# The State of U.P v. Union of India and another

- **Citation:** (2010) 3 ILRA 1050
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-09-14
- **Case number:** Second Appeal No. 2751 of 1978
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-v-union-of-india-and-another-41723
- **Pages:** 4

## Headnote

Code
of
civil
procedure-Section-102readwith constitution of India Art-131suit by State Govt. for loss of 3236 bags
of wheat worth of Rs. 3283.53 against
Railways
including
Union
of
IndiaPreliminary
issue
regarding
maintainability
decided
against
Plaintiff/Appellant-whether
appeal
maintainable-held 'yes'-civil court has
jurisdiction to try such suit-Art.131 come
in existence where dispute between
State picture and Union of India in
context of constitutional relationship
arose-suit for loss against Railways not
barred. Appeal allowed.

Held: Para 14 and 16

In view of the aforesaid, I am of the
considered
opinion
that
the
present
second appeal is not hit by Section 102
CPC.

In the aforesaid decision, the Apex Court
considering the various earlier decisions
concerning Article 131 held that a suit filed
against the Union of India for recovery of
compensation for the loss on account of
damage caused to the goods belonging to
the
State
dispatched
through
Indian
Railways is maintainable in a civil court
and is not covered by Article 131 of the
Constitution
of
India
which
confers
exclusive original jurisdiction upon the
Supreme Court in respect of the disputes
within the ambit of the above Article. It
was further laid down that Article 131 of
the Constitution of India is attracted only
when a dispute arises between or amongst
the State and the Union of India in the
context of Constitutional relationship that
exists between them and the powers,
rights,
duties,
immunities,
liabilities,
disabilities etc., flowing therefrom but
would not cover ordinary disputes of the
nature in relation to carrying on any trade
or business covered by Article 298 of the
Constitution of India. Thus, where the
State Government has made a claim like
any other consignee of goods dispatched
through Railways for compensation whose
success or failure depend on proof of facts
which have to be established in the same
way in which a private person would have
to establish such a claim would essentially
be
a
claim
against
the
Railway
administration and not actually against the
Union of India who is impleaded as a party
to the suit being the owner of the India
Railways by virtue of Article 300 of the
Constitution of India. The dispute of such a
kind is actually a dispute between the
Railway administration and the person
instituting the suit.
Case law discussed:
AIR 1967 SC 344, AIR 1960 SC 980, AIR 1984
SC 1675
3 All] The State of U.P. V. Union of India and another
1051

## Text

1050 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

22. For the foregoing reasons, the
orders dated 21.12.2005 and 14.09.2006
passed by the respondent no. 1 and the
order dated 28.05.2003 passed by the
respondent no. 2 are quashed and
respondent
no.
2
is
directed
to
restore/renew the licence of the petitioner
forthwith.

Accordingly, writ petition is allowed.

No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2010

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Second Appeal No. 2751 of 1978

The State of U.P.

 ...Appellant
Versus
Union of India and another ...Respondent

Counsel for the Appellant:
Sri Shrish Chandra(S.C.)

Counsel for the Respondent:
Sri Govind Saran
S.C.

Code
of
civil
procedure-Section-102readwith constitution of India Art-131suit by State Govt. for loss of 3236 bags
of wheat worth of Rs. 3283.53 against
Railways
including
Union
of
IndiaPreliminary
issue
regarding
maintainability
decided
against
Plaintiff/Appellant-whether
appeal
maintainable-held 'yes'-civil court has
jurisdiction to try such suit-Art.131 come
in existence where dispute between
State picture and Union of India in
context of constitutional relationship
arose-suit for loss against Railways not
barred. Appeal allowed.

Held: Para 14 and 16

In view of the aforesaid, I am of the
considered
opinion
that
the
present
second appeal is not hit by Section 102
CPC.

In the aforesaid decision, the Apex Court
considering the various earlier decisions
concerning Article 131 held that a suit filed
against the Union of India for recovery of
compensation for the loss on account of
damage caused to the goods belonging to
the
State
dispatched
through
Indian
Railways is maintainable in a civil court
and is not covered by Article 131 of the
Constitution
of
India
which
confers
exclusive original jurisdiction upon the
Supreme Court in respect of the disputes
within the ambit of the above Article. It
was further laid down that Article 131 of
the Constitution of India is attracted only
when a dispute arises between or amongst
the State and the Union of India in the
context of Constitutional relationship that
exists between them and the powers,
rights,
duties,
immunities,
liabilities,
disabilities etc., flowing therefrom but
would not cover ordinary disputes of the
nature in relation to carrying on any trade
or business covered by Article 298 of the
Constitution of India. Thus, where the
State Government has made a claim like
any other consignee of goods dispatched
through Railways for compensation whose
success or failure depend on proof of facts
which have to be established in the same
way in which a private person would have
to establish such a claim would essentially
be
a
claim
against
the
Railway
administration and not actually against the
Union of India who is impleaded as a party
to the suit being the owner of the India
Railways by virtue of Article 300 of the
Constitution of India. The dispute of such a
kind is actually a dispute between the
Railway administration and the person
instituting the suit.
Case law discussed:
AIR 1967 SC 344, AIR 1960 SC 980, AIR 1984
SC 1675
3 All] The State of U.P. V. Union of India and another
1051
(Delivered by Hon'ble Pankaj Mithal, J.)

1. The State of U.P. had booked
3236 bags of wheat for transportation by
Railways. At the destination, at the time
of delivery the wheat was found short,
moist and spoiled on account of which
State of U.P., allegedly suffered a loss of
Rs. 3,283.53 paise. The negligence was
attributed solely to the Railways.

2. The State of U.P. as plaintiff
instituted a suit against the Union of India
through
General
Manager,
Northern
Eastern Railway, Gorakhpur and the
General Manager Northern Railway,
Baroda House, New Delhi for recovery of
Rs. 3,283.53 paise.

3. In the suit, a preliminary
objection was raised on behalf of the
defendants
that
the
suit
is
not
maintainable in view of Article 131 of the
Constitution of India. Accordingly, issue
no. 6 was framed with regard to above
preliminary objection. It was decided by
the first court and it was held that the
jurisdiction of the civil court stood
excluded and the plaint was ordered to be
returned for presentation to proper court
vide judgment and order dated 4.10.1974.

4. The aforesaid judgment and order
has been upheld in Miscellaneous Appeal
also vide judgment and order dated
25.2.1977.

5. Aggrieved by the aforesaid
judgments and orders, the State of U.P.
has preferred this Second Appeal.

6. The appeal was admitted on the
following substantial question of law:-

Whether
the
civil
court
has
jurisdiction to try the suit or it should be
tried by the Supreme Court of India under
Article 131 of the Constitution of India?

7. Heard Sri Shrish Chandra, learned
Standing counsel for the State of U.P. and
Sri Govind Saran, learned counsel for the
Indian Railways/ Union of India.

8. Before proceeding to answer the
above question, as the valuation of the
suit as well as the appeal is only Rs.
3,283.53 paise and Section 102 CPC
provides that no second appeal shall lie
when the subject matter of the original
suit for recovery of money does not
exceed Rs. 25,000/-, on the insistence of
the counsel for the respondent, I consider
it appropriate to first deal with the issue as
to whether the second appeal is barred
and is not maintainable in view of Section
102 CPC.

9. Section 102 CPC as it stands
today was introduced by amending Act
No. 22 of 2003 w.e.f. 1.7.2002 and bars
second appeal in suits for recovery of
money where the valuation of the original
suit does not exceed Rs. 25,000/-.
However, on the date of filing of the
Second Appeal and its admission, Section
102 CPC was differently worded. It was
as follows:-

Section 102 CPC- "No second
appeal in certain suits- No second
appeal shall lie in any suit of the nature
cognizable by Courts of Small Causes,
when the amount of value of the subjectmatter of the original suit does not exceed
[three thousand rupees]"

10. A plain reading of the aforesaid
provision makes it clear that in respect of
1052 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the suits which are cognizable by Courts
Small Causes no second appeal would lie
if the subject matter of the suit does not
exceed 3,000/- rupees.

11. The suit in question is not of the
nature which is cognizable by the court of
Small Causes and moreover its valuation
is also over 3,000/- rupees. Therefore, the
second appeal against the judgment and
orders of the lower courts was not barred
by Section 102 CPC at the relevant time.

12. The right of appeal is a statutory
right and when the statute at the relevant
time of cause of action provided for a
remedy of an appeal, the said right can
not be taken away later on. In other
words, the subsequent amendment to the
aforesaid
provision
would
not
be
detrimental to the appeal.

13. The Supreme Court in the case
of Vitthalbhai Naranbhai Patel Vs.
Commissioner of Sales Tax AIR 1967 SC
344 has held where a right of appeal is
taken away after the commencement of
the proceedings it will not affect the right
of appeal which had vested in the litigant
at the time of action. The Supreme Court
in the case of State of Bombay Vs. M/S
S.G. Firms Exchange AIR 1960 SC 980
also held that not even the right to appeal
can be impaired by putting onerous
conditions subsequently.

14. In view of the aforesaid, I am of
the considered opinion that the present
second appeal is not hit by Section 102
CPC.

15. Now coming to the substantial
question of law involved in this appeal the
same is no longer res-integra in view of
AIR 1984 SC 1675 Union of India Vs.
State of Rajasthan.

16. In the aforesaid decision, the
Apex Court considering the various
earlier decisions concerning Article 131
held that a suit filed against the Union of
India for recovery of compensation for the
loss on account of damage caused to the
goods belonging to the State dispatched
through Indian Railways is maintainable
in a civil court and is not covered by
Article 131 of the Constitution of India
which
confers
exclusive
original
jurisdiction upon the Supreme Court in
respect of the disputes within the ambit of
the above Article. It was further laid down
that Article 131 of the Constitution of
India is attracted only when a dispute
arises between or amongst the State and
the Union of India in the context of
Constitutional relationship that exists
between them and the powers, rights,
duties, immunities, liabilities, disabilities
etc., flowing therefrom but would not
cover ordinary disputes of the nature in
relation to carrying on any trade or
business covered by Article 298 of the
Constitution of India. Thus, where the
State Government has made a claim like
any other consignee of goods dispatched
through
Railways
for
compensation
whose success or failure depend on proof
of facts which have to be established in
the same way in which a private person
would have to establish such a claim
would essentially be a claim against the
Railway administration and not actually
against the Union of India who is
impleaded as a party to the suit being the
owner of the India Railways by virtue of
Article 300 of the Constitution of India.
The dispute of such a kind is actually a
dispute
between
the
Railway
3 All] S.N.Taneja V. State of U.P. and others
1053
administration and the person instituting
the suit.

17. In view of the above decision of
the Supreme Court and its ratio decendai the
substantial question of law raised in this
appeal has to be answered in favour of the
plaintiff
appellant
and
against
the
respondents and it is held that the suit for
claim and damages based upon Section 80
of the Railways Act was maintainable
before the civil court and would not lie
before the Supreme Court.

18. Accordingly, appeal succeeds and
is allowed. The impugned judgment order
and decree of the lower appellate court
dated 25.2.1997 passed in Civil Appeal No.
240 of 1974 and that of the court of first
instance dated 4.10.1974 passed in Original
Suit No. 272 of 1972 State of U.P. Vs.
Government of India and others are both set
aside with no orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.08.2010

BEFORE
THE HON'BLE D.P. SINGH, J.
THE HON'BLE VEDPAL, J.

Writ Petition No. 4180 (S/B) of 1990

S.N. Taneja

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Constitution of India-Art. 14 and 16Parity
of
Pay
Scale-petitioner
after
retirement
from
Army-joined
as
Secretary Zila Sainik Board-denied the
same Pay given to the juniors who joined
much
after
petitioner-on
ground
petitioner not accepted working on
contractual basis-Tribunal rejected claim
with reasoning that for enforcement of
right of equality-only the High Court or
the
Apex
Court
can
entertain-helddifferent mode of recruitment can not be
ground for different Pay Scale in same
cadre post-petitioner entitled for same
Salary perk and status.

Held: Para 18

Accordingly, we are of the view that
respondents
have
no
right
to
discriminate with regard to payment of
salary and status between the petitioner
and subsequent appointees on the post
of Secretary because of the different
source of recruitment. The petitioner
seems to be entitled for payment of
same salary, perks and status.
Case law discussed:
1972 S.L.R. 832, (1999) 4 SCC 756, 2007 AIR
SC 2509, 1989 (1) SCC 121.

(Delivered by Hon'ble D.P. Singh, J)

1. We have heard learned counsel
for the petitioner as well as learned
Standing and perused the record.

Dispute giving rise to the present
controversy relates to payment of salary
to the petitioner on the post of Secretary
of Zila Sainik Board appointed through
different
sources.
Petitioner
claimed
parity in pay scale on the ground that the
persons appointed at later stage by
contractual assignment or otherwise have
been given higher pay scales.

2. The petitioner who is an officer of
Indian Army had joined as Emergency
Commissioned Officer on 30.6.1963, later
on released from Army on 15.8.1967.
Thereafter, he was appointed as Secretary
of Zila Sainik Board in 1971 in the pay
scale of Rs.400-750, on a non Gazetted
post.
He
was
posted
at
District
Shahjahanpur as Secretary Grade-I. Later
on
some
Emergency
Commissioned
Officers released from the Army were