Basheer v. New India Assurance Company Limited and Deputy Tahsildar, Revenue Recovery, Kozhikode District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 02ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941** ## **WP(C).No.21036 OF 2019(D)** ## **PETITIONER/S:** **BASHEER AGED 59 YEARS S/O. MOHAMMEDKOYA, 24/197(289), PUTHIYAMALIYEKAL, AZHEHAVATTOM, MANAKAVU, KOZHIKODE DISTRICT.** **BY ADVS. SRI.P.V.ANOOP SRI.M.P.PRIYESHKUMAR SRI.K.V.SREERAJ** ## **RESPONDENT/S:** **1 NEW INDIA ASSURANCE COMPANY LIMITED., ERANHIPALAM, KOZHIKODE, PIN-673 006** **2 DEPUTY TAHSILDAR, REVENUE RECOVERY, KOZHIKODE DISTRICT, PIN-673 020** ## **SRI A.A.ZIYAD RAHMAN-STANDING COUNSEL ; SMT MABLE C.KURIEN- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.21036 OF 2019(D)** 2 ## **JUDGMENT** The petitioner was arrayed as the 2[nd] respondent in O.P.No.(M.V).No.1181/2015 on the file of the Motor Accident Claims Tribunal, Kozhikode, being the owner of an autorikshaw bearing Registration No.KL-11/AK-8611, which met with an accident resulting injuries to the claimant before the Tribunal. At the time of accident, the driver of the autorikshaw was not having a valid driving licence. In Ext.P1 award, the Tribunal awarded a total compensation of Rs.6,83,700/- to the claimant together with interest from the date of petition till the date of deposit, with proportionate cost. The 1[st] respondent, who is the insurer of the that autorikshaw was permitted to recover the said amount by proceeding against the petitioner. Now, revenue recovery proceedings, based on the order passed by the Tribunal in an application filed under Section 174 of the Motor Vehicles Act, 1988 have been initiated against the petitioner, as evidenced by Ext.P2 notice issued by the 2[nd] respondent Deputy Tahsildar, demanding a sum of Rs.8,60,290/-. The petitioner is before this Court in **WP(C).No.21036 OF 2019(D)** 3 this writ petition seeking a writ of certiorari to quash Ext.P2 demand notice issued by the 2[nd] respondent. The petitioner has also sought for a writ of mandamus commanding the respondents to allow him to pay the entire amount covered by Ext.P2 in 24 equal monthly instalments. 2. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent-Insurance Company and also the learned Government Pleader appearing for the 2[nd] respondent. 3. As held by this Court in **Subaida v. Deputy Tahsildar (RR), Thrissur District and others [2019(1) KHC SN 7: ILR 2019(1) Kerala 393]** , if a person is aggrieved by an award passed by the Tribunal under Section 168 of the Act, he has to challenge the same in an appeal filed under Section 173 of the Act, after complying with the statutory mandate of the first proviso to sub-section (1) of Section 173, subject to the time limit prescribed in the second proviso to that sub-rule. The challenge to an order passed by the Tribunal (other than an award passed under Section 168) has to be one invoking the supervisory jurisdiction of this **WP(C).No.21036 OF 2019(D)** 4 Court under Article 227 of the Constitution of India. The challenge to such an order of the District Judge, as the Motor Accidents Claims Tribunal, has to be made under Article 227 of the Constitution of India and not under Article 226. Being part of the district judiciary, the District Judge acts as a court and the order passed by him is an order of the subordinate court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction, which is supervisory in nature. 4. In **Subaida's case supra** , this Court held further that, as per Section 174 of the Motor Vehicles Act, where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue. The order of the Claims Tribunal under Section 174 of the Act, to initiate revenue recovery, based on an application made by the person entitled to the amount as per the award, is also an order against which remedy under Article 227 of the **WP(C).No.21036 OF 2019(D)** 5 Constitution of India can be availed. In an O.P.(MAC) filed under Article 227 of the Constitution of India, the petitioner can seek a time bound disposal of any interlocutory applications filed after the award passed by the Claims Tribunal and stay of operation of the order of the Claims Tribunal under Section 174 of the Act, and all recovery proceedings initiated pursuant to that order. For seeking such reliefs, it is for the petitioner to file an O.P.(MAC) under Article 227 of the Constitution of India. On the other hand, if a person against whom revenue recovery proceedings are initiated by issuing a demand notice pursuant to the order of the Claims Tribunal under Section 174 of the Act requires only time for payment of the dues in monthly instalments, he can approach this Court in a writ petition filed under Article 226 of the Constitution of India, with the person entitled to the amount as per the award and also the revenue officials in the party array. 5. When Ext.P2 demand notice issued by the 2[nd] respondent is in terms of Ext.P1 award passed by the Tribunal in O.P.No.(M.V).No.1181/2015, which has attained finality, in **WP(C).No.21036 OF 2019(D)** 6 the absence of any challenge made by the petitioner, no interference is warranted on that demand notice. 6. The learned counsel for the petitioner would submit that the petitioner shall pay off the entire dues covered by Ext.P2 demand notice in ten equal monthly installments. 7. The learned Standing Counsel for the 1[st] respondent-Insurance Company, would submit that, in case of any default in payment of any one of the aforesaid installments, the 2[nd] respondent may be permitted to proceed with the recovery proceedings. 8. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions: (i) The petitioner shall pay off the entire dues covered by Ext.P2 demand notice dated 29.04.2019, together with future interest, in ten equal monthly instalments, commencing from **26.8.2019** and the subsequent instalments payable on or before the 26th day of the succeeding months, by remitting the same before the 2[nd] respondent. (ii) On such remittance being made, the 2[nd] respondent shall deposit the said amount with the **WP(C).No.21036 OF 2019(D)** 7 Motor Accidents Claims Tribunal, Kozhikode in O.P. (MV) No.1181 of 2015 and thereafter, it would be open to the 1[st] respondent to withdraw the same. (iii) The petitioner shall also pay the expenses in connection with Ext.P2 demand notice, before the 2[nd] respondent on or before 26.8.2019 and a memo to that effect shall be produced before the Tribunal. (iv) If the petitioner is remitting the aforesaid instalments in time, without any default, all recovery proceedings pursuant to Ext.P2 demand notice shall be kept in abeyance, so as to enable the petitioner to pay off the entire dues, as above. (v) In case of any default committed by the petitioner in remitting anyone of the aforesaid instalments, it would be open to the 2[nd] respondent to proceed further with the coercive steps initiated under the provisions of the Revenue Recovery Act, for recovering the amount payable as per Ext.P2 demand notice. **Sd/-** ## **ANIL K.NARENDRAN** ## **JUDGE** Dxy **WP(C).No.21036 OF 2019(D)** 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 24.10.2016 IN O.P. (M.V) NO. 1181/2015 BEFORE THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE.** **EXHIBIT P2** **TRUE COPY OF THE REVENUE RECOVERY NOTICE BEARING NO. 2019/3206/11 ISSUED BY THE 2ND RESPONDENT.**