Union of India vs M/s Amardeep Hosiery Factory

Gokal Chand Mital, J.—M/s Amardeep Hosiery Factory had despatched an insured parcel on 26.10.1974 from Ludhiana Post Office in the name of Branch Manager State Bank of India, Shah Ganj, District Jounpur (U. P.). When the parcel did not reach the destination nor was it returned to sender, complaint was lodged with the postal department. The claim was rejected as time barred. Hence, suit was filed for the recovery of Rs. 1370.92 as the price of the goods sent under the insured parcel and interest totalling Rs. 1600/-. The trial Court dismissed the suit after recording finding that since the insured goods were posted on 26.10.1974, the claim was lodged beyond three months from the date of posting and, therefore, in view of Rule 175(d) (wrongly mentioned as Section 175(d) by the trial Court) framed under (The Indian) Post Office Act, 1898 (hereinafter called the Act), the department was not liable to pay anything. On Plaintiff''s appeal, the Learned Additional District Judge decreed the suit as prayed for with costs throughout after recording findings that proper pleas were not raised by the Defendant on the point decided by the Court below and secondly, the protection of the afore-quoted rule was not claimed in defence. This is revision by the Defendant.

After considering the matter, one thing is clear from the Plaintiff''s own case that for the loss of registered parcel booked on 26.10.1974, complaint with the post office was lodged on 21.6.1975. It is clear from the facts stated in the complaint itself that the complaint was lodged more than three months after the registered parcel was given to the post office. According to Rule 175(d) no compensation is payable in respect of an insured parcel unless the sender gives intimation of the loss within three months from the date of posting.

The point which has been raised on behalf of the Plaintiff by Shri Hemant Gupta, Advocate, is that the aforesaid rule is beyond the rule making power given in Section 32 of the Act. Section 32 of the Act reads as follows: -

Power to make rules as to insurance:-(I) The (Central

Government) may make rules as to the insurance of postal articles.

(2) In particular and without prejudice to the generality of of the foregoing power, such rules may -

(a) declare what classes of postal articles may be insured u/s 30 ;

(b) fix the limit of the amount of which postal articles may be insured ;

(c) prescribe the manner in which the fees for insurance shall by paid.

(3) Postal articles made over to the Post Office for the purpose of being insured, shall be delivered, when insured, at such places and times and in such manner as the Director General may, by order, from time to time appoint.

Section 31 of the Act empowers the Central Government to issue notification declaring in what cases insurance shall be required. Regarding them rules may be made u/s 32. According to the learned Counsel, Section 32 does not authorise to make a rule to limit the time under which claim for the non-delivery of the insured parcel has to be made and, therefore, Rule 175(d) is beyond the rule making power. Therefore, the limitation contained in the Limitation Act, 1963 would be applicable under which three years would be the limitation for filing suit to recover damages for the loss of goods. In fact the vires of Rule 175 have been challenged on the ground that it has been framed beyond the scope of rule making power. In support of the argument, reference has been made to Section 35 of the Act under which rules can be made on the specified matters with regard to the transmission by post of valuable postal articles and in that behalf Rule 102 was framed fixing a limit of one year to lodge the complaint for non-delivery of the article for payment of compensation. The validity of Rule 102 came up for consideration before the Allahabad High Court in Union of India v. Mohd. Nazim AIR 1969 All. 675 (D. B.), and it was ruled therein that rule could be made only for the purposes specified in the section and since it was not provided therein to fix any limit of time for lodging the claim, it was held that the rule fixing one year''s limitation was clearly beyond the scope of the rule making provision and was held invalid.

A reading of the aforesaid decision clearly helps the contention of the claimant, who is the Plaintiff in the case, that under Sections 32 and 35 the matters have been specified on which the rules can be made and in none of the two sections any rule making authority was given power to limit the time to lodge the complaint.

Shri R.S. Chahar, Advocate, appearing for the Union of India, on the eontrary argued that u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, (hereinafter called the Consolidation Act), application is competent before the Director of Consolidation and in section it was not provided if any limitation could be fixed by Rules limiting the time, yet by rules limitation of six months was fixed. A Division Bench of this Court in Puran Singh v. The State of Punjab 1972 P. L. J. 453, held the rule as valid. On the authority of the aforesaid decision, the argument raised is that Rule 175(d) could be held as valid.

After hearing the learned Counsel for the parties, I am of the view that Rule 175(d) of the Rules is clearly beyond the rule making power conferred by Section 32 of the Act. Not only the decision in Mohd. Nazim''s case (supra) fully supports this, even Puran Singh''s case (supra) supports this view. Earlier a Division Bench of this Court in Puran Singh v. State of Punjab 1971 P. L. J. 59, had held that Rule 18 prescribing six months'' limitation was beyond the scope of Section 42 of the Consolidation Act. That very Division Bench later on in Puran Singh''s case on rehearing, reviewed the matter because it was pointed out to them that Section 46(2) (ff) of the Consolidation Act authorised making of rule for fixing the period of limitation for filing application u/s 42 of the Consolidation Act. Accordingly, they over-ruled their earlier decision. Hence, it is clear that in the absence of authority to make provision for limitation, no rule to limit the time could be made. Since in the present case there is no provision authorising framing of rule for fixing limit to make a claim, Rule 175(d) is declared beyond the rule making authority given by Section 32 of the Act. The suit filed within three years is clearly within time.

Shri R. S. Chahar, appearing for the Union of India, had urged that since the point of vires was not raised in the Courts below, it should not be allowed to be raised in this revision. The Plaintiff was successful in the lower Appellate Court. He can support the judgment on a new ground specially when the matter goes to the root of the case. Since Shri Chahar was taken by surprise on the new point, he was given sufficient time to prepare the point and give his reply.

For the reasons recorded above, the revision is without any merit and is hereby dismissed.