(Shaik) Farid vs Government of Union of India and Another

Mohamed Ahmed Ansari, J.—This revision petition has b(sic) ably argued by the advocates of the parties, raises important legal as well as constitutional iss(sic) The facts of the case are not complicated, and be shortly narrated.

The revision petitioner made over a (sic) 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, (sic)der luggage ticket No. 304477 of November 12, 1(sic) 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 u/s 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 I(sic) Railways Act to the aforesaid land by the Crow(sic) presentative. With the lapse of paramountry August 15. 1947, the legal position of the Hyderabad State was changed and even before lapse of paramountry the ceded lands had been (sic)ceded to the Nizam''s Government on August 7, (sic)47. Soon after the retrocession, the Hyderabad (sic)vs were made applicable to the retroceded terri(sic)y and the Hyderabad Railways Act consequently came operative. So aslo the other laws of the (sic)te. Another consequence of the retrocession was (sic)t suits which could be instituted in the courts Secunderabad u/s 80 of the Indian Railway''s Act could no longer be filed because these (sic)rts would not by their process make a sovereign (sic)ie a party to legal proceedings, whether the pro(sic)iings sought to recover specific property or (sic)iages. Nor could the Railway administration of then Hyderabad State be sued in India, without (sic)rial permission under Sections 86 and 87 of the Civil Procedure Code, and this proposition was well published by Gaekwar Baroda State Railway v. (sic)z Habib-ul-Haq, 65 Ind App 182: (AIR 1938 165) (A). The revision petitioner claims that he (sic)ived 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 (sic)es, though his allegation has been strongly con(sic)d 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, (sic)rgues, were necessary because of the practice (sic)ved by the Legal Secretariate of the then Government in proceedings for permission to sue the Government under the enactment concerning ''suits (sic)at Government'', which was repealed on April,

The suit, which is for the Rs. 1,016-4-0 as (sic)ges, has been instituted against the Union Government, owning the E. I. Railway as the (sic)rst defendant, and the Union Government (sic)g the N. S. Railway as the second defendant. Small Cause Court, Secunderabad, has dis(sic)d the claim on the ground of limitation alone, holding that notice u/s the Indian Railways Act was given, that no u/s 80 of the Indian CPC was necessary as the Indian CPC has not been at the time of the filing of it applied to Part B States; and that the Government could be sued after the inaugurate the Constitution.

The Advocate of the petitioner has argued (sic)rt. 31 of the Indian Limitation Act, which is (sic)to Art 26 of the Hyderabad Limitation Act, (sic)plicable to the case and the period of one (sic)lould be counted after deducting the time which the Union Government could not be (sic)led against. That time, according to him, begin when the notice was issued u/s of the Railways Act and be continued till (sic)S. Railway was taken over on April 1, 1950. (sic)ort of his argument he relies on Mangani Ram Government of India. H"R 1952 Hyd 983: (AIR (sic)yd 139) (B), where a Division Bench of the Hyderabad High Court has held that absence of (sic)as 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 (sic)ign 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.

It must Be conceded that the Union Government has under Article 294 (b) inherited all the rights, liabilities and obligations of the Government of Dominion of India, arising out of any contract or otherwise. Also all the rights, liabilities and obligations of Governments of Part B States became under Article 295 (1) (b) those of the Union Government if they related to any matters enumerated in the Union List. The Railway being covered by the aforesaid List the liability of the former Hyderabad State would have devolved. But the aforesaid Articles must be read with the provisions of Article 300 (1), which provides that the Government of India may sue or be sued as the Dominion of India or the corresponding Indian States might have sued or been sued if the Constitution had not been enacted. It follows that if the Dominion Government or the former Hyderabad State could not be sued at all, or without complying with certain legal provisions the Union Government cannot be proceeded against concerning matters which arose during the period. Apart from Article 300 (1) it is further admitted that the Constitution has no retrospective operation, and the same result would follow if the Dominion or the Government of the former Indian States could not be sued in law Courts; for, the liability of the succeeding State cannot be higher than that of its predecessor State and an obligation that could not be enforced against such a State would he equally unenforceable against the successor.

Now, it cannot be denied that before the inauguration of the Constitution, no suit could be filed against the then Hyderabad State without permission, which was got through the Legal Adviser. This necessity arose because Section 3 of the Hyderabad Suits against Government Act had provided that no suit could be filed against the Government without permission from the Prime Minister which could be obtained in the manner provided by the Act. It is admitted that no such permission was obtained in the case and the enactment was not repealed till April 1951, i.e., it existed on the date the Constitution, was inaugurated. Indeed the Advocate of the petitioner; argued that he should be allowed the period taken for prosecuting this appeal in computing limitation because of the proviso to Section 4 of the Act that no application could be filed before the Legal Adviser unless the applicant had taken full advantage of the appeal available in the Department. It follows that without such permission no liability of the former Hyderabad Government arose, because it could not be enforced in any court and in absence of anything to the contrary the obligation of the succeeding State cannot be higher. Had the case been complete with permission, no difficulty would have arisen, but having regard to the words "this Constitution had not been enacted'''' tin Art. 300(1) the earlier legal position is bound to be looked into and that position is such that the Hyderabad Govt, could not be wed. Therefore, the Union Government cannot also be proceeded against.

I have also to examine the legal position of the Union Government as the successor to the Dominion Government. The position before the lapse of the paramountry was, the Government of India could be sued in Secunderabad because the Railway Act as well as the CPC were then applicable. But it cannot be denied that the Dominion Government could not be made liable after August, 15, 1947. The observation of Lord Atkin in Campania Naviera Vascongado v. Steamship "Cristina" 1938 AC 485 (C), at p. 490, may be referred to in this connection:

The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or to seek to recover from him specific property or damages.

This would be the position till the entire country was united by the inauguration of the Constitution. Therefore, the Dominion Government could not be sued in Secunderabad for matters concerning railway, and the position after the inauguration of the Constitution would not be different concerning these" matters of the earlier period. It is true that the Dominion Government could be sued elsewhere; but the suit would be barred by limitation prior Ho the inauguration of the Constitution, and it would not be within limitation merely because it was being filed in Secunderabad. The result is that the suit has been rightly dismissed and the revision is allowed with costs.