Nisha Prakashan v. District Collector, Ernakulam, Tahsildar, Kanayannur Taluk, Deputy Tahsildar, RR Kanayannur Taluk, Village Officer, Kanayannur, and C.M Cherian

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 22ND DAY OF FEBRUARY 2019 / 3RD PHALGUNA, 1940** ## **WP(C).No. 9570 of 2018** **AGAINST THE JUDGMENT IN OPMV 1136/2014 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **PETITIONER:** **NISHA PRAKASHAN AGED 42, W/O. PRAKASAN, KARIKKETH HOUSE, THALACODE P.O., MULANTHURUTHY VIA, ERNAKULAM DISTRICT - 682 314.** **BY ADVS. SRI.MATHEW KURIAKOSE SRI.K.C.BIJU** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR, ERNAKULAM CIVIL STATION, KAKKANAD - 682 030. 2 THE TAHSILDAR KANAYANNUR TALUK, ERNAKULAM DISTRICT - 682 011. 3 THE DEPUTY TAHSILDAR R.R KANAYANNUR TALUK, ERNAKULAM DISTRICT - 682 011. 4 THE VILLAGE OFFICER KANAYANNUR, CHOTTANIKKARA P.O., ERNAKULAM DISTRICT - 682 312.** **ADDL.5 ** C.M CHERIAN AGED 67 YEARS S/O MATHEW C.T, CHEERAN HOUSE, MADAKKATHARA P O, ERNAKULAM, NOW RESIDING AT VELIMPARAMBIL,9, THUNDOOR, TRIPUNITHURA MUNICIPALITY, ERNAKULAM DISTRICT-682301. (ADDL.R5 IS IMPLEADED VIDE ORDER DATED 26/03/2018 IN IA.5657/2018) **(CORRECTED) (C.M CHERIAN, S/O MATHEW C.T, CHEERAN HOUSE, MADAKKATHARA P O, MANNUTHY, THRISSUR DISTRICT-680651. ADDRESS OF R5 CORRECTED AS PER ORDER DATED 23/11/2018 IN IA.02/2018) SMT. MABLE C.KURIEN, GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.9570 of 2018** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is the registered owner of the offending vehicle in O.P.(MV)No.1136/2014 on the file of the Motor Accident Claims Tribunal, Ernakulam, who was arrayed as the 1[st] respondent in that claim petition, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 demand notice dated 4.1.2018 issued by the 3[rd] respondent and seeking a writ of mandamus commanding the respondents not to proceed against the petitioner and her assets pursuant to Ext.P1 notice. 2. On 26.3.2018, when this writ petition came up for admission, this Court issued notice to additional 5[th] respondent and granted an interim stay of further proceedings pursuant to Ext.P1, for a period of two weeks. The said interim order, which was extended from time to time, is still in ## **W.P.(C)No.9570 of 2018** ## **:-3-:** force. 3. The document marked as Ext.P2 is a copy of I.A.No.1525 of 2018 in O.P.(MV)No.1136/2014, which is an application filed by the petitioner under Order IX Rule 13 of Code of Civil Procedure, 1908, to set aside the ex parte award in that claim petition. The learned counsel for the petitioner would submit that, along with Ext.P2 interlocutory application, the petitioner has filed I.A.No.1524/2018 for condonation of delay of 1007 days in filing the former application. That application now stands dismissed for default, and for restoration of that application, the petitioner has filed I.A.No.3419/2018, which is pending consideration before the Tribunal. 4. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for respondents 1 to 4. Despite service of notice, none appears for additional 5[th] respondent. ## **W.P.(C)No.9570 of 2018** ## **:-4-:** 5. As already noticed, the challenge made in this writ petition is against Ext.P1 demand notice dated 4.1.2018 issued by the 3[rd] respondent. The said demand notice is one issued based on an order passed by the Tribunal under Section 174 of the Motor Vehicles Act, for initiating revenue recovery proceedings against the petitioner. Therefore, the petitioner who is a party to that proceedings cannot invoke writ jurisdiction under Article 226 of the Constitution of India challenging the said order. 6. As held by this Court in **Subaida v. Deputy Tahsildar (RR), Thrissur District and others [2019(1) KHC SN 7 : ILR 2019(1) Ker 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 ## **W.P.(C)No.9570 of 2018** ## **:-5-:** 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 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. 7. 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 ## **W.P.(C)No.9570 of 2018** ## **:-6-:** 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 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 ## **W.P.(C)No.9570 of 2018** ## **:-7-:** 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. 8. Learned counsel for the petitioner would submit that the petitioner shall invoke supervisory jurisdiction of this Court under Article 227 of the Constitution of India for a time bound disposal of I.A.No.1525/2018, in case there is delay on the part of the Tribunal in considering that application. 9. Having considered the submissions made by the learned counsel on both sides, this Court finds that the challenge made in this writ petition ## **W.P.(C)No.9570 of 2018** ## **:-8-:** against Ext.P1 demand notice cannot be entertained under Article 226 of the Constitution of India for the reasons stated hereinbefore. In such circumstances, this writ petition is dismissed, repelling the challenge made against Ext.P1 demand notice for the aforesaid reasons; however, without prejudice to the right of the petitioner to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, in seeking appropriate reliefs within the purview of Article 227. The interim order granted in this writ petition shall continue for a period of one month, so as to enable the petitioner to work out her remedy before appropriate forum. Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/ ## **W.P.(C)No.9570 of 2018** ## **:-9-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **EXHIBIT P1** **TRUE COPY OF THE NOTICE DATED 04.01.2018 UNDER SECTION 7 OF THE KERALA REVENUE RECOVERY ACT, 1968 ISSUED TO THE PETITIONER.** ## **EXHIBIT P2** **TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A.NO. 1525 OF 2018 IN O.P.(MV) NO. 1136 OF 2014 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM.**