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2001 DIGILAW 882 (PAT)

Harihar Singh v. Nawal Kishore Chauhan

2001-09-18

S.K.KATRIAR

body2001
Judgment S.K.Katriar, J. 1. The present civil revision application is directed against the order dated 16.5.2001, passed by the learned 7th Additional District and Sessions Judge, Siwan, in Claim Case No. 15 of 2000 (Nawal Kishore Chauhan V/s. Harihar Singh), which is an order passed u/s. 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act). The stamp report is to the effect that the order of the Claims Tribunal u/s. 140 of the Act is appealable and, therefore, the present civil revision is not maintainable. Learned counsel for the petitioner has contested the stamp report and he has, therefore, been heard at length on this issue. Mr. Ajay Kumar, learned Counsel, has appeared on the question of maintainability of this application and assisted the court as amicus curiae. 2. The issue in so far as this Court is concerned is no longer res Integra. The same has been decided by a Division Bench of this Court in Oriental Insurance Co. Ltd. V/s. Mohiuddin Kureshi 1994 ACJ 74 (Patna), wherein the Division Bench has held that the order u/s. 140 of the Act is an award within the meaning of sec. 173 thereof and is, therefore, appealable. The Division Bench of the Madhya Pradesh High Court at Jabalpur has held to the same effect, the judgment of which is reported in Oriental Insurance Co. Ltd. V/s. Pritamlal 1989 ACJ 1129 (MP). The Madhya Pradesh High Court, inter alia, relied on the judgment of the Allahabad High Court which has been reported in Sant Ram V/s. Surya Pal 1986 ACJ 202 (Allahabad). Relying on the said judgment of the Allahabad High Court in Sant Ram V/s. Surya Pal (supra), and the judgment of the Madhya Pradesh High Court in Oriental Insurance Co. Ltd. V/s. Pritamlal (supra), a Division Bench of the Kerala High Court at Ernakulam has held to the same effect, the judgment of which is reported in the case of United India Insurance Co. Ltd. V/s. Padmavathy 1990 ACJ 751 (Kerala). The learned single Judge of Rajasthan High Court at Jodhpur in the case of National Insurance Co. Ltd. V/s. Heera 2000 ACJ 963 (Rajasthan), has also held to the same effect. 3. Learned counsel for the petitioner submits that he is interested in pursuing the civil revision application for the reason that the statutory appeal provided under sec. The learned single Judge of Rajasthan High Court at Jodhpur in the case of National Insurance Co. Ltd. V/s. Heera 2000 ACJ 963 (Rajasthan), has also held to the same effect. 3. Learned counsel for the petitioner submits that he is interested in pursuing the civil revision application for the reason that the statutory appeal provided under sec. 173 of the Act stipulates that the appellant shall have to deposit Rs. 25,000 or 50 per cent of the awarded amount, whichever is less, as per the first proviso to sec. 173 of the Act. The contention is stated only to be rejected. Mandate of law has got to be accepted and the court cannot help it, to use the expression of a Division Bench of this Court, wherein similar contention was advanced with respect to the Bihar and Orissa Public Demands Recovery Act. The Act is so structured. A Division Bench of this Court in its judgment in Sawar Mal Choudhary V/s. State Bank of India 1986 PLJR 661, has rejected a similar contention with respect to the provisions of Bihar and Orissa Public Demands Recovery Act, in the following words in paras 34 to 36, and are set out hereinbelow for the facility of quick reference: (34) The stand taken on behalf of the petitioners has only to be noticed and rejected. It may perhaps be first highlighted that u/s. 62 providing for a revision what is required is not a double deposit and the second proviso thereto makes it clear that no certificate debtor shall be called upon to do so if he has already deposited this amount at an earlier stage. It would follow therefrom that where the certificate debtor has once made the deposit at the appellate stage, there is no further impediment in his way of the same nature for preferring a revision. This apart, it seems to be well settled by precedent that merely providing for a condition for deposit for regulating the right of appeal or revision in no way renders it either illusory, ineffective or something which can be ignored or bypassed. It is unnecessary to elaborate this aspect on principle because, to my mind, it appears to be covered by binding authority. It is unnecessary to elaborate this aspect on principle because, to my mind, it appears to be covered by binding authority. In Anant Mills V/s. State of Gujarat AIR 1975 SC 1234 , Khanna, J., speaking for the court, observed as follows: The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions... Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment of tax unless the tax had been paid. Such a provision was on the statute book in sec. 30 of the Indian Income Tax Act, 1922. The proviso to that section provided that no appeal shall lie against an order under Sub-sec. (1) of sec. 46 unless the tax had been paid. Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant party and there is no difficulty in the enforcement of the order appealed against in the case the appeal is ultimately dismissed. It is open to the legislature to impose an accompanying liability upon a party upon whom a legal right is conferred or to prescribe for the exercise of the right. (35) This identical point was also the subject-matter of consideration by the Division Bench in Sri Chand V/s. State of Haryana AIR 1979 P&H 19 . After an exhaustive discussion of principle and precedent, it was held therein as under: Once it is held, as it necessarily must be that the right of appeal stems merely from its conferment by the legislature then it is equally evident that the same authority may regulate, impair or hedge it down with onerous conditions. This position, apart from being clear on principle, is equally covered by the binding precedent... On this aspect, therefore, there is no choice but to conclude that the legislature is perfectly within its right to regulate the right of appeal conferred by it by imposing conditions or restrictions on its exercise. This position, apart from being clear on principle, is equally covered by the binding precedent... On this aspect, therefore, there is no choice but to conclude that the legislature is perfectly within its right to regulate the right of appeal conferred by it by imposing conditions or restrictions on its exercise. In the light of the aforesaid authoritative enunciations the submission on behalf of the petitioners must be rejected and it has to be held that the right of appeal and revision conferred by Secs. 60 and 62 of the Act are adequate and effective statutory remedies provided by the legislature. (36) As the last throw of the gambler, it was then contended by the petitioners that even though the Act has provided for an appeal, revision and review, the same would be no bar for entertaining and adjudicating the same matter in the writ jurisdiction. It was submitted that the legal issue having been heard and determined, the merits must also be similarly decided. Reliance was placed on Ram and Shy am Company V/s. State of Haryana AIR 1985 SC 1147 and observation of learned single Judge and Division Benches of this Court to the effect that the existence of an alternative remedy is not an inflexible legal bar for the exercise of writ jurisdiction. 3.1. A similar contention with respect to the provisions under the Motor Vehicles Act has been rejected by a Division Bench of this Court by order in Ranjit Kumar V/s. State of Bihar L.P.A. No. 1125 of 2000; decided on 18.8.2000, the relevant portion of which is set out hereinbelow for the facility of quick reference: We are prima facie satisfied that the filing of the writ petition was a misconceived action on the part of the appellant-petitioner and it appears to us that the writ petition was filed simply to avoid the deposit of the compensation amount which is the precondition for filing the appeal under the Act. We can only deprecate such practice of filing a writ petition as an alternative to a statutory appeal. 4. I am thus in no doubt that the impugned order can be challenged only by way of an appeal, and the present civil revision application is not maintainable. We can only deprecate such practice of filing a writ petition as an alternative to a statutory appeal. 4. I am thus in no doubt that the impugned order can be challenged only by way of an appeal, and the present civil revision application is not maintainable. We equally in similar terms deprecate the motive of the petitioner in filing this civil revision application to avoid deposit of the compensation amount which only burdens this Court with unwanted matters. Accordingly, the petitioner is permitted to convert this civil revision application into an appeal. He shall deposit the statutory amount in terms of sec. 173 of the Act within a period of four weeks from today failing which this application shall stand rejected without further reference to a Bench.