1. This is a plaintiff's appeal arising out of a suit for damages against the Secretary of State on account of the loss of 18 cases of vegetable oil which were consigned to Shahjahanpur from Bombay. The consignment was not delivered at Shahjahanpur and the plaintiff sent notice to the Collector of Shahjahanpur under Section 80, Civil Procedure Code, claiming damages and after having waited for over two months brought the present suit. Admittedly no separate notice under Section 77 of the Railways Act was served on any officer of the Railway. The suit was contested inter alia on the ground that it must fail for want of a notice under Section 77 of the Railways Act. The first Court held that the notice not having been given the suit was not maintainable, and dismissed the claim. On appeal the lower Appellate Court came to the conclusion that notice given to the Collector was quite sufficient and the defect was cured. On appeal to this Court a learned Judge has come to a contrary conclusion and restored the decree of the first Court.
2. The only point for consideration in this Letters Patent Appeal is whether the notice given to the Collector dispensed with the necessity of serving any other notice under Section 77 of the Railways Act.
3. Obviously the object of the two provisions are quite distinct and separate. Section 80, applies to all suits brought against the Secretary of State and it requires that no suit shall be instituted until the expiration of two months next after notice in writing has been given to a Secretary to the Local Government or the Collector of the District. Section 80 therefore provides a period for the notice, and the person who has given such notice must wait for that full period before he brings any suit. That the Collector does not necessarily represent the Secretary of State for India in Council in all cases is apparent from the fact that the Legislature has thought fit to name him specifically in this section.
4. Section 77 of the Indian Railways Act is meant for an entirely different purpose. It is confined to suits brought against the Railway Administration for loss, destruction or deterioration of goods, and provides that no person shall be entitled to a refund or to compensation unless his claim has been preferred in writing by him or on his behalf to the Railway Administration within six months from the date of the delivery of the animals or goods for carriage by railway. The object obviously is that prompt notice should be given to the Railway Company to enable them to make enquiries and settle the matter out of Court by paying compensation to the plaintiff, if possible. The period of six months prescribed in this section is by way of a bar of limitation and is not like the period prescribed in Section 80, Civil Procedure Code, which has to be excluded from computation under Section 15(2) of the Limitation Act.
5. It follows that the two sections being clearly independent, two separate notices are necessary before the suit can be maintained. There must be a notice given to the Railway Administration under Section 77 of the Railways Act within, six months of the date of the delivery of the goods, and the plaintiff must also give notice to the Collector under Section 80, Civil Procedure Code and wait for a period of two months before he sues.
6. The learned Advocate for the appellant contends before us that the 'Railway Administration' has been denned in Section 3(6) of the Railways Act as meaning the Manager of the Railway, including the Government. He then argues that notice to Government is quite sufficient. This must be conceded. He then infers that notice to the Collector would be notice to the Government of India and would, therefore, be sufficient. This contention cannot be accepted. The Collector of a District does not represent the Government of India in Railway matters, and unless there is a statutory provision to that effect a notice sent to the Collector of a District would not be a notice served on the Government of India. As already pointed out, the reason why a notice to the Collector for purposes of Section 80, is sufficient is that there is a specific provision to that effect in that section, and not that the Collector represents the Secretary of State in all matters.
7. Section 140 of the Railways Act lays down that a notice or other document required or authorized by this Act to be served on a Railway Administration may be served, in the case of a Railway administered by the Government, on the Manager. That obviously indicates the way in which a notice required by Section 77 of the Railways Act is to be served. Indeed, it has been held in a number of cases by this Court that the word 'may' in this section is the equivalent of the word 'must' and that there is no other way open except that provided in the section, see Great Indian Peninsula Railway Co. v. Chandra Bai 28 A. 552 : A.W.N. 1906, 101 : 3 A.L.J. 329, Great Indian Peninsula Railway Co. v. Ganpat Rai 10 Ind. Cas. 122 : 33 A. 544 : 8 A.L.J. 543 and Cawnpore Cotton Mills Co., Ltd. v. Great Indian Peninsula Railway 71 Ind. Cas. 614 : 21 A.L.J. 223 : A.I.R. 1923 All. 301 : 45 A. 353. Even without going to this length, it is quite sufficient to say that for purposes of Section 77, a notice to a Collector cannot be considered to be a notice to the Government, in the case of a State Railway.
8. The learned Advocate for the plaintiff has relied strongly on the case of Radhe Shyam v. Secretary of State for India 34 Ind. Cas. 130 : 44 C. 16 : 23 C.L.J. 547. In that case attention was concentrated on the question whether Section 140 was exhaustive and must be strictly complied with. One learned Judge simply took it for granted at p. 25 Pages of 44 C.--[Ed.], that the notice served upon the Government through the Collector within six months was sufficient to satisfy the requirements of Section 77. No reason was given and no authority was quoted, and it is even doubtful whether the point was at all pressed at the bar. The other learned Judge had some doubts on this point for at p. 27 Pages of 44 C.--[Ed.], he remarked:
Whether the Collector is the proper person to receive notice under Section 77, on behalf of the Government when notice is served on the Government and nit on the Manager, I express no opinion.
9. But as the learned Government Pleader for the Railway had omitted to suggest that he was not the proper person, the learned Judge did not differ from the view held by his learned colleague. That case cannot, therefore, be taken to be any conclusive authority on this point. The next case on which reliance is placed is the case of Hirachand Succaram Gandy v. G.I.P. Ry. Co., Bombay 113 Ind. Cas. 511 : 52 B. 548 : A.I.R. 1928 Bom. 421. There again one learned Judge following the opinion of one of the Judges in Radhe Shyam v. Secretary of State for India 34 Ind. Cas. 130 : 44 C. 16 : 23 C.L.J. 547, remarked at p. 555 Page of 52 B.--[Ed.], that notice served under Section 80, Civil Procedure Code, on the Collector within six months may be considered to be a good notice under Section 77, to the Railway Administration. The use of the word 'may' might suggest that that was not the final opinion intended to be expressed. In any case the other learned Judge refrained from expressing any such opinion. With great respect we are not prepared to accept such a view.
10. It seems to us that in view of the provisions of Section 77 and Section 140 of the Indian Railways Act, it is impossible to hold that a notice served on the Collector of a District is a sufficient notice served on the Government of India for the purposes of Section 77.
11. We accordingly dismiss this appeal with costs.