Mubarik and anr. Vs. Noushad and ors. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. n.k. mody, j.1. being aggrieved by the inadequacy of the amount awarded vide award dated 17.5.2001 passed by the m.a.c.t., district mandsaur in claim case no. 18 of 2001 whereby a sum of rs. 75,000 has been awarded along with interest at the rate of 9 per cent per annum, the present appeal has been filed.2. learned counsel for the appellants submit that appellant no. 1 has lost his wife on account of accident who was aged 21 years at the time of accident. it is submitted that learned tribunal has awarded a sum of rs. 75,000 without applying the multiplier. it is also submitted that amount awarded is on lower side. deceased was a helping hand to perform agricultural work. she was also doing stitching work and performing household duties. it is submitted that her income was rs. 2,000 per month. after deducting the personal expenses and after applying the multiplier of 17 as per second schedule of section 163a of the motor vehicles act the amount of loss of dependency ought to have been computed.3. learned counsel for respondent no. 3 submits that the amount awarded is just and proper. it is submitted that before the lok adalat the proposal was to enhance a sum of rs. 50,000, therefore, no amount exceeding rs. 50,000 can be awarded.4. learned counsel for the appellants placed reliance on a decision of jammu and kashmir high court in the matter of oriental insurance co. ltd. v. shamsher singh , wherein in a case of death of housewife a sum of rs. 5,60,000 has been awarded, after taking into consideration the income at the rate of rs. 2,000 per month and also applying the multiplier. further, reliance was placed on a decision of this court in manna lal v. dinesh m.a. no. 1078 of 2001; decided on 11.5.2005, wherein in a case of death of a wife, division bench of this court has awarded a sum of rs. 3,25,000. further, reliance was placed on a decision in the matter of lata wadhwa v. state of bihar : (2001)iillj1559sc , wherein in a case of death of housewife aged 34 to 59 years the services of a wife has been taken into consideration as income of rs. 36,000 per year.5. after taking into consideration all the evidence on record, it appears that the amount awarded is on the lower side. even assuming the dependency of rs. 15,000 as notional income then the dependency comes to 10,000 per year. after applying the multiplier of 17, the amount comes to rs. 1,70,000. appellant is entitled for other conventional amount of rs. 10,000 which comes to rs. 1,80,000. after deducting the amount of rs. 75,000 already awarded, the enhanced amount comes to rs. 1,05,000. the enhanced amount shall carry interest at the rate of 6 per cent per annum from the date of application.6. with the aforesaid modifications, appeal stands disposed of. no order as to costs.