Gehohe-e-miran Shah Vs. the Secretary, Home Depatment, Govt. of A.P. and Others - Court Judgment

Excerpt:
constitution - religious procession - articles 14, 25, 191 (b) and 226 of constitution of india and section 30 of police act, 1861 - two religious associations in dispute on issue of taking out procession - petitioner not permitted to take out procession by earlier order of divisional police officer - petitioner filed application and reminder to permit procession on route mentioned which was not replied - writ petition filed for issuance of writ of mandamus to respondents 2 and 3 to grant permission to take out procession - when allegation of discrimination between two similarly situated persons no embargo placed on power of court in exercise of article 226 - held, both petitioner and respondent 4 entitled to take procession on same route but not at same time. - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. - in fact, in a police state like ours, the state owes the said duty towards the citizens and the same has to be carried out in full spirit by the respondents 2 and 3. 11. in view of what is stated supra, i hold that both the petitioner and 4th respondent are entitled to take their respective processions touching koneru centre of bandar town, but not at the same time.order1. here is a case where two religious associations namely, gerohe-e-miran shah (the writ petitioner) and garohe-e-hazarath alias taqui (respondent no. 2 who got impleaded later to the filing of the writ petition) of machilipatnam of krishna district are at loggerheads on the issue of taking out 10th day moharram procession. the dispute relates to the route and in fact the petitioner was not permitted to take out procession by earlier orders of the sub-divisional police officer, bandar, dt. 1-9-1987. for the next year, the petitioner made an application dated 1-8-1988 to permit the said procession giving out the details as regards time, date as also the route. in the route mentioned, the prominent place is koneru centre of bandar town. when there was nothing heard on the said application d/-1-8-1988, a reminder was filed by the petitioner on 16-8-1988. when even that did not yield any results, the instant writ petition was filed seeking the issuance of writ of mandamus to respondents 2 and 3 to take out the religious procession mentioned supra.2. in the writ petition, it is pleaded that the procession ought to be taken out is a religious procession and the taking out of the same is a part of fundamental rights and that discrimination is being played by respondents 2 and 3 in permitting the 4th respondent to take out such procession and preventing the petitioner from doing so. while admitting the writ petition interim orders have been passed by the learned single judge on 22-8-1988 directing the respondents to permit the petitioner to take out their procession on the occasion referred to above subject to regulation of timings, place and route by them pending the disposal of the writ petition. by proceedings dated 1-8-1990 of the 3rd respondent herein the exercise of the powers under s.30 of the police act, licence for procession was issued to the petitioner to take out the procession placing some conditions and fixing the time date and route of the same. it is needless to mention that it is subject to the result of the writ petition as the same was issued after passing of the interim orders by this court. it is also mentioned in the said proceedings that no request for the change of route mentioned therein shall be entertained in future.3. during the course of arguments, mr. a. ananta reddy, the learned counsel for the petitioner has reiterated the pleas in the writ petition and submitted that the respondents 2 and 3 having permitted the 4th respondent-association to take out the religious procession mentioned supra there is no reason or justification not to permit the petitioner also to take out such a procession on the route the petitioner-proposes and particularly, touching koneru centre.4. no counter has been filed by the respondents 1 to 3 controverting the averments made in the writ petition. in fact, the assistant government pleader has submitted that whatever directions are issued by this court, they will be followed by the respondents 2 and 3.5. mr. p.v.r. sarma, learned counsel appearing for the 4th respondent vehemently contends that their association itself has got a right to take out procession on the route sanctioned to them vide proceedings dated 13-7-1991 of the 3rd respondent. another proceedings d/-17-7-1991 issued by the town planning officer, machilipatnam municipality permitting the flag and banners on the routes, (1) abbasia road to akbar chowk (2) akbar chowk to konery centre (3) koneru centre to tekke, and (4) koneru centre to fish market are also produced. mr. p.v.r. sarma contends that there was some agreement entered into between the parties with regard to the timings and routes and the petitioner cannot go back from the said agreement. but the said agreement is not accepted by the petitioner's counsel and i cannot pronounce upon the said agreement which is not even made a part of the record. in any event of the matter, the said disputed question of fact cannot be adjudicated by me. the proceedings permitting the procession by both the petitioner and the 4th respondent of the years 1990 and 1991 referred to supra do not refer to any such agreement.6. alternatively, mr. p.v.r. sarma, contends that this court is not having jurisdiction to dwell upon this aspect and that permitting the petitioner to take out procession on the route sought for will lead to law and order problem.7. taking out religious processions peaceably are traceable to both arts. 19(1)(b) as also 25 of the constitution of india. it is true that reasonable restrictions can be placed as envisaged under art. 19(3) of the indian constitution to maintain public order. section 30 of the police act referred to by the 3rd respondent in his proceedings mentioned supra may be a regulation in that regard. but the restriction under the said regulation should be a reasonable restriction and should not be unreasonable so as to exceed the necessity of placing such a restriction.8. now the question for consideration is as to whether on the touch-stone of the above rights, is it proper for the police authorities, be it 2nd or 3rd respondents, to place a restriction totally preventing the petitioner from touching koneru centre which they are very particular. for that reason, the 4th respondent is also very particular to touch the said centre.9. it is admitted that koneru centre is the prominent centre (chowrastha) in bandar town. it is not that there is ban on taking out procession through that centre. in fact, the 4th respodnent was permitted to take out their procession through that centre. when taking out the procession through that centre is not forbidden, there canot be any justification to prevent or prohibit the petitioner from totally touching the said centre while taking the religious procession on 10th day moharrum.10. when the fundamental rights are involved and when there is an allegation of discrimination between the two similarly situated persons or associations, no embargo can be placed on the powers of this court in exercise of art. 226 of the constitution of india. the law and order problem is a problem which has to be tackled by the respondents 1 to 3 and it is their duty and obligation. in fact, in a police state like ours, the state owes the said duty towards the citizens and the same has to be carried out in full spirit by the respondents 2 and 3.11. in view of what is stated supra, i hold that both the petitioner and 4th respondent are entitled to take their respective processions touching koneru centre of bandar town, but not at the same time. the respondents 2 and 3 are entitled to fix separate timings for the petitioner and the fourth respondent to reach their respective processions touching koneru centre providing different timings so as to avoid any clash between the people belonging to the said two rival associations. this has to be answered (ensured) by the respondents 2 and 3 immediately as also in future at appropriate times. it is also made clear that the routes leading to koneru centre both by the petitioner and 4th respondent shall not be the same and shall be distinct and different. likewise, the routes after touching the koneru centre also shall be different and distinct.12. on the above conclusions reached, the following order is passed:(1) both the petitioner and the 4th respondent shall be entitled to touch the koneru centre of bandar town while taking out their 10th day of moharrum processions, be it of this year or in future; (2) the timings of touching koneru centre by the petitioner and the 4th respondent different and the respondents 2 and 3 are entitled to fix the said timings; (3) the routes of processions of both the petitioner and the 4th respondent leading to koneru centre shall be different and distinct; and (4) the routes of processions of both the petitioner and 4th respondent after passing through koneru centre shall also be different and distinct. (5) the writ petition disposed of accordingly. no costs. advocate's fee rs. 250/-. 13. order accordingly.

Judgment:
ORDER

1. Here is a case where two religious associations namely, Gerohe-E-Miran Shah (the writ petitioner) and Garohe-E-Hazarath alias Taqui (Respondent No. 2 who got impleaded later to the filing of the writ petition) of Machilipatnam of Krishna District are at loggerheads on the issue of taking out 10th day Moharram procession. The dispute relates to the route and in fact the petitioner was not permitted to take out procession by earlier orders of the Sub-divisional Police Officer, Bandar, dt. 1-9-1987. For the next year, the petitioner made an application dated 1-8-1988 to permit the said procession giving out the details as regards time, date as also the route. In the route mentioned, the prominent place is Koneru centre of Bandar Town. When there was nothing heard on the said application D/-1-8-1988, a reminder was filed by the petitioner on 16-8-1988. When even that did not yield any results, the instant writ petition was filed seeking the issuance of writ of Mandamus to respondents 2 and 3 to take out the religious procession mentioned supra.

2. In the writ petition, it is pleaded that the procession ought to be taken out is a religious procession and the taking out of the same is a part of fundamental rights and that discrimination is being played by respondents 2 and 3 in permitting the 4th respondent to take out such procession and preventing the petitioner from doing so. While admitting the writ petition interim orders have been passed by the learned single Judge on 22-8-1988 directing the respondents to permit the petitioner to take out their procession on the occasion referred to above subject to regulation of timings, place and route by them pending the disposal of the writ petition. By proceedings dated 1-8-1990 of the 3rd respondent herein the exercise of the powers under S.30 of the Police Act, licence for procession was issued to the petitioner to take out the procession placing some conditions and fixing the time date and route of the same. It is needless to mention that it is subject to the result of the writ petition as the same was issued after passing of the interim orders by this Court. It is also mentioned in the said proceedings that no request for the change of route mentioned therein shall be entertained in future.

3. During the course of arguments, Mr. A. Ananta Reddy, the learned counsel for the petitioner has reiterated the pleas in the writ petition and submitted that the respondents 2 and 3 having permitted the 4th respondent-association to take out the religious procession mentioned supra there is no reason or justification not to permit the petitioner also to take out such a procession on the route the petitioner-proposes and particularly, touching Koneru Centre.

4. No counter has been filed by the respondents 1 to 3 controverting the averments made in the writ petition. In fact, the Assistant Government Pleader has submitted that whatever directions are issued by this court, they will be followed by the respondents 2 and 3.

5. Mr. P.V.R. Sarma, learned counsel appearing for the 4th respondent vehemently contends that their association itself has got a right to take out procession on the route sanctioned to them vide proceedings dated 13-7-1991 of the 3rd respondent. Another proceedings D/-17-7-1991 issued by the Town Planning Officer, Machilipatnam Municipality permitting the flag and banners on the routes, (1) Abbasia road to Akbar Chowk (2) Akbar Chowk to Konery centre (3) Koneru centre to Tekke, and (4) Koneru centre to fish market are also produced. Mr. P.V.R. Sarma contends that there was some agreement entered into between the parties with regard to the timings and routes and the petitioner cannot go back from the said agreement. But the said agreement is not accepted by the petitioner's counsel and I cannot pronounce upon the said agreement which is not even made a part of the record. In any event of the matter, the said disputed question of fact cannot be adjudicated by me. The proceedings permitting the procession by both the petitioner and the 4th respondent of the years 1990 and 1991 referred to supra do not refer to any such agreement.

6. Alternatively, Mr. P.V.R. Sarma, contends that this court is not having jurisdiction to dwell upon this aspect and that permitting the petitioner to take out procession on the route sought for will lead to law and order problem.

7. Taking out religious processions peaceably are traceable to both Arts. 19(1)(b) as also 25 of the Constitution of India. It is true that reasonable restrictions can be placed as envisaged under Art. 19(3) of the Indian Constitution to maintain public order. Section 30 of the Police Act referred to by the 3rd respondent in his proceedings mentioned supra may be a regulation in that regard. But the restriction under the said regulation should be a reasonable restriction and should not be unreasonable so as to exceed the necessity of placing such a restriction.

8. Now the question for consideration is as to whether on the touch-stone of the above rights, is it proper for the police authorities, be it 2nd or 3rd respondents, to place a restriction totally preventing the petitioner from touching Koneru centre which they are very particular. For that reason, the 4th respondent is also very particular to touch the said centre.

9. It is admitted that Koneru centre is the prominent centre (chowrastha) in Bandar Town. It is not that there is ban on taking out procession through that centre. In fact, the 4th respodnent was permitted to take out their procession through that centre. When taking out the procession through that centre is not forbidden, there canot be any justification to prevent or prohibit the petitioner from totally touching the said centre while taking the religious procession on 10th day Moharrum.

10. When the fundamental rights are involved and when there is an allegation of discrimination between the two similarly situated persons or associations, no embargo can be placed on the powers of this Court in exercise of Art. 226 of the Constitution of India. The law and order problem is a problem which has to be tackled by the respondents 1 to 3 and it is their duty and obligation. In fact, in a police State like ours, the State owes the said duty towards the citizens and the same has to be carried out in full spirit by the respondents 2 and 3.

11. In view of what is stated supra, I hold that both the petitioner and 4th respondent are entitled to take their respective processions touching Koneru centre of Bandar town, but not at the same time. The respondents 2 and 3 are entitled to fix separate timings for the petitioner and the fourth respondent to reach their respective processions touching Koneru centre providing different timings so as to avoid any clash between the people belonging to the said two rival associations. This has to be answered (ensured) by the respondents 2 and 3 immediately as also in future at appropriate times. It is also made clear that the routes leading to Koneru centre both by the petitioner and 4th respondent shall not be the same and shall be distinct and different. Likewise, the routes after touching the Koneru centre also shall be different and distinct.

12. On the above conclusions reached, the following order is passed:

(1) Both the petitioner and the 4th respondent shall be entitled to touch the Koneru Centre of Bandar town while taking out their 10th day of Moharrum processions, be it of this year or in future;

(2) The timings of touching Koneru centre by the petitioner and the 4th respondent different and the respondents 2 and 3 are entitled to fix the said timings;

(3) The routes of processions of both the petitioner and the 4th respondent leading to Koneru centre shall be different and distinct; and

(4) The routes of processions of both the petitioner and 4th respondent after passing through Koneru centre shall also be different and distinct.

(5) The writ petition disposed of accordingly. No costs. Advocate's fee Rs. 250/-.

13. Order accordingly.