Judgment Case ID: 6115

Judgment:
ivil Appeal Nos. 224 & 734 of 1988. From the Judgment and Order dated 17.6.87 of the Calcut ta High Court in Ref. No. 1/83 from C.R. Case No. 2938 40/81 & Civil Order No. 2537/81	 C.R. Case No. 75/81	 Civil Order No. 362/82	 & C.R. No. 3803 of 1980. Dr. Shankar Ghosh	 Badar Durrez Ahmed	 Parijat Sinha	 A.K. Sarkar	 A.K. Sahay for the Appellants. Kuldip Singh	 Additional Solicitor General	 A 	K. Gan guli	 C.V. Subba Rao	 A. Subba Rao and Hemant Sharma for the Respondent. The Judgment of the Court was delivered by VENKATACHALIAH	 J. These appeals	 by certificate	 pre ferred against the common order dated 17.6.1987 of the High Court of Calcutta in Full Bench Reference 1 of 1983 raise a short and interesting question	 of some general importance	 whether the choice of the forum for the cognizance of suits envisaged in Section 80 of the Indian Railways Act	 1890 (As substituted by Section 14 of the Indian Railways (Amendment) Act	 1961 (Act 39 of 1961) is limited by Section 80 itself or whether provisions of Section 20 of the Code of Civil Procedure	 1908 and Section 19 of the 	 as the cases may be	 in regard to places of suing	 are also applicable to the suits referred to in the said Section 80. The question	 in other words	 is whether the said Sec tion 80 is a complete	 self contained	 exhaustive Code in regard to the place of suing respecting suits constituting a special law for such suits excluding	 by necessary implica tion	 the operation of provisions of Section 20 of the Code of Civil Procedure	 1908 and Section 18 of the Presidency 443 Small Cause Courts Act	 1882. The Full Bench	 resolving the earlier conflicts of Judicial opinion in the High Court on the points has held Section 80 as containing within it a self contained scheme for suits envisaged by it and that Section 20 of the Code of Civil Procedure and Section 18 of the stand excluded from operation. The Full Bench	 however	 has left open the question whether Section 80 also over rides clause 12 of the letters patent. In the original proceedings from which C.A. 224 of 1988 arises	 appellant instituted Money Suit No. 35 of 1978 against the Respondent in the Court of the 6th Sub Judge at Alipore	 Distt. 24 Parganas	 West Bengal	 seeking recovery of Rs. 13	200 respecting an alleged short delivery of a consignment booked with the Respondent on 94.4.1975 Ex Ernakulam to Ranchi	 a station under the South Eastern Railway Administration. Respondent contested the suit on grounds	 inter alia	 that having regard to the said Section 80	 the Court at Alipore had no jurisdiction. The trial Court by its order 22.5. 1981 having rejected this objection as to jurisdiction	 Respondent preferred C.R. 2938 of 1981 under Section 115 of the Code of Civil Procedure	 before the High Court to have that order revised. The matter was re ferred to a Full Bench	 culminating in the order now under appeal. In C.A. 734 of 1988	 appellant instituted a Suit No. 3831 of 1985 in the Court of the Small Causes	 Calcutta	 for the recovery of a sum of Rs.6	573.50p. on account of snort deliveries of two consignments booked with the Respondent on 27.4.1984 and 24.7.1984 respectively	 Ex Saugar in Central Railway to Ramkrishtopur in Eastern Railway. Similar objec tion as to jurisdiction having been urged	 the trial Court rejected that objection and decreed the suit. This was assailed before the High Court by the Respondent. The Full Bench	 by its common order	 has held that the trial Court had no jurisdiction and directed the return of the plaint for presentation to the proper Court. In order that the contentions of Dr. Shankar Ghosh urged in support of these appeals are apprehended in their proper perspective	 it becomes necessary to refer to and notice the legislative history of the provision. Section 14 of the Indian Railways (Amendment) Act	 1961	 substituted the old Section 80 by a new provision. The old Section reads: "Section 80: suit for compensation for injury to through booked traffic: 444 Notwithstanding anything in any agreement purporting to limit the liability of Railway Administration with respect to traffic while on the Railway of the another Administration	 a suit for compensation for loss of the life of	 or personal injury to	 a passenger	 or for loss	 destruction or deterioration of animals or goods where the passenger was or the ani mals or goods were booked through over the Railways of two or more Railway Administra tions	 may be brought either against the Railway Administration from which the passen gers obtained his pass or purchased his tick et	 or to which the animals or goods were delivered by the consignor thereof	 as the case may be	 or against the Railway Adminis tration on whose Railway the loss	 injury	 destruction or deterioration occurred." The new Section 80 substituted in 1961 by the amending Act provides: "80. Suits for Compensation: A suit for com pensation for loss of the life of	 or personal injury to	 a passenger or for loss	 destruc tion	 damage	 deterioration or non delivery of animals or goods may be instituted. (a) if the passenger was	 or the animals or goods were	 booked from one station to another on the railway of the same railway administration against that railways adminis tration; (b) if the passenger was	 or the animals or goods were	 booked through over the railway of two or more railway administration against the railway administration from which the passenger obtained his pass or purchased his ticket or to which the animals or goods were delivered for carriage	 as the case may be	 or against the railway administration on whose railway the destination station lies	 or the loss	 injury	 destruction	 damage or deterioration occurred; and	 in either case the suit may be instituted in a Court having jurisdic tion over the place at which the passenger obtained his pass or purchased his ticket or the animals or goods were delivered for car riage	 as the case may be	 or 445 over the place in which the destination sta tion lies	 or the loss injury	 destruction	 damage or deterioration occurred. " The changes brought about in the scheme of the provisions are quite marked. The old Section did not deal with liabil ity for claims in respect of goods carried by a single Railway. It concerned itself with goods etc.	 carried by more than one Railways or what	 in the concerned jargon	 is called "through booked traffic" and provided that a suit inter alia for loss	 destruction	 damage	 deterioration or nondelivery could be brought against the Railway Administra tion with which the booking had taken place or against the Railway Administration of the delivery station. The old section spoke nothing of the places where such suits could be laid. The choice of the forum was regulated by Section 20 of the Code of Civil Procedure or the relevant provisions of the 	 as the case may be. This Court in Union of India vs Ladu Lal Jain	 ; observed that the principal place of Railway Administra tion can be said to be the place where the Railways can be said to carry on business for purposes of clause (a) of Section 20 of the Code of Civil Procedure. It was held: "The principle behind the provisions of Cls. (a) and (b) of section 20 is that the suit be instituted at a place where the defendant be able to defend the suit without undue trouble." " . . Union of India carries on the busi ness of running railways and	 can be sued in the Court of the subordinate Judge of Gauhati within whose territorial jurisdiction the head quarters of one of the railways run by the Union is situated. " This was said in a case governed by the old Section. Does the position continue to hold good even after the new Sec tion 80 was substituted in place of the old? the new Section 80 (substituted by Act 39 of 1961)	 however	 brought about far reaching changes in its scheme	 the notable amongst them being three. The new Section made specific reference to a certain class of suits having regard to their subject matter	 to be dealt with under that Sec tion. Secondly	 the new Section also dealt with identity of the Railway Administrations which were made liable to the claim 446 and	 thirdly	 the section specifically provided the places where such suits "may be instituted". Referring generally to the scope of the changes brought about by the 1961 amendment to Chapter VII of the Railways Act	 1890	 this Court	 in Union of India vs The Steel Stock Holders Syndicate	 Poona	 ; observed: "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 High Court took due notice of the fact that the new Section did not expressly provide that in respect of suits envisaged by it	 the provisions of Section 20 of the Code of Civil Procedure or Section 18 of the 	 as the case may be	 shall no longer be applicable. The High Court took due note of the situation emerging from this omission. It noticed: "the new Section 80	 no doubt	 did not ex pressly provide that the said provision of Section 80 of the Act would override all other laws. But Section 80 of the Indian Railways Act is in the nature of the special provision applicable only to suits for compensation against the Railways." "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 447 implication overrides section 20 of the Civil Procedure Code	 1908 and Section 18 of the ." 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: "By mentioning the Courts in which the suits for compensation may be filed	 Section 80 of the Railways Act purports to deal with matters which have been dealt with in Section 20 of the Code and Section 18 of the Presidency Small Causes Courts Act. These two sets of laws deal with the same subject of territorial jurisdiction of Courts. We are	 therefore	 required to ascertain whether in respect of suits for compensation against the Railways	 the intention was to override the general law." "We have already indicated that Section 80 of the Railways Act was a particular or special legislation. Section 80 of the Railways Act purports to deal with the subject of places for instituting particular class of suits which was previously covered by Section 20 of the Code which was a general enactment. Two statutes cover the same field	 i.e.	 territo rial jurisdiction. Mentioning for the first time in Section 80 of the Railways Act of the places where suits for compensation may be instituted was itself introductive of a new law implying a negative. When the same subject of territorial jurisdiction has been dealt with in the subsequent legislation (i.e.	 Section 80 of the Railways Act) the prior laws (Section 20 of the Code and Section 13 of the ) on the same subject were not intended to subsist." "In other words	 Section 80 of the Indian Railways Act by requiring something special to be done repealed by necessary implication the former general statute relating to territorial jurisdiction of Courts in so far as the suits for compensation against the Railways were concerned." Any other construction	 according to the High Court	 would lead 448 to anomalies and render Section 80 a surplus age. High Court said: "If it was to be held that clause (c) of Section 20 of the Code still applied to suits for compensation against the Railways	 then the cause of action for the purpose of juris diction of Courts would arise not only at the three places mentioned in Section 80 of the Act but at several other places. In other words	 the provisions of Section 80 of the Act relating to places where the suits for compen sation may be instituted	 would be	 in that event	 surplusage and unnecessary. In the view of the High Court	 the distinction be tween provisions in the New Section 80 on the one hand and Section 20 of the Code of Civil Procedure or Section 18 of the Small Cause Courts Act on the other	 assumed particular significance as qualifying the Court 's jurisdiction in respect of a particular subject matter as distinct from those that relate to a Court 's territorial jurisdiction or pecuniary jurisdiction. The High Court observed: "Section 80 of the Railways Act	 in effect	 limits the application of Section 20 of the Code by specifying the Courts which shall have jurisdiction over the suits whose subject matter is the claim for compensation against the Railways for loss of life or personal injury to a passenger or loss	 destruction	 damage	 deterioration or non delivery of animals or goods. We have already held that Section 80 of the Act	 in other words is in the nature of a special provision in respect of classes of suits mentioned in Section 80 of the Indian Railways Act. Dr. Shankar Ghosh assailing the soundness of the High Court 's view	 urged that the proposition on which its con clusions rest	 if accepted	 would render what was intended as a mere an enabling entitlement to lose its character as such and become	 on the contrary	 a limiting factor and convert a right into a liability. Dr. Ghosh said that the legislative intent was clear; it did not render Section 80 over riding by not expressly excluding Section 20 of the Code of Civil Procedure. It expressly supplied	 says Dr. Ghosh	 an enabling provision when it chose the expression" . . may be instituted". It is further con tended that the doctrine of implied repeal was	 clearly inapplicable to the situation. 449 Dr. Ghosh commended for acceptance the reasoning of the Assam and Madras High Courts	 in Assam Cold Storage vs Union of India	 AIR 1971 Assam 69 and Hindustan Machine fools vs Union of India	 AIR 1985 Madras 130	 respectively	 in pref erence to the views of the Calcutta	 Bombay	 Delhi and Karnataka High Courts in Oghamal Chaudhury vs Union of India	 ; Union of India vs Indian Hume Pipe Co. Ltd.	 AIR 1981 Bombay 414; New India Assurance Co. vs Union of India	 AIR 1981 Delhi 135 and Union of India vs C.R. Prabhanna	 AIR 1977 132 respectively. The thrust of the arguments of Dr. Ghosh is that the construction placed by the High Court ignores the crucial aspect that while the old Section 80 did not render the destination railway as such	 liable to be sued if loss was not proved to have occurred there	 the new Section	 however	 renders the destination Railway also liable even though no loss occurred there. The provision in the new Section 80 enabling the suit to be instituted at the place of the destination Railway	 where no part of the cause of action might otherwise be shown to have arisen	 was	 it is urged	 a mere consequential provision to give effect to the substan tive provision	 that the destination Railway was also li able. Dr. Ghosh emphasised the expression "may be institut ed" in Section 80 to reinforce his contention that Section 80 did really expand the rights of and not seek to restrict therein suitors. Learned counsel also emphasised that sec tion 80 did not contain any words expressly excluding clauses (a) and (b) of Section 20	 Code of Civil Procedure	 in so far as suits contemplated by Section 80 were con cerned. The new Section 80	 it is contended	 did not intend to impair the choice of the forum afforded by Section 20 of the Code of Civil Procedure and that any contrary view	 offends settled principles of statutory construction guiding the matter. Learned counsel invited attention to the follow ing observations in Ajay Kumar Banerjee & Others etc. vs Union of India & Others etc. ; 	 at page 282: "The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words	 a prior special law	 would yield to a later general law	 if either of the two fol lowing conditions is satisfied: (i) The two are inconsistent with each other; (ii) There is some express reference in the later to the earlier enactment. 450 If either of these two conditions is ful filled	 the later law	 even though general	 would prevail. " and submitted that even if	 conversely	 the provisions of Section 80 are held to be a later special law	 the principle of implied repeal could not be invoked as there was no inconsistency between the two provisions and that	 on the contrary	 both set of provisions could co exist and prevail. Learned counsel invited our attention to and relied upon the following passage in Shah Babulal Khimji vs Jaya Ben D. Kania and Another	 ; "We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case section 104 read with Order 43	 Rule 1 does not in any way abridge	 interfere with or curb the powers conferred on the Trial Judge by Clause 15 of the Letters Patent. What Section 104 read with Order 43	 Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a larger Bench. " The learned counsel also placed reliance on the following observations of this Court in Municipal Council	 Palai vs T.J. Joseph and Others	 ; at page 98: "In order to ascertain whether there is repug nancy or not this Court has laid down the following principles in Deep Chand vs The State of Uttar Pradesh	: 1. Whether there is direct conflict between the two provisions; 2. Whether the legislature intended to lay down an exhaustive code in respect of the subject matter replacing the earlier law; 3. Whether the two laws occupy the same field. Reliance was also placed on Section 21 A inserted by Section 4 of the Presidency Small Cause Courts (West Bengal Amendment) Act	 1980 which provides: "21A. Act to override other laws including Letters Patent: The provisions of this Act shall have effect notwithstanding 451 anything to the contrary in any other law	 including in particular the Letters Patent of the High Court." to contend that the construction opted for by the High Court would run in the teeth of this express provision. Lastly	 learned counsel invited our attention to the following passage in Crawford on Statutory construction: "All laws are presumed to be passed with deliberation	 and with full knowledge of all existing cases on the same subject	 it is but reasonable to conclude that the Legislature	 in passing a statute	 did not intend to inter fere with or abrogate any former law relating to the same matter	unless the repugnancy between the two is irreconcilable. Bowen vs Lease	 5 Will 225. It is a rule	 says Sedwick that a general statute without negative words will not repeal the particular provisions of a former one	 unless the two acts are irrecon cilably inconsistent." (p. 633) "And	 as we have already suggested	 it is essential that the new statute cover the entire subject matter of the old; otherwise there is no indication. of the intent of the Legislature to abrogate the old law. Conse quently	 the latter enactment will be con structed as continuation of the old one." (624) It was urged that repeal by implication is not to be pre sumed and that	 on the contrary	 there is always presumption against a repeal by implication. In order that there be a repeal by implication	 there should be a clear	 irreconcila ble conflict between the two sets of provisions and the later enactment should be an exhaustive code in itself in respect of the subject matter. On these submissions	 Dr. Ghosh says that the view taken by the High Court is clearly unsustainable in law. 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 452 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 vs T.J. Joseph	 ; 	 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 vs 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 article 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 article 254(2) where the fur ther legislation by Parliament is in respect of the same matter as that of the State law. " The doctrine of implied repeal is based on the postulate that the legislature which is presumed to know the existing state of the law did not intend to create any confusion by retaining conflicting provisions. Courts	 in applying this doctrine	 are supposed merely to give effect to the legisla tive intent by examining the object and scope of the two enactments. But in a conceivable case	 the very existence of two provisions may by itself	 and without more	 lead to an inference of mutual irreconcilability if the later set of provisions is by itself a complete code with respect to the same matter. In such a case the actual detailed comparison of the two sets of provisions may not be necessary. It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneously. Section 80 is a special provi 453 sion. It deals with certain class of suits distinguishable on the basis of their particular subject matters. The High Court has come to the conclusion that new Section 80 made a conscious departure on the law as to the place of suing in respect of suits of a particular subject matter envisaged by that Section. The High Court has held that the new Section 80 is a selfcontained provision in regard to the choice of fora for such suits. According to the High Court	 there was no need for the legislature to specify the places of suing which would otherwise be covered by Section 20 C.P.C. unless the special prescription as to places of suing was considered to be necessary in deroga tion to the general law as contained in Sec. 20 CPC or the provisions in the Small cause Courts Act. As to the words "may be instituted" occurring in that Section	 the High Court observed: "The use of the expression 'may be instituted ' in Section 80 of the Railways Act was equiva lent to 'shall be instituted '. Section 80 conferred right to institute suits for compen sation against the Railways for breach of their obligations for carrying passengers	 animals or goods specified in Chapter VII of the Indian Railways Act. Both the obligation on the part of the Railways and the right of the consignor and the consignee to institute suits are now statutory in their nature. The clear intendment of the Legislature was that it would be obligatory for the plaintiffs to institute suits only in the Courts mentioned in Section 80 of the Railways Act for enforce ment of the claims for compensation against the Railways. After a consideration of the matter	 we are inclined to the view that the reasoning of and the conclusion reached by the Full Bench of the Calcutta High Court that the new Section 80 is a selfcontained provision are sound and re quire to be preferred to the view expressed by the Assam and the Madras High Courts. The view of the Full Bench is to be preferred having regard to the weight and preponderance of the relevant interpretatory criteria. No appeal	 in our opinion	 could be made to Section 21A of the State Amendment to the Small Cause Courts Act either	 in as much as	 that provision cannot be understood to have been intended to cover a situation of the present 454 type. It does not exclude a special law applicable to and governing a distinct class of subject matter intended to be covered by that special law. In the result	 for the fore going reasons	 these appeals fail and are dismissed; but in the circumstances	 without any directions as to costs. N.P.V. Appeals dismissed.

Summary:
Under Section 80 of the Indian Railways Act	 1890	 prior to its substitution by the Amendment Act	 1961	 the choice of forum for filing suits for compensation for loss	 de struction	 damage	 deterioration or non delivery of goods etc. carried by the Railways was regulated by Section 20 of the Code of Civil Procedure or Section 18 of the 	 as the case may be. However	 the new section	 besides making specific reference to a certain class of suits	 to be dealt with under the section and identifying the Railways Administrations which were liable to the claim	 also specifically provided the places where such suits may be instituted. The appellants filed two separate suits in the courts at Alipore and Calcutta for recovery of certain amounts from the Railways for short deliveries of consignments booked by them. The respondent contended that in view of Section 80 of the Indian Railways Act	 1890	 the trial courts concerned had no jurisdiction. The trial courts rejected the objection and decreed the suits. In the revisions filed by the respondent	 the Full Bench of the High Court	 by its common order	 held that the trial courts had no jurisdiction. It was of the view that the new Section 80	 was a complete and self contained special law	 as to the place of suing	 respecting suits envisaged by the section derogating from the generally of the provisions of Section 20 of the Code of Civil Procedure	 1890 and Section 18 of the Presidency Town Small Cause Courts Act	 1882 and that it brought about an implied repeal of those provisions as to the jurisdiction of 441 courts by itself providing a jurisdiction to those suits. In the appeals before this Court it was contended on behalf of the appellants that the legislative intent was clear: that it did not render Section 80 over riding	 by not expressly excluding Section 20 of the Code of Civil Proce dure	 1890	 and that even if the provisions of Section 80 were held to be a later special law	 the principle of im plied repeal could not be invoked	 as there was no incon sistency between the two provisions and	 on the contrary	 both sets of provisions could exist and prevail. Dismissing the appeals	 HELD: The doctrine of implied repeal is based on the postulate that the legislature which is presumed to know the existing state of the law did not intend to create any confusion by retaining conflicting provisions. Courts in applying this doctrine	 are supposed merely to give effect to the legislative intent by examining the object and scope of the two enactments. But in a conceivable case	 the very existence of two provisions may by itself	 lead to an infer ence of mutual irreconcilability if the later set of provi sions is by itself a complete code with respect to the same matter. In such a case	 the actual detailed comparison of the two sets of provisions may not be necessary. [452F G] It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneous ly. [452H] Section 80 is a special provision dealing with certain class of suits distinguishable on the basis of their partic ular subject matter. It made a conscious departure on the law as to the place of suing in respect of suits envisaged by that Section	 and is a self contained provision in regard to the choice of fora for such suits. There was no need for the legislature to specify the places of suing which would otherwise be covered by Section 20 C.P.C. unless the special prescription as to places of suing was considered to be necessary in derogation to the general law as the matter contained in Section 20 C.P.C. or the provisions in the Small Cause Courts Act. [453B C] Assam Cold Storage vs Union of India	 AIR 1971 Assam 69; Hindustan Machine Tools vs Union of India	 AIR 1985 Madras 130; Oghamal Chaudhury vs Union of India	 and Union of India vs Indian Hume Pipe Co. Ltd.	 AIR 1981 Bombay 414	 approved. 442 New India Assurance Co. vs Union of India	 AIR 1981 Delhi 135 and Union of India vs C.R. Prabhanna	 AIR 1977 132	 over ruled. Shah Babulal Khimji vs Jaya Ben D. Kania and another; 	 ; Municipal Council	 Palai vs T.J. Joseph and others; 	 ; Zaver Bhai Amaidas vs State of Bombay	 AIR 1954 SC 752; Union of India vs Ladu Lal Jain	 ; and Union of India vs The Steel Stock Holders Syndicate	 Poona	 ; 	 referred to.