A notice under Section 77 of the Railways Act, 1890 should be served on the General Manager of the railway or railways concerned and not on a subordinate officer like the Chief Commercial Superintendent.

JUDGMENT :- This is a plaintiff's appeal whose suit for recovery of compensation for non-delivery of a bale of cotton consigned at railway station New Delhi on the Northern Railway on 1-2-1961 for carriage to railway station Katarniaghat on the North Eastern Railway was decreed by the trial court but dismissed by the lower appellate court. The main ground on which the lower appellate court dismissed the plaintiff's suit was that he had not complied with the provisions of Section 77 of the Railways Act, 1890.

2. On behalf of the plaintiff-appellant it is alleged that the plaintiff had duly complied with the requirements of Section 77 as would be evident from the documents on record. Firstly, it is pointed out that the plaintiff delivered a notice under Section 77 dated 7-4-1961 to some clerk in the office of the Chief Commercial Superintendent, Gorakhpur on the same date and in token of his receipt he Rot the signature of that clerk and the seal of his office put on Ext. 9. On behalf of the railway administration the receipt of this notice was denied and it was suggested that the signature and the seal had been spuriously obtained in collusion with some clerk in the Chief Commercial Superintendent's office. It was further argued that even if it is accepted that such a notice was delivered by the plaintiff to some clerk in the office of the Chief Commercial Superintendent it does not fulfil the requirements of Section 77 read with Section 140 and Section 3(6) of the Railways Act. In my opinion this contention on behalf of the Railway administration is correct. Section 77 requires that a notice under that section should be preferred within six months on the railway administration. The expression 'railway administration' has been defined in clause (6) of Section 3 meaning in the case 'of a railway administered by the 'Government, the manager of the railway and includes the Government. Section 140 lays down that any notice required by the Act to be served on a railway administration may be served. In the case of a railway administered by the Government, on the manger by delivering the notice to the manager or by leaving it at his office or by forwarding it by post in a prepaid letter addressed to the manager. Obviously the Chief Commercial Superintendent is subordinate officer and he does not rank with the manager. Both Northern Railway and North

Eastern Railway have got managers who are designated as General Managers. These officers are of superior status than the Chief Commercial Superintendent. It was held by two Division Benches of this Court in Ram Sahai v. E. I. Railway (AIR 1922 All 280 (2)) and Cawnpore Cotton Mills v. G.I.P. Railway (AIR 1923 All 301) that for a valid compliance of Section 77 the notice should be served on the General Manager of the railway or railways concerned and that the service of such a notice on a subordinate officer like the General Traffic Manager in the case of the erstwhile G.I.P. Railway or Divisional Traffic Manager in the case of erstwhile Cast Indian Railway, was not sufficient compliance to the law.

3. The learned counsel for the appellant relied on another decision of this Court in Chaturbhuj Ram Lal v. Secy. of State (AIR 1927 All 215) in which the service of a notice under Section 77 on the Chief Commercial Manager of the East Indian Railway was also held as sufficient compliance of Section 77 on the facts of that case. The learned Judges constituting the Bench without referring to the earlier Division Bench decisions cited above and without laying down any rule of law to the contrary as evident from their own observations, preferred to deal with the peculiar facts of that case. They observed that the question whether the notice was duly served upon the manager within the meaning of Section 140, as a general rule cannot be said to be a question of law at all, but is a question of fact depending upon the evidence in each case. In that case the notice was not only received by the Chi