# Bharat Petroleum Corporation Ltd v. Union of India

- **Citation:** (2019) 2 ILRA 1319
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-31
- **Case number:** FAFO (D) No. 91 of 2018
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bharat-petroleum-corporation-ltd-v-union-of-india-44587
- **Pages:** 12

## Headnote

A. Railway Claims Tribunal Act, 1987 -
Section 16 - Railway Claims Tribunal
(Procedure) Rules, 1989 - Rule 3 & 9 -
Practice and Procedure - Subsequent
change in the territorial jurisdiction of
the Bench - Application not be returned
for presentation before the appropriate
Tribunal.
Held:-If at the time when the application is
moved a Bench had territorial jurisdiction over
the matter then merely because of subsequent
change in the territorial jurisdiction - the
application is not be returned for presentation
before the appropriate Tribunal - Jurisdiction
of a court is to be normally ascertained at the
time of the inception of a suit.
At
the
time
the
application
seeking
compensation was moved - Lucknow Bench
had territorial jurisdiction - Application could
not be returned to the appellant for their
presentation before Gorakhpur Bench as a
result of a subsequent change in the territorial
jurisdiction of Lucknow Bench. (Para 33)
B. Practice and Procedure - Once the
Tribunal holds that it had no territorial
jurisdiction it became functus officio - it
could not delve into the merits of the
matter and give any findings on merit or
make any clarification.
Held: -Once the Tribunal comes to the
conclusion that it had no territorial jurisdiction
over the matter, it is left with no other option but
to pass an order for return of the applications. It
is not open to the Tribunal to clarify that the
appellant would not be entitled for exclusion of
the period during which the applications
remained pending before the Lucknow Bench
from the period prescribed under law of
limitation. The clarification made by the Tribunal
is without jurisdiction. (Para 35,37 & 38)
Appeals allowed (E-5)
List of cases cited: -
1.Sharma Singh Vs Sadhu Singh AIR 1928 Lah 484
2.Raizada
Topandas
Vs
Gorakhram
Gokalchand AIR 1964 SC 1348
3.Athmanathaswami
Devasthanam
Vs
K.
Gopalaswami Ayyangar AIR 1965 SC 338
4.Alamchand Birumal Vs Motilal Balchand AIR
1968 MP 112
5.Harnam Das Vs Salamat Rai Civil Revision
No. 140 of 1950
6.R.S.D.V. Finance Co. (P) Ltd. Vs Shree
Vallabh Glass Works Ltd. (1993) 2 SCC 130
7.Prasant Kumar Choudhury Vs Union of India
2006 SCC OnLine Ori 58

## Text

2 All. Bharat Petroleum Corporation Ltd. Vs Union of India
1319
(2019)10ILR A 1319

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2019

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.
FAFO (D) No. 91 of 2018
&
FAFO (D) Cases No. 95 of 2018 & 93 of 2018

Bharat Petroleum Corporation Ltd.
 ...Appellant
Versus
Union of India ...Respondent

Counsel for the Appellant:
Sri SM Singh Royekwar

Counsel for the Respondent:
Sri Neerav Chitravansi

A. Railway Claims Tribunal Act, 1987 -
Section 16 - Railway Claims Tribunal
(Procedure) Rules, 1989 - Rule 3 & 9 -
Practice and Procedure - Subsequent
change in the territorial jurisdiction of
the Bench - Application not be returned
for presentation before the appropriate
Tribunal.
Held:-If at the time when the application is
moved a Bench had territorial jurisdiction over
the matter then merely because of subsequent
change in the territorial jurisdiction - the
application is not be returned for presentation
before the appropriate Tribunal - Jurisdiction
of a court is to be normally ascertained at the
time of the inception of a suit.
At
the
time
the
application
seeking
compensation was moved - Lucknow Bench
had territorial jurisdiction - Application could
not be returned to the appellant for their
presentation before Gorakhpur Bench as a
result of a subsequent change in the territorial
jurisdiction of Lucknow Bench. (Para 33)
B. Practice and Procedure - Once the
Tribunal holds that it had no territorial
jurisdiction it became functus officio - it
could not delve into the merits of the
matter and give any findings on merit or
make any clarification.
Held: -Once the Tribunal comes to the
conclusion that it had no territorial jurisdiction
over the matter, it is left with no other option but
to pass an order for return of the applications. It
is not open to the Tribunal to clarify that the
appellant would not be entitled for exclusion of
the period during which the applications
remained pending before the Lucknow Bench
from the period prescribed under law of
limitation. The clarification made by the Tribunal
is without jurisdiction. (Para 35,37 & 38)
Appeals allowed (E-5)
List of cases cited: -
1.Sharma Singh Vs Sadhu Singh AIR 1928 Lah 484
2.Raizada
Topandas
Vs
Gorakhram
Gokalchand AIR 1964 SC 1348
3.Athmanathaswami
Devasthanam
Vs
K.
Gopalaswami Ayyangar AIR 1965 SC 338
4.Alamchand Birumal Vs Motilal Balchand AIR
1968 MP 112
5.Harnam Das Vs Salamat Rai Civil Revision
No. 140 of 1950
6.R.S.D.V. Finance Co. (P) Ltd. Vs Shree
Vallabh Glass Works Ltd. (1993) 2 SCC 130
7.Prasant Kumar Choudhury Vs Union of India
2006 SCC OnLine Ori 58

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. FAFOD No. 91 of 2018, FAFOD
No. 95 of 2018 and FAFOD No. 93 of
2018 involve a common question of law
and as such they were heard together and
are being decided by a common order.

FAFOD No. 91 of 2018
1320 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This first appeal from order has
been filed challenging the order dated
10.03.2017 passed by the Railway Claims
Tribunal, Lucknow Bench, Lucknow in
Case
No.
OA/I/02/2011
(Bharat
Petroleum Corporation Ltd. v. Union of
India).

3. On 04.07.2002, the Bharat
Petroleum Corporation Limited (for short
'the Corporation') moved an application
under Section 16 of the Railway Claims
Tribunal Act, 1987 before the Railway
Claims
Tribunal,
Lucknow
Bench,
Lucknow seeking compensation to the
tune
of
Rs.
93,437/-
against
the
respondent. It was alleged that on
19.09.2008, the appellant had booked a
consignment of High Speed Diesel (HSD)
under Railway Receipt No. 212006900
from Numaligarh (Assam) to Mughalsarai
in District Chandauli (Uttar Pradesh). It
was alleged that there was shortage in six
tank wagons having No. SR 13895, WR
986693, NR 108103, WR 906925 and
WR 906753 at the destination station.

4. The respondent resisted the claim
of the appellant. In its written statement
the respondent denied its liability for the
alleged
loss.
For
the
purpose
of
adjudication of the present appeal, it is not
necessary to set out in detail all the pleas
taken by the respondents in their written
statement. Based upon the pleadings of
the parties, the Tribunal framed five
issues. There was no issue with respect to
the jurisdiction of the Tribunal.

5. On 10.03.2017 when the claim
petition
came
up
for hearing,
the
respondent raised an objection that the
Lucknow Bench of the Tribunal had no
territorial jurisdiction to hear the matter.
The Tribunal after hearing the counsels
for the parties held that it had no
territorial jurisdiction and accordingly
passed
an
order
for
returning
the
application
to
the
appellant
for
presentation of the same before the
appropriate forum. The Tribunal further
added that while calculating the limitation
before the other forum, the appellant
would not be entitled to exclusion of the
time spent in pursuing the matter before
the Lucknow Bench. The relevant portion
of the order dated 10.03.2017 is extracted
below:-

"Learned
counsel
for
the
respondent
has
submitted
short
arguments. It has been contended therein
that as per legal position, since neither the
booking point, Numaligarh nor the
destination point Mughalsarai of the
disputed
consignment
falls
within
territorial jurisdiction of this Bench, as
such, claim application is liable to be
rejected straightway.

I agree with the contention of
the respondent as the regional office of
the
company
is
in
NOIDA.
The
originating and destination stations are on
Eastern
Railway,
therefore,
as
per
Schedule I, this case does not come within
the territorial jurisdiction of the RCT
Lucknow Bench.

Accordingly, in my opinion the
applicant should approach the proper
forum designated to entertain this case for
appropriate remedy.

Under this situation, issues need
not be determined and the application is
liable to be returned to the applicant to
present it before the appropriate forum
competent to admit and decide this case.

ORDER

The application moved by the
applicant Company, is hereby returned to
2 All. Bharat Petroleum Corporation Ltd. Vs Union of India
1321
the applicant to present before the
appropriate Tribunal. It is clarified that
applicant shall not be entitled for
exclusion of the period during which this
case
remained
pending
before
this
Tribunal from the period prescribed
under law of limitation. Parties shall bear
their own costs. After return as directed
above, the remaining record shall be
consigned."

(emphasis supplied)

FAFOD No. 95 of 2018

6. This first appeal from order has
been filed challenging the order dated
25.11.2016 passed by the Railway Claims
Tribunal, Lucknow Bench, Lucknow in
Case No. OR0200029 (Bharat Petroleum
Corporation Ltd. v. Union of India).

7. On 28.03.2002, the Bharat
Petroleum Corporation Limited (for short
'the Corporation') moved an application
under Section 16 of the Railway Claims
Tribunal Act, 1987 before the Railway
Claims
Tribunal,
Lucknow
Bench,
Lucknow seeking compensation to the
tune of Rs. 2,26,888/- against the
respondent. It was alleged that on
30.11.2001, the appellant had booked a
consignment of Motor Spirit (MS) under
Railway
Receipt
No.
588435
from
Numaligarh (Assam) to Mughalsarai in
District Chandauli (Uttar Pradesh). It was
alleged that there was short delivery of
Motor Spirit loaded in tank wagon no.
95464 at the destination station.

8. The respondent resisted the claim
of the appellant. In its written statement
the respondent denied its liability for the
alleged
loss.
For
the
purpose
of
adjudication of the present appeal, it is not
necessary to set out in detail all the pleas
taken by the respondents in their written
statement.

9. On 25.11.2016, after hearing the
counsels for the parties the Tribunal held
that it had no territorial jurisdiction and
accordingly passed an order for returning
the application to the appellant for
presentation of the same before the
appropriate forum. The Tribunal further
added that while calculating the limitation
before the other forum, the appellant
would not be entitled to exclusion of the
time spent in pursuing the matter before
the Lucknow Bench. The relevant portion
of the order dated 25.11.2016 is extracted
below:-

"The Regional office of the
applicant company is in NOIDA. The
originating station is on NEF Railway
and destination station Mughalsarai is as
present on East Central Railway, when
the claim petition was filed it was on
Eastern Railway. Mughalsarai is in
Varanasi district which comes under the
jurisdiction of Gorakhpur Bench of RCT,
therefore as per Schedule I, the plaint
does not come within the terrirorial
jurisdiction of the RCT Lucknow Bench.

ORDER

The application moved by the
applicant company, is hereby returned to
the applicant to present before the
appropriate Tribunal. It is clarified that
applicant shall not be entitled for
exclusion of the period during which this
case
remained
pending
before
this
Tribunal from the period prescribed
under law of limitation. Parties shall bear
their own costs. After return as directed
above, the remaining record shall be
consigned."
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
(emphasis supplied)

FAFOD No. 93 of 2018

10. This first appeal from order has
been filed challenging the order dated
17.03.2017 passed by the Railway Claims
Tribunal, Lucknow Bench, Lucknow in
Case No. OR0200031 (Bharat Petroleum
Corporation Ltd. v. Union of India).

11. On 28.03.2002, the appellant,
the Bharat Petroleum Corporation Limited
(for short 'the Corporation') moved an
application under Section 16 of the
Railway Claims Tribunal Act, 1987
before the Railway Claims Tribunal,
Lucknow
Bench,
Lucknow
seeking
compensation
to
the
tune
of
Rs.
8,15,930/- against the respondent. It was
alleged that on 20.08.2000, the appellant
had booked a consignment of High Speed
Diesel (HSD) under Railway Receipt No.
583788 from Numaligarh (Assam) to
Mughalsarai in District Chandauli (Uttar
Pradesh) in good and sound condition. It
was alleged that one of the tank wagons
having No. ER 17020 had not been
delivered at the destination station.

12. The respondent resisted the
claim of the appellant. In its written
statement the respondent denied its
liability for the alleged loss. For the
purpose of adjudication of the present
appeal, it is not necessary to set out in
detail all the pleas taken by the
respondents in their written statement.
Based upon the pleadings of the parties,
the Tribunal framed three issues. There
was no issue with respect to the
jurisdiction of the Tribunal.

13. On 17.03.2017 when the claim
petition
came
up
for hearing,
the
respondent raised an objection that the
Lucknow Bench of the Tribunal had no
territorial jurisdiction to hear the matter.
The Tribunal after hearing the counsels
for the parties held that it had no
territorial jurisdiction and accordingly
passed
an
order
for
returning
the
application
to
the
appellant
for
presentation of the same before the
appropriate forum. The Tribunal further
added that while calculating the limitation
before the other forum, the appellant
would not be entitled to exclusion of the
time spent in pursuing the matter before
the Lucknow Bench. The relevant portion
of the order dated 17.03.2017 is extracted
below:-

"Learned
counsel
for
the
respondent
has
submitted
short
arguments. It has been contended therein
that as per legal position, since neither
the booking point, Numaligarh nor the
destination point Mughalsarai of the
disputed
consignment
falls
within
territorial jurisdiction of this Bench, as
such, claim application is liable to be
rejected straightway.

I agree with the contention of
the respondent as the regional office of
the
company
is
in
NOIDA.
The
originating and destination stations are
on Eastern Railway, therefore, as per
Schedule I, this case does not come within
the territorial jurisdiction of the RCT
Lucknow Bench. But I don't agree with the
arguments of learned counsel for the
respondent that the application deserves
to be rejected. Obviously, when the Bench
has no jurisdiction to entertain this case,
the same cannot be rejected as it will
amount disposal of the case wherefor this
Bench has no jurisdiction.

Accordingly, in my opinion the
applicant should approach the proper
2 All. Bharat Petroleum Corporation Ltd. Vs Union of India
1323
forum designated to entertain this case for
appropriate remedy.

Under this situation, issues need
not be determined and the application is
liable to be returned to the applicant to
present it before the appropriate forum
competent to admit and decide this case.

ORDER

The application moved by the
applicant Company, is hereby returned to
the applicant to present before the
appropriate Tribunal. It is clarified that
applicant shall not be entitled for
exclusion of the period during which this
case
remained
pending
before
this
Tribunal from the period prescribed
under law of limitation. Parties shall bear
their own costs. After return as directed
above, the remaining record shall be
consigned."

(emphasis supplied)

14. Sri S.M. Singh Royekwar,
learned counsel for the appellant has
made a two-fold submission: firstly,
according to him, at the time when the
applications was moved before the
Lucknow
Bench,
it
had
territorial
jurisdiction over the matter and as such by
a subsequent change in the territorial
jurisdiction of the Lucknow Bench, the
applications moved by the appellant could
not be returned for presentation before the
appropriate
Tribunal;
secondly,
the
counsel submits that once the Tribunal
came to the conclusion that it had no
territorial jurisdiction in the matter it
became functus officio and it could not
have passed an order on merit or made
any clarification.

15.

Per
contra
Sri
Neerav
Chitravanshi, learned counsel for the
respondent has supported the orders under
challenge in the three appeals under
consideration.

16. In order to provide relief to the
rail-users by way of expeditious payment
of compensation to the victims of railaccidents and to those whose goods are
lost or damaged in rail transit, the
Government of India decided to establish
the
Railway
Claims
Tribunal
with
Benches in different parts of the country,
and with judicial and technical members.
For this purpose, the Government of India
promulgated the Railway Claims Tribunal
Act, 1987 (for short 'Act'). Section 13 of
the
Act,
which
provides
for
the
jurisdiction, powers and authority of the
Tribunal, reads as under:

"13. Jurisdiction, powers and
authority of Claims Tribunal.-(1) The
Claims Tribunal shall exercise, on and
from
the
appointed
day,
all
such
jurisdiction, powers and authority as were
exercisable immediately before that day
by
any
civil
court
or
a
Claims
Commissioner
appointed
under
the
provisions of the Railways Act,--

(a) relating to the responsibility
of the railway administrations as carriers
under Chapter VII of the Railways Act in
respect of claims for--

(i) compensation for loss,
destruction, damage, deterioration or nondelivery of animals or goods entrusted to
a railway administration for carriage by
railway;

(ii) compensation payable
under Section 82-A of the Railways Act
or the rules made thereunder; and

(b) in respect of the claims for
refund of fares or part thereof or for
refund of any freight paid in respect of
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
animals or goods entrusted to a railway
administration to be carried by railway.

17. The expression ''appointed day'
is defined in section 2(b) of the Act to
mean the date with effect from which the
Claims Tribunal is established under
section 3 of the Act.

18. On the establishment of Railway
Claims Tribunal under the Act, on and
from the appointed day i.e. 08.11.1989,
no court or authority except the Tribunal
established under the Act alone had the
jurisdiction to exercise power or authority
in relation to the matters referred to under
Section 13 of the Act and every suit,
claim or other legal proceedings (other
than an appeal) pending before any court,
Claims Commissioner or other authority
immediately before the appointed day
dealing with the matters enumerated
under Section 3 of the Act stood
transferred to the Tribunal.

19. Section 14 of the Act which
relates to the distribution of business
amongst the Benches of the Claims
Tribunal reads as under:

14. Distribution of business
amongst
Benches.--(1)
Where
any
Benches are constituted, the Central
Government may, from time to time, by
notification, make provisions as to the
distribution of the business of the Claims
Tribunal amongst the Benches and
specify the matters which may be dealt
with by each Bench.

(2) If any question arises as to
whether any matter falls within the
purview of the business allocated to a
Bench, the decision of the Chairman shall
be final.

Explanation.--For the removal
of doubts, it is hereby declared that the
expression
"matters"
includes
an
application under Section 20.

20. In exercise of the power under
Section 30 of the Railway Claims Act,
1987, the Railway Claims Tribunal
(Procedure) Rules, 1989 (for short 'Rules')
have
been
framed
by
the
Central
Government. Rule 3 and 9 of the Rules
are being reproduced below for ready
reference.

"3. Territorial jurisdiction of
Benches.--(1) The number of Benches,
the Headquarter of and the territorial
jurisdiction of a bench shall be as
specified in Schedule I and Schedule I(A).

(2) If an application is received
by a Bench which does not have
territorial jurisdiction to deal with the
matter, the Registrar of the Bench shall
return the application to the applicant.

(3) Notwithstanding anything
contained in sub-rule (2) the applicant
may apply to the Chairman and the
Chairman may thereupon for reasons
recorded in writing, direct a Bench other
than
the
Bench
before
which
an
application has been filed to hear such
application and issue such orders as may
be necessary for the transfer of the
application.
 *
* *

9. Place of filing application
for compensation for loss, damage,
destruction,
deterioration
or
nondelivery of goods or animals.--An
application for compensation referred to
in sub-clause (i) of clause (a) of subsection (1) of Section 13 of the Act may
be filed before
the Bench having
2 All. Bharat Petroleum Corporation Ltd. Vs Union of India
1325
territorial jurisdiction over the place
where--

(a) the goods or animals were
delivered for carriage; or

(b) where the destination station
lies; or

(c) the loss, destruction, damage
or deterioration of goods or animals
occurred."

(emphasis supplied)

21. As per Schedule I of the Rules,
the Headquarters of the Benches of the
Tribunal were established at 17 places,
mentioned therein, all over India. The
districts over which the Benches were to
exercise
territorial
jurisdiction
were
mentioned against their names in column
3. In the State of Uttar Pradesh, the
Headquarters
of
the
Benches
were
established
at
three
places
namely
Ghaziabad, Gorakhpur and Lucknow. The
relevant portion of Schedule I of the
Rules is extracted below:

 SCHEDULE I
 (See Rule 3)

Sl.
No.
Headquarters of
the Bench of the
Railway Claims
Tribunal
Territorial jurisdiction of the
Bench
(1)
(2)
(3)
9.
Guwahati
Assam, Sikkim, Mizoram,
Arunachal Pradesh, Tripura,
Manipur,
Meghalaya,
Nagaland.
11.
Gorakhpur
Districts
of
Gorakhpur,
Deoria,
Ballia,
Gazipur,
Azamgarh,
Nau,
Basti,
Siddharthnagar,
Mirzapur,
Robertsgang,
Jaunpur,
Faizabad, Gonda, Bahraich,
Sultanpur,
Pratapgarh,
Lakhimpur,
Allahabad,
Varanasi, Bareilly, Sitapur,
Pilibhit,
Nanital,
Shahjahanpur, Badaun and
Hardoi of Uttar Pradesh.
12.
Lucknow
All
Districts
of
Uttar
Pradesh
except
those
included in Column (3)
against serial no. 11

22. A perusal of column 3
corresponding to serial no. 11 of Schedule
I of the Rules shows that district
Chandauli, was not included therein. As
per column 3 corresponding to serial no.
12, district Chandauli fell within the
territorial jurisdiction of Lucknow Bench.

23. In exercise of the powers under
Section 30 of the Act, by notifications
dated
04.02.1997,
29.02.2000,
02.12.2002, 22.10.2003 and 15.02.2006,
Schedule I of the Rules was amended, but
District Chandauli continued to remain
under
the
territorial
jurisdiction
of
Lucknow Bench of the Tribunal. By
notification dated 11.04.2007, Schedule I
of the Rules was again amended and for
the first time the territorial jurisdiction
over district Chandauli was shifted from
Lucknow Bench to Gorakhpur Bench.
The relevant portion of the notification
dated 11.04.2007 is extracted below:-

"1. (1) These rules may be
called the Railway Claims Tribunal
(Procedure) Amendment Rules, 2007.

(2) They shall come into force
on the date of their publication in the
Official Gazette.

2. In the Railway Claims
Tribunal (Procedure) Rules, 1989, in the
Schedule I at Serial Number 11, for the
entry in Column 3, the following entry
shall be substituted namely:-

"District
Gorakhpur,
Deoria,
Ballia, Gazipur, Azamgarh, Mau, Basti,
Siddharthnagar, Mirzapur, Robertsgang,
Jaunpur, Faizabad, Gonda, Bahraich,
Varanasi, Maharaj Ganj, Kushinagar,
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
Shravasti, Sant Kabir Nagar, Chandauli,
Sant Ravi Das Nagar, Balrampur and
Ambedkar Nagar of Uttar Pradesh."

(emphasis supplied)

24. As per Rule 9 of the Rules, the
application for compensation for non
delivery of goods could be filed either
before
the
Bench
having
territorial
jurisdiction over the place where the
goods were delivered for carriage or
before
the
Bench
having
territorial
jurisdiction over the destination station. In
the cases at hand, the consignment was
booked at Numaligarh for Mughalsarai.
Numaligarh, the booking station, fell in
the
State
of
Assam,
whereas,
Mughalsarai, the destination station, fell
in district Chandauli in the State of Uttar
Pradesh, and as such, as per Schedule I of
the Rules, as it stood at the time of filing
of the applications, the appellant could
have invoked the jurisdiction of either the
Guwahati Bench of the Tribunal, which
had territorial jurisdiction over the entire
State of Assam or before the Lucknow
Bench which had territorial jurisdiction
over district Chandauli, under which the
destination station fell. The appellant
chose Lucknow Bench over Guwahati
Bench. It is not in dispute that at the time
of filing the applications, the Lucknow
Bench had territorial jurisdiction in the
matter. It was only by a subsequent
notification dated 11.04.2007 that the
territorial jurisdiction with regard to
District Chandauli was transferred to the
Tribunal at Gorakhpur.

25. Under Sub-rule (2) of Rule 3 of
the Rules, if an application is received by
a Bench which does not have territorial
jurisdiction to deal with the matter, the
Registrar of the Bench is obliged to return
the application to the applicant. In the
present case, since at the time of filing the
application, the Lucknow Bench had
territorial jurisdiction over the matter, the
application was not returned by the
Registrar under Rule 3(2) of the Rules.

26. At this stage, it is necessary to
delve into the law regarding return of
plaint, where the court is found to be
lacking
territorial
or
pecuniary
jurisdiction. In Raizada Topandas v.
Gorakhram Gokalchand, AIR 1964 SC
1348, the Apex Court has held that the
jurisdiction of a court is to be normally
ascertained at the time of the inception of
a suit. The Apex Court cited with
approval
the
case
of
Govindram
Salamatrai in the following words:-

"The jurisdiction of a Court is
normally and ordinarily to be determined
at the time of the inception of a suit.
Therefore when a party puts a plaint on
file, it is at that time that the Court has to
consider
whether
the
Court
had
jurisdiction to entertain and try that suit
or not."

(emphasis supplied)

27. In Sharma Singh v. Sadhu Singh,
AIR 1928 Lah 484, the Lahore High
Court, while dealing with a matter
relating to return of plaint under Order 7
Rule 10 of the Code of Civil Procedure,
1908 held that -

"Order 7, R. 10, Civil P.C., does
not apply to cases where a Court
originally had jurisdiction to try the suit
but discovered at the time of passing a
decree that it is incompetent to pass the
decree
because
of
the
pecuniary
valuation."
2 All. Bharat Petroleum Corporation Ltd. Vs Union of India
1327

28. In Alamchand Birumal v. Motilal
Balchand, AIR 1968 MP 112, the Madhya
Pradesh High Court in paragraph 6 of the
report has held:

"6. It cannot also be maintained
that on the investment of the Court of
Additional District Judge, Satna, with the
powers of a Court of Small Causes by the
notification dated the 1st January 1959,
the Court of Civil Judge, Second Class,
Satna was, under section 16 of the
Provincial Small Cause Courts Act, 1887,
deprived of the jurisdiction to try the suit.
That provision is in the following terms--

"16. Save as expressly provided
by this Act or by any other enactment for
the time being in force, a suit cognizable
by a Court of Small Causes shall not be
tried
by
any
other
Court
having
jurisdiction within the local limits of the
jurisdiction of the Court of Small Causes
by which the suit is triable."

This provision does not deprive a
regular court altogether of jurisdiction in suits
cognizable by a Court of Small Causes: it
merely prevents the exercise of that
jurisdiction by a regular court if at the time the
suit is filed there is a Court of Small Causes
having jurisdiction within the same local
limits. Admittedly, in the present case there
was no court of Small Causes at Satna having
jurisdiction to try the suit when it was filed in
the Court of Munsiff. Satna Section 16 does
not, therefore, in any way oust the jurisdiction
of the Court of Civil Judge, Second Class,
Satna, where the suit stood transferred under
section 27 of the Act, to try the suit. In this
connection it would be pertinent to refer to
Order 7, Rule 10 of the Code of Civil
Procedure, which says--

"The plaint shall at any stage of
the suit be returned to be presented to the
Court in which the suit should have been
instituted."

Under this rule, a plaint can be
returned only if at the time it was filed
there was another court in which the suit
should have been instituted. Here, at the
time the suit was filed in the Court of
Munsif, Satna, there was no Court of
Small Causes and no small cause powers
had been conferred on the Court of
Additional District Judge, Satna. The
subsequent conferment of small cause
powers on the Court of Additional District
Judge. Satna, could, therefore, afford no
ground to the Civil Judge. Second Class,
Satna, to return the plaint. In our
judgment, the court of the Civil Judge,
Second Class, Satna, continues to have
jurisdiction to try the applicant's suit."

(emphasis supplied)

29. In Harnam Das v. Salamat Rai,
Civil Revision No. 140 of 1950, a learned
Single Judge of the High Court of PEPSU
has held as under:-

"3. Order 7, R. 10(1), Civil P.C.
says that the plaint shall at any stage of
the suit be returned to be presented to the
Court in which the suit should have been
instituted. The words "in which the suit
should have been instituted" obviously do
not mean the Court in which the suit
should be instituted. The provisions of
this rule regarding return of the plaint
appear to me to apply to cases in which
the suit when originally instituted was not
properly instituted and not to cases in
which the suit was instituted in the proper
Court, but subsequently that Court ceases
to exercise jurisdiction and another Court
with restricted pecuniary jurisdiction is
constituted to take its place. It is thus the
defect of presentation of the plaint in the
first instance in a wrong Court that
attracts the applicability of O. 7, R. 10,
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil P.C., and that rule does not govern
cases where the suit when instituted did
not suffer from any defect whatsoever.

(emphasis supplied)

30. Section 18 of the Act deals with
the procedure and powers of Claims
Tribunal. Relevant portion of section 18 is
extracted below:-

"18. Procedure and powers of
Claims
Tribunal.-
(1)
The
Claims
Tribunal shall not be bound by the
procedure laid down by the Code of Civil
Procedure, 1908 (5 of 1908), but shall be
guided by the principles of natural justice
and, subject to the other provisions of this
Act and of any rules, the Claims Tribunal
shall have powers to regulate its own
procedure including the fixing of places
and times of its enquiry."

31. In Prasant Kumar Choudhury v.
Union of India, 2006 SCC OnLine Ori 58,
a learned Single Judge of Orissa High
Court has considered the applicability of
the
Civil
Procedure
Code
to
the
proceedings before the Railway Tribunal
and has held as under:-

"On a plain reading of the
aforesaid provision, it is not possible to
accept the contentions of the learned
counsel for the Railway since there exists
no specific bar to the application of the
Code of Civil Procedure in the aforesaid
provision of law. On the contrary, the said
provision
basically
unshackles
the
Tribunal from the procedural laws
mandated in the Code while at the same
time maintaining the requirement of
compliance
of
natural
justice.
The
provision
is
clearly
''enabling'
the
provision and not a ''disabling' provision.
This provision does not specifically take
away from the Tribunal the power and
authority to exercise any or all provisions
of C.P.C. and therefore, it is clear that
Section 34, C.P.C. continues to be vested
in the authority of the Railway Claims
Tribunal."
 (emphasis supplied)

32. This Court is in respectful
agreement with the view expressed by the
Orissa High Court, and as such the law on
return of plaint, as laid down in the
judgments discussed above, will also
apply to the present case.

33. Regard being had to the aforesaid
enunciation of law, it is to be seen whether
the opinion expressed by the Tribunal is
correct and justified. In the cases at hand, it
is undisputed that at the time the
applications seeking compensation were
moved by the appellant before the Lucknow
Bench, the Lucknow Bench had territorial
jurisdiction over the matter and as such in
view of the settled legal position, this Court
is of the firm opinion that the applications
could not be returned to the appellant for
their presentation before Gorakhpur Bench
as a result of a subsequent change in the
territorial jurisdiction of Lucknow Bench.
The impugned orders cannot be sustained.

34. The Tribunal has not only passed
orders for returning the applications to the
appellant but has also further added that
the appellant would not be entitled to
exclude the period during which the
applications remained pending before the
Lucknow
Bench,
from
the
period
prescribed under the law of limitation.

35. It is settled that once a court
comes to a conclusion that it has no
jurisdiction, there is no occasion for it to
2 All. Bharat Petroleum Corporation Ltd. Vs Union of India
1329
delve into the merits of the matter or give
any other findings. In Athmanathaswami
Devasthanam
v.
K.
Gopalaswami
Ayyangar, AIR 1965 SC 338 the Apex
Court held as under:

"14. The last point urged is that
when the civil court had no jurisdiction
over the suit, the High Court could not
have dealt with the cross-objection filed
by the appellant with respect to the
adjustment of certain amount paid by the
respondent. This contention is correct.
When the Court had no jurisdiction over
the subject-matter of the suit it cannot
decide any question on merits. It can
simply
decide
on
the
question
of
jurisdiction and coming to the conclusion
that it had no jurisdiction over the matter
had to return the plaint."

(emphasis supplied)

36. In R.S.D.V. Finance Co. (P) Ltd.
v. Shree Vallabh Glass Works Ltd., (1993)
2 SCC 130 the Apex Court reiterated that

"7. ... The Division Bench was
totally wrong in passing an order of
dismissal of suit itself when it had arrived
to the conclusion that the Bombay Court
had no jurisdiction to try the suit. The
only course to be adopted in such
circumstances was to return the plaint for
presentation to the proper court and not
to dismiss the suit."

(emphasis supplied)

37. In view of the settled legal
position, once the Tribunal came to the
conclusion that it had no territorial
jurisdiction over the matter, it was left
with no other option but to pass an order
for return of the applications. It was not
open to the Tribunal to clarify that the
appellant would not be entitled for
exclusion of the period during which the
applications remained pending before the
Lucknow
Bench
from
the
period
prescribed under law of limitation. The
clarification made by the Tribunal is
without jurisdiction.

38. In any case, after return of the
applications, it was for the Tribunal
having
jurisdiction,
and
where
applications are subsequently filed, to
apply
its
mind
and
arrive
at
a
determination
regarding
whether
the
appellant was pursuing its remedy before
the Lucknow Bench of the Tribunal in a
bonafide manner and in good faith.
Thereafter, depending upon the aforesaid
determination, the Tribunal would have
decided whether or not the appellant was
entitled to the benefit of exclusion of the
time spent in pursuing the remedy before
the Lucknow Bench.

39. In view of the above, even if the
applications moved by the appellant are to
be returned for filing them before the
appropriate Bench, the Tribunal in the
present matters had no jurisdiction to pass
orders that the appellant would not be
entitled for exclusion of the period during
which the claims remained pending
before the Lucknow Bench of the
Tribunal from the period prescribed under
law of limitation. On this ground also the
impugned order cannot be sustained.

40. In view of the discussion made
above, the order dated 10.03.2017 passed
in
Case
No.
OA/I/02/2011
(Bharat
Petroleum Corporation Ltd. v. Union of
India) (under challenge in FAFOD No. 91
of 2018); the order dated 25.11.2016
passed in Case No. OR0200029 (Bharat
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
Petroleum Corporation Ltd. v. Union of
India) (under challenge in FAFOD No. 95
of 2018); and the order dated 17.03.2017
passed in Case No. OR0200031 (Bharat
Petroleum Corporation Ltd. v. Union of
India) (under challenge in FAFOD No. 93
of 2018) by the Railway Claims Tribunal,
Lucknow Bench, Lucknow are hereby set
aside. The appeals stand allowed. All the
three matters are remanded back to the
Tribunal to decide the same in accordance
with law.

41. Costs made easy.
----------

(2019)10ILR A 1330

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.10.2019

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE ABDUL MOIN, J.

Misc. Single No. 35387 of 2018

Smt. Rinki ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Mishra

Counsel for the Respondents:
C.S.C., Sri Subhas Bisaria, Sri W.U.
Ahmad

A. Code of Civil Procedure - Reference
made - instructions of S.G- not disclosing full
and complete facts including the order passed
by Hon'ble Supreme Court on the interlocutory
application moved by State of U.P. itself-the
said instructions could not be acted upon,
however, in absence of any specific instruction
to learned State counsel to submit before this
Court that State did not have any objection if
result of those admitted students is declared
by the University, the contempt proceedings
against officers of the State may not be
initiated/instituted.

List of Cases Cited: -

1. College of Professional Education and others
vs. State of U.P. and others 2013 (2) SCC 721

2. Maa Vaishno Devi Mahila Mahavidyalaya vs.
State of U.P. and others (2013) 2 SCC 617

3. Bharat Builder Pvt Ltd and others vs. Parijat
Flat Owners Coop. Housing Society Ltd. (1999)
5 SCC 622

4. Assistant Collector of Central Excise,
Chandan Nagar, West Bengal vs. Dunlop India
Ltd and others (1985) 1 SCC 260

5. Cassel and Co. Ltd. v. Broome

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. This case concerns itself with the
sanctity of admissions made by certain
colleges in B.Ed course in the academic
session 2013-2014 after 16.09.2013 and
holding of examination of such students
and declaration of their results. Hon'ble
Single Judge in this case finding himself
unable to agree with the judgment
rendered on 03.12.2018 in a bunch of writ
petitions, leading writ petition being
Ankit Kumar and others vs. State of U.P.
and others (hereinafter referred to as
'Ankit
Kumar'),
vide
order
dated
17.12.2018 has referred the following two
questions for consideration by a larger
bench.

"(i). Whether it was open for the
State Government or this Court to have
relaxed the time schedule fixed under the
orders of the Apex Court in College of