims Tribunal is debarred from entertaining the claim petition unless such application is filed within the prescribed period of time as referred to in Section 17 of the Railway Claim Tribunal Act, 1987. However, under sub-section (2) of Section 17 of the said Act, power is given to the Claims Tribunal to entertain such claim petition even filed beyond the period of limitation, provided the claimant satisfies the Tribunal that he had sufficient cause for not making the application within the stipulated period of time. (17) THE Supreme Court of India in the case of Shyam Sunder Sarma v. Pannalal Jaiswal and Ors. , reported in AIR 2005 SC 226 observes that the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal. (18) THIS is a case where a claim petition was filed together with an application for condonation of delay in filing the claim petition. The claims tribunal declined to condone the delay. Nothing further remains to be decided in the claim petition. (18) THIS is a case where a claim petition was filed together with an application for condonation of delay in filing the claim petition. The claims tribunal declined to condone the delay. Nothing further remains to be decided in the claim petition. Borrowing the analogy from Shyam Sunder Sarmas case (supra), it can safely be held that when an application under sub-section (2) of Section 17 of the Railway Claims Tribunal Act, 1987 is dismissed, on the refusal to condone the delay the decision is, nevertheless, a decision in the claim petition and this is not an interlocutory order. (19) THEREFORE, the petitioner has an alternative efficacious remedy by way of an appeal under Section 23 of the Railway Claims Tribunal Act before this Court and, as such, I am not inclined to entertain this revisional application under Article 227 of the Constitution of India. (20) IT is true that existence of an alternative efficacious remedy is not an absolute bar to maintain an application under Articles 226 and/or 227 of the Constitution of India, but, it is a rule of practice. When there is an alternative efficacious remedy available in this Court, I do not think that it is a fit case, where such discretion can be exercised in favour of the petitioner. (21) THE revisional application is, therefore, rejected as not maintainable. (22) HOWEVER, this order of rejection shall not prevent the petitioner to approach the appropriate forum by filing an appeal in accordance with law. (23) THERE will be no order as to costs. Office is directed to return the certified copy of the order impugned in this revisional application to the learned Advocate-on-Record of the petitioner upon his furnishing a photo copy of the same.