{"id":108356,"date":"1976-08-30T00:00:00","date_gmt":"1976-08-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-vs-general-manager-southern-on-30-august-1976"},"modified":"2018-06-16T00:08:04","modified_gmt":"2018-06-15T18:38:04","slug":"state-of-kerala-vs-general-manager-southern-on-30-august-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-vs-general-manager-southern-on-30-august-1976","title":{"rendered":"State Of Kerala vs General Manager, Southern … on 30 August, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Kerala vs General Manager, Southern … on 30 August, 1976<\/div>\n
Equivalent citations: 1976 AIR 2538, \t\t 1977 SCR (1) 419<\/div>\n
Author: H R Khanna<\/div>\n
Bench: Khanna, Hans Raj<\/div>\n
           PETITIONER:\nSTATE OF KERALA\n\n\tVs.\n\nRESPONDENT:\nGENERAL MANAGER, SOUTHERN RAILWAY,  MADRAS\n\nDATE OF JUDGMENT30\/08\/1976\n\nBENCH:\nKHANNA, HANS RAJ\nBENCH:\nKHANNA, HANS RAJ\nUNTWALIA, N.L.\nSINGH, JASWANT\n\nCITATION:\n 1976 AIR 2538\t\t  1977 SCR  (1) 419\n 1976 SCC  (4) 265\n\n\nACT:\n\t    Code of Civil Procedure, Ss. 79 and 80, suit for compen-\n\tsation\tagainst railway administration.\t whether  impleading\n\tUnion of India as a party necessary.\n\t    The Indian Railways Act, 1890, S. 3(6), Railway Adminis-\n\ttration, whether a separate legal entity.\n\n\n\nHEADNOTE:\n\t    The\t appellant  booked  rice for  being  transported  by\n\ttrain,\tfrom Bareilly railway station to Trivandrum  railway\n\tstation.  On delivery, the rice was found to be damaged\t and\n\tshort  in quantity.  The appellant claimed damages from\t the\n\trespondent,  who resisted the claim on the grounds that\t the\n\tsuit was not maintainable as the Union of India had not been\n\timpleaded as a defendant, and that a suit by a State against\n\tthe  Union of India could only be instituted in the  Supreme\n\tCourt  under  Art. 131 of the Constitution.   The  suit\t was\n\tdismissed  by  the Trial Court, and an appeal  from  it\t was\n\tdismissed by the High Court.\n\tDismissing the appeal, the Court,\n\t    HELD:  The\tSouthern Railway is owned by  the  Union  of\n\tIndia.\t As such, a suit dealing with the alleged  liability\n\tof  that railway should have been brought against the  Union\n\tof India.  Section 80 of the C.P.C. contemplates institution\n\tof  a  suit against the Central Government  even  though  it\n\trelates to a railway. [422 E-FI]\n\t    Sukhanand Shamlal v. Oudh Rohilkhand Railway  AIR  1924,\n\tBorn.  306; Hirachand Succaram Gandhy & Ors. v.G.I.P.  Rail-\n\tway  Co.,  AIR 1928 Born. 421; Shaikh  Elahi  Bakhsh  v.E.I.\n\tRailway\t Administration, AIR 1941 Patna 326:  Chandra  Mohan\n\tSaha & Ant. v. Union of India & Anr. AIR 1953 Assam 193\t and\n\tP.R.  Narayanaswami lyer & Ors. v. Union of India  AIR\t1960\n\tMadras 58, Approved.\n\t    (2)\t Neither the definition of the \"railway\t administra-\n\ttion\"  in Section 3(6) of the Indian Railways Act,  nor\t the\n\tlanguage of sections 72 to 80 of the Act, lends support\t for\n\tthe view that the railway administrations are to be  treated\n\tas  separate  personalities, entries or\t separate  juridical\n\tpersons. [423 B-C]\n\t    Dominion of India v. Firm Musaram Kishunprasad AIR\t1950\n\tNagpur 85. overruled.\n\t    (3)\t The demarcation of the different State-owned  rail-\n\tways  as distinct units for administrative and\tfiscal\tpur-\n\tposes  cannot  have the effect of conferring the  status  of\n\tjuridical person upon the respective railway administrations\n\tor their General Managers for the purpose of civil suits.\n\n\n\nJUDGMENT:\n<\/pre>\n
\tCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1367 of 1968.
\n\t    (Appeal  by\t Special Leave from the Judgment  and  Order
\n\tdated 25-3-1965 of the Kerala High Court in A.S. No. 487  of
\n\t1961).\n<\/p>\n
\tS.V. Gupte and K.M.K. Nair, for the appellant.
\n\t    Mrs. Shyamla Pappu, B.B. Sawhney, Raju Ramachandran\t and
\n\tGirish Chandra, for the respondent.\n<\/p>\n
\t420<\/span><\/p>\n
\tThe Judgment of the Court was delivered by
\n\t    KHANNA, J.–This appeal by special leave by the State of
\n\tKerala is against the Full Bench decision of the Kerala High
\n\tCourt  affirming  on appeal the judgment and decree  of\t the
\n\ttrial  court whereby the suit for recovery of Rs.  28,208.70
\n\tfiled by the appellant against the General Manager, Southern
\n\tRailway respondent was dismissed.\n<\/p>\n
\t    The appellant booked 2,000 tons of rice in 21,310\tbags
\n\tfrom  Bareilli\trailway\t station for  being  transported  to
\n\tTrivandrum  central  railway station as per 10\trailway\t re-
\n\tceipts\tduring\tthe  period from June 25 to  July  5,  1950.
\n\tAccording  to the case of the appellant, the rice  delivered
\n\tat  Trivandrum central railway station was short  by  79,378
\n\tlbs.   It  was also averred that the rice in  327  bags\t was
\n\tfound to be damaged.  The appellants accordingly claimed Rs.
\n\t28,208.70 as damages from the respondent.
\n\t    The\t respondent  resisted the claim\t of  the  appellant,
\n\tinter alia, on the ground that the suit was not maintainable
\n\tas the Union of India had not been impleaded as a  defendant
\n\tto the suit and that a suit by a State against the Union  of
\n\tIndia could be instituted only in the Supreme Court of India
\n\tunder article 131 of the Constitution.\tIt is not  necessary
\n\tto  set out the other pleas of the respondent.\tAs  many  as
\n\tnine  issues  were framed by the trial court.\tTwo  of\t the
\n\tissues, namely, issue Nos. 1 and 3, were treated as prelimi-
\n\tnary issues and arguments were heard on those issues.  Issue
\n\tNos. 1 and 3 read as under:\n<\/p>\n
\t  “1.  Is the suit maintainable ?  Can a decree\t  be  passed
\n\tagainst the defendant as now impleaded ?\n<\/p>\n
\t  2. Will the suit lie in this Court ?\tIs the\tsuit  barred
\n\tby the provisions of the Constitution of India ?”
\n\tOn issue No. 3 it was held by the trial court that since the
\n\tUnion of India had not been made a party to the suit, clause\n<\/p>\n
\t(a)  of article 31 of the Constitution had  no\tapplication.
\n\tThe  suit was accordingly held to be not liable to  be\tdis-
\n\tmissed on that ground.\tOn issue No. 1 the trial court\theld
\n\tthat  the Union of India was a necessary party to  the\tsuit
\n\tand  as\t the  Union of India had not been  impleaded   as  a
\n\tparty,\tthe suit was incompetent.  As a result of its  find-
\n\tings on issue No. 1 the trial court dismissed the suit.\t The
\n\tdecision  of the trial court on issue No. 1 was affirmed  in
\n\tappeal by the High Court.  An application was also filed  at
\n\tthe hearing of the appeal before the High Court for implead-
\n\ting  the  Union of India as a party to the suit.   The\tHigh
\n\tCourt  rejected\t that  application on the  ground  that\t  no
\n\tuseful purpose would be served by allowing that application.
\n\tIt was observed that if the application was allowed and\t the
\n\tUnion  of India was made a party, the suit would have to  be
\n\tdismissed as under article 131(a) of the-Constitution a suit
\n\tby  one State against the Union of India could only  lie  in
\n\tthe Supreme Court.  In the result, the High Court  dismissed
\n\tthe appeal filed by the appellant.\n<\/p>\n
\t    In appeal before us Mr. Gupte on  behalf of the   appel-
\n\tlant has invited our attention to the definition of “railway
\n\tadministration”\t in
\n\t421<\/span>
\n\tsection\t 3(6) of the Indian Railways Act,  1890\t (Act  9  of
\n\t1890)  (hereinafter referred to as the Act) which  reads  as
\n\tunder:\n<\/p>\n
\t\t “railway administration or ‘administration’ in\t the
\n\t\t case of a railway administered by  the\t  Government
\n\t\t means\tthe Manager of the railway and includes\t the
\n\t\t Government  and, in the case of a railway  adminis-
\n\t\t tered\tby  a  railway company,\t means\tthe  railway
\n\t\t company,”\n<\/p>\n
\t    He has further referred to sections 72, 74, 76 and 80 of
\n\tthe  Act. According to section 72, the responsibility  of  a
\n\trailway\t administration for the loss, destruction or   dete-
\n\trioration of animals or\t goods delivered to the\t administra-
\n\ttion to be carried by railway shall, subject to other provi-
\n\tsions  of the Act, be that of a bailee under  sections\t151,
\n\t152  and 161 of the Indian Contract Act, 1872.\t Section  74
\n\tabsolves  the railway administration of\t any  responsibility
\n\tfor  the loss,\tdestruction or deterioration of any  luggage
\n\tbelonging  to or in charge of a passenger unless  a  railway
\n\tservant has hooked and given a receipt therefor.  Section 76
\n\tdeals with burden of proof in suits for compensation against
\n\ta  railway administration for any delay, loss,\tdestruction,
\n\tdeterioration  or damage.  Section 80 at the  relevant\ttime
\n\tread as under:\n<\/p>\n
\t\t       “80.  Suits for compensation for\t injury\t  to
\n\t\t throughbooked\ttraffic.—Notwithstanding  anything
\n\t\t in any agreement purporting to limit the  liability
\n\t\t of a railway administration with respect to traffic
\n\t\t while\ton the railway of another administration,  a
\n\t\t suit  for compensation for loss of the life of,  or
\n\t\t personal  injury to, a passenger, or for loss,\t de-
\n\t\t struction  or\tdeterioration of  animals  or  goods
\n\t\t where\tthe  passenger was or the animals  or  goods
\n\t\t were booked through over the railway of two or more
\n\t\t railway  administrations,  may\t be  brought  either
\n\t\t against  the railway administration from which\t the
\n\t\t passenger obtained his pass or purchased his  tick-
\n\t\t et,   or to which the animals or goods were  deliv-
\n\t\t ered by the consignor thereof, as the case may\t be,
\n\t\t or  against  the railway  administration  on  whose
\n\t\t railway the loss, injury, destruction or deteriora-
\n\t\t tion occurred.”\n<\/p>\n
\t    It is urged by Mr. Gupte that as, according to section 3
\n\t(6)  of the Act, railway administration means a\t Manager  of
\n\tthe  railway and as some of the sections 72 to 80  make\t ex-
\n\tpress  reference to suits against railway administration,  a
\n\tsuit against the General Manager of the railway concerned is
\n\tcompetent.  The trial court and the High Court, according to
\n\tthe learned counsel, were in error in holding that the\tsuit
\n\twas  not maintainable because of the Union of  India  having
\n\tnot been impleaded as a party to the suit.\n<\/p>\n
\t    The\t above argument has the quality of being  ingenious,
\n\tattractive  and\t not lacking in\t apparent  plausibility.   A
\n\tcloser examination, however, reveals its infirmity and after
\n\tgiving the  matter our\tearnest
\n\t422<\/span>
\n\tconsideration,\twe find it difficult to accept it.  The\t Act
\n\tdeals with and specifies, inter alia, the rights and liabil-
\n\tities  which arise in case the goods consigned to the  rail-
\n\tways  are not delivered to the consignee. It likewise  deals
\n\twith  short delivery of those goods as well as the cases  in
\n\twhich  the  goods get damaged during transit.  Most  of\t the
\n\trailways in India are owned by the Union of India, but there
\n\twere  some minor railways which till recently were owned  by
\n\trailway\t companies.  The definition of “railway\t administra-
\n\ttion”  as given in section 3(6) is comprehensive  and  deals
\n\twith both types of railways. i.e., railways administered  by
\n\tthe  Government\t as well as those  administered\t by  railway
\n\tcompanies.   The  words “railway administration”  have\tbeen
\n\tused in sections 72 to 80 because those sections pertain  to
\n\trights\tand  liabilities  of the parties in  both  types  of
\n\tcases, i.e., cases where liability is incurred by Government
\n\tadministered railways as well as cases in which liability is
\n\tincurred  by railway administered by railway  company.\t The
\n\tAct,  however,\tdoes not deal with, the question as  to\t who
\n\tshould\tbe impleaded as a defendant when a suit\t is  brought
\n\tagainst the railway. administration.  This is essentially  a
\n\tmatter relating to the frame of suits, and is dealt with  by
\n\tthe Code of Civil Procedure.  According to section 79 of the
\n\tCode, in a suit by or against the Government, the  authority
\n\tto  be named as plaintiff or defendant, as the case may\t be,
\n\tshall be (a) in the case of a suit by or against the Central
\n\tGovernment,  the  Union of India, and (b) in the case  of  a
\n\tsuit  by  or against a State Government,  the  State.\tThis
\n\tsection\t is in accordance with article 300 of the  Constitu-
\n\ttion,  according to which the Government of India may sue or
\n\tbe sued by the name of the Union of India and the Government
\n\tof a State may sue or be sued by the name of the State.\t  It
\n\tis not disputed that Southern Railway is owned by the  Union
\n\tof India.  As such, a suit dealing with the alleged liabili-
\n\tty  of\tthat railway should have been  brought\tagainst\t the
\n\tUnion of India.\n<\/p>\n
\t    Section 80 of the Code of Civil Procedure provides inter
\n\talia that no suit shall be instituted against the Government
\n\tuntil the expiration of two months next after the notice  in
\n\twriting\t has been delivered to or left at the office of,  in
\n\tthe  case of a suit against the Central Government where  it
\n\trelates\t to a railway, the General Manager of that  railway.
\n\tThe  above provision clearly contemplates institution  of  a
\n\tsuit  against the Central Government even though it  relates
\n\tto a railway. A suit against the Central Government in terms
\n\tof  section  79\t of the Code would necessarily\thave  to  be
\n\tbrought against the Union of India.\n<\/p>\n
\t    The\t Act no doubt makes provision for the  liability  of
\n\tthe railway administration, but from that it does not follow
\n\tthat  the railway administration is a separate legal  entity
\n\thaving a juristic personality capable of being sued as such.
\n\tThe  definition of “railway administration” in section\t3(6)
\n\tof  the\t Act that it would mean the Manager of\tthe  railway
\n\tdoes  not  warrant  the inference that a  suit\tagainst\t the
\n\trailway administration can be brought against the Manager of
\n\tthat  railway.\t We  have to bear in  mind  the\t distinction
\n\tbetween\t the  owner  of the railway, namely,  the  Union  of
\n\tIndia, and the authority which actually runs the railway and
\n\tto whom duties have been assigned for
\n\t423<\/span>
\n\tthis  purpose by the Act.  The manager of the railway  under
\n\tthe  Act  is such authority.  When,  however,  liability  is
\n\tsought\tto be fastened on the railway administration  and  a
\n\tsuit is\t brought against it  on\t that account, the suit,  in
\n\tour  opinion, would have to be brought against the Union  of
\n\tIndia  because it is the Union who owns the railway and\t who
\n\twould have the funds to satisfy the claim in case decree  is
\n\tawarded in such suit.\n<\/p>\n
\t    The scheme of the Act, even though there are now  hardly
\n\tany  company-owned railways in India, is to treat  different
\n\trailway administrations as different units, although all  of
\n\tthem may be owned by the Union of India.  Neither the  defi-
\n\tnition\tof the “railway administration” in section  3(6)  of
\n\tthe  Act  nor the language of sections 72 to 80 of  the\t Act
\n\tlends support for the view that the railway  administrations
\n\tare  to\t be treated as separate personalities,\tentities  or
\n\tseparate juridical persons as seems to have been observed in
\n\tthe case of Dominion India v. Firm Museram  Kishunprasad(1).
\n\tYet  the treatment of the different railway  administrations
\n\tas different units for the purpose of fastening liability on
\n\tthe  Union  of\tIndia has got  significance  and  relevance.
\n\tViewed in that light, it would follow that the definition of
\n\tthe  “railway administration” given in section 3(6)  of\t the
\n\tAct does not make the railway administration or its  General
\n\tManager\t a legal entity or a corporate body or\ta  juridical
\n\tperson\tto represent the railway administration as  such  in
\n\tsuits.\tThe claim in a suit for recovery of money under\t the
\n\tAct  against the different railway administrations owned  by
\n\tthe Central Government in accordance with the general  prin-
\n\tciple  of  law contained in Order 1 Rule 3 of  the  Code  of
\n\tCivil  Procedure  has  got to be  made\tagainst\t the  person
\n\tagainst whom the right to relief is alleged to exist.
\n\tThe significance of creating the various railway administra-
\n\ttions  as  separate units, even though they  may  be  State-
\n\towned,\tis  to be found\t    in section 80 of  the  Act,\t and
\n\tsection\t 80 of the Code of Civil Procedure.  For claiming  a
\n\tdecree\tagainst the Union of India under the Act the  plain-
\n\ttiff has got to specify the railway administration or admin-
\n\tistrations  on\taccount of which liability is sought  to  be
\n\tfastened upon the Union of India, as contemplated by section
\n\t80 of the Act. The institution of the suit has to be preced-
\n\ted  by\tservice of notice under section 77 of  the  Act\t and
\n\tsection 80 of the Code to the appropriate authority which is
\n\tthe  General Manager of the railway concerned. The  require-
\n\tment  of clause (b) of section 80 of the Code that a  notice
\n\tin  the case of a suit against the Central Government  where
\n\tit  relates to a railway must go to the General\t Manager  of
\n\tthe  concerned\trailway or railways is also based  upon\t the
\n\tassumption that it is primarily the liability of the railway
\n\tadministration\tof the said railway or railways\t to  satisfy
\n\tthe claim of the suitor in accordance with section 80 of the
\n\tAct.  The demarcation of the different State-owned  railways
\n\tas  distinct  units for administrative and  fiscal  purposes
\n\tcannot have the effect of conferring the status of juridical
\n\tperson upon the respective railway administrations or  their
\n\tGeneral Managers for the purpose of civil suits.
\n\t(1) A.I.R. (1950) Nagpur 85. 11 –1104SCI\/76
\n\t424<\/span>
\n\t    The Bombay High Court in two cases, Sukhanand Shamlal v.
\n\tOud, h & Rohilkhand Railway(1) and Hirachand Succaram Gandhy
\n\t& Ors. v.G.I.P. Railway Co.(2) has held that a suit  against
\n\ta  State railway should be brought against  the\t Government.
\n\tSimilar view was pressed by Patna High Court in Shaikh Elahi
\n\tBakhsh v.E.I. Railway, Administration(3) and a Full Bench of
\n\tAssam High Court in the case\t Chandra Mohan Saha &  ,Anr.
\n\tv. Union of India & Anr.(4)  The observations of a  Division
\n\tBench  of  the Madras High Court in the case of\t P.R.  Nara-
\n\tyanaswami lyer & Ors. v. Union of India(5) also lend support
\n\tto  the\t above view.  It may be stated\tthat  the  reasoning
\n\temployed in the eases mentioned above was different and\t not
\n\tidentical, but whatever might be the nature of that  reason-
\n\ting the fact remains that the learned Judges deciding  those
\n\tcases  were all at one on the point that such a suit  should
\n\tbe  brought  against  the Government,  which  means  in\t the
\n\tpresent case the Union of India.  Any contrary view would be
\n\tagainst the well-established practice and procedure of\tlaw,
\n\tas evidenced by various decisions of the High Courts, and as
\n\tsuch, must be rejected.\n<\/p>\n
\t    Submission has also been made on behalf of the appellant
\n\tthat  the  High Court should have allowed the  appellant  to
\n\tamend  the  plaint. We agree with the High  Court  that\t the
\n\tpresent\t is not an appropriate case in which  permission  to
\n\tamend the plaint should have been granted.
\n\t    The\t appeal consequently fails and is dismissed  but  in
\n\tthe circumstances without costs.\n<\/p>\n
\tM-R.\t\t\t\t\t  Appeal dismissed.\n<\/p>\n
\t(1) A.I.R. 1924 Bombay 306.\t(2) A.I.R. 1928 Bombay 421.
\n\t(3) A-I.R. 1931 Patna 326.\t(4) A.I.R. 1953 Assam 193.
\n\t(5) A.I.R. 1960 Madras 58.\n<\/p>\n
\t425<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Kerala vs General Manager, Southern … on 30 August, 1976 Equivalent citations: 1976 AIR 2538, 1977 SCR (1) 419 Author: H R Khanna Bench: Khanna, Hans Raj PETITIONER: STATE OF KERALA Vs. RESPONDENT: GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS DATE OF JUDGMENT30\/08\/1976 BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-108356","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Kerala vs General Manager, Southern ... on 30 August, 1976 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-vs-general-manager-southern-on-30-august-1976\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Kerala vs General Manager, Southern ... on 30 August, 1976 - 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