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1979 DIGILAW 298 (KER)

BEERAN v. RAJAPPAN

1979-12-21

K.K.NARENDRAN, V.BALAKRISHNA ERADI

body1979
Judgment :- 1. In this Civil Revision, the respondent in an application for compensation under S 110A of the Motor Vehicles Act, 1939 before the Claims Tribunal, Ernakulam challenges the order of the Tribunal, condoning the delay in preferring the claim. The point that arises for consideration is whether the Claims Tribunal is a Court to make its orders amenable to the revisional jurisdiction of this Court under S.115 of the Code of Civil Procedure. 2. A number of decisions were cited at the bar. We will refer to them one by one. In Bharat Bank v.Employees of the Bharat Bank (AIR.1950 SC 188) Kania C. J. has said: "While the powers of the Industrial Tribunal in some respects are different from those of an ordinary Civil Court and it has jurisdiction and powers to give reliefs which a Civil Court administering the law of the land (for instance ordering the reinstatement of a workman) does not possess in the discharge of its duties it is essentially working as a judicial body Having considered all the provisions of the Act it seems to me clear that the Tribunal is discharging functions very near those of a Court, although it is not a court in the technical sense of the word." . (Para 2) In Harinagar Sugar Mills Ltd. v.Shyam Sundar Jhunjhunwala (AIR. 1961 SC. 1669) Hidyathullah J. (as he then was) has said: "All tribunals are not Courts, though all Courts are tribunals. The word 'Courts' is used to designate those tribunals which are set up in an organised State for the administration of justice By administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish wrongs'. Whenever there is an infringement of a right or an injury, the Courts are there to restore the Vinculam juris, which is disturbed." (Para. 30) In para 32 of the judgment it is also said: "With the growth of civilisation and the problems of modern life, a large number of administrative tribunals have come into existence. These tribunals have the authority of law to pronounce upon valuable rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary Courts, of Civil judicature. These tribunals have the authority of law to pronounce upon valuable rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary Courts, of Civil judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to Courts, but are not Courts By 'Courts' is meant Courts of Civil Judicature and by 'tribunals', those bodies of men who are appointed to decide controversies arising under certain special laws. ...Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinction is that courts have 'an air of detachment." Again in para 36 of the judgment it is said: "The word 'tribunal' is a word of wide import, and the words 'Court' and 'tribunal' embrace within them the exercise of judicial power in all its forms." In Associated Cement Companies Ltd. v. P. N. Sharma (AIR. 1965 SC. 1595) Gajendragadkar C. J. has said: "It would be noticed that Art.136 (1) refers to a tribunal as distinguished from a Court. The expression 'Court' in the context denotes a tribunal constituted by the State as a part of the ordinary hierarchy of Courts which are invested with the State's inherent judicial powers. A sovereign State discharges legislative, executive and judicial functions and can legitimately claim corresponding powers which are described as legislative, executive and judicial powers. Under our Constitution, the judicial functions and powers of the State are primarily conferred on the ordinary Courts which have been constituted under its relevant provisions. The Constitution recognised a hierarchy of Courts and to their adjudication are normally entrusted all disputes between citizens and citizens as well as between the citizens and the State. These Courts can be described as ordinary Courts of civil judicature. They are governed by their prescribed rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process. The powers which these Courts exercise, are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions." (Para. They are governed by their prescribed rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process. The powers which these Courts exercise, are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions." (Para. 7) In Para 9 of the above judgment it is said: "Tribunals which fall within the purview of Art.136 (1) occupy a special position of their own under the scheme of our Constitution. Special matters and questions are entrusted to them for their decision and in that sense, they share with the courts one common characteristic; both the Court and the tribunals are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions". In para 22 of the judgment Gajendragadkar C. J. referred to Jaswant Sugar Mills Ltd. Meerut v. Lakshmichand (1963 Supp. I. SCR. 242) and said: "The condition precedent for bringing a tribunal within the ambit of Art.136,' observed Shah J., who spoke for the Court, 'is that it should be constituted by the State; and he added that a tribunal would be outside the ambit of Art.136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties. After examining the scheme of the relevant provision, it was observed that in deciding whether an authority required to act judicially when dealing with matters affecting rights of citizens may be regarded as a tribunal, though not a Court, the principal incident is the investiture of the 'trappings of a Court' such as authority to determine matters in cases initiated by parties, sitting in public, power to compel attendance of witnesses and to examine them on oath, and others Some, though not necessarily all such trappings will ordinarily make the authority which is under a duty to act judicially, a 'tribunal'." In the above case Bachawat J. in his separate judgment has said: "In trying to find out whether a body is a tribunal within the meaning of Art.136, it is natural to consider whether the body has some of the trappings of Court. If it has one or more of such trappings, it may be easier to pronounce the body to be tribunal. If it has one or more of such trappings, it may be easier to pronounce the body to be tribunal. But we must not forget that the investiture of the trappings of a Court is not an essential attribute of a Tribunal. The basic test of a tribunal is that it is a body vested with the judicial power of the State. Unless this basic concept is borne in mind, the trappings of a Court may well become a trap and a snare for the unwary." ( Para.42) In British India Genl Ins. Co. Ltd. v. Chanbi Shaikh Abdul Kader (1968 A.C.J. 322) it is said: "The Claims Tribunal is not a court as ordinarily understood. It has some trappings of a court as stated earlier, but that is all. In a manner of speaking it has borrowed plumage for a limited purpose. In view of the scheme of the Act and the rules made thereunder I am of the view that the Claims Tribunal cannot be regarded as a Civil Court for the purposes of interference in revision under S.115 (c) of the Civil Procedure Code and S.8 (2) (b) (i) of the 1963 Regulation." (para 6) In Khairunnissa v. Municipal Corporation, Bombay (1966 A.C.J. 37) it is said: "The Tribunal is not a court, and its constitution is not governed by any legislation applicable to civil courts. The proceeding itself has to be commenced by an application in the prescribed form, and the resultant order is not even called a decree. S.110C of the Motor Vehicles Act provides for the procedure and it shows that the Tribunal is entitled to follow such summary procedure as it may think fit, subject to the rules that may have been made. It also provides by S.110-E that the amount due under the Award shall be recovered through the Collector as arrears of revenue. S.110-F expressly bars the jurisdiction of civil Courts in places where Claims Tribunals have been constituted. The State, by reason of the powers conferred upon it by S.111 of the Act, framed rules of procedure for the Tribunals, and it is only where no specific rules exist that the tribunals, are enabled to follow the provisions of the Civil Procedure Code. It is, therefore, impossible to In S.D. Ghatge v. State (AIR. 1977 Bom. The State, by reason of the powers conferred upon it by S.111 of the Act, framed rules of procedure for the Tribunals, and it is only where no specific rules exist that the tribunals, are enabled to follow the provisions of the Civil Procedure Code. It is, therefore, impossible to In S.D. Ghatge v. State (AIR. 1977 Bom. 384) a Full Bench of the High Court of Bombay considered the contention that if for purposes of Art.136 (1) of the Constitution the expression 'Court' has been interpreted as meaning 'Court' in the technical sense, that is, a tribunal constituted by the State as part of the ordinary hierarchy of courts, then the same meaning should be given to the expression in the amended Art.227 and said: "In the first place, neither the expression 'Court; nor the expression 'tribunal' has been defined in the Constitution and therefor the dictionary meaning or the normal connotation of these expressions will have to be considered. Secondly the proposition is well-settled that all Courts are tribunals but all tribunals are not courts the proposition in other words means that some tribunals would be basically courts i.e. courts in their normal connotation while some others would not be courts and therefore it cannot be said that Parliament wanted to exclude all tribunals from the purview of the High Court's superintendence under the amended Art.227 but it can be said that Parliament intended to exclude only such tribunals as are not basically courts from the High Court's superintendence. It is obvious that this result will follow if the expression 'Courts' is understood and regarded in its ordinary meaning or its accepted normal connotation, namely an adjudicating body which performs judicial function of rendering definitive judgments having finality and authoritativeness to bind the parties litigating their rights before it and that too in exercise of the sovereign judicial power transferred to it by the State. Any tribunal or authority possessing these two attributes will be a Court As regards the Supreme Court decisions on which reliance has been placed by counsel for the Union of India, it may be pointed put that in both the cases the question that had arisen was whether the concerned adjudicating body was a 'tribunal' within the meaning of Art.136 (I) of the Constitution or not and if so, whether an appeal against the impugned decision or order of that body would lie to the Supreme Court under that article, the distinction between a court and a tribunal was never in issue before the Supreme Court and hence the observations explaining the two concepts in contradistinction to one another would be obiter, if not casual observations. Even if obiter, these observations were made in the context of Art.136 (I) where both the expressions 'court' and 'tribunal' have been used and therefore those observations will have no bearing when the concept of 'court' is to be understood in the amended Art.227 where the expression 'courts' stands by itself and not in juxtaposition with the other expression 'tribunal'; the context having changed the expression 'Courts' in the amended Art.227 cannot be interpreted to mean the same thing when that expression is used in juxtaposition with the expression 'tribunal' in one and the same article like Art.136 (1). Therefore de hors the the concept of 'tribunal' the expression 'Courts' occurring in the amended Art.227 will have to be understood in its normal accepted connotation especially in the absence of any definition being given in the constitution and would include such tribunals as satisfy the two tests mentioned above." (para. 22) In Yaswant Rao. v. Sampat (AIR. 1979 M. P. 21) a Full Bench of the Madhya Pradesh High Court had occasion to consider whether a revision will lie under S.115, CPC., from an order passed by the Commissioner appointed under the Workmen's Compensation Act, 1923. The Full Bench. said: "In our opinion, the word 'Court' as used in S.115 of the Code of Civil Procedure is used in a narrow sense meaning only a Civil Court in the normal hierarchy of Courts. The word 'Court' as it occurs in S.115 will not include tribunals which are established under special Acts and exercise special jurisdiction." (Para. The Full Bench. said: "In our opinion, the word 'Court' as used in S.115 of the Code of Civil Procedure is used in a narrow sense meaning only a Civil Court in the normal hierarchy of Courts. The word 'Court' as it occurs in S.115 will not include tribunals which are established under special Acts and exercise special jurisdiction." (Para. 8) The court referred to the relevant provisions of the Workmen's Compensation Act, 1923 and said: "It is true that an appeal lies to the High Court against certain orders of the Commissioner under S.30 of the Act; yet, having regard to the aforesaid provisions of the Act, it cannot be said that the Commissioner is a Civil Court or a Court in the technical sense. The Commissioner, in our opinion, is not a Court within the meaning of S.115 of the Code of Civil Procedure and an order passed by him under S.19 of the Workmen's Compensation Act is not revisable by the High Court." (Para 9) 3. S.115 of the Code of Civil Procedure, 1908 reads: "115. Revision (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears (The rest of the section is omitted as not relevant) Art.136(1) of the Constitution reads: "136. Special leave to appeal by the Supreme Court (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India." S. 110 of the Motor Vehicles Act, 1939 reads: "110. Claims Tribunals (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accident Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accident involving the death of, or bodily injury to. persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both: S. 110-C of the Motor Vehicles Act, 1939 reads: "110-C. Procedure and powers of Claims Tribunal. persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both: S. 110-C of the Motor Vehicles Act, 1939 reads: "110-C. Procedure and powers of Claims Tribunal. (1) In holding any inquiry under S.110-B, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. (2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of S.195 and Chapter XXXV of the Code of Criminal Procedure, 1898. (2A) ... (3) ... S.110-F of the Motor Vehicles Act, 1939 reads: "110F. Bar of jurisdiction of Civil Courts. Where any Claims Tribunal has been constituted for any area no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court." S. 111A (c) of the Motor Vehicles Act, 1939 reads: 111 A. Power of State Government to make rules A State Government may make rules for the purpose of carrying into effect the provisions of S.110 to 110E, and in particular, such rules may provide for all or any of the following matters, namely. (a) ... (b) ... (c) the powers vested in a Civil Court which may be exercised by a Claims Tribunal; (d) ... (e) ... 4. As has been pointed out by Gajendragadkar C. J. a sovereign State has executive, legislative and judicial functions. So, necessarily, every State should have corresponding powers also. The judicial powers of the State are primarily conferred on the ordinary Courts of the land which exercise the judicial functions. They are called the ordinary courts of civil judicature. Disputes between citizens and citizens and disputes between the citizens and the State are to be left to the adjudication of these hierarchy of courts established under the Constitution. The judicial powers of the State are primarily conferred on the ordinary Courts of the land which exercise the judicial functions. They are called the ordinary courts of civil judicature. Disputes between citizens and citizens and disputes between the citizens and the State are to be left to the adjudication of these hierarchy of courts established under the Constitution. But, at the same time, the Constitution does not prohibit the vesting of the State's judicial power in authorities other than courts. A tribunal like the Claims Tribunal set up under the Motor Vehicles Act, 1939 is another authority to which the State can transfer a part of its judicial powers. The Civil Court and the Tribunal both are vested with judicial powers of the State. But that does not mean that both are the same. The Constitution does not define 'court' or 'tribunal'. The Code of Civil Procedure also does not contain a definition. But the indication in the preamble to the Code is that in it is consolidated the laws relating to the procedure of the Courts of Civil judicature. Courts of civil judicature can only be ordinary civil courts of the land. In one sense, all courts are tribunals. But all tribunals will not be courts, courts in the strict sense. It is the judicial power of the State that is exercised by a Court and a tribunal. But there is one difference. A court (a civil court) has judicial power of the State to try all suits of a civil nature excepting suits the cognizance of which is expressly or impliedly barred. But on the other hand, judicial power is statutorily conferred on a tribunal to deal with special matters. It will have some of the trappings of a court, but that by itself will not make it one among the hierarchy of courts established under the Constitution. If a Court and a tribunal are one and the same, there is no reason why the Constitution makes a distinction. The relevant provisions in the Motor vehicles Act, 1939 also give sufficient indication that a Claims Tribunal constituted under S.110 of the Motor Vehicles Act is not a civil court. The act shuts out the jurisdiction of the Civil Courts. The Claims Tribunal is deemed to be a Civil Court for certain purposes. The relevant provisions in the Motor vehicles Act, 1939 also give sufficient indication that a Claims Tribunal constituted under S.110 of the Motor Vehicles Act is not a civil court. The act shuts out the jurisdiction of the Civil Courts. The Claims Tribunal is deemed to be a Civil Court for certain purposes. Some of the provisions in the Civil Procedure Code are made applicable to the Claims Tribunals. So the only possible conclusion is that a Claims Tribunal is not a Court. To attract the jurisdiction under S.115 of the Code of Civil Procedure two conditions must be satisfied. Firstly, the order must be that of a court and secondly that court must be a court subordinate to the High Court. So, we hold that the order of the Claims Tribunal impugned in this Civil Revision Petition is not amenable to the revisional jurisdiction of this Court. 5. Sri. P. G. Rajagopal, the learned counsel for the petitioner made a request that this Civil Revision may be allowed to be converted into an original petition under Art.227 of the Constitution. In the facts and circumstances of this case we don't think it is a fit case to allow such a conversion. 6. Before parting with the case, we place on record the valuable assistance rendered by Sri K. Sudhakaran, advocate, who appeared as amicus curiae at our request. 7. In the result, the Civil Revision Petition is dismissed. No costs. Dismissed.