V. Lakshmi Reddi Vs. Collector and Addl. Dist. Magistrate, Kurnool and anr. - Court Judgment

Excerpt:
constitution - maintainability of writ petition - article 226 of constitution of india - petition filed for issue of writ of certiorari quashing proceedings of collector affirmed by board of revenue (bor) - bor is situated in madras outside territorial jurisdiction of high court of andhra pradesh - principle of waiver of objections by respondent on grounds of jurisdiction cannot be invoked in cases of total want of jurisdiction - petitioner has requested relief against proceedings of bor - held, writ not maintainable. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - held that where one of the respondents to the petition is amenable to the jurisdiction of the high court by reason of his residence and location of his office within the state and all the activities complained about are activities confind to the state, the high court would be competent to entertain an application under art. 226, even if the other respondent is not so amenable to its jurisdiction particularly when a writ against the 1st respondent, if issued, is sufficient to stop the mischief complained against.order(1) this is petition for the issue of a writ of certiorari to quash the proceedings in h.o.m. 3-212 - m/53 dated 29.3.1953 of the collector and additional district magistrate of kurnool as affirmed by the board of revenue (andhra) in its b. p. pt. 792 dated 1.3.1954.(2) the office has taken objection to the maintainability of this writ in view of the decision of the learned chief justice in -- 'venkayala janaiah v. board of revenue (andhra)', (s) : air1955ap23 (a). following the decision of the supreme court in -- 'election commission, india v. saka venkata rao', : [1953]4scr1144 (b), the learned chief justice held that the board which is situated in the city of madras is not within the area of the andhra state, over which the high court of andhra has jurisdiction and that no writ under art. 226 can be issued to it. i followed the decision of the learned chief justice in - 'vishakapattam co-operative motor transport society ltd. v. subba rao', : air1955ap175 (c). (3) the learned government pleader, to whom notice has been ordered submits that the respondents are willing to waive the objection as to jurisdiction. in : air1955ap175 (c), i have considered the question as to whether there can be a waiver of objection to jurisdiction of this court, to issue a writ and held that the doctrine of waiver cannot be invoked in a case where there is total want of jurisdiction.(4) mr. chinnappa reddy, the learned counsel for the petitioner contends that the writ is maintainable as the order sought to be quashed is really that of the district collector, kurnool, who is amenable to the jurisdiction of this court and that the order of the board of revenue is only an appellate order confirming the order of the collector. he relied upon two decisions of the rajasthan high court -- 'madan mohan v. bankatlal', (d) and -- 'har prasad v. union of india'. (e), and also the decision of the travancore-cochin high court in -- 'thangalakunju musaliar v. venkitachalam potti', air 1954 trav -c 131 (fb) (f). in 'madan mohan v. bankatlal (d)' wanchoo c. j. and dave j. held that the fact that the high court cannot issue any writ, direction or order to the election commission is no reason why it should not be able to interfere with the order of the election tribunal at bikaner, if such intereference is othewise warranted. they held that if the high court were to come to the conclusion that the bikaner tribunal exceeded its jurisdiction, the high court can besides quashing the decision of the tribunal direct the returning officer, who is within its jurisdiction, not to hold a bye-election in pursuance of the order of the election tribunal.(5) in 'har prasad v. union of india (e)' the facts were these. the petitioner before the high court was the head travelling ticket examiner, who on his periodical eye-sight examination was ordered by the chief trafic inspector, bandikui to rejoin as head ticket collector. the petitioner filed an appeal to the d. t. s. bandikui, r. s. ajmer, general traffic manager, bombay and general manager, bombay. as a result of these representations, he was asked to appear again before the chief medical officer, bombay, who maintained his earlier opinion. the petitioner then applied under art. 226 making the union of india and the general manager. western railway, as respondents to this petition. an objection was taken that the general manager had his officer outside the jurisdiction of the high court of rajasthan and that, therefore, no writ could be issued against him.it was held that the original order of posting the petitioner, as head ticket examiner, was passed by the c. t. i., bandikui, and it was that order which was under question in the petition, and that it was immaterial that the petitioner's efforts in setting aside that order right up to the general manager proved fruitless and that the high court had jurisdiction to entertain the petition.bapna and ranwat jj. held that there are two classes of cases where the respondent, a head of a department against whom relief under art. 226 is sought, is resident outside the jurisdiction of a particular high court. the first is, where the order is passed by an officer, who is residing or is having his office within the jurisdiction of the high court and the superior officer, who resides outside the jurisdiction only confirms that order & dismisses the appeal made by the subordinate officer, and the other where the superior officer residing outside the jurisdiction of the high court purports to set aside the order of the subordinate officer and substitutes his own order for the same.the learned judge observed that in the first class of cases, the superior officer is made a party because the petitioner wants to avail himself of the remedy provided by the rules, but in the second class of cases, the prayer would directly involve a direction to the superior officer, who is not within the jurisdiction. making this distinction, the learned judges held that in a case where the order of a subordinate officer is affirmed, by an order of the superior officer, then, notwithstanding the fact thatthe superior officer resides outside the territorial limits of the jurisdiction of the high court, a writ could be issued.(6) in 'thangalakunju musaliar v. venkitachalam poti (fb) (f)', the petitioner in a petition under art. 226 sought a writ of prohibition against the income tax officer, trivandrum and the income-tax investigation commission, represented by its secretary, new delhi, and koshi c. j., and subramania iyer and m. s. menon jj. held that where one of the respondents to the petition is amenable to the jurisdiction of the high court by reason of his residence and location of his office within the state and all the activities complained about are activities confind to the state, the high court would be competent to entertain an application under art. 226, even if the other respondent is not so amenable to its jurisdiction particularly when a writ against the 1st respondent, if issued, is sufficient to stop the mischief complained against. (7) in 'venkayala janaiah v. board of revenue (andhra) (a)' the learned chief justice was no doubt dealing with a case where the order of the board of revenue sought to be quashed was an order reversing that of the collector and the contention raised in this writ petition did not arise for consideration therein.(8) in -- 'k. s. rashid and son v. income tax investigation commission', : [1954]25itr167(sc) (c) their lordships of the supreme court had to consider the question as to whether the punjab high court had jurisdiction to issue writs under art. 226 of the constitution of india against the income tax investigation commission, delhi, which was holding an inquiry in respect of assessees of uttar pradesh who were originally assessed in that state. the supreme court referred to its earlier decision in : [1953]4scr1144 (b) and also the observations of the judicial committee in -- 'ryots of garabandho v. zamindar of parlakimedi', air 1943 pc 164 (h) and at p. 210 of that report stated thus :'there are only two limitations placed upon the exercise of these powers by the high court under art. 226 of the constitution ; one is that the power is to be exercised 'throughout the territories in relation to which it exercises jurisdiction' that is to say, the writs issued by the court cannot run beyond the territories subject to its jurisdiction. the other limitation is that the person or authority to whom the high court is empowered to issue writs 'must be within those territories', and this implies that they must be amendable to its jurisdiction, either by residence or location within those territories. it is with reference to these two conditions thus mentioned that the jurisdiction of the high courts to issue writs under art. 226 of the constitution is to be determined'.(9) after the very authoritative pronouncements of the supreme court in : [1953]4scr1144 (b) and : [1954]25itr167(sc) (g) i am unable to follow the decisions of the rajasthan high court and the travancore-cochin high court referred to above. (10) the test is whether the board of revenue to whom the writ is sought to be issued is amenable to the jurisdiction of this court, either by residence or location within its territories. judged by this test it must necessarily be held that this court has no jurisdiction to issue a writ against the board of revenue which is situated at madras.(11) i find it difficult to appreciate the distinction between a reversing order and a confirming order of an appellate authority, so far as the exercise of jurisdiction under art. 226 is concerned. in my opinion, once there is an appeal to the board of revenue the find order is that of the board of revenue because the appeal destroys the finality of the order of the district collector. it is a wellsettled principle of law that an appeal destroys the finality of the decision and the judgment of the lower court is superseded by the judgment of the court of appeal. this is so in all cases where an order is reversed, modified or affirmed on appeal. if so, the order sought to be quashed must be deemed to be that of the board of revenue, which is situated outside the territorial jurisdiction of this court, and when a writ is sought to be issued, it makes no difference whether the order of the board of revenue is merely an affirming one or an order of reversal.in both cases the order of the board of revenue is the order sought to be quashed, and it must follow that this writ is not maintainable in this court. in fact, i asked the learned counsel for the petitioner whether he would be willing to confine his relief in the writ petition against the dsitrict collector alone and whether he was prepared to say that he is not asking for any relief against the board of revenue. the petitioner's learned counsel is not willing to do so. i have, therefore, reached the conclusion that so long as the petitioner seeks relief in a petition under art. 226 against the board of revenue, which is outside the territorial jurisdiction of this court, it must be held that the petition is not maintainable.(12) any other view would also lead to this anomaly namely, that this high court may issue a writ against the district collector, who is subordinate to the board of revenue. whereas, the madras high court may issue a writ against the board of revenue, and this, as has been pointed out by the learned chief judge in 'vankayala janaiah v. board of revenue (andhra) (a)' may result in conficting orders and jurisdiction.(13) i must, therefore, hold that this petition in so far as it is directed against the board of revenue, andhra, at madras does not lie, and cannot be entertained in this court.(14) order accordingly.

Judgment:
ORDER

(1) This is petition for the issue of a Writ of Certiorari to quash the proceedings in H.O.M. 3-212 - M/53 dated 29.3.1953 of the Collector and Additional District Magistrate of Kurnool as affirmed by the Board of Revenue (Andhra) in its B. P. Pt. 792 dated 1.3.1954.

(2) The office has taken objection to the maintainability of this writ in view of the decision of the learned Chief Justice in -- 'Venkayala Janaiah v. Board of Revenue (Andhra)', (S) : AIR1955AP23 (A). Following the decision of the Supreme Court in -- 'Election Commission, India v. Saka Venkata Rao', : [1953]4SCR1144 (B), the learned Chief Justice held that the Board which is situated in the City of Madras is not within the area of the Andhra State, over which the High Court of Andhra has jurisdiction and that no Writ under Art. 226 can be issued to it. I followed the decision of the learned Chief Justice in - 'Vishakapattam Co-operative Motor Transport Society Ltd. v. Subba Rao', : AIR1955AP175 (C).

(3) The learned Government Pleader, to whom notice has been ordered submits that the respondents are willing to waive the objection as to jurisdiction. In : AIR1955AP175 (C), I have considered the question as to whether there can be a waiver of objection to jurisdiction of this Court, to issue a Writ and held that the doctrine of waiver cannot be invoked in a case where there is total want of jurisdiction.

(4) Mr. Chinnappa Reddy, the learned Counsel for the petitioner contends that the Writ is maintainable as the order sought to be quashed is really that of the District Collector, Kurnool, who is amenable to the jurisdiction of this court and that the order of the Board of Revenue is only an appellate order confirming the order of the Collector. He relied upon two decisions of the Rajasthan High Court -- 'Madan Mohan v. Bankatlal', (D) and -- 'Har Prasad v. Union of India'. (E), and also the decision of the Travancore-Cochin High Court in -- 'Thangalakunju Musaliar v. Venkitachalam Potti', AIR 1954 Trav -C 131 (FB) (F). In 'Madan Mohan v. Bankatlal (D)' Wanchoo C. J. and Dave J. held that the fact that the High Court cannot issue any writ, direction or order to the Election Commission is no reason why it should not be able to interfere with the order of the Election Tribunal at Bikaner, if such intereference is othewise warranted. They held that if the High Court were to come to the conclusion that the Bikaner Tribunal exceeded its jurisdiction, the High Court can besides quashing the decision of the Tribunal direct the Returning Officer, who is within its jurisdiction, not to hold a bye-election in pursuance of the order of the Election Tribunal.

(5) In 'Har Prasad v. Union of India (E)' the facts were these. The petitioner before the High Court was the Head Travelling Ticket Examiner, who on his periodical eye-sight examination was ordered by the Chief Trafic Inspector, Bandikui to rejoin as Head Ticket Collector. The petitioner filed an appeal to the D. T. S. Bandikui, R. S. Ajmer, General Traffic Manager, Bombay and General Manager, Bombay. As a result of these representations, he was asked to appear again before the Chief Medical Officer, Bombay, who maintained his earlier opinion. The petitioner then applied under Art. 226 making the Union of India and the General Manager. Western Railway, as respondents to this petition. An objection was taken that the General Manager had his officer outside the jurisdiction of the High Court of Rajasthan and that, therefore, no writ could be issued against him.

It was held that the original order of posting the petitioner, as Head Ticket Examiner, was passed by the C. T. I., Bandikui, and it was that order which was under question in the petition, and that it was immaterial that the petitioner's efforts in setting aside that order right up to the General Manager proved fruitless and that the High Court had jurisdiction to entertain the petition.

Bapna and Ranwat JJ. held that there are two classes of cases where the respondent, a head of a department against whom relief under Art. 226 is sought, is resident outside the jurisdiction of a particular High Court. The first is, where the order is passed by an officer, who is residing or is having his office within the jurisdiction of the High Court and the superior Officer, who resides outside the jurisdiction only confirms that order & dismisses the appeal made by the Subordinate Officer, and the other where the Superior Officer residing outside the jurisdiction of the High Court purports to set aside the order of the Subordinate Officer and substitutes his own order for the same.

The learned Judge observed that in the first class of cases, the superior Officer is made a party because the petitioner wants to avail himself of the remedy provided by the rules, but in the second class of cases, the prayer would directly involve a direction to the superior Officer, who is not within the jurisdiction. Making this distinction, the learned Judges held that in a case where the order of a subordinate Officer is affirmed, by an order of the superior officer, then, notwithstanding the fact thatthe superior Officer resides outside the territorial limits of the jurisdiction of the High Court, a writ could be issued.

(6) In 'Thangalakunju Musaliar v. Venkitachalam Poti (FB) (F)', the petitioner in a petition under Art. 226 sought a writ of prohibition against the Income Tax Officer, Trivandrum and the Income-Tax Investigation Commission, represented by its Secretary, New Delhi, and Koshi C. J., and Subramania Iyer and M. S. Menon JJ. held that where one of the respondents to the petition is amenable to the jurisdiction of the High Court by reason of his residence and location of his office within the State and all the activities complained about are activities confind to the State, the High Court would be competent to entertain an application under Art. 226, even if the other respondent is not so amenable to its jurisdiction particularly when a writ against the 1st respondent, if issued, is sufficient to stop the mischief complained against.

(7) In 'Venkayala Janaiah v. Board of Revenue (Andhra) (A)' the learned Chief Justice was no doubt dealing with a case where the Order of the Board of Revenue sought to be quashed was an order reversing that of the Collector and the contention raised in this Writ Petition did not arise for consideration therein.

(8) In -- 'K. S. Rashid and Son v. Income Tax Investigation Commission', : [1954]25ITR167(SC) (C) their Lordships of the Supreme Court had to consider the question as to whether the Punjab High Court had jurisdiction to issue writs under Art. 226 of the Constitution of India against the Income Tax Investigation Commission, Delhi, which was holding an inquiry in respect of assessees of Uttar Pradesh who were originally assessed in that State. The Supreme Court referred to its earlier decision in : [1953]4SCR1144 (B) and also the observations of the Judicial Committee in -- 'Ryots of Garabandho v. Zamindar of Parlakimedi', AIR 1943 PC 164 (H) and at p. 210 of that report stated thus :

'There are only two limitations placed upon the exercise of these powers by the High Court under Art. 226 of the Constitution ; one is that the power is to be exercised 'throughout the territories in relation to which it exercises jurisdiction' that is to say, the Writs issued by the Court cannot run beyond the territories subject to its jurisdiction. The other limitation is that the person or authority to whom the High Court is empowered to issue writs 'must be within those territories', and this implies that they must be amendable to its jurisdiction, either by residence or location within those territories. It is with reference to these two conditions thus mentioned that the jurisdiction of the High Courts to issue writs under Art. 226 of the Constitution is to be determined'.

(9) After the very authoritative pronouncements of the Supreme Court in : [1953]4SCR1144 (B) and : [1954]25ITR167(SC) (G) I am unable to follow the decisions of the Rajasthan High Court and the Travancore-Cochin High Court referred to above.

(10) The test is whether the Board of Revenue to whom the writ is sought to be issued is amenable to the jurisdiction of this Court, either by residence or location within its territories. Judged by this test it must necessarily be held that this Court has no jurisdiction to issue a writ against the Board of Revenue which is situated at Madras.

(11) I find it difficult to appreciate the distinction between a reversing order and a confirming order of an appellate authority, so far as the exercise of jurisdiction under Art. 226 is concerned. In my opinion, once there is an appeal to the Board of Revenue the find order is that of the Board of Revenue because the appeal destroys the finality of the order of the District Collector. It is a wellsettled principle of law that an appeal destroys the finality of the decision and the judgment of the lower Court is superseded by the judgment of the Court of appeal. This is so in all cases where an order is reversed, modified or affirmed on appeal. If so, the order sought to be quashed must be deemed to be that of the Board of Revenue, which is situated outside the territorial jurisdiction of this Court, and when a writ is sought to be issued, it makes no difference whether the order of the Board of Revenue is merely an affirming one or an order of reversal.

In both cases the Order of the Board of Revenue is the order sought to be quashed, and it must follow that this writ is not maintainable in this Court. In fact, I asked the learned counsel for the petitioner whether he would be willing to confine his relief in the writ petition against the Dsitrict Collector alone and whether he was prepared to say that he is not asking for any relief against the Board of Revenue. The petitioner's learned counsel is not willing to do so. I have, therefore, reached the conclusion that so long as the petitioner seeks relief in a petition under Art. 226 against the Board of Revenue, which is outside the territorial jurisdiction of this Court, it must be held that the petition is not maintainable.

(12) Any other view would also lead to this anomaly namely, that this High Court may issue a Writ against the District Collector, who is subordinate to the Board of Revenue. Whereas, the Madras High Court may issue a Writ against the Board of Revenue, and this, as has been pointed out by the learned Chief Judge in 'Vankayala Janaiah v. Board of Revenue (Andhra) (A)' may result in conficting orders and jurisdiction.

(13) I must, therefore, hold that this petition in so far as it is directed against the Board of Revenue, Andhra, at Madras does not lie, and cannot be entertained in this Court.

(14) Order accordingly.