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2017 DIGILAW 1203 (GAU)

UNION OF INDIA v. SUSHIL KUMAR SUNIL KUMAR

2017-08-30

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. A short but common issue involved in all these bunch of Misc. Cases Of Interim applications is whether the provisions of Section 5 of the Limitation Act, 1963 can be resorted to for condoning the delay in filing the appeal under Section 23 of the Railway Claims Tribunal Act, 1987. 2. Heard Mr. B. Sarmah, Mr. D.K. Dey and Mrs. U. Chakraborty, the learned counsels appearing for the applicants in all the cases. Also heard Ms. M. Sarma, the learned counsel appearing for the respondents in all these cases. 3. At the outset and before the commencement of the argument, the learned counsel for the respondent has raised a preliminary issue that all the interim applications have become infructuous because during the pendency of this applications, the applicant Of appellant i.e. the Railways representing the Union of India have made payment of the claim, which are the subject matter of all the connected appeals. It is submitted that for various reasons, the respondents in all these cases had filed Original Applications before the learned Railway Claims Tribunal, Guwahati Bench, Guwahati, claiming money in respect of freight charges. It is, therefore, submitted that even if the delay is condoned and the appeal is heard on merit, it would only be an academic exercise as after payment of money, the connected appeals have become infructuous. In response to the said submissions made by the learned counsel for the respondents, the learned counsel for the applicants submit that they have no instructions in the matter. However, they pray for the hearing so that the issue which has been raised herein as aforesaid can be settled. 4. The learned counsel for the applicants have submitted that by applying provisions of Section 29 (2) of the Limitation Act, 1963, the benefit of section 5 of the Limitation Act, 1963, is required to be made applicable for the applicants herein. In support of their arguments, the learned counsel for the applicants have relied on the cases of (i) Mukri Gopalan Vs. Cheppilat Puthanpurayil Abuoobacker, AIR 1995 SC 2272 , and on an unreported case of (ii) Union of India Vs. Gujarat State Electricity Corporation Ltd., Civil Appeal 12844 Of 15 [date of judgment 22.10.2016 (F.B.)]. In support of their arguments, the learned counsel for the applicants have relied on the cases of (i) Mukri Gopalan Vs. Cheppilat Puthanpurayil Abuoobacker, AIR 1995 SC 2272 , and on an unreported case of (ii) Union of India Vs. Gujarat State Electricity Corporation Ltd., Civil Appeal 12844 Of 15 [date of judgment 22.10.2016 (F.B.)]. Based on the decision in the above two cases, the learned counsels for the applicants have given their respective interpretation of Section 23 of the Railway Claims Tribunal Act, 1987. 5. It is submitted that the Full Bench of the Hon’ble Gujarat High Court had specifically held that it had respectfully disagreed that the judgment of this Court rendered in the case of Union of India Vs. Jassiruddin Talukdar (Md.), 2011 (2) GLR 832: 2011 (2) GLT 497. The relevant paragraph No. 16 of the case of Gujarat State Electricity Corpn. Ltd. (supra) are quoted below: “16. In the instance case, the very provision for condonation of delay, as provided under Section 17, would militate against the Act and the scheme of the Act being construed as excluding the limitation provision, as the legislature has in fact provided delay condonation power in Section 17 itself. The same power need not be provided so far as Section 23 is concerned as it pertains the appeal to be led before High Court and High Court being Court, the provisions of Section 29(2) would get attracted. Therefore, there was no requirement of providing specific power for condoning delay. The legislature, if at all, wanted to exclude the power in the High Court for condoning delay in filing of appeal, then legislature would have by way of express provision excluded the same. With profound respect to the High Court of Gauhati and High Court of Madhya Pradesh, this Court is unable to accept the proposition that the provision of the Act and the scheme based upon its object and reason, could be said to be one in which the provisions of Limitation Act appears to have been excluded. On the contrary, the provision of Section 17 expressly contains delay condonation power without there being any outer limit in the Tribunal and hence Tribunal, in the instant case, has even condoned delay on the part of the claimant of 13 years and 6 months. On the contrary, the provision of Section 17 expressly contains delay condonation power without there being any outer limit in the Tribunal and hence Tribunal, in the instant case, has even condoned delay on the part of the claimant of 13 years and 6 months. If this power is there under Section 17 to condone delay of any number of years, then absence of condonation power under Section 23 cannot be read as express exclusion by the legislature.” 6. The relevant paragraphs 22, 23 and 27 to 32 of the case of Md. Jassiruddin Talukdar (supra) are also quoted below:- “(22) The learned counsel for the applicant Of petitioner strenuously urged that these batch of petitions would be covered under the provisions of Section 29 (2) of the Limitation Act. For the purpose of applicability of Section 29 (2) of the Limitation Act, 1963, the following two requirements are required to be satisfied by the applicant:- (i) there must be a provision of prescribing a period of limitation under a special or local law in connection with such order for appeal, (ii) the said prescription of period of limitation should be different from the period prescribed by the Schedule of Limitation Act. In the event the aforesaid two requirements are satisfied the consequence as contemplated in Section 29 (2) are as under: (i) In such a case Section there has different period of limitation prescribed under special or local law, (ii) For determining any period of limitation prescribed by such special or local law for such appeal or application, the provisions contained in Section 4 to 24 of the Act would apply insofar as and to the extent to which they are not expressly excluded by such special or local law. (23) Considering the submissions of the learned counsel for the applicant Of petitioner, it is to be found that even under Article 116 of the Limitation Act, the period of limitation in filing an appeal to the High Court is from any decree or order is 90 days. The period of limitation under the Limitation Act and as prescribed under Section 23 of the Railway Claims Tribunal Act are the same and not different. That apart, the Railway Claims Tribunal Act is a special law made for specific purposes and objects. (27) In the case of Mukri Gopalan Vs. The period of limitation under the Limitation Act and as prescribed under Section 23 of the Railway Claims Tribunal Act are the same and not different. That apart, the Railway Claims Tribunal Act is a special law made for specific purposes and objects. (27) In the case of Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker reported in (1995) 5 SCC 5 , relying on the provisions of Kerala Rent Control Act, the Apex Court held that the Kerala Rent Act is a special Act or a local law which prescribes the period of the limitation for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule, as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribes nil period of limitation for such an appeal. A situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedue to the Act, the second condition for attracting Section 29 (2) would get satisfied. Thus Section 29 (2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act. (28) In the instant case, however, the period of limitation prescribed under the Railway Claims Tribunal Act and under the Limitation Act for filing an appeal before the High Court and application before the appellate authority is same i.e. 90 days. As indicated hereinabove, the legislative enacted the Act with the specific object of speedy adjudication of the claim cases by setting forth railway tribunal. Section 17 of the Act empower to the tribunal to condone the delay in filing the application in the event of showing sufficient cause for not making the application within the prescribed period. However, no such right has been recognized in case of filing an appeal. The legislature certainly being conscious of the relevant facts and considering the object of the Act did not may any provision for condonation of delay in filing the appeal. Accordingly, the provision of Section 29 (2) of the Act is held to be not applicable in the instant case. The legislature certainly being conscious of the relevant facts and considering the object of the Act did not may any provision for condonation of delay in filing the appeal. Accordingly, the provision of Section 29 (2) of the Act is held to be not applicable in the instant case. (29) An appeal is a creature of the statute. Unless there is statutory right of an appeal, no appeal lies. Accordingly, the necessary period of limitation prescribed or fixed for filing the appeal would also be required to be followed as per mandate of the statute itself. As because the procedure of filing and disposal is contemplated to be done under the provision of Order 41 Rule 1 CPC but that would not confer the power to condone the delay in filing the appeal by filing necessary application for condonation of delay. For such purpose, the appellate must look to the provisions of the Act itself which confers the right of appeal. (30) If certain such special statutes like Workmen's Compensation Act, 1951, Consumer Protection Act, 1956 and Motor Vehicles Act, 1988, are surveyed, it is found that while making provisions for filing appeal against the order Of award passed by the authority, the legislature provided the power to condone the delay in filing an appeal so prescribed which is manifestly absent in the Railway Claims Tribunal Act, 1987, which is also an indicative of the fact that the legislature consciously omitted to provide in case of an appeal filed under Section 23 of the Railway Claims Tribunal Act. (31) Therefore, considering all these aspects and the various provisions of the Act, the Court is of the opinion that legislature has intended to exclude the provision of Section 5 of the Limitation Act or to provide power to condone the delay in filing the appeal against an award of the Railway Claims Tribunal. The expressed intention of the legislature is not entitled to substitute by the Court. Where a power is required to be exercised by a certain authority in certain way, it should be exercised in that manner or not at all, and all other modes of performances are necessarily forbidden. (Ref. Hukan Chand Shyam Lal Vs. Union of India and Ors reported in AIR 1976 SC 789 ). Where a power is required to be exercised by a certain authority in certain way, it should be exercised in that manner or not at all, and all other modes of performances are necessarily forbidden. (Ref. Hukan Chand Shyam Lal Vs. Union of India and Ors reported in AIR 1976 SC 789 ). Further, it would also not proper for the Court to direct the authority to act in contravention of the provision of law and direction beyond the provision of the statute would be destructive of the Rule of law. In the case of Mandira Sita Ramji Vs. Governor of Delhi and Ors. reported in AIR 1974 SC 1868 , the Apex Court held that when a procedure is prescribed by the legislature, it is not for the Court to substitute a different one according to its notion of justice. When the legislature has spoken, the Judges cannot afford to be wiser. (32) For all the discussions made hereinabove, I do not find that the statute has not provided any power to this Court for condoning the delay in filing the appeal under Section 23 of the Railway Claims Tribunal Act, 1987. 7. Heavily relying on the judgment of the Hon’ble Gujarat High Court in the case of Gujarat State Electricity Corporation Ltd. (supra), the learned counsel for the applicants submit that while interpreting the judgment of this Court rendered in the case of Md. Jassiruddin Talukdar (supra), it has been held that the law laid down by this Court was not the correct interpretation of the law. As such, it was submitted that the judgment of this Court required reconsideration and therefore, this bunch of cases are required to be placed before the Hon’ble The Chief Justice for consideration if these matters can be placed before the larger Bench for re-considering the law laid down in the case of Md. Jassiruddin Talikdar (supra). 8. Per-contra, the learned counsel for the respondent has submitted that this Court by referring to the case of Md. Jassiruddin Talukdar (supra), had held in many cases that Section 5 of the Limitation Act, 1963, has no application in appeals filed beyond the period of limitation prescribed in Section 23 (3) of the Railway Claims Tribunal Act, 1987. 8. Per-contra, the learned counsel for the respondent has submitted that this Court by referring to the case of Md. Jassiruddin Talukdar (supra), had held in many cases that Section 5 of the Limitation Act, 1963, has no application in appeals filed beyond the period of limitation prescribed in Section 23 (3) of the Railway Claims Tribunal Act, 1987. In support of her argument, she has brought on record the orders passed by this Court in the following cases: a. Order dated 26.02.2016 in I.A. 8151/2016, General Manager & Anr. Vs. M/s. P.P. Enterprises. b. Order dated 10.12.2015 in MFA 67/2007 M/s. Hanuman Prasad Sharma Vs. Union of India. c. Order dated 22.07.2015 in MC 2826/2012, Union of India vs. M/s. Amba Industries. d. Order dated 02.05.2013 in MC 944/2013, Union of India Vs. M/s. Manas Salt Iodized Industries Pvt. Ltd. e. Order dated 15.10.2012 in MC 2772/2012, Union of India vs. M/s. Mahesh Enterprise Pvt. Ltd. f. Order dated 11.10.2010 in Union of India Vs. K.J. Sethia & Co. g. Unreported judgment dated 06.11.2015 passed by the Hon’ble High Court of Madhya Pradesh in M.A. No. 3108/2009 9. It is submitted that in all the hereinbefore mentioned cases at Sl. No. (a) to (f) above, by referring to the case of Md. Jassiruddin Talukdar (supra), it has been consistently held by this Court that there was no scope for extending limitation beyond the period of 90 days as provided under Section 23(3) of the Railway Claims Tribunal Act, 1987. The learned counsel for the respondent has heavily relied on the case of M/s. Hanuman Prasad Sharma (supra). In the said case, this Court had applied the case of Md. Jassiruddin Talukdar (supra) in favour of the applicants who were the respondent in the said appeal. Therefore, it is argued that as the applicants had taken the benefit of the case of Md. Jassiruddin Talukdar (supra) in their favour, it is not open for them to approbate and reprobate in the same breath by taking the benefit of the case of Md. Jassiruddin Talukdar (supra) in the case of M/s. Hanuman Prasad Sharma (supra), and, as such, by applying the doctrine of estoppel, the applicants are not permitted to argue that the ratio of the case of Md. Jassiruddin Talukdar (supra) is not the correct interpretation of law. 10. Jassiruddin Talukdar (supra) in the case of M/s. Hanuman Prasad Sharma (supra), and, as such, by applying the doctrine of estoppel, the applicants are not permitted to argue that the ratio of the case of Md. Jassiruddin Talukdar (supra) is not the correct interpretation of law. 10. Having considered the rival argument advanced by the learned counsels for both sides. It is seen that the ratio laid down in the case of Md. Jassiruddin Talukdar (supra) has been followed in many subsequent judgments and a few of them are mentioned herein before. Therefore, the said case of Jassiruddin Talukdar (supra) is required to be considered as a binding precedent. The judgment of the Hon’ble Gujarat High Court, deserves a great respect, and can have a persuasive force, but when this Court is constantly following the ratio laid down in the case of Md. Jassiruddin Talukdar (supra), this court is obliged to follow the precedent. 11. It is a well laid down principle of jurisprudence that a precedent is a source of law and in this Country, it has been well accepted to be a basic principle of administration of justice that like cases should be decided alike. A judicial precedent has some persuasive effect almost everywhere because stare decisis (keep to what has been decided previously) is a maxim of practically universal application (see Rupert Cross in his book “Precedent in English Law” 3rd Edition, published by Calrindon Press- Oxford, 1977). The words of Gray “a precedent covers everything said or done which furnished rule for subsequent practice”. (Gray. J.C., in his book “The Nature and Sources of Law”, 2nd Edition, 1921). 12. The learned counsels for the applicants have not placed any previous judgment by this Court, which can be said to be contradictory to the ratio laid down by this Court in the case of Md. Jassiruddin Talukdar (supra). Thus, there is no conflict in any two judgments in so far as this Court is concerned. Therefore, this court is not persuaded to accept that the ratio laid down in the case of Jassiruddin Talukdar (supra) requires reconsideration by a larger Bench of this Court. This should not be misunderstood that the Full Bench decision of another High Court has no persuasive value at all, but as this Court finds that the ratio of the case of Md. This should not be misunderstood that the Full Bench decision of another High Court has no persuasive value at all, but as this Court finds that the ratio of the case of Md. Jassiruddin Talukdar (supra) has been consistently followed by this Court in various judgments quoted above, this Court would prefer to follow the precedent of this Court. 13. Hence, by accepting the ratio of the case of Jassiruddin Talukdar (supra), it is held that the provisions of Section 5 of the Limitation Act, 1963, cannot be taken recourse for extending the limitation prescribed in Section 23 (3) of the Railway Claims Tribunal Act, 1987. 14. Moreover, having seen that as the respondent has released the payment under the judgment impugned in the connected appeals, therefore, even if the appeals are entertained the result would only be an academic exercise because otherwise all those appeals become infructuous. 15. Therefore, all these applications stand dismissed. There shall be no order as to cost.