(SHAIK) FARID Vs. GOVERNMENT OF UNION OF INDIA, OWNING THE E. I. STATE RAILWAY PER GENERAL MANAGER OF THE SAID RAILWAY AND ANOTHER

JUDGEMENT

(1.) THIS revision petition has been ably argued by the advocates of the parties, raises important legal as well as constitutional issues. The facts of the case are not complicated, and be shortly narrated.

(2.) THE revision petitioner made over a trunk containing glass bangles at Ferozabad, a station the then E. I. Railway for delivery to himself Warangal, a station on the then N. S. Railway, under luggage ticket No. 304477 of November 12, 1946. The case of the petitioner is that on his arrival Warangal, the trunk containing the bangles was delivered to him, nor it has been since traced notice under Section 77 of the Indian Railways was issued on December 11, 1946, to the N. S. E. I. Railways; but no reply was received till September 25, 1947. The position prior to August was that the Indian Railways Act governed lands of the then Hyderabad State covered by ways including N. S. Railway except, a part of land with which we are not concerned in the This was done by ceding to the Crown jurisdiction over the railway land and by extension of the Indian Railways Act to the aforesaid land by the Crown Representative. With the lapse of paramountry August 15, 1947, the legal position of the Hyderabad State was changed and even before lapse of paramountry the coded lands had been retroceded to the Nizam's Government on August 7, 1947. Soon after the retrocession, the Hyderabad laws were made applicable to the retroceded territory and the Hyderabad Railways Act consequently came operative. So also the other laws of the state. Another consequence of the retrocession was that suits which could be instituted in the courts Secunderabad under Section 80 of the Indian Railway's Act could no longer be filed because these courts would not by their process make a sovereign state a party to legal proceedings, whether the proceedings sought to recover specific property or damages. Nor could the Railway administration of then Hyderabad State be sued in India, without trial permission under Sections 86 and 87 of the Civil Procedure Code, and this proposition was well published by Gaekwar Baroda State Railway v. Hafiz Habib -ul -Haq,, 65 Ind App 182: (AIR 1938 165 ) (A). The revision petitioner claims that he received no final rejection of his claim till September 25, 1947, which he alleges to be the date when cause of action accrued to him, and he further alleges, though his allegation has been strongly contested before me, that against the railway's refusal compensate him he filed an application by way appeal before the Railway Secretary but no final application of his appeal was made till the suit filed on July 20, 1950. The aforesaid efforts, argues were necessary because of the practice observed by the Legal Secretariat of the then Government in proceedings for permission to sue the Government under the enactment concerning 'suits against Government', which was repealed on April,

(3.) THE Advocate of the petitioner has argued that Article 31 of the Indian Limitation Act, which is similar to Art 26 of the Hyderabad Limitation Act, applicable to the case and the period of one could be counted after deducting the time which the Union Government could not be proceeded against. That time, according to him, begin when the notice was issued under Section of the Railways Act and be continued till N. S. Railway was taken over on April 1, 1950. In support of his argument he relies on Mangani Ram Government of India. ILR, 1952 Hyd 983: (AIR Hyd 139) (B), where a Division Bench of the Hyderabad High Court has held that absence of forum has the effect of suspension of remedy; that advent of the Constitution the Hyderabad Railway could not be sued due to Section 4 Hyderabad Suit against Government Act; and East Punjab State Railway as owned by Foreign Government could not be sued so that plaintiff had no forum where he could sue both. Reliance was further placed by the advocate of the petitioner on Section 15 (2) of the Hyderabad Limitation Act, under which a party was entitled to deduct such period as he had taken for obtaining the permission where such permission be necessary under any law for filing a claim. It is urged that as the Legal Secretariat of this period insisted on a party having exhausted all the departmental reliefs before his coming to the Legal Adviser for the permission to file suit, the time taken for appealing to the Railway Secretary in the case should be allowed. I am afraid the first difficulty in allowing the particular claim of the petitioner is not of limitation, but of constitution. The claim is of the time prior to the inauguration of the Constitution and the revision petitioner has to establish firstly that the Union Government, as the succeeding State can be sued in the form it has been sued for such a claim. I am afraid the learned Judges constituting the Division Bench which decided the case relied by the Advocate of the petitioner have not decided the point, and I am, therefore, free to decide it.