Shamjan N.A. and Alavikutty v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940 WP(C).No. 5532 of 2019** ## **PETITIONERS:** |**1**|**SHAMJAN.N.A.,**| |---|---| ||**AGED 37 YEARS, S/O.ALAVIKUTTY.N.A,**| ||**NEELATH HOUSE, THOTTUMUGHAM.P.O,**| ||**KUTTAMASSERRY KARA, ALUVA EAST VILLAGE,**| ||**ALUVA-683105.**| |**2**|**ALAVIKUTTY,**| ||**AGED 67 YEARS, S/O ABDUL KHADER,**| ||**NEELATH HOUSE, THOTTUMUGHAM.P.O,**| ||**KUTTAMASSERRY KARA, ALUVA EAST VILLAGE,**| ||**ALUVA-683105.**| **BY ADV. SMT.K.S.SUMITHA** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**REVENUE DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE DEPUTY TAHSILDAR(REVENUE RECOVERY),**| ||**ALUVA-683101.**| |**3**|**THE VILLAGE OFFICER,**| ||**KEEZHMADU VILLAGE, ALUVA TALUK,**| ||**ERNAKULAM DISTRICT-683105.**| |**4**|**ORIENTAL INSURANCE CO LTD,**| ||**BRANCH OFFICE, EBENEZER GARDEN,**| ||**EDAPPALLY, KOCHI-682024.**| ||**SRI K.P. HARISH, SENIOR GOVERNMENT PLEADER ;**| ||**SMT K.S.SANTHI- STANDING COUNSEL**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)5532 OF 2019 ## **JUDGMENT** The petitioners are respondents 1 and 2 in O.P. (MV)No.717 of 2008 on the files of the Motor Accident Claims Tribunal, Perumbavoor, which is a claim petition filed by the legal representatives of one Mrs.Ishu, who died in a motor accident, which occurred on 24.01.2008, involving an autorickshaw bearing registration No.KL-41/A-5996 owned and driven by petitioners 1 and 2 herein. Before the Tribunal, though the petitioners entered appearance through counsel and filed written statement contending that the 2[nd] petitioner was having a valid driving licence at the time of accident, the same was not produced before the Tribunal. Therefore, the Tribunal in Ext.P1 award, while awarding a total compensation of Rs.2,66,963/- to the claimants together with interest and cost, permitted the 4[th] respondent Insurer to recover the said amount by proceeding against the petitioners, on account of violation of the policy conditions. 2. After depositing the award amount together with interest and cost, the 4[th] respondent Insurer approached the Tribunal with a request for initiating revenue recovery proceedings, by invoking the provisions under Section 174 of the Motor Vehicles Act. Based on the order passed by the 3 WP(C)5532 OF 2019 Tribunal, the 2[nd] respondent has now issued Exts.P2 and P3 demand notices, under the provisions of Revenue Recovery Act. It is feeling aggrieved by Exts.P2 and P3, the petitioners are before this Court in this writ petition, seeking a writ of certiorari to quash the same. 3. Heard the learned counsel for the petitioners, the learned Senior Government Pleader appearing for respondents 1 to 3 and also the learned Standing Counsel for the 4[th] respondent Insurer. 4. The sole issue that arises for consideration in this writ petition is as to whether the petitioners, who are parties to O.P.(MV)No.717 of 2008 before the Tribunal, can invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P2 and P3 demand notices issued by the 2[nd] respondent, which is one issued pursuant to an order passed by the Tribunal in exercise of its powers under Section 174 of the Motor Vehicles Act. 5. The issue is covered against the petitioners by the judgment of this Court in **Subaida v. Deputy Tahsildar (RR), Thrissur District and others (2019 KHC 24)** , wherein this Court held that, if a person is aggrieved by an 4 WP(C)5532 OF 2019 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. Section 174 of the Motor Vehicles Act provides that, 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 5 WP(C)5532 OF 2019 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 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. 6. Viewed in the light of the law laid down by this Court in the decision referred to supra, conclusion is irresistible 6 WP(C)5532 OF 2019 that the petitioners, who are parties to O.P.(MV)No.717 of 2008, cannot invoke the writ jurisdiction of this court under Article 226 of the Constitution of India, challenging Exts.P2 and P3 demand notices, without challenging Ext.P1 award by filing an appeal under Section 173 of the Motor Vehicles Act or challenging the order of the Tribunal under Section 174 of the Motor Vehicles Act, by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, within the permissible limits. 7. During the course of arguments, the learned counsel for the petitioners, after referring to the written statement filed in O.P.(MV)No.717 of 2008, would point out that, though it was averred in the written statement that, at the time of accident, the 2[nd] respondent was holding a valid driving licence, the same could not be placed on record, on account of the omission on the part of the learned counsel. The learned counsel for the petitioners would also submit that the petitioners propose to file an appeal challenging Ext.P1 award, by invoking the provisions under Section 173 of the Motor Vehicles Act. 8. Having considered the submissions made by the learned counsel on both sides, this Court finds that the 7 WP(C)5532 OF 2019 petitioners cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India challenging Exts.P2 and P3 demand notices and it is for the petitioners to challenge Ext.P1 award by filing an appeal under Section 173 of the Motor Vehicles Act or to challenge the order of the Tribunal under Section 174 of the Motor Vehicles Act, by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, within the permissible limits. In such circumstances, this writ petition fails for the aforesaid reason and the same is accordingly dismissed; however, without prejudice to the aforesaid rights of the petitioners. Considering the facts and circumstances of the case, the recovery pursuant to Exts.P2 and P3 revenue recovery notices shall be deferred for a period of one month, so as to enable the petitioners to avail statutory remedy under Section 173 of the Motor Vehicles Act by filing an appeal or to exercise the supervisory jurisdiction under Article 227, within the permissible limits. Sd/- ## **ANIL K. NARENDRAN JUDGE** **yd** 8 WP(C)5532 OF 2019 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE JUDGMENT IN O.P.**| |---|---| ||**(MV)NO.717/2008 ON THE FILES OF MOTOR**| ||**ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR**| ||**DATED 30.09.2014**| |**EXHIBIT P2**|**TRUE COPY OF REVENUE RECOVERY NOTICE**| ||**DATED 23/06/16.**| |**EXHIBIT P3**|**TRUE COPY OF THE REVENUE RECOVERY**| ||**NOTICE DATED 23/06/2016 ISSUED BY THE**| ||**2ND RESPONDENT.**| ## **RESPONDENTS' EXHIBITS:NIL** ## **TRUE COPY** **P.A. TO JUDGE**