Rafsal v. District Collector Ernakulam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 11TH DAY OF MARCH 2019 / 20TH PHALGUNA, 1940** ## **WP(C).No. 41231 of 2018** ## **PETITIONER :** **RAFSAL AGED 33 YEARS S/O.ABDUL SAMAD, KUZHUMBIL HOUSE, RANDAR.P.O. MUVATTUPUZHA, ERNAKULAM DISTRICT-686673.** **BY ADV. SRI.A.P.SUBHASH** ## **RESPONDENTS:** - **1 DISTRICT COLLECTOR ERNAKULAM, CIVIL STATION, KAKKANADU-682030.** - **2 DEPUTY THAHALSIDHAR(RR) MUVATTUPUZHA TALUK, MUVATTUPUZHA-686673** - **3 THE VILLAGE OFFICER AVOLI VILLAGE, MUVATTUPUZHA, PIN-686673.** - ***ADDL. R4 M/S.ORIENTAL INSURANCE COMPANY LTD., T.H.TOWER,FIRST FLOOR STADIUM ROAD, MARKET P.O., MUVATTUPUZHA PIN - 686673 *ADDL.R4 IS IMPLEADED AS PER ORDER DATED 20.12.2018 IN IA 1/2018** **R1 TO 3 BY SRI MANU RAJ K.J, GOVERNMENT PLEADER ADDL.R4 BY SMT.K.S.SANTHI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 41231 of 2018** **2** ## **JUDGMENT** The petitioner, who was arrayed as the 3[rd] respondent in O.P.(MV).No.536 of 2014 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, is the registered owner of a scooter bearing registration No.KL17/A-7038, which was involved in a motor accident, which occurred on 01.04.2014, resulting injuries to the claimant in O.P.(MV).No.536 of 2014. In the said claim petition, the Tribunal passed Ext.P2 ex-parte award dated 13.06.2016 awarding a total compensation of Rs.1,32,200/- to the claimant, together with interest and proportionate cost. On a finding that the rider of the scooter was not having valid driving licence, the additional 4[th] respondent herein, the insurer of the vehicle, was given recovery right against the petitioner, for the amount paid to the claimant. Based on Ext.P2 exparte award, the insurer deposited the award amount together with interest and proportionate cost, before the **WP(C).No. 41231 of 2018** **3** Tribunal, which has already been disbursed to the claimant. On a request made by the insurer, under Section 174 of the Motor Vehicles Act, a requisition for revenue recovery proceedings has been forwarded to respondents 1 to 3, which has resulted in Ext.P1 revenue recovery notice issued by the 2[nd] respondent. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 demand notice and a writ of mandamus commanding the respondents to keep in abeyance the revenue recovery proceedings pursuant to Ext.P1, till finality of the statutory appeal to be preferred by the petitioner challenging Ext.P2 award. 2. On 20.12.2018, when this writ petition came up for admission, the learned Standing Counsel for the additional 4[th] respondent sought time to get instructions and the matter was ordered to be listed to 11.01.2019 for further consideration. This Court has also ordered that till such time, any recovery pursuant to Ext.P1 **WP(C).No. 41231 of 2018** **4** demand notice shall be deferred. The said interim order, which was extended from time to time, is still in force. During the pendency of this writ petition, the petitioner has filed M.A.C.A.No.370 of 2019 before this Court against Ext.P2 ex-parte award. 3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3 and also the learned Standing Counsel appearing for the additional 4[th] respondent. 4. The challenge made in this writ petition is against Ext.P1 demand notice dated 23.10.2018 issued by the 2[nd] respondent. The said demand notice is one issued pursuant to an order passed by the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV).No.536 of 2014, on an application made by the additional 4[th] respondent insurer under Section 174 of the Motor Vehicles Act. 5. As held by this Court in **Subaida v. Deputy** **Tahsildar (RR), Thrissur District and others (2019** **WP(C).No. 41231 of 2018** **5** **KHC 24)** , 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 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. **WP(C).No. 41231 of 2018** **6** 6. 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 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 **WP(C).No. 41231 of 2018** **7** 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. 7. Viewed in the light of the law laid down in the decision referred to supra, conclusion is irresistible that the petitioner, who is a party to Ext.P2 award, cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging Ext.P1 demand notice issued by the 2[nd] respondent, which is one issued based on an order passed by the Tribunal in exercise of its powers under Section 174 of the Motor **WP(C).No. 41231 of 2018** **8** Vehicles Act. The remedy open to the petitioner is to pursue the appeal filed under Section 173 of the Motor Vehicles Act, which is now pending consideration as MACA No.370 of 2019, and seek appropriate interim order in that appeal. In such circumstances, this writ petition is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to pursue MACA No.370 of 2019 filed challenging Ext.P2 award and seek appropriate interim relief. The interim order dated 20.12.2018 granted in this writ petition shall continue for a period of one month, so as to enable the petitioner to seek appropriate interim relief in MACA No.370 of 2019. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/12/3 **WP(C).No. 41231 of 2018** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE NOTICES HAVING NO.2018/13709/07 DATED 23/10/2018.** **EXHIBIT P2 TRUE COPY OF THE AWARD DATED 13/06/2016.** **EXHIBIT P3 THE TRUE COPY OF THE SALE AGREEMENT DATED 01/01/2014.** **EXHIBIT P4 TRUE COPY OF THE REGISTRATION CERTIFICATE IN FAVOUR OF ALEYAMMA THOMAS.** **EXHIBIT P5 THE REGISTRATION PARTICULARS OF THE VEHICLE BEARING KL 17A 7038 ISSUED FROM JOINT RTO OFFICE MUVATTUPUZHA DATED 15.12.2018**