PETITIONER: UNION OF INDIA Vs. RESPONDENT: <ORG> & ORS. DATE OF JUDGMENT: 22/10/1997 BENCH: S. B. MAJMUDAR, M. JAGANNADHA RAO ACT: HEADNOTE: JUDGMENT:

Present:

Hon'ble Mr. Justice <NAME> Mr. Justice <NAME> <NAME>, <NAME>, <NAME>, <NAME>, Sr. <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, Ms. <NAME>, Ms. <NAME>, Ms. <NAME> MS. <NAME>, <NAME>, Ms. <NAME>, Ms. <NAME>, <NAME>, Ms. <NAME>, <NAME>, <NAME>, <NAME>, Dr. <NAME>, <NAME>, <NAME> with them for the appearing parties.

J U D G M E N T The following Judgment of the Court was delivered:

WITH (CA Nos. 3034, 3035, 3036, 3037, 3038, 3039, 3040, 3041, 3042, 3043, 3044, 3045, 3046, 3047, 3048, 3050, 3051, 3052, 3053, 3054, 3055, 3056, 3057, 3058, 3059, 3060, 3061, 3062, 3063, 3064, 3065, 3066/1990 & C.A. Nos. 7418-19/97 (Arising out of S.L.P. (C) Nos. 17291/97 & 2918/89) J U D G M E N T M. JAGANNADHA RAO, J.

Leave granted in the SLPS.

Several important issues whether omission to perform public law statutory duties can or cannot give rise to action at private law (Point 4) and liability of public bodies in tort while performing inherently dangerous operations (Point 3) etc. arise for consideration in this batch of cases.

This is a batch of appeals preferred by <ORG> represented by the General Manager, <ORG>. The accident occurred on 9.5.1979 at an unmanned level crossing at Akaparampa (near Kalady) in Kerala when a hired passenger-bus was hit, by <ORG> at about 3 P.M., and 40 passengers in the bus and the driver thereof were killed while same other passengers sustained injuries. Two judgments of <ORG>, Ernakulam in regard to the same accident are under appeal before us. In one batch of cases filed by dependents of deceased and injured persons, <ORG>, Ernakulam by judgment dated 28.2.1986 held that the driver of the bus was negligent and passed awards against the owner of the bus and <ORG> but dismissed the claim against the <ORG> on the ground that there was no negligence on the part of the driver of the railway-engine concerned or on part of the <ORG> Administration. The liability of <ORG> was restricted to a maximum of Rs. 500/- per passenger as per the statutory provisions then in force. On appeals by the Insurance company, cross objections were preferred by claimants (in some cases). The appeals and cross objections filed were partly allowed by <ORG>, making the <ORG>s also liable. In two other cases which were decided in an earlier judgment dated 27.9.1984, the same <ORG> at Ernakulam had held the <ORG>s Administration also liable on account of its negligence in regard to the same accident. However, in both judgments, it was held that under Section 110 (1) and 110 B of the Motor Vehicles Act , 1939 an award could be passed against the railway also which view was accepted by <ORG>. Against all these judgments, <ORG> has preferred these Civil Appeals. Stay of operation of the judgments was refused by the <ORG>, pending these appeals.

The fact of the case are as follows:

The motor vehicle in question belonged to one K. Arumugham of Arni, Tamilnadu and hired by employees of <ORG>. of the Tamilnadu State for a trip to Trivandrum, Cochin, Kalady, Guruvayoor, etc. in Kerala. One <NAME> was the Manager of the tour. On 7.5.1979, the Bus started at Trivandrum for Cochin. There was some delay on the way and the passengers were finding fault with the driver in regard to the said delay. It appears that the driver was angry with some of the passengers who found fault with him for delay and he told them that he would abandon the bus and reached Cochin and proceeded to Kaady via Angamali. The bus was to cross an unmarried level crossing at Akaparamba at about 3 P.M. The said railway crossing had no gates or stiles. It is now found on evidence that the caution board' at the entrance of the level crossing was moth eaten and the writings thereon could not be deciphered by any one even if one was inclined to read. The train was visible to the driver and passengers at a distance of 1 K.M. The driver drove the vehicle and was crossing the railway line when the vehicle stopped on the track and did not move. The passengers cried and shouted in panic but the bus remained there and was pushed upto a distance of 500 meters by the locomotive. In that process forty passengers and the driver died while some other passengers were injured.

We have heard the counsel on both sides. From the submissions the following points arise for consideration: (1) What are the common law duties of a motor vehicle driver at a railway level crossing? Whether, on facts, the bus driver was negligent?

(2) Whether, under the doctrine of imputation the negligence of the driver in which the passengers travelled could be imputed to the passengers by the railways as part of the defence for the purpose of raising a plea of contributory negligence of the passengers? (3) Whether under the law of torts the claimants in rail- motor collisions can claim that the obligations of the <ORG> under statute as well as under common law will run concurrently? What are the common law duties of the railways at level crossings and whether the <ORG> is bound to take cognizance of the increase in the volume of traffic and ought to have installed gates and kept a watchman at the level crossing?

(4) Whether a public authority upon whom powers are conferred by statute to exercise discretion for benefit of the public can be said to be under a duty of care so that omission to exercise that power could be treated as negligence at common law giving a right to compensation? If not, whether there are any exceptions to the rule that a statutory may can never give rise to a common law `ought'? What is the effect of the omission of the <ORG> to exercise power under Section 13(c) and (d)? (5) Whether <ORG> has jurisdiction under Section 110(1) of the Motor Vehicles Act, 1939 read with Section 110(B) thereof (corresponding to Section 165 and 168 (1) respectively of the Motor Vehicles Act , 1988) to adjudicate a claim against <ORG> when a motor vehicle is hit by a railway train and whether the <ORG> can pass an award under Section 110 (B) against the <ORG> also, in addition to an award against the owner of the vehicle, driver and the insurer?

Point 1: The facts of the case before us reveal that the driver as well as the passengers in the bus saw the train at a distance of one kilometer from the level crossing. But the driver of the bus proceeded forward. The train which was a Super fast one, was running at a speed of 75 K.M. per hour. That would mean that it would have taken about 40-50 seconds to reach the level crossing. It is not clear to us as to how for the bus was at that time from the level crossing but the evidence reveals that the bus proceeded to cross the railway line and thereafter did not move from the track and was then hit by the train and dragged upto 500 metres. There is no evidence that the engine driver was negligent. In fact if he had applied the brakes when the saw the bus about 100 feet away while the train was running at a speed of 75 K.M. per hour, there would have been a derailment of several compartments of the train itself.

It was argued for <ORG> that as a matter of common lam duty, at the level crossing, the driver of a motor vehicle was obliged to stop, sea, listen and get down and proceed. Rule 100 of the Rules made by <ORG> under the Motor Vehicles Act , 1939 which refers to the duties of Conductors was referred to. Clause (f) of Rule 100 (introduced w.e.f. 1.7.1965) states that the Conductor of a stage carriage while on duty, shall, "....while crossing an unmanned railway level crossing with his vehicle, require the driver to stop the vehicle on the road at the places notified for such stoppage by appropriate sign board as set out in the Third Schedule to these Rules and on stopping, shall get down and after making sure that no train is approaching the level crossing from either side, walk ahead of the vehicle until it has safely crossed the level crossing".

The Rule therefore postulates the existence of a sign board as mentioned therein, requiring the conductor to get down. Now admittedly the writing on the sign board at the level crossing was moth eaten and no writing was visible. Hence in our view no special obligations created by the rule, which were in addition to the common law requirements, can be said to apply. There was no notice as contemplated by the rule which laid down an extra obligations on the conductor to get down from the vehicle as stared in clause

(f) of Rule 100.

In our opinion, in the absence of a board statutory requiring the vehicle to "stop" and the conductor to "get down", there was only an ordinary common law duty as applicable to prudent persons. This was a duty to "stop" "see and hear" and find out if any train was coming. It has been held by the U.S. Courts that there is no absolute duty at common law to get down from the vehicle invariably. In fact a rigid rule of getting down from the vehicle in addition to stooping down from the vehicle in addition to stooping locking and hearing was laid down at one time by Justice <NAME> in <ORG> Vs. <NAME> 91927) 275 US 66 (72 L.Ed. 167, 48 S.Ct. 24) but such a principle of special caution which was under adverse criticism was rejected by <NAME>, J. in <NAME> Vs. <ORG>Co. (1934) 292 US (78 L.Ed. 1149, 54 S.Ct.580) stating that the requirement of getting down from the motor vehicle was good if there was a curve or an obstruction or such like situation but not when the line was straight and the train was visible. The get out of the car requirement was in the absence of special requirement, an uncommon precaution, likely to be futile and sometimes even dangerous', said <NAME> In our opinion, there was no duty - in the absence of a board directing the driver or conductor - to get out of the vehicle, but there was certainly a duty to stop, see and hear, at the unmanned level crossing. If that was not more, there would clearly be negligence on the part of the driver. In fact, it has been so held by this Court, in a case under Section 304 A, IPC that the driver must be deemed to be rash and negligent if he did not stop the vehicle and then see and hear, ( <CITATION> .) (AIR 1972 S.C.685). It was there observed:

"Where a level crossing is unmanned. It may be right to insist that the driver of the vehicle should stop the vehicle, look both ways to see if a train is approaching and thereafter only drive his vehicle after satisfying himself that there was no danger in crossing the railway track."

It was also pointed out:

"But where a level crossing is protected by a gateman and the gateman opens that the gate inviting the vehicle to pass, it will be too much to expect of any reasonable and prudent driver to stop his vehicle and look out for any approaching train".

Inasmuch as in this case, the driver did not stop the vehicle at the unmanned crossing, it must in our view be held that he was guilty of negligence even though there was no curve or obstruction at the point. The <ORG> and <ORG> were. In our opinion, justified in finding negligence on the part of the driver. Of course, <ORG> felt that the driver who must be deemed to be conscious that his own life was at stake could not be accused of criminal negligence in wanting to kill the passengers even if he was angry with their complaint of delay. <ORG> thought that the case might be one where the driver took a risk which ought not to have been taken and the engine of the bus, for some unknown reasons, might have failed, while it was on the track. In any event, the finding of negligence of the bus driver does not call for interference.

Point 2: The claimants are either the injured passengers or the dependents of the deceased passengers travelling in the ill-fated motor-vehicle. We have accepted that the driver of the said motor vehicle was negligent. The question is whether the driver's negligence in any manner vicariously attaches to the passengers of the motor-vehicle of which he was the driver?

There is a well-known principle in the law of torts, called the doctrine of identification or `imputation'. It is to the effect that the defendant can plead the contributory negligence of the plaintiff or of an employee of the plaintiff where the employee is acting in the course of employment. But, it has been also held in Mills vs. Armstrong [1988] 13 A.C. 1 (HL) (also called The Bernina case) that principle is not applicable to a passenger in a vehicle in the sense that the negligence of the driver of the vehicle in which the passenger is travelling, cannot be imputed to passenger. (Halsbury's laws of England 4th Ed., 1984 Vol. 34, page 74) (Ratanlal and Dhirajlal, Law of Torts (23rd Ed. 1997 p.511) (<NAME>, Law of Torts, 7th Ed., p. 447). The <NAME> case in which the principle was laid in 1888 related to passengers in a steamship. In that case a member of the crew and a passenger in the ship Bushire were drowned on account of its collision with another ship Bernina. It was held that even if the navigators of the ship Bushire were negligent, the navigators' negligence could not be imputed to the deceased who were travelling in that ship. This principle has been applied, in latter cases, no passengers travelling in a motor-vehicle whose driver is found guilty of contributory negligence. In other words, the principle of contributory negligence is confined to the actual negligence of the plaintiff or of his agents. There is no rule that the driver of an omnibus or a coach of a cab or the engine driver of a train, or the captain of a ship on the one hand and the passengers on the other hand are to be `identified' so as to fasten the latter with any liability for the former's contributory negligence. There cannot be a fiction of the passenger sharing a `right of control' of the operation of the vehicle nor is there a fiction that the driver is an agent of the passenger. A passenger is not treated as a backseat driver. (<NAME> and <NAME> on Torts, 5th Ed., (984 p.521 522). It is therefore clear that even if the driver of the passenger vehicle was negligent, the <ORG>, if its negligence was otherwise proved - could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent, - the driver and owner of the bus and, if proved, the railways - can all be joint tort-feasors. Point

3. This point deals with the common law duty of railways at level crossings. A contention was raised for <ORG> that there was no pleading in regard to the negligence of <ORG>. This contention was rightly rejected by <ORG>. In our view, the issue framed by the <ORG> was broad based. It read as follows:

"Whether the accident was caused due to the negligence of all or any of the respondents or of the bus driver?"

The claimants and the bus owner led evidence and were elaborately cross examined by the <ORG>. The <ORG> examined the engine driver and filed the report of the Commissioner of <ORG> who inquired into the cause of the accident. No other evidence was adduced by the railways. It is well settled that when the issue framed by the trial court is wide and parties understood the scope thereof and adduced such evidence as they wanted to, then there can be no prejudice and a contention regarding absence of a detailed pleading cannot be countenanced.

We shall now deal with the main point. At the out set it is necessary to notice the difference between the statutes in England and in India. In England as shown below, duties are statutorily imposed under two statutes of 1845 and 1863 directly on the <ORG> to erect gates and employ watchmen, etc. at the level crossings if the <ORG> was cutting across a public road. But the position in our country is somewhat different. As pointed out by <ORG> in <NAME> Vs. <NAME> in (1895) in P.J. of Bombay High Court 91 by Sir <NAME> CJ quoted in <ORG> Vs. <NAME>) (AIR 1928 Cal 504], the direct obligation cast on the <ORG> by Section 21 of the Act 18 of 1954 was repealed later by Act 25 of 1871. To this extent, the Indian statute therefore differs from the English statute. Under Section 13 of the <ORG> Act, 1890 no such duties are imposed directly on the <ORG> Administration by the Statute. The section on the other hand only confers a power on <ORG> to issue a requisition to the <ORG> administration, i.e. the General Managers or the <ORG> Companies (if any) to take steps as per section 13 . Obviously, if <ORG> does not think fit to exercise that power and does not think fit to exercise that power and does not issue any such requisition, the occasion for the <ORG> Administration to take steps under section 13 , as per the statutory mandate, will not arise. (As to what can be the effect of an omission to exercise this statutory power to issue a requisition, will be dealt with separately under Point 4). Section 13 of the Indian Act may be noticed:

" Section 13 : Fences, screens, gates and bars: The Central Government may require that, within a time to be specified in the requisition or within such further time as it may support in this behalf-

(a) boundary-marks or fence be provided or renewed by a railway administration for a railway or any part thereof and for roads constructed in connection therewith;

(b) any works in the nature of a screen near to or adjoining the side of any public road constructed before the making of a railway be provided or renewed by a railway administration for the purpose of preventing danger to passengers on the road by reason of horses or other animals being frightened by the sight or noise of the rolling- stock moving on the railway;

(c) suitable gates, chains, bars, stiles or hand-rails to erected or renewed by a railway administration at places where a railway crosses a public road on the level;

(d) persons be employed by a railway administration to open and shut such gates, chains or bars."

In view of the above provision, which does not cast a direct obligation on the railway administration, several High <ORG> have taken the view, and in our opinion, rightly that the statutory duties of <ORG> under Section 13 , do not arise unless a requisition is made by <ORG>. The above anomaly has naturally compelled the <ORG> to fall back upon the common law duties resting on the <ORG>. It has been contended for the claimants that under the common law, the <ORG>, as an occupier of the level crossing for the purpose of running railway trains which are inherently dangerous to those who use the public road at that point, has special responsibilities as a responsible body to see that accidents are kept at the minimum. Question then arises whether the common law duties are concurrently enforceable alongwith or independently of the statutory duties under section 13 .

The law in this behalf is again well settled that the claimants can at their choice sue the railways to enforce either or both types of these duties, i.e. under common law as well as under statute. These aspects have been summarised by <ORG> in Commissioner for Railways Vs. Mr <NAME> [1966 (2) ALl E.R. 162 (PCO)]. That was a case which arose from the judgment of <ORG>. In that case, Lord <NAME> stated:

"Theoretically, in such a situation, there are two duties of care existing concurrently, neither displacing each other. A plaintiff could successfully sue for breaches of either or both of the duties........"

It must, therefore, be accepted that the claimants can sue the <ORG> concurrently for breach of the common law or statutory duties or for breach of either of the duties.

The next question is as to what are the common law duties of the <ORG> at level crossings from time to time? In the same decision of <ORG> in Commissioner for <ORG> Vs. <NAME> [1966 (2)) All E.R. 162 (PC)], it has been stated that the <ORG>'s duty of care at common law is based on the principle of neighbourhood laid down by Lord <NAME> in <NAME> Vs. <NAME> [1932 AC 5621] inasmuch as the <ORG> "was carrying an inherently dangerous activity of running express trains through a level crossing which was lawfully and necessarily used by local inhabitant and their guests and persons visiting them on business.

Such an activity was likely to cause accidents, unless it was carried with all reasonable care........ In principle, the liabilities is not based, however on matters of title but on the perilous nature of the operation and the defects relationship which after <NAME> Vs. <NAME> 1932 A.C. 562 would be called `proximity' or `neighbourly relation between the railway operator and a substantial number of persons lawfully using the level crossing".

The duty to care at common law is therefore based upon the dangerous or perilous nature of the operations of the railways.

In <NAME> vs. <NAME> [1932 AC 562] a manufacturer was held liable to the ultimate consumer at common law on the principle of duty to care. Lord <NAME> said "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. He asked: "who, then, in law is my neighbour? The answer seems to be, persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question". The test of breach of common law duty is again the test of a reasonable or prudent person in the particular fact situation, of course the amount of care, skill, diligence or the like, varying according to the circumstances of the particular case. The standard of foresight is again that of a resonable person. Such a person is also expected to take into account common negligence in human behaviour. Of course, he need not anticipate folly in all its forms (<ORG> Vs. <NAME> [1949 A.C. 155 (HL)]. That if there is omission to exercise such a common law duty of care, an action at common law can be filed for non-feasance is also clear from a judgment of this Court in <CITATION> 1994 (4) SCC 1. In our view, therefore, because the <ORG> are involved in what is recognised as dangerous or perilous operations, they are at common law, to take reasonable and necessary care on the `neighbourhood' principle - even if the provisions in Section 13(c) and (d) of the <ORG> Act , 1890 are not attracted for want of requisition by <ORG>.

The next important question is whether there can be any breach or a common law duty on the part of the <ORG> if it does not take notice of the increase in the volume of rail and motor traffic at the unmanned level crossing and if it does not take adequate steps such as putting up gates with a Watchman so as to prevent accidents at such a point? What is the extent of care required at common law has also been decided.

In several cases the need to have a constant appraisal of increase in volume of rail and road traffic at level crossings has been treated as a requirement of the common law. In <ORG> <ORG> (1949 S.C. 125), Lord <NAME> emphasised that the railway should take all precautions which will Reduce the danger to the minimum and should take into account the nature and volume of such traffic reasonably to be anticipated'. In <ORG> Vs. <ORG> 1952 (1) All E. R. 1248 (CA), <ORG> <NAME>, L.JJ had occasion to say that the railway authorities were bound to take steps from time to time by considering the increase in he rail and rod traffic at the level crossing. On facts in <ORG> case it was found that 75 to 100 vehicles crossed the level crossing per day and it was held that the railway company could not say.

"--this increased traffic on the road is no concern of ours. It was their concern".

The duties of the railways treating the railway line as an accommodation line at a private road and alternatively as one cutting across a public road were separately considered. It was held that treating it as a private road, the railway authorities ought to have taken steps to have warnings or whistles given. Alternatively, treating it as a public road the railways ought to have put up pates as per the Railway Clauses Consolidation Act, 1845 and a lodge as per the Railway Clauses Act , 1863. Under both alternatives, the increased traffic required a re-appraisal of the measures previously taken by the railway to prevent accidents.

In an earlier case <NAME>, <ORG> also had occasion to emphasis the need to take into account the increase in the volume of traffic. In Cliff Vs. Midland Railway Co. (1870) L.R. 5 Q.B. 258, he stated that the greater the thoroughfare over any part of the line, the greater care and vigilance that ought to be exercised by those who have the charge of the trains. Whatever the degree of traffic may be, be it more or less, a corresponding degree of care was required on the part of the company.

In <NAME>'s laws of England Railways Vol. 39. 4th Edn. 1984 para 868), it is stated that if there is increase in the number local inhabitants using the level crossing, then reasonable additional precautions must be taken.

In regard to the absence of a proper notice board, we may also refer to what <NAME>, Judicial Commissioner, said in Union of India vs. Lalman S/o Badri Prasad [AIR 1954 V.P. 173. He said: "even if the car driver knew that there was a crossing, the road users should be altered at the proper moment" by the boards and it is not a case for remote knowledge but "one for immediate alertness".

Further in our view, the following passage in the judgment of the aforesaid learned Judicial Commissioner correctly represents the position at common law:

"A level crossing is on the one hand a danger spot in view of the possible movement of trains, and on the other is an invitation to the passerby. This is a public crossing and not merely one by private accommodation. Therefore it is the legal duty of the railway to assure reasonable safety. The most obvious way of doing it is to provide gates or chain barriers and to post a watchman who should close them shortly before the trains pass. But failure to do so is not by itself an act of negligence provided that the railway had taken other steps sufficient in those circumstances to caution effectively a passerby of average alertness and prudence. At a reasonable distance on either side, prominently written boards can be affixed, asking the road-users to beware of trains. If the track on either side is visible from near the caution board or within a short distance from the crossing, this would be sufficient because a diligent road-user could look round and see the train. On the other hand, if there is a bend on the track or there are trees or bush in between, or the road on either side of the crossing is very far below the level of the railway track, or for any other similar reasons the track is not visible beyond a short distance, then even the caution boards are useless. In that case gates are indicated. Similarly boards may be affixed along the railway, say half to three-fourth of a mile in either direction ceiling upon the engine driver to whistle. A whistle by the driver can supplement, but cannot replace gates or caution boards as a device to protect the users of a crossing."

In the case before us the <ORG> have led no independent evidence of any application of mind to these issues. Obviously, the railways presumed that the negligence of the driver of the bus could be imputed to the passengers but this, as stated by us under Point 2 is legally untenable. <ORG> has noticed that 300 vehicles pass through this point and six express trains cut across this public road every day (obviously there must be other non- express or passenger trains and goods trains every day). The population in dense in Kerala and more so near Kalady, the pilgrimage centre connected with Sri Jagadguru Adi Sankaracharya. In <NAME>'s case 1932 (1) All E.R. 1248 (CA), <ORG> though that even when the road traffic reached a level of 75 to 100 vehicles, the railways ought to have, if it was a public road, put gates and a watchman, as required by statute. <ORG>, in our view, rightly observed that the bus driver was from Tamil Nadu, he was not familiar with this place in Kerala State where the accident occurred, there was no caution board or other indication to show that the road was cutting across a railway line, and there were no gates or hand-rails to alert the passer-by. It was held that if the <ORG> had taken adequate precautionary measures such as, erecting hand rails or gates, a severe accident like this would not have taken place. In the absence of gates and caution board, the level crossing was held to be in the nature of a trap.

For the aforesaid reasons, no case is made out by the appellant for disturbing the finding of <ORG> that applying common law principles, the <ORG> must also be deemed to be negligent is not converting the unmanned level crossing into a manner one with gates, - having regard to the volume of rail and road traffic at this point. Point 4: Point is whether omission to perform public law statutory duties can or cannot give rise to actions at private law and if they cannot, ordinarily, - whether there are any exceptions?

We are here concerned with the question as to whether omission on the part of <ORG> to take a decision whether or not to exercise powers under Section 13 of the Railway Act, 1890 _ in particular under clause (c) and (d) of Section 13 - amounted to a breach of a statutory duty giving rise to a cause of action for damaged based on negligence.

Recently this court had occasion in <CITATION> 1997(9) SCC 562 to consider an analogous problem. There the issue was regarding the omission on the part of the local authority to remove a tree from a public road The tree later fell on the plaintiff's husband who was passing by the road resulting in his death. <ORG> had decreed compensation but this court allowed the appeal and dismissed the claim holding that no breach of statutory duty was involved. In that context, this court had occasion to refer to the principles laid down by Lord <NAME> in <NAME> vs. <NAME> [1932 AC 562] as regards `proximity' and `neighbourhood', and to the extension of these principles by Lord <NAME> in <NAME> vs. Merton London Borough 1978 AC 728 to cases of omission on the part of local authorities to properly scrutinise building plans where such omissions resulted in the cracking of walls of the buildings constructed, thereby causing `economic losses'. This court also referred to <NAME> vs. <ORG> 1991 (1) AC 398 which overrules <NAME>.

Whether <ORG> was rightly overruled in <NAME> in regard to economic losses. It is not necessary for us to decide. We shall assume <NAME> is tight. We are referring to this aspect because the extent to which private law rights under common law can arise on account of non-performance of statutory, mandatory or discretionary duties or omission to exercise such statutory powers can differ from country to country. In several common law countries, it is seen that <ORG> might still be pressed into service. (See the Canadian view of 1992 of <NAME>, <ORG>, <NAME> the Australian view of 1995 (in fact <NAME>, whose opinion as to incremental development of common law was the basis for <NAME>, soon found himself in a minority in later cases in Australia); and the 1994 deviation from <NAME> in New Zealand (which was approved with special appreciation by <ORG> in 1996 in a case noted below) (See Jackson and Poweli on Professional Negligence, 1997 4th Ed., p. 36-

40). In fact <NAME>, CJ stated in <CITATION> [1987 (1) SCC 395] that the common law in our country is to keep pace with socio-economic norms of our country.

We may state that there are two distinct types of cases. One relates to the omission on the part of the public authority to perform an alleged statutory duty - as in the Rajkot case. Another relates to omission to exercise a power or rather not deciding whether to exercise statutory power or not. The case before us belongs to the latter category. Section 13 of the Railways Act, 1850 enables <ORG> to send a regulation to the railway administration to take certain steps in regard to level crossings. <ORG> in a recent case in <NAME> Vs. <NAME>: 1996 (3) W.L.R 388 was directly concerned with this second type of cases - omission to take a decision with regard to exercise of statutory power under Section 79 of the Highway Act. That case, we consider is more directly in point. In that case, an earthen mound in the land of the defendant was causing obstructor to the vision of the drives of vehicles passing on the road at a junction and on that account the plaintiff met with an accident and was injured. The local authority had no power to enter on the land of the owner and remove the mound, but had power under Section 79 to issue a requisition to the land power to remove the mound. In fact, a requisition was sent a few days before the accident and the land-owner was yet to respond. The claim was based on the delay in the exercise of powre by the loc authority, that is to say, at an earlier point of time which according to the plaintiff, was the cause for the accident.

Lord <NAME>, speaking for the majority (it is not necessary here for us to decide whether the minority view

------------------------------------------------------------ (1) See among others, (1997) Vol. 60. Modern Law Review p. 559 `Public or Private': Duty of care in a statutory frame work: Stovin Vs. <NAME> vs. <NAME> in the House of Lorde by <NAME>. See also: (1997) Vol. 113 Law Quartersly Review p.

398. Powers and Duties - A small breach in East Suffolk Wall by M.C. Harris where <NAME> Vs. <NAME> was commented upon.

------------------------------------------------------------ of Lord <NAME> is not correct. We shall assume that the majority view of Lord <NAME> is correct stated that in the case of positive acts, the liability of a public authority in tort is in principle the same as that of a private person but may be restricted by its statutory powers and duties. The argument therein - <NAME> Vs. <NAME> was that the duty of the highway authority was enlarged because of the statutory powers and they created a proximity between the authority and the road-user (p.409). But in <ORG> Vs. Kent 1941 Ac 74, Lord <NAME> had stated:

"Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of its failure to exercise that power".

In <ORG>, this principle was somewhat deviated from. As stated earlier the plaintiff in <ORG> had sued for losses to flats in a new block which had been damaged by subsidence caused by inedequate foundations. The contention that the <ORG> was negligent in the exercise of statutory powers to inspect foundations of new buildings givingrise to a claim for economic damage suffered was upheld. This principle was however not accepted in <NAME> to the extent economic losses were concerned. According to Lord <NAME>, <ORG> was not overruled in <NAME> so far as physical injury resulting from omission to exercise statutory powers was concerned (p 410). A duty of care at common law can be derived from the authority's duty in public law to "give proper consideration to the question" whether to exercise power or not (p. 411). This public law duty cannot by itself give rise to a duty of care. A public body almost always has a duty in public law to consider whether it should exercise its powers but that did not mean that it necessarily owed a duty of care which might require that the power should be actually exercised. A mandamus could require future consideration of the exercise of a power. But an action for negligence looked back at what the authority ought to have done. Question is as to when a public law duty to consider exercise of power vested by statute would create a private law duty to act, giving rise to a claim too compensation against public funds (p. 412). One simply cannot derive a common law "ought" from a statutory "may". The distinction made by Lord <NAME> in Anna between `policy' and `operations' is an inadequate tool with which to discover whether it was appropriate to impose a duty of care or not. But leaving that distinction, it does not always follow that the law should superimpose a common law duty of care upon a discretionary statutory power (p.

413). Apart from exceptions relating to individual or societal reliance on exerciwe of statutory power, - it is not reasonable to expect a service to be provided at public exepnse and also a duty to pay compensation for loss occasion by failure to provide the service. An absolute rule to provide compensation would increase the burden on public funds.

Lord <NAME> further observed that whether a statutory duty gave rise to a private cause of action or not was a question of construction of the statute. It required an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for breach. The question whether it could be relied upon to support the existence of a common law duty of care was not exactly a matter of construction because the cause of action did not arise out of the statute itself. Whether there was a common law duty and if so what was its ambit must be profoundly influenced by the statutory framework within which the acts complained of were done. The same was true of omission to perform a statutory duty. If the policy of the Act was not to create a statutory liability to pay compensation, the same policy should certainly exclude the existence of a common lae duty to care.

But it is not as ig that a statutory `may' can never give rise to a common law duty of care (p. 414). There was exceptions in which a statutory `may' could create a common law `ought'.

The exceptions according to Lord <NAME> require two conditions to be proved to postulate a duty to perform a common law obligation within the statutory framewor of a discretionary power. The two minimum pre-conditions for basing a duty of care on the exercise of a statutory power were firstly, that it would have been irrational not to have exercised the power so that there was a public duty to act and secondly that there were exceptional grounds for holding that the policy of the statute must have been to require compensation to be paid to persons who woudl suffer damage because the power conferred was not exercised at all or not exercised when it was generally expected to be exercised.

Lord <NAME>'s observations indicate that the agreed that <ORG> was overrules in <NAME> only in relation to the extension of the neighbourhood rule as laid down in <NAME> vs. <NAME> to economic losses and that the said judgment in <ORG> was not overruled so far as compensation for physical injury (p 410). But on facts in <NAME> vs. <NAME>, though it was a case of personal injury, the claim against the local authority for non-exercise of the power to direct the land owner to remove the earthen mound was rejected by <ORG> on the ground that the above two preconditions were not fulfilled. Again, Lord <NAME> stated that the distinction made by Lord <NAME> in <ORG> between non-feasance due to `policy' and `operations' was not a sound one.(2) Having referred to the two preconditions. We shall

------------------------------------------------------------ (2) A view to the contrary was expressed in De Smith. <NAME> and <NAME> in Judicial Review of Administrative Law in 1995 that <ORG> still holds the field in regard to `operations' but that was before <NAME> Vs. <NAME> came to be decided by <ORG> in 1996.

------------------------------------------------------------ now refer to the more important part of the decision of the majority. This concerns the manner in which one can show that the two preconditions are to be satisfied in a given case of non-exercise of statutory powers.

So far as the first conditions relating to irrationality is concerned, reference was made by <ORG> in the above case to the principle of "particular reliance" laid down by <NAME> of <ORG> in <ORG> vs. <NAME> (1985) 157 CLR 424 (at 483) and also to the other alternative principle of "general reliance" laid down by <NAME>.<ORG> in the same case (p415). Lord <NAME> said that if the particular reliance' of the plaintiff n respect of an expectation of exercise of statutory power by the authority was belied, then a conclusion can be drawn that the non-exercise was irrational. This form of liability based upon representation and reliance would not depend upon the public nature of the authority's power and would cause no probllem. Alternatively, if the plaintiff had no idea of particularly relying upon the exercise of power by the authority in his favour but if a matter of general reliance society could by previous experience expect the exercise of such a power and if such an expectstion stood belied, then also a conclusion could be drawn that the non-exercise of power by the authority was irrational. This doctrine of general reliance according to <ORG> had little in common with the ordinary doctrine of reliance. Here so far as general reliance was concerned, the particular plaintiff need not have expected that the power would be used or need not have even known that such a power existed. This principle is based upon the general expectation of the community - which the individual plaintiff may or may not have shared. A widespread assumption would certainly affect the general pattern of economic and social behaviour of the community. It was further stated by the majority that this doctrine required an injury into the role of a given statutory power and its effect on the behaviour of the general public. On this principle of general reliance'; their Lordships stated that an outstanding example of its meaning was contained in the judgment of <NAME>. <ORG> of Newzealand Appeal Court in <NAME> vs. <NAME> 1994 (3) NZLR 513 (526) which was affirmed by <ORG> in <NAME> vs. <NAME> 1996 (2) WLR 367 (PC). As per this principle of general reliance propounded by <NAME>.<ORG>, it appeared that the benefit of service provided under statutory powers should be of a uniform and routins nature, so that one could describe exactly what the public authority was supposed to do. For example, a power of inspection for defects would clearly fall into this category. Again if a particular service was being provided as a matter of routine, it would be irrational for a public authority to provide it in one case and withhold it in another. Obviously this was the main ground upon which in Anns it was considered that the power of the local authority to inspect foundations gave rise to a duty of cars.

We are of the view that the principle and down by <ORG> is clearly applicable here. This general expectation of the community so far as the railways are concerned can be summarised from the following passage in Helsbury's Laws of England (Vol. 34, Negligence, 0th Ed. 1984, para 73). It is stated that "a plaintiff is entitled to rely on reasonable care and proper precautions being taken and, in places to which the pxblic has access, he is entitled to assume the existence of such protection as the public has, through custom, become justified in expecting" <ORG> then refers to a large number of cases of railway accidents. In view of this general expectation of the community that appropriate safeguards will be taken by the railways at level crossings, the first precondition is, in our view, clearly satisfied.

As to the second condition, namely, whether the statute can be takne to have intended to provide compensation for the injury arising out of non-exercise of statutory powers, Lord <NAME> again referred to Mason. J's Judgment where he said that such a policy to pau compensation could be inferred if the power was intended to protect members of the public, from risks against which they could not guard themselves i.e. having regard to the expense involved or the highly technical nature of safeguards needed to be taken or because the safeguards have to be taken in the premises of the public authority. In the <NAME> case <ORG> found it in the general pattern of socio-economic behaviour. A careful analysis of community behavious was therefore warranted. It is therefore necessary to know exactly what in the judgment of the Australian <ORG>, <NAME> stated. He observed as follows: (at p460 of 157 CLR) "But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of the power. A common illustration is provided by the cases in which an authority in the exercise of its functions has created a danger, thereby subjection itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning. That it is the conduct of the authority in creating the danger that attracts the duty of care is demonstrated by <NAME> Vs. Glossop Corporation 1921 (2) K.B. 132

There are situations in which the authority's occupation of premises or its ownership or control of a structure in a highway or public place attracts to it a duty of care.

And then there are situations in which a public authority not otherwise under a relevant duty may place itself in such a position that others rely on it to take care for their safety so that the authority comes under a duty of care calling for positive action ....... <NAME> vs. <ORG> (1922 (2) KB,

Thereafter Justice <NAME> touched the crucial aspect in this branch of law which was quoted by <ORG>) in <NAME> Vs. <NAME>. That passage refers to the special duties of public authorities recognised by the legislature to cover situations in which it is necessary to presume the inability of the public to protect themselves against certain serious and complex risks. That passage reads as follows:- (6464) "Reliance or dependance in this case is in general the product of the grant (and exercise) of powers designed to prevent or minimise a risk of personal injury of disability recognized by the legislature as being of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their own protection. This situation generates on one side (the individual) a general expectation that the power will be exercised and on the other side (the authority) a realisation that there is a general reliance or dependance on its exercise of power to act ..... The control of air traffic, the safety inspection of air craft and the fighting of a fire in a building by a fire authority may well be examples of this type of function."

The reference here to air traffic and fire fighting department, in our view,mis illustrative but important and in our opinion the principle laid down by <NAME>, J. clearly extends to other operations which are inherently dangerous or complex against which members of the public cannot protect themselves. In Canada, it has been held in Swanson Estate Vs. Canada (1991) 80 D.L.R. (4th) 741 by <ORG> that the special protection in favour of the <ORG> "must be limited only to those functions of <ORG> that are considered to be `governing' and that the decision of the regional director of a licencing body to allow an airline to continue unsafe flying practices was not part of a governmental function and the transport regulator was liable for negligence. In last Vs. British Columbia (1990) 64 D.L.R (4th) 689 it was held that reduction in budgetary allotment for road inspection to prevent accidents could be a protected policy decision only if it constituted a reasonable exercise of funds. The running of trains by the railways, as pointed out by <ORG> in Commissioner for Railways Vs. <NAME> 1966(2) All E.R. 162 (PC) has been recognised as inherently preilous and, in our view, certainly creates, in the minds of the public a general expectation that safety measures _ whcih the public canot otherwise afford, have been taken by the railway administration. In our opinion, the steps mentioned by the legislature in the various clauses of Section 13 of the Railways Act, 1890 are in the words of <NAME>, J. steps which, even according to the legislature, individual members of society can not afford to take and are not capable of taking, having regard to the expense or expertise involved or for the reason that these steps have to be taken in or in respect of the property of the railways. Applying the principle laid down by Lord <NAME>, in <NAME> vs. <NAME>, there is, in our opinion a clear indication in section 13(c) and (d) of the Railways Act itself that the affected parties are intended to be compensated because of the non-exercise of the aforesaid statutory powers by the railways. Thus the second condition as to a statutory intent of providing compensation is also satisfied.

Once the two preconditions laid in <NAME> vs. <NAME> are satisfied both as to non-exercise of statutory powers which was irrational and as to the statutory intent of payment of compensation for injury or death due to running inherently dangerous services in respect of which individuals cannot afford to protect themselves the conclusion is irresistible that the non-exercise of public law or statutory powers under Section 13(c) and (d) did create a private law cause of action for damages for breach of a statutory duty. The case falls within the exception where a statutory `may' gives rise to a `common law' ought.

We make it however clear that <NAME> Vs. <NAME> is not to be eadily invoked in every case of non-exercise of statutory powers unless the two pre-conditions laid down in the judgment of the majority in <NAME> vs. <NAME> are satisfied.(3) We should not also be understood as saying that all unmanned level crossings should have gates with watchman. It all depends on the volume of traffic at the point and the applicability of the principles stated above in Points 3 & 4.

Point 5: Under Section 110(1) of the Motor Vehicles Act, 1939 (corresponding to Section 165 of the 1988 Act) Claims Tribunals have been constitured for adjudicating

------------------------------------------------------------ (3) For discussion on <NAME> Vs. <NAME> and recent views in Newzealand, Canada & Australia - See <ORG> on Professional Negligence (4th <ORG>., 1997 pp. 26 to 41), <ORG>, Public Torts and Contracts Australia, 1982); Craig (1978) 94 L.W.R 428; <ORG>: 1984 P.L. 27.

------------------------------------------------------------ upon claims for compensation in respect of accidents involving the death or bodily injury of persons, "arising byt of the sue of motorvehicles or damage to any property of a third party "so arising" or both. Section 110 (1) in out view deals with the jurisdiction of the <ORG>. On the other hand, Section 110-B (corresponding to Section 168(1) of the new Act of 1988) is procedural and is in two parts. The first part states that after following certain procedure, the Claims <ORG> shall "make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid". Obviously, the word `compensation' here in the first part of Section 110(B) is referable to the compensation to be decided by the <ORG> under Section 110 (1). But it is the second part of Section 100 B on which the appellant (<ORG>) has relied and that part reads as follows:-

"In making the award <ORG> shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be".

It is stressed for the appellant that because of the specific reference here to the insurer, owner and driver, an award cannot be passed by the <ORG> against anybody else. In our view, the second part` of Section 110-P extracted above is purely procedural when it refers to the specification of the amounts payable by the insurer or owner driver and has no bearing on the scope of the jurisdiction red by Section 110(1) upon the <ORG>s. That question has to be decided by interpreting the plain words, "arising out of the use of the vehicle" occurring in Section 110 (1) and is not in any manner controlled by Section 110 (B). The scope of the jurisdiction is clear. <CITATION> 1975 (2) SCC 840, this court stated that the provisions in Chapter VIII of the 1939 Act contained a law "relating to change of forum". It was specifically held that the "jurisdiction of <ORG> is ousted as soon as the Claims <ORG> is constituted and the filing of the application before the <ORG> is the only remedy available for the claimant". It was again held in <ORG> vs. <NAME> 1987 (3) SCC 234 that Chapter VIII provided for an "alternative forum" to the one provided under the Fatal Accidents Act for realisation of compensation payable on account of motor vehicle accidents.

In our view, the <ORG> is clearly an alternative forum in substitution for <ORG> for adjudicating upon claims for compensation arising out of the "use of motor vehicles". This is further made clear from Section 110-F of the Act which states that <ORG> shall entertain any question "relating to any claims for compensation which may be adjudicated upon by the Claims <ORG>". In our view, when we are concerned only with Section 110 (1) and when Section 110 B does not and cannot control Section 110 (1), a claim is entertainable by the <ORG>, if it arises out of the use of the use of a motor vehicle and if it is claimed against persons or agencies other than the driver, owner or insurer of the vehicle provided in tort, such other persons or agencies are also claimed to be liable as point tort-feasors. It is obvious that prior to the constitution of the <ORG>, such compensation could be decreed by <ORG> not only against the owner\driver and insurer of the motor vehicle but also against others who are found to be joint tort feasors. The words "use of the motor vehicle" are also be construed in a wide manner. The above words were interpreted by this Court in <CITATION> : 1991 (3) SCC 530, in the context of Section 92A . This Court in that connection referred to the Australian case in <ORG> vs. <ORG> (1965) 114 C.L.R 437 and to the observations of <ORG> that those words have to be widely construed. We may also refer to the observations of <NAME> in same case to the following effect:-

"........ no sound reason was given for restricting the phrase, "the use of a motor vehicle" in this way. The only limitation upon its ........... that I can see is that the injury must be one in sany way a consequence of a use of the vehicle as a motor vehicle".

Further, Section 110-E of the Act provides of recovery of the compensation "from any person" as arrears of land revenue and recovery under that Section is not restricted to the owner/driver or insurer specified in the second part of Section 110-B . Obviously the words from any person are referable to persons other than the driver/owner or insurer of the motor vehicle.

For all the above reasons, we hold that the claim for compensation is maintainable before the <ORG> against other persons or agencies which are held to be guilty of composites, negligence or are joint tort feasors, and if arising out of use of the motor vehicle. We hold that an award could be passed against the <ORG> if its negligence in relation to the same accident was also proved. We find that there has been a conflict of judicial opinion among <ORG>s on the above aspect. <ORG> in <CITATION> 1975 ACC 33 (AP) AIR 1975 AP 222 took the view that the claims before the <ORG> are restricted to those against the driver, owner and insurer of the motor vehicles and not against the railways. But on facts the decision is correct inasmuch as through it was an accident between a lorry and a train at a railway crossing, it was a case where the driver, cleaner etc, travelling in the lorry were injured and there was no claim against the lorry owner. The suit was filed in 1967 in <ORG> and was decreed against the railway. A plea raised in <ORG> that <ORG> had no jurisdiction and only the <ORG> had jurisdiction was negatived. In our view, on facts the decision is correct because the plea was one of the exclusive negligence of the railway. <CITATION> [1988 ACT 660 (AP)], though the driver and owner were parties, the ultimate finding was that the driver of the motor vehicle was not negligent and the sale negligence was that of the railway. The case then at that stage comes out of Section 110 (1). Here also the concluded on facts, in our view, is correct. But certain general broad observations made in these two cases that in no circumstances a claim can be tried by the <ORG> against the persons/agencies not referred to in the second part of Section 110 B, are not correct. Similarly <ORG> in <CITATION> .s [AIR 1974 Gav.31], by <ORG> in <ORG> vs. <NAME> (AIR 1987 Orissa 110) and <ORG> in Union of India vs. Kailasan 1974 AC] 488 (Mad.) have held that no award can be passed against others except the owner\driver or insurer of the motor vehicle. On the other hand <ORG> in <CITATION> AIR 1982 (All) 310, the majority in the Full Bench of <ORG> in <CITATION> 1986 ACT 344 (P&H), <ORG> in <CITATION> (AIR 1988 Guj.13), <ORG> in the Judgment under appeal and in <ORG> vs. <NAME> [1988 ACT 597 (Ker)] and <ORG> in <CITATION> 1993 ACT 366 (Raj.) have taken the view that a claim lies before the <ORG> even against another joint tort-feasor connected with the same accident or against whom composite negligence is alleged.

We are of the opinion that the view taken by the Andhra Pradesh, by way of obiter and the views of the Gauhati. Orissa and Madras High Court is not correct and that the view taken by the Allahabad. Punjab and Haryana, Gujarat, Kerala and Rajasthan <ORG> is the correct view. Further, as pointed by <ORG>, claims where it is alleged that the driver\owner of the motor vehicle is solely responsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the <ORG> but in the latter type of case, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would them become one of exclusive negligence of railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the <ORG>.

We may however add that if, as of today, any claims against persons other than the driver\owner\insurer are pending in Civil Courts, but which as per the law hereinabove stated ought to have been lodger before the Tribunal, then <ORG> concerned shall return the plaints and the claimants could present the same as a petition before the <ORG>. In that event, they shall be dealt with as if they are claim petitions presented before the <ORG> on the date on which the plaints were filed in <ORG> and shall be disposed of under the provisions of the Motor Vehicles Act and in accordance with law.

For all the aforesaid reasons, these appeals are dismissed but without costs.


PETITIONER: STATE OF ORISSA Vs. RESPONDENT: DR. (MISS) BINAPANI DEI & ORS. DATE OF JUDGMENT: 07/02/1967 BENCH: <NAME>, J.C. BENCH: <NAME>, J.C. MITTER, G.K. CITATION: 1967 AIR 1269 1967 SCR (2) 625 CITATOR INFO : F 1968 SC 240 (8) RF 1968 SC 292 (11) R 1970 SC 150 (19) D 1970 SC 158 (10) E 1970 SC1896 (7) RF 1971 SC 40 (11,12) D 1971 SC 173 (7) RF 1972 SC2185 (6) F 1973 SC 205 (5) R 1973 SC 834 (20) MV 1973 SC 855 (43) R 1974 SC 87 (11) R 1975 SC 569 (3,4) D 1975 SC2057 (9) F 1976 SC 667 (4) RF 1976 SC1207 (266) RF 1977 SC1980 (14) F 1977 SC2328 (42) D 1978 SC 597 (32,59) E&R 1978 SC 851 (66) R 1979 SC 592 (37,39) RF 1981 SC 136 (7) RF 1981 SC 818 (19,26) RF 1981 SC 873 (67) R 1981 SC1481 (1) R 1983 SC 75 (7) RF 1985 SC1416 (100) R 1988 SC 686 (12) D 1988 SC1737 (87) RF 1989 SC1038 (6) R 1990 SC1402 (22) C 1991 SC 101 (150) RF 1991 SC1309 (3) RF 1992 SC 61 (5) RF 1992 SC1020 (12,17,25) ACT: Natural Justice- Government servant-Enquiry held into date of birth-Report and evidence not disclosed-Opportunity to meet evidence not given-Date re-fixed and compulsory retirement ordered-order whether sustainable. Constitution of India, Art. 226- High Court's discretion to go into questions of fact. HEADNOTE: The first respondent joined the service of the <ORG> Government in 1938. In 1961 the <ORG> held an enquiry into her date of birth. She was then asked to show cause why a certain date should not be taken as her date of birth. The report of the enquiry officer was not disclosed, and the first respondent was not given an opportunity to meet the evidence used against her. The Government refixed the date of birth of the first respondent and ordered that she be compulsorily retired. The first respondent then filed a writ petition in <ORG> which was allowed. The <ORG> appealed It was contended on behalf of the appellant <ORG> that (i) <ORG> in dealing with a petition under Art. 226 of the Constitution ought not to have proceeded to determine disputed questions of fact, (ii) & order refixing the date of birth of the respondent was an administrative order and <ORG> had no power to sit in appeal over the decision of the <ORG> authorities. HELD : (i) Under Art. 226 of the Constitution <ORG> is not precluded from entering upon a decision on questions of fact raised by the petition. Where an enquiry into complicated questions of fact arises in a petition, the High curt may in appropriate cases decline to enter upon the enquiry and may refer the party claiming relief to a suit. But the question is one of discretion and not of the jurisdiction of the Court. No interference with the exercise of the discretion of <ORG> in the present case was called for. [627 G] (ii)Even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case of the <ORG> and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken. In the present case no such steps were admittedly taken; <ORG> was therefore right in setting aside the order of the <ORG>. [630 G] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 499 of 1965. Appeal from the judgment and order dated May 6, 1964 of <ORG> on O. J. C. No. 254 of 1963. <NAME> and <NAME> for the appellant. <NAME>, for the respondents.

The Judgment of the Court was delivered by <NAME>, J. The first respondent who holds the degree of M.B.B.S. of <ORG>, the Diploma in Gynecology and Obstetrics from <ORG> and the Diploma in Obstetrics from <ORG> of London was appointed on June 12, 1938,.as Assistant Surgeon in <ORG>. At the time of her appointment by the Orissa Government, the first respondent declared that her date of birth was April 10, 1910. The first respondent claims that her claim was supported by documentary evidence tendered by her father which was verified and accepted and the birth date was recorded in the Civil List and in the History of Service of Gazetted Officers of the Government of Orissa maintained by the Accountant General of the State. In the normal course the first respondent would have been due for superannuation on April 10, 1965, after completing the age of 55 years. But in consequence of a notification of the State of Orissa dated May 21, 1963, the age of superannuation was ,raised from 55 to 58 years in respect of all Government servants who were to retire after December 1, 1962.

Some anonymous letters were addressed to the Accountant General that the first respondent had misstated her age when she was admitted to service of the <ORG>. After an inquiry the first respondent was required to show cause why her date of birth should not be accepted as April 4, 1907. The first respondent submitted that her date of birth was correctly recorded and that certain school record relied upon by the <ORG> "was erased, altered or overwritten". By letter dated June 27, 1963, <ORG> determined the date of birth of the first respondent as April 16, 1907, and declared that she should be deemed to have retired on April 16, 1962, subject however to extension of service granted from April 16, 1962 till the afternoon of July 15, 1963. By this order the first respondent Who should have on her case retired on April 10, 1968 was deemed to have retired on July 15, 1963.

The first respondent then applied to <ORG> for a writ declaring that the order of retirement passed by the <ORG> Government was contrary to law and against the Constitution and principles of natural justice, and that in any event the order was passed maliciously by the Government to the prejudice of the first respondent, and for a writ of mandamus or certiorari quashing ,the order passed on June 27, 1963, and declaring the respondent to be entitled to continue in service till April 10, 1968. The first respondent claimed that the order made by the <ORG> amounted to an order of compulsory retirement contrary to the rules governing her service and was violative of the principles of natural justice, that the same was arbitrary and mala fide, that the order of retirement amounted to punishment involving consequences such as loss of pay, status and deprivation of service and since it was not made in consonance with Art. 31 1 of the Constitution, the order was liable to be quashed as invalid. <ORG> held that the order declaring the first respondent to be superannuated on April 16, 1962, on the footing that her date of birth was April 16, 1907, amounted to compulsory retirement before she attained the age of superannuation and was contrary to the rules governing her service conditions and amounted to removal within the meaning of Art. 311 of the Constitution, and since the first respondent was not given a reasonable- opportunity of showing cause against the action proposed to be taken in regard to her the order was invalid. <ORG> did not expression opinion on the plea of <NAME> as it raised questions of fact Which could not in the view. of the Court appropriately be determined in a petition under Art. 226 of the Constitution. With certificate granted by <ORG> this appeal has been preferred by the <ORG> of Orissa. Counsel for the <ORG> raised two, contentions in support of this appeal:

(1) that the petition raised disputed questions of fact and <ORG> should not have decided those questions in a writ petition; and (2) that the order refixing the age of the first respondent, was an administrative order and the High Count had no power to sin in appeal over the decision of the <ORG> authorities refixing the age of the first respondent.

In our view these contentions are without substance. It was the case of the first respondent in her petition before <ORG> that the <ORG> had arbitrarily fixed her date of birth as April 16, 1907, and on that basis had declared her superannuated before she attained the age of 58 years. On behalf of the <ORG> it was denied that the true date of birth of the first respondent was April 10, 1910, and that the authorities of the <ORG> had arbitrarily and maliciously chosen to refix her date of birth. Under Art. 226 of the Constitution <ORG> is not precluded from entering on upon a decision on quests s of fact raised by the petition. Where an enquiry into complicated questions of fact arises in a petition under Art. 226 of the Constitution before the right of an aggrieved party to obtain relief claimed may be determined, <ORG> may in appropriate cases decline to enter upon that enquiry and may refer the party claiming relief to a suit. But the question is one of discretion and not of jurisdiction of the <ORG>. In the present case the question in dispute was about the regularity of the enquiry and <ORG> was apparently of the view that the question whether the <ORG> acted arbitrarily did not raise any M2Sup.CI/67-11 question of investigation into complicated issues of fact. No interference with the exercise of the discretion of <ORG> is therefore called for.

It is common ground between the parties that no enquiry in accordance with the provisions of Art. 311 was made by the <ORG> Government. It was the plea of the <ORG> in <ORG> that Art. 31 1 has no application to the case of the first respondent, because she has not been dismissed or removed from service. The <ORG> contended that the true date of birth of the first respondent was April 16, 1907, and she had been properly declared superannuated in consonance with the finding arrived at in an enquiry, held for that purpose by the <ORG>.

The date of birth disclosed by the first respondent at the time when she entered service was accepted by the <ORG>. She claims that a statement was made by her father on that occasion relying on which the date of her birth was determined and entered in the service register, and thereafter the <ORG> sought arbitrarily to refix the date of her birth. In considering that plea the relevant Service Rules regarding superannuation may be noticed in the first instance. Rule 13 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, sets out the penalties which may be imposed "for good and sufficient reasons" on a <ORG> servant and the seventh penalty is "compulsory retirement". But the Explanation to the rule states that "compulsory retirement" of a <ORG> servant in accordance with the provisions relating to his superannuation or retirement is not a penalty within the meaning of the rule. Rule 459(b) of the Civil Service Regulations provides that officers, other than ministerial, who have attained the age of 55, should ordinarily be required to retire on completion of that age. By notification dated May 21, 1963, the age of superannuation was fixed at 58 in respect of all public servants who were to retire after December 1, 1962.

The first respondent held office in <ORG>. She as holder of that office, had a right to continue in service according to the rules framed under Art. 309 and she could not be removed from office before superannuation except"for good and sufficient reasons." The <ORG> was undoubtedly not precluded, merely because of the acceptance of the date of birth of the first respondent in the service register, from holding an enquiry if there existed sufficient grounds for holding such enquiry and for refixing her date of birth. But the decision of the <ORG> could be based upon the result of an enquiry in manner consonant with the basic concept of justice. An order by the <ORG> to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity of correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitution 'setup that every citizen is protected against exercise of arbitrary authority by the <ORG> or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be perform; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the tails of justice be ignored and an order to the prejudice of 'a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.

The <ORG> has undoubtedly authority to compulsorily retire a public servant who is superannuated. But when that person disputes the claim he must be informed of the case of the <ORG> and the evidence in support thereof and he must have a fair opportunity of meeting that case before a decision adverse to him is taken.

In this background, the facts of the case may be reviewed. In. 1957 anonymous letters were received by the Director of Health Services that the first respondent had misstated her age, but no steps, were taken immediately to hold an enquiry. In 1961 some investiture was undertaken through <ORG>. The Secretary to the Government in <ORG> on August 23, 1961 informed the first respondent that the Government of Orissa had information that when she was admitted into Class X in <ORG>, her date of birth was 15 years, and when she was admitted into the First Year Class on July 9, 1924, her age was 17 years and 2 months, and she was required to show cause why May 9, 1907, should not be accepted as her date of birth on the basis of the entry in the Admission Register of the First Year Class. The first respondent submitted her explanation stating that she did not recollect if she had ever attended <ORG>. After 6 correspondence the Admission Register was examined by the first respondent in the presence of the Director of Health services and the officers of <ORG>, and thereafter on March 19, 1962, she wrote a letter pointing out the irregularities in the entries relating to age in <ORG> School Admission Register. The Additional Director of Family Planning Dr. <NAME> was then asked to make a report. In his report Dr. <NAME> largely relied upon a letter written by the Principal, <ORG>, Delhi, that the birth date of the first respondent was April 4, 1908. In the course of the enquiry before Dr. <NAME> the letter was shown to the first respondent but she declined "to make any comments thereon." Thereafter on September 28, 1962 there was a notice from the Secretary in <ORG> stating that according to the, school Admission Register her date of birth was August 22, 1906, and according to <ORG> it was April 1907, and it was intended to treat the latter date as the date of her birth, and the first respondent was called upon to show cause why that date should not be accepted. The report which Dr. <NAME> had submitted to the <ORG> was not disclosed to the first respondent. It may be recalled that there were four different dates before the <ORG> authorities ; (1)- the entry in <ORG> showing the date of birth as August 22, 1906, (2) the entry in the Admission Register of the First Year Class showing the date of birth as some date in April, 1907; (3) the report of the Principal, <ORG>, Delhi, showing the date of birth as April 4, 1908, as recorded in <ORG>; and (4) the first respondent's statement supported by her father's statement at the time when she joined the service in 1938 giving her date of birth as April 10,1910. If an enquiry was intended to be made, the <ORG> authorities should have placed all the materials before the first respondent and called upon her to explain the discrepancies and to give her explanation in respect of those discrepant and to tender evidence about her date of birth.

It is true that some preliminary enquiry was made by Dr. <NAME>. But the report of that Enquiry Officer was never disclosed to the first respondent. 'The rafter the first respondent was required to show cause why April 16, 1907, should not be accept das the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated must be made consistently with the rules of natural justice after informing the first respondent of the case of the <ORG>, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; <ORG> was, in our judgment, right in setting aside the order of the <ORG>.

The appeal therefore fails and is dismissed with costs. <NAME>

Appeal dismissed.


JUDGMENT <NAME>, J.

(1) At the end of argument we announced thedismissal of the appeal. We now proceed to give our reasons for the same.This is an appeal against the order of the learned single judge by which heset aside the order of the Registrar of Trade Marks and allowed the application of the respondent to have their trade mark consisting of the word(SAFIi) registered in Glass 5 in Schedule Iv in respect of medicinal preparation under the Trade and Merchan dise Marks Act , 1958 (to be called theAct). The respondents are well known manufacturers of medicinal preparations amongst others of 'SAFI' a preparation meant for purification of blood (2) Section 6 of the Act requires the maintenance of a Register ofTrade Mark wherein shall be entered all registered Trade Marks. Section 7 of the Act says that the register shall be divided in two parts called respectively part 'A' and part 'B'. Section 8 of the Act provides that the trade markmay be registered in respect of any or all of the goods comprised in a prescribed Class of goods. The Trade and Merchandise Marks Rule 1959 have beenframed under the Act. Rule 22 provides that for the purpose of registrationof .the trade mark goods shall be classified in Fourth Schedule. The FourthSchedule in dassification of goods item 5 amongst others. mentions pharmacutical. Medicinal preparation admittedly falls under this class.

(3) The respondents applied for registration of the trade mark consisting of the word 'SAFI'. Though, originally the application was made forregistration in part 'A', but as later on it was modified and registration wassought in part 'B' only. We are only concerned with the eligibility for registration in part 'B' of the Register. The Registrar of Trade Mark, however,refused it on the ground that 'SAFI' was a descriptive work having directreference to the character and quality of the goods and is not inherentlycapable of distinguishing the applicant's goods within the meaning of Section 9 of the Act. In appeal by the respondent, the learned single judge, however,took a different view and held that the word 'SAFI' cannot be held to bedescriptive of the quality or the character of the goods of the respondent andon that finding he granted to the respondent trade mark to be registered inpart 'B' of the register. The Registrar of Trade Mark being aggrieved hascome up in appeal.

(4) Section 9(1) lays down the requisites for registration in Parts 'A'and 'B' of the register and by Clause D provides that a trade mark shall notbe registered in Part 'A' of the register unless it contains or consists of at leastone or more words having no direct reference to the character or quality ofthe goods. Thus, this is a negative mandate which means that no trade markwill be registered in Part 'A' of the register if it contains a direct reference tothe character or quality of the goods. Though the trade mark was sought tobe got registered in Part 'B', the discussion before the learned single judgeseems to have proceeded as if the trade mark was being sought to be registeredin Part 'A' of the Register. The learned judge, therefore, only consideredwhether the word was descriptive of quality of goods and having found thatthe word 'SAFI' was not understood in common use and in its ordinarymeaning as meaning "pure, clear, fine," naturally found no hurdle in respondent's getting registration.

(5) As before the learned judge, Mr. <NAME>, the learned counsel forthe respondent also tried to convince us to hold that the Word 'SAFI' is anunusual word, totally unknown in the common parlance and has no directreference to the character or quality of the goods of the respondent. Thoughthe learned judge ultimately held that the word 'SAFI' is not descriptive, yethe did say that prima facie it could be urged that the word 'SAFI' is descriptive in character. That the word 'SAFI' in dictionaries is defined as "pure,fine, clear" cannot be disputed. There is also equally no doubt that it is notthe only meaning of the word 'SAFI' and as it was even noticed by the Registrar the word 'SAFI' also means cloth which is used for straining beveragesand medicines. Mr. <NAME>) the learned counsel for the respondent has shownus extracts from a number of dictionaries which show 'SAFI' to mean a smallcloth meant for cleaning hand, one dictionary gives its meaning as duster.The learned judge apparently because of the various meanings attributed tothe word 'SAFI' was not satisfied that this word in common parlance meanonly a pure and clear and thus the word 'SAFI' cannot be held descriptive ofthe quality of the goods of the trader. Now, even Mr. <NAME> did not disputethat if the word used was 'SAFAI' or 'SAF' which also means pure, "clear",he could not dispute that these words would have direct reference to thecharacter and quality of the goods of the respondent. In that sense it wouldimmediately come within the prohibition of Section 9(1)(d) . He, however,maintained that. the word 'SAFI' though resembling to the word 'SAFAI' and'SAF' still is so unusual that it cannot be said to be descriptive. Frankly, weare not very sure that it can be straight way accepted that the word 'SAFI'is so unusual and so uncommon in the trade that it will not denote a resemblance to the word 'SAFAI' or 'SAF' so as not to fall within the prohibitionof Section 9(1)(d) , as being a word descriptive in character. But we do notpropose to give any final opinion on this aspect because we are concernedonly with the question whether the respondent was entitled to have his trademark registered in Part 'B' of the Register and, therefore, we would not liketo decide the matter on this ground.

(6) Section 9(4) provides that a trade mark shall not be registered inpart 'B' of the register unless the trade mark in relation to the goods in respectof which it is proposed to be registered is distinctive, or is not distinctive butis capable of distinguishing goods with which the proprietor of a trade markis or may be connected in the course of trade from goods in the case of whichno such connection subsists............. Section 9(5) further reads as under : "INdetermining whether a trade mark is distinctive or is capableof distinguishing as aforesaid, the tribunal may have regard to theextent to which:(a) a trade mark is inherently distinctive or is inherently capable ofdistinguishing as aforesaid; and(b) by reason of the use of the trade mark or of any other circumstances, the trade mark is in fact so adapted to distinguish, or is infact capable of distinguishing as aforesaid."

(7) It will, thus, be seen that trade mark in order that it may be registered in part B need not necessarily be distinctive. It is enough if it is capableof distinguishing the goods of the applicant from those of other manufacturersor traders. In the present case the Registrar found as a matter of fact thatthe trade mark 'SAFI' for the medicinal preparation has been used continuously by the respondent for the past more than 20 years. This was about sixyears back when he gave his decision. There was no evidence led before theRegistrar to show that any other manufacturer of medicinal preparation wasalso using the trade mark 'SAFI' for similar goods. There was also no evidence led before the Registrar that the word 'SAFI' has been used by someother trader and the respondents user was with a view to make a dishonestuser of the same so as to take unfair advantage. The evidence was thus clearand unrebutted that in the trade circles the word 'SAFI' is connected to themedicinal preparation which is being sold by the respondent. Though it maywell be open to serious argument whether or not direct reference at all to thecharacter or quality of the goods manufactured by the respondents, this doesnot mean that the Trade Mark 'SAFI' is not capable of distinguishing thegoods of the respondents from others in the trade. It cannot be doubted thatby constant use of the Trade Mark 'SAFI' for such a long time the respondents can legitimately claim that this Trade Mark is almost exclusivelyconnected with their goods. Though the Registrar did say that the word SAFIwas inherently incapable of distinguishing the respondents goods within themeaning of Section 9 of the Act, no reasons have been given in support ofsuch ha finding. The Registrar apparently thought that if the word is descriptive it inevitably and in all circumstances means that it is not capable ofdistinguishing the goods of a particular trader from that of the others. Butthis view is not supportable in law. In every case the question is a questionof fact that is to say, where evidence proves conclusively that descriptive wordhas lost its primary meaning, and has acquired a secondary meaning, it is aquestion of fact whether the registration of that mark will or will not causeconfusion. The word is not merely by reason of the fact that it is a descriptive word incapable of registration. See: In the. matter of an ApplicationJ & <ORG> for Registration of Trade Mark 53 R.P.C. 355 at 385. Thereare words which have a direct relation to the character and quality ofgoods which nevertheless may lose their primary meaning and acquire in aparticular trade a Secondary meaning as indicating to people interested,whether as traders or as the public in trade, the goods of a particular manufacturer. When that does occur and the evidence shows that the word hasattained a secondary meaning then, in my opinion, the word is registrable asa trade mark. [See : 53 R. P. C. 355 at 384 (supra)].

(8) It is, therefore, possible that there may be some words whichthough they may have reference to the character and quality of goods yethave over a course of period, become associated with the goods of aparticular trader and in that sense they would certainly be capable of distinguishing the goods of a particular trader and which would satisfy the test of S. 9(5) of the Act and would be entitled to be registered in Part 'B' of the register.

(9) As a result we are satisfied that the respondent had made out casethat his trade mark 'SAFI' was capable of distinguishing his goods from thoseof others in the Trade and, therefore, he was entitled to claim registration inPart 'B' of the register. We, thus, have come to the same conclusion as thelearned single judge, though for different reasons, with the result that theappeal will have to be dismissed which we do but with no order as to costs.