PETITIONER: A. V. VENKATESWARAN, COLLECTOR OF CUSTOMS, BOMBAY Vs. RESPONDENT: RAMCHAND SOBHRAJ WADHWANI AND ANOTHER DATE OF JUDGMENT: 04/04/1961 BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS CITATION: 1961 AIR 1506 1962 SCR (1) 753 CITATOR INFO : RF 1962 SC1621 (90,137) F 1963 SC1319 (7) R 1964 SC1451 (7) E 1964 SC1519 (7) R 1966 SC 142 (6,13) RF 1973 SC 194 (8) RF 1990 SC 772 (22,32) ACT: <ORG> Duties-Fountain pens with nibs and caps plated with gold-Rate of duty-Indian Tariff Act, 1934 (32 of 1934), Sch. 1, Items 45(3), 6(8). Writ--Principles governing issue of-Alternative remedy time barred--Application for writ, if lies-Constitution of India, Art. 226. HEADNOTE: Under a licence granted for the import of fountain pens at not less than Rs. 25 C.I.F. value, the respondent imported <ORG> pens from Australia, which had nibs which were gold plated and also caps and clips of similar composition. The imported goods were assessed to duty by the customs authorities under item 61(8) of the First Schedule to the Indian Tariff Act, 1934, dealing with "Articles, other than cutlery and surgical instruments, plated with gold or silver" which provided for a duty Of 781 per cent. ad valorem, while the respondent claimed that the goods fell within item 45(3) which related to the article described as "Fountain pens, complete", the rate of duty being 30 per cent. ad valorem. Section 191of the Sea <ORG> Act, 1878, enabled any person aggrieved by an order of the Collector of <ORG> to file a revision to <ORG>, but the respondent, without resorting to this remedy filed a writ application in <ORG> under Art. 226 of the Constitution of India to quash the imposition of the duty at the higher rate and to direct the release of the goods on payment of duty at 30 per cent. The Single judge who disposed of the application took the view that fountain pens did not cease to be fountain pens though they contained parts which were plated with gold, that so long as they were "Fountain pens, complete" only duty under item 45(3) could be levied and that, in the context of the items in the Tariff Schedule, it was not reasonably possible for any person to take a contrary view. Accordingly, the customs authorities were restrained from enforcing payment of any duty higher than 30 per cent. On appeal, <ORG> of <ORG> agreed with the interpretation of the tariff items and held that, though it was not the practice to entertain writ petitions by parties who had not exhausted their statutory remedies, as the remedy of applying in revision to the 95 754 <ORG> had become time-barred by the date of hearing of the appeal, it would not interfere with the order of the Single judge. Held, that <ORG> was in error in its view that though the respondent had failed to exercise his statutory remedy, the fact that it had become time-barred at the date of the hearing of the appeal against the order in the petition under Art. 22 6 , was a good ground for the <ORG> to exercise its discretion in granting the relief prayed for by the respondent in his petition. Held, further (<NAME>, J., dissenting): (i) that the consignment imported by the respondent was liable only to a duty of 30 per cent. under item 45(3) in the First Schedule to the Indian Tariff Act, 1934, and that the tariff items in the Schedule were not reasonably capable of any other construction. (2) that as in the present case the levy of the duty under entry 61(8) was manifestly erroneous, and <ORG> had issued a ruling to the effect that fountain pens with nibs or caps which were gold-plated fell with entry 61(8), it could not be said that <ORG> had exercised its discretion improperly in entertaining the writ application so as to justify interference in an appeal under Art. I36 of the Constitution. Per <NAME>, <NAME>, <NAME> and <NAME>, JJ.-The rule that a party who applies for the issue of a high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the <ORG> to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion. <CITATION> ,  S.C.R. 499 and <CITATION> ,  S.C.R. 595, relied on. Per <NAME>, J.-Item 61(8) in the First Schedule to the Indian Tariff Act, 1934, is intended to apply to all gold plated articles other than cutlery and surgical instruments, while item 45(3) is applicable to fountain pens simpliciter, that is, without gold plating. Such a view would harmonise the different items in the Tariff Schedule and carry out the intention of the legislature. The customs authorities were correct in assessing gold plated fountain pens under entry 61(8). JUDGMENT:

CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 388 of 1956. Appeal by special leave from the judgment and order dated the August 19, 1955, of <ORG> in Appeal No. 53 of 1955.

<NAME>, Solicitor-General of India, <NAME> and <NAME>, for the appellant. <NAME> and <NAME>, for respondent No. 1. <NAME>, for respondent No. 2.

1961. April 4. The Judgment of <NAME>, <NAME>, <NAME> and <NAME>, <ORG>., was delivered by <NAME>, <NAME>, J., delivered a separate judgment.

AYYANGAR, J.-This appeal by special leave is against the judgment and order of <ORG> of <ORG> by which a writ of mandamus or certiorari granted to the respondent was confirmed on appeal preferred by the appellant now before us.

A few facts are necessary to be stated to understand the matters in controversy and the points raised for our decision. The respondent carries on business in Bombay and he was granted on August 18, 1954, a licence under the Imports and Exports (Control) Act, 1947, for the import of fountain-pens at not less than Rs. 25 C.I.F. value each from soft currency area, up to a defined amount. He placed an order for the import of Sheaffer pens from Australia and a consignment of these was received by air in Bombay in Octo- ber 1954. The fountain-pens thus imported had nibs which were gold plated and also caps and clips of similar composition. The question in controversy relates to the rate of duty to be charged on these im. ported pens. The Schedule to the Indian Tariff Act, 1934, has an item numbered 45(3) in relations to the article described, as "fountain pens complete", the rate of duty being 30 per cent and valorem. It was the case of the respondent that the imported goods fell within this item and were liable to be charged with duty at that rate'. The <ORG> authorities, however, considered that the consignment fell within the description "articles plated with gold or silver" being item 61(8) on which duty was payable at 781 per cent.

The Assistant Collector of <ORG> adjudicated the duty on this latter basis and thereafter the respondent having filed an appeal to the Collector of <ORG>, the levy was upheld by order dated February 22, 1955.

Section 191 of the Sea <ORG> Act enables any person aggrieved by an order of the Collector of <ORG> to file a revision to <ORG>. The respondent, without resorting to this remedy, filed a writ application in <ORG> to quash the imposition of the duty at the higher rate (certiorari) and to direct the release of the goods on payment of duty at 30 per cent. (mandamus). The application was resisted by the Collector of <ORG>, who raised substantially two points: (1) that on the merits the goods imported were "gold-plated articles" notwithstanding their being fountain-pens and that the proper rate of duty was that which had been determined by the Assistant <ORG> Collector, (2) that the respondent had another remedy open to him, viz., to file a revision to <ORG> and that he was, therefore., disentitled to move <ORG> under- Art. 226 of the Constitution before availing himself of the remedy specially provided by statute. The writ petition came on for hearing before justice <NAME>, who by his order dated July 5, 1955, recorded that on any reasonable construction of the items in the Schedule to the Indian <ORG> Tariff, fountain-pens did not cease to be fountain-pens" because they contained parts which were plated with silver or gold and that so long as they were "fountain-pens complete", subject to any exceptional cases of which this was not one, only duty at 30 per cent. under item 45(3) could be levied. The learned Judge further held that the interpretation that he placed upon item 45(3) in the context of the other entries in the Tariff Schedule can "only be one and it is not reasonably possible for any person to take a contrary view". In other words, the learned Judge was of the opinion that the construction put upon the entry by the <ORG> authorities was unreasonable or perverse.

The objection to the writ petition based upon the petitioner before him not having exhausted the statutory remedies available to him was repelled by the learned Judge on the ground that on the facts the decision to levy duty at 783 per cent. was without jurisdiction. The petition was, therefore, allowed and the <ORG> authorities were, by order of <ORG>, restrained from enforcing payment of any duty higher than 30 percent.

The Collector of <ORG> filed an appeal against this order which was disposed of by a judgment delivered on behalf of the Bench, by <NAME>, C. J. The learned Chief Justice was equally emphatic that no reasonable person could, on the construction of the relevant items in the Schedule to the Tariff Act , hold that the consignment of fountain-pens could fall under any item other than 45(3) or be charged a duty other than the 30 per cent. provided under that item. Dealing with the other point about the writ petitioner not having exhausted his statutory remedy of Revision to the Government, the learned Chief Justice disagreed with the view of the learned Single Judge that the <ORG> authorities lacked or exceeded their jurisdiction in assessing duty at a higher figure than was justified by the relevant items of the Schedule to the Tariff Act . The learned Chief Justice, after pointing out that it was the settled practice of <ORG> not to entertain writ petitions by parties who had not exhausted their statutory remedies, however, held that in the case before the Bench the remedy of applying in Revision to the <ORG>: Government had become time-barred by the date' of the hearing of the appeal, and that on that ground he would not interfere with the order of the learned Single Judge. The appeal was, therefore, dismissed. The Collector of <ORG> having obtained special leave from this Court has brought this appeal before US.

The learned Solicitor-General appearing for the appellant argued the appeal on the basis that the view of the learned Judges of <ORG> that on any reasonable interpretation of the items in the Schedule to the Tariff Act the consignment imported by the respondent could have been liable only to a duty of 30 per cent. under item 45(3) was correct. We might add that even apart from this concession bay for the purpose of argument, we entirely agree with the learned Judges that the tariff items in the Schedule are not reasonably capable of any other construction.

In reaching this conclusion we have taken into account the fact that "fountain-pens complete" were taken out of the general item 45 'Stationery etc.' under which they were originally included, by an amendment effected in 1949 in pursuance of an international agreement and that though the duty on stationery was thereafter increased from 30 to 37- 1/2 per cent., under the provisions of the Finance Act , 1949, --the duty of 30 per cent. fixed on fountain-pens re- mained unchanged. This at least showed that they were treated as a specialized class of stationery which required separate treatment. The only question therefore is whether a fountain-pen in which certain of its essential parts are gold or silver-plated falls outside the category of "fountain-pens complete". It cannot be again said that anib, cap and clip are essential parts of a fountain-pen and not more accessories, and that without them there would be no question of having a "fountain-pen complete". Next it is a well-known and recognized fact that most fountain-pens in ordinary use have nibs 'Which are gold-plated. In this connection it should not be overlooked that gold, apart from being a store of value, is a metal which has industrial uses by its malleability and its resistance to oxidation on contact with acids and chemicals which enter into the composition of ink. The use of gold plating for nibs is therefore for increasing the utility of the nib for its primary function of writing and not with a view to enhancing its value by the cost of the metal. In the case before us it would be noticed that the pens permitted to be imported had to be not less than Rs. 25 each C.I.F. value, presumably with a view to protect the market for cheaper pens of indigenous manufacture. Most pens of the value specified in the licence, it need hardly be added, would have gold-plated nibs. It could certainly not be that it was the intention of the authorities that notwithstanding Entry 45(3) reading "fountain-pens complete" there could practically be no import of pens under that item, because with the limit of-value prescribed in the licence, the permitted pens would mostly have gold-plated nibs. Different considerations might arise when gold or gold plating is used not for poses essential for the utility of the pen as such, Purmerely as an addition to its value. These cases have been excepted by Justice <NAME> and we endorse his remarks on this point. No such question arises on the pens imported by the respondent and it was obviously because of this, that the learned Solicitor General did not address us on the correctness of the interpretation placed on relative scope of entries 45(3) and 61(8), by the learned Judges of <ORG>.

The only point, therefore, requiring to be considered is whether <ORG> should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed. The contention of the learned- Solioitor-General was that the existence of an alternative remedy was a bar to the entertainment of a petition under Art. 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est. In all other cases, he sub- mitted, <ORG>s should not entertain petitions under Art. 226 , or in any event not grant any relief to such petitioners. In the present case, he urged, <ORG> in appeal had expressly dissented from the reasoning of the learned Single Judge as regards the lack of jurisdiction of the <ORG> Officers to adjudicate regarding the item under which the article imported fell and the duty leviable thereon. Nor was there any complaint in this case that the order had been passed without an opportunity to the importer to be heard, so as to be in violation of the principles of natural justice. The learned Solicitor-General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respon dent in not moving the <ORG> in revision by taking into account the time that had elapsed between the date of the impugned order and that on which the appeal was heard. The submission was that if this were a proper test, the rule as to a petitioner under Art. 226 having to exhaust his remedies before he approached the <ORG> would be practically a dead letter because in most cases by the date the petition comes on for hearing, the time for appealing or for applying in revision to the departmental authorities would have lapsed.

We see considerable force in the argument of the learned Solicitor-General. We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the <ORG>, have exhausted other remedies open to him under-the law, is not one which bars the jurisdiction of the High <ORG> to entertain the petition or to deal with it, but is rather a rule which <ORG>s have laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this <ORG> but it is sufficient to refer to two cases: <CITATION> (l), <NAME>,J., speaking for the <ORG> said:

"It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of <ORG> to issue a -prerogative writ. It is true that the existence of another remedy does not affect the juris- diction of the <ORG> to issue a writ; but, as observed by this <ORG> in <CITATION> ('a), 'the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs'. Vide also (1)  S.C.R. 499 503,504.

(1a) [1950] S.C.R. 566.

<CITATION> ('). And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226 , unless there are good grounds therefore."

There is no difference between the above and the formulation by <NAME>, C. J., in <CITATION> (2), where he observed:

"............ It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite ,of the fact that the aggrieved party had other ade- quate legal remedies."

After referring to a few cases in which the existence of an alternative remedy had been held not to bar the issue of a prerogative writ, the learned Chief Justice added:

"It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari."

In the result this Court held that the existence of other legal remedies was not per se a bar to the issue (1) [1954] S.C.R- 738.

(2) [1958] S.C.R. 595, 605-607.

Of a writ of certiorari and that the <ORG> was not bound to relegate the petitioner to the other legal remedies available to him.

The passages in the judgments of this <ORG> we have extracted would indicate (,I) that the two exceptions which the learned Solicitor-General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested. in <ORG> to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the <ORG> should act having been clearly laid down, their -application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the <ORG>, and that in a matter which is thus preeminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the <ORG>.

The question that we have now to consider is has the discretion which undoubtedly vested in the <ORG> been so improperly exercised as to call for our interference with that order. We might premise this discussion by expressing our opinion on two matters merely to prevent any misunderstanding. First we entirely agree with <NAME>, C. J. that the order of the Assistant Collector of <ORG> in assessing duty at 781 per cent. or of the Collector of <ORG> in confirming the same, was not void for lack of jurisdiction. The interpretation they put on the relevant items in the Tariff Schedule might be erroneous, even grossly erroneous, but this error was one committed in the exercise of their jurisdiction and had not the effect of lacing the resulting order beyond their jurisdiction. Secondly, as we have already indicated, we must express our dissent from the reasoning by which the learned Judges of the High <ORG> held that the writ petitioner was absolved from the normal obligation to exhaust his statutory remedies before invoking the jurisdiction of the High <ORG> under Art. 226 of the Constitution. If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he, cannot certainly be ' permitted to urge that as a ground for the <ORG> dealing with his petition under Art. 226 to exercise its discretion in his favour. Indeed, the second pass age extracted from the judgment of the learned C. J. in <NAME> case. (1) with its reference to the right to appeal being lost "through no fault of his own" emphasizes this aspect of the rule.

The question, however, still remains whether in the circumstances of this ease we should interfere with the decision of <ORG>. In considering this, we cannot lose sight of three matters: (1) that the levy of the duty at 78-3/4 per cent. was manifestly erroneous and cannot be supported on any reasonable construction of the items in the Tariff Schedule, (2) it was stated by the <ORG> authorities in answer to the writ petition, in the grounds of appeal to <ORG> under the Letters Patent, as also in the statement of case before us, that <ORG> had issued a ruling to the effect that fountain-pens with nibs or caps which were gold-platled fell within item61(8). This might be some indication that the adjudication by the Assistant Collector of <ORG> and by the <ORG> Collector on appeal was in pursuance of a settled policy of the entire hierarchy of the department. Without going so far as to say that a Revision to <ORG> might in the circumstances be a mere futility, we consider that this is not a matter which would be wholly irrelevant for being taken into account in disposing of the appeal before us. After all, the basis of the rule by which <ORG> insist upon a person exhausting his remedies before making application for the issue of a prerogative writ is that the <ORG>'s jurisdiction ought not to be lightly invoked when the subject can have justice done to him by resorting to the remedies prescribed by statutes. (3) Lastly, the learned (1) [1958] S.C.R. 595, 605-607.

Solicitor-General does not dispute the correctness of the principle of law as enunciated by <NAME>, C. J., his complaint is that the law as laid down by the learned Chief Justice has not. been properly applied to the facts of the case before him. If the challenge to the judgment of <ORG> were of the former type, this Court might have to interfere to lay down the law correctly lest error creep into the administration of justice. But where the error is only in the application of the law correctly understood to the, facts of a particular case, we should be persuaded that there has been a miscarriage of justice in the case before us before being invited to interfere; and this the learned Solicitor-General has not succeeded in doing. It would be remembered that the question is not whether if the respondent's application were before us, we should have directed the writ to issue, but whether the learned Judges of <ORG> having in their discretion which they admittedly possessed made an order, there is justification for our interfering with it. The two matters set out earlier should suffice to show that no interference could be called for in this appeal.

We consider, therefore, on the whole and taking into account the peculiar circumstances of this case that <ORG> has not exercised its discretion improperly in entertaining the writ application or granting the relief prayed for by the respondent and that no care for interference by us in an appeal under Art. 136 of the Constitution has been made out. The appeal fails and is dismissed with costs. SARKAR, J.-In this case the respondent had imported a certain number of fountain-pens plated with gold. The goods were assessed to import duty by an assessing officer of <ORG> under item 61(8) of the first schedule to the <ORG> Tariff which dealt with "Articles, other than cutlery and surgical instruments, plated with gold or silver" and provided for a duty of 78-3/4 per cent. ad valorem. The respondent appealed from this assessment to the Collector of <ORG> under a. 188 of the Sea <ORG> Act, 1878, on the ground that the assessment should have been under item 45(3) of that schedule which dealt with "Fountain-pens, complete" and provided for a duty of 30 percent ad valorem. He did not dispute that the fountain- pens imported by him were, gold plated. His appeal was dismissed. The respondent then moved <ORG> at Bombay for a writ to quash the order of assessment under item 61(8). The application was allowed by <NAME> who issued a writ of mandamus directing the Collector of <ORG> to release the goods upon payment of the duty specified in item 45(3). The appeal by the Collector of <ORG> from the order of <NAME>, J., to an appellate bench of <ORG> was dismissed. The Collector has therefore filed the present appeal.

The first question is, whether the writ should have been refused on the ground that the respondent had another remedy, namely, an application to <ORG> under s. 191 of the Sea Customs Act to revise the order of the Collector. <NAME>, J., held that the writ could issue though the other remedy had not been pursued, as the order of assessment under item 51(8) was without jurisdiction. This was clearly wrong. The Collector had ample jurisdiction to decide under which item in the schedule the fountain-pens had to be assessed to duty, and if he made a mistake in his decision that did not make his order one without jurisdiction: cp. <CITATION> (1). The learned Judges of the appellate bench held that the writ was properly issued, not because the assessing authority had no jurisdiction to assess the goods under item 61(8), but because at the date the matter had come before them, the other remedy had become barred. This again is,in my view, plainly erroneous for a party who by his own conduct deprives himself of the remedy available to him, cannot have a better right to a writ than a party who has not so deprived himself. Normally and the present has not been shown to be other than a normal case a writ of mandamus is not issued if other remedies are available. There would be stronger reason for following this rule where the obligation (1) A.1,R. 1957 S-C- 733-

sought to be enforced by the writ is created by a statute and that statute itself provide,% the remedy for its breach. It should be the duty, of the courts to see that the statutory provisions are observed and, therefore, that the statutory authorities are given the opportunity to decide the question which the statute requires them to decide. The fact that <ORG> had on a prior occasion decided, as appears in this case to have happened, that fountain-pens of the kind which the respondent had imported, were liable to ditty under item 61(8) cannot furnish any reason justifying a departure from the normal rule or the issue of a writ without that government having been moved under s. 191 . This prior decision of <ORG> could be a reason for such departure only on the presumption that it would not change its view even if that view was shown to be incorrect. I cannot imagine that a court can ever make such a presumption. Therefore, it seems to me that it would have been proper to refuse the writ on the ground that the respondent had another remedy available to him which he had not pursued. On the present occasion, however, I do not wish' to decide the case on that ground. Next, I feel the gravest doubt if the case is one for the issue of a writ of mandamus. It is of interest to observe that the respondent had in his petition to <ORG> himself asked for a writ of certiorari. A writ of mandamus issues in respect of a ministerial duty imposed by a statute; it cannot issue where the duty to be performed is of a judicial nature, except for the purpose of directing that the judicial duty should be performed, that is, a decision should be given on the question raised. In <NAME> book on Informations, Mandamus and Prohibition it is stated at p. 256:

"If the duty be of a judicial character a mandamus will be granted only where there is a refusal to perform it in any way; not where it is done in one way rather than another, erroneously instead of properly. In other words, the <ORG> will only insist that the person who is the judge shall act as such; but it will not dictate in any way what his judgment should be. If, however, the public act to be performed is of a purely ministerial kind, the <ORG> will by mandamus compel the specific act to be done in the manner which to it seems lawful."

It does not seem to me that the duty which the Sea <ORG> Act created and the performance of which was sought to be enforced by a writ in the present case, can properly be said to be a ministerial duty. That duty was to decide which item in the <ORG> Tariff was applicable to the respon- dent's goods and to realise the customs duty specified in that item. In so far as the statute required the officer to realise the <ORG> levy, I find it difficult to see how it can be said to be a public duty to the performance of which the respondent had a legal right and without this right he was not entitled to the mandamus: see Ex parte <NAME>('). In so far again, as the Act required the <ORG> Officer to choose the proper item in the <ORG> Tariff for assessment of the customs levy on goods, it in my view involves performance of work of a quasi-judicial nature. The observation of <NAME>, J., in <CITATION> (), which I am about to read, fully fits this case: "If a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judical act provided the authority is required by the statute to act judicially." 'Now the Sea <ORG> Act empowers the <ORG> authorities to impose a certain duty on goods imported and this no doubt prejudicially affects the importer. The Act , further clearly requires the authorities to proceed judicially in imposing that duty when a dispute arises, that is, after giving a hearing to the party affected: see as. 29, 31 and 32 of the Act. In this case a hearing (1) (1852) 18 Q.B. 692.

(2) [1950] S.C.R. 62I, 725.

was in fact given to the respondent. This taken with the provisions as to a right of appeal from the decision Of the first assessing officer and as to the right to move the government in revision from the decision in the appeal, would clearly indicate that the authorities have to act judicially. <CITATION> (1) this Court proceeded on the basis that the duty of assessing the customs levy was of a judicial nature. Therefore I feel the gravest doubt, if the present is a case where a mandamus could at all issue.

No doubt if a mandamus could not issue because the act which the statute required to be performed was not a ministerial one but judicial in its character, the case might be a fit one for the issue of a writ of certiorari. But that writ cannot, in any event, issue unless the proceedings disclosed an error apparent on their face. In issuing a certiorari again, the <ORG> does not examine the judicial act questioned as if it was hearing an appeal in respect of it: see <CITATION> (2). I do not propose to discuss this question further in the present case, for it was not considered by the High <ORG> nor raised at our bar. I proceed on the basis that it was a case where an application for a mandamus Jay.

The respondent, in substance, asked for and obtained a writ directing the <ORG> authorities to release the goods on payment of duty at the rate of 30 per cent. ad valorem as prescribed by item 45(3). This was on the basis that the duty should have been levied under that item and not under item 61(8) as the <ORG> authorities had done. The question then is, was there a clear duty on the assessing authorities to assess the goods under item 45(3) dealing with "Fountain-pens, completed and not to do so under item 61(8) dealing with "Articles, other than cutlery and surgical instruments, plated with gold". All the learned Judges of <ORG> agreed that this clear duty had to be established before the respondent could be held entitled to a mandamus and they found that the Act created such (1) A.I.R. 1957 S.C. 733.

(2) [1960] 1 S.C.R. 890, 901.

a duty. They said that item 45(3) was a specific provision and therefore it had to be applied in preference to item 61(8) which was a general provision. I am unable to agree with this view.

What, apparently, the learned Judges had in mind and applied, was the rule of construction of statutes that when two provisions in an Act are inconsistent with each other, if one is specific and the other general, the specific provision prevails over the general. Now, this rule like all other rules of construction, derives its justification from the fact that it assists in ascertaining the intention of the legislature. The reason why it so assists is this. When two provisions enacted by the legislature, are inconsistent and one cannot operate at all if the other is given full effect, a question arises as to what the legislature intended. Clearly, it could not have intended that a provision that it enacted should have no operation at all. Therefore it is to be presumed that the legislature intended that both the provisions would at least have some effect, if they could not have their full effect. The rule under discussion gives effect to this presumed intention of the legislature. In order to give effect to this intention, the rule provides that the provision with a narrower scope of operation should have effect so far as it goes, in preference to the provision with the larger scope of operation so as to restrict the operation of the latter which, without such restriction, would have wiped the narrower provision out of the statute book altogether. This rule permits both the provisions to have effect; it reduces the scope of one and prevents the other from becoming a dead letter. This aspect of the rule would, I believe, appear clearly from a statement of it by Sir <NAME> pretty v. Solly(1) which I now set out:

"The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general (1) (1859) 26 Beav. 6o6; 53 E.R. 1032.

enactment must be taken to affect only the other parts of the statute to which it may properly apply."

The test of the applicability of the rule, therefore, is that one enactment must overrule the-other. The one overruled is called specific only in comparison with the other which is in the same way only, called general. There need be nothing inherent in the nature of the enactments which, apart from a consideration of their comparative scopes, mark one out as specific and the other as general. When one overrules the other, it must include within its scope that other and so becomes general in comparison with the other. If two provisions were merely in conflict with each other, each affecting the other and none overruling the other and itself remaining in force, no question of calling one general and the other specific would arise. I should suppose, when Sir <NAME> talked of one enactment overruling the other. he meant completely overruling. That would make the rule sensible for, then it would clearly be a guide to the intention of the legislature which is that, all tile provisions are intended to have effect. This reason to support the rule would not exist if it was applied to a case where the provisions only partially affected each other for, then, both the provisions would have at least some operation. It would further be impossible to say from a comparison of the degrees of the effect of each on the other, if such comparison was possible, what the intention of the legislature was. I am not aware that it has ever been said that when two pro. visions partially affect each other, without one completely overruling the other, the legislature intended the one less affected should yield to the other or even the other way about. To such a case the rule would, in my view, have no application.

The present is a case of that kind. I now confine myself only to items 45(3) and 61(8) for, no question as to any other item in the Tariff arises for applying the rule. If gold plated fountain-pens were assessed under item 61(8), there would still be plenty of scope left for item 45(3) to operate upon, for, there would be many kinds of complete fountain-pens without gold plating. Likewise also if gold plated fountain-pens were assessed under item 45(3), there might be many other gold plated articles for being assessed under item 61(8). Item 61(8) cannot be said to overrule item 45(3) completely. Item 61(8) cannot be said to be a general provision and item 45(3) a specific one. There is no scope here of applying the rule giving effect to a specific enactment in preference to the general.

What then should be done? Under which item should the gold plated fountain-pens then be assessed to duty? In my view, they were properly assessed under item 61(8). The item is clearly intended to apply to all gold plated articles other than the two expressly excepted, namely, cutlery and surgical instruments. There is no reason why this intention should not be given effect to. The <ORG> Tariff Schedule no doubt makes separate provisions for various individual articles. A fountain-pen is one of such articles. If a gold plated fountain-pen is for the reason that fountain- pens are separately provided for, to be taken out Of item 61(8), all other articles separately dealt with in the schedule would have for the same reason, to be taken out of that item even though they happen to be plated with gold. The result of that would be that item 61(8) would apply to those articles which are not ,separately provided, and as <ORG> Tariff Schedules are made as exhaustive as they can be, there would be very few articles, if any, left to which item 61(8) might be applied. It does not, seem to me that this could have been intended.

Item 61(8), as already stated, is intended to take in all gold plated articles except cutlery and surgical instruments. A proper construction of this item must give effect to this intention. Item 45(3) applies to fountain- pens. Now it is not necessary for a fountain-pen to be gold plated at all. Indeed the large majority of them are not gold plated. It is true that a fountain pen does not cease to be a fountain pen because it is plated with gold. It is, however, equally true that a gold plated fountain-pen is an article plated with gold. A fountain-pen may or may not be gold plated but a gold plated article can only be a gold plated article. Therefore, it seems to me that item 45(3) was intended to apply to fountain pens simpliciter, that is, without gold plating or other embellishments which might properly bring them under another item in the schedule. This, in my view, would best harmonise the different items in the Tariff schedule and carry out the intention of the legislature. This can be illustrated by an example. Suppose a fountain-pen was Studded with diamonds. Could it then be said that the legislature intended to pose on them a duty of 30 per cent. ad valorem under item 45(3) and the diamonds were not intended to be assessed under item 61(10) which deals with jewels and provides for a higher duty. I do not think that a possible view to take.

I think, therefore, that the assessment in the present case under item 61(8) was proper. I would hence allow the appeal.

By COURT: In accordance with the opinion of the majority, this appeal is dismissed with costs.

Appeal dismissed.


JUDGMENT <NAME>, J.

1. This appeal raises a jurisdictional question of some significance. Since answer to the jurisdictional question is to take shape in thelight of facts asserted in the plaint ofr the claim petition, it would, therefore, be appropriate first to notice the relevant facts.

2. The claimant <NAME> happened to be driving Car No. CH 8851. While crossing Gate No. 121 on Panchkula-Zirakpur road, which was open at that time, railway train suddenly approached the said manned railway crossing, engine whereof said to be without lights, struck against his car as a result whereof the claimant recived injuries and his car was damaged; that there wa sno red light to stop the traffic on the road and the accident resulted due to the carelessness and negligence of the driver, the guard in question and the gateman. Since the respondent, which inter alia, included <ORG>, General Manager, <ORG>, New Delhi, <NAME> Station Master, Chandigarh besides the driver, guard of the train and the gateman questioned the jurisdiction of the tribunal to try the matter so the tribunal formulated a preliminary issue to the effect as to whether the application lies before <ORG>. The <ORG> answered the question against the claimants and in favour of the respondents and dismissed the claim petition.

3.The appeal in the first instance came up for hearing before <NAME>. J. who referred the appeal to the larger <ORG>. The appea was then put up before a Division <ORG> which in turn referred the same to a larger <ORG> and that is how this appeal is before us.

4. In all civil matters, it is <ORG> which has the jurisdiction to go into the claims of the kind unless its jurisdiction is either expressly or by necessary implication stands barred. claims for compensation arising out of accidents by use of motor vehicles, till the amendment of the Motor Vehicles Act (hereinafter referred to as the Act), which added Ss. 110 to 110F to the said Act, were tried by <ORG>. The <ORG> being aware of the increasing number of the accidents involving motor vehicles and the resultant misery to the persons involved in the accident or their dependents and the immediate need for financial succour provided a special forum (speedy and inexpensive) in the form of <ORG> for adjudicating upon the claims for compensation in respect of accidents 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 and it also sought to bar the expensive and tardy jurisdiction of <ORG> by enacting S. 110F of the Act, which reads as under:--

"110F Bar of Jurisdiction of Civil Courts. Where <ORG> has been constituted for any area, no Civil Court shall relating to any claim for compensation which may be adjudicated upon bgy <ORG> for that area, and no injunction in respect of any action taken or to be taken by or before <ORG> in respect of the claim for compensation shall be granted by <ORG> ".

5. The determination of the parameter of the jurisdiction of the Tribounal envisaged under S. 110 of the Act would depend upon the construction of the experession 'compensation in respect of accidents... arising out of the use of motor vehicles occurring in S. 110 of the Act. The aforesaid expression indicates that there should be an accident which should be as a result of the use o9f motor vehicles. Besides the aforesaid spelled out limiting words the aforesaid expression envisagtes no other limitations, that is, once it is held that there has been an accident as a result of the use of motor vehicle in which either a person has died or has received imjuries or there has been damage to any property of a third party, the <ORG> would have the jurisdiction to the person or authority against whom the claim is made, may be any.

6. Some High Courts however have sought to spell out limitation upon the jurisdiction of the <ORG> from the provisions of S. 110B or by giving a restrictive interpretation to the word use occurring in S. 110 .

7. A Division Bench of Gauhati High Court in Swarnalata v. <ORG>, AIR 1974 Guhati 31 took the view that from thescheme of newly added group of provisions starting from s. 110 to S. 110F , it would be clear that the <ORG> had got no jurisdiction to enforce authority except the owner, the driver and the insurer of the motor vehicle involved in the accident as would be evident from the provisions of S. 110B .

8. In <ORG> v. <ORG>, AIR 1975 Andh Pra 222, one of the contentions raised before the Division Bench was that <ORG> had no jurisdiction to adjudicate upon the claim for compensation arising out of the accident between the truck and the train view of the provisions of S. 100F , Motor Vehicles Act , and it was claimed that <ORG> alone had the jurisdiction to adjudicate upon the given claim. The above contention was repelled with the following observations:--

"It is true that the jurisdiction of <ORG> under S. 110 is stated to be to adjudicate up[on claims in respect of accidents involving the death of or bodily injury to, persons arising out of the use of motor vehicles............ But if we have regard to the scheme of the Act and the context in which S. 110 appears, it is cloear that the claim referred to in the section can have reference only to claims only against the owner or the driver of the motor vehicle concenred in the accident. It could not have been the intention of the framers of the Act to include claim against other persons as well. The Motor Vehicles Act is an Act to consolidate and amend the law relating to motor vehicles. This section occurs in the chapter dealing with insurance of motor vehicles against third party risks. The object behind this section is to provide for speedy and effective machinery for persons injured in accidents arising out of the use of motor vehicles against the owners and the drivers and insurers of motor vehicles. To accept the contention of the learned counsel for the respondent that it would include claims against all persons would lead, in our view, to consequences which were never contemplated by the framers of the Motor Vehicles Act . For instance, a person proceedings in a motor vehicle may be injured by an accident resulting from the fall of tree of the collapse of building. It cannot be said that the occupants can lay a claim in the <ORG> constituted under the Motor Vehicles Act against the owners of the building or of the tree, if it was due to the negligence of such owner that such accident occurred. Similarly "in this case we do not think the provisions of the Motor Vehicles Act were intended to enable the parties injured or the owner of the lorry to make a claim against the railway, simply because the accident arose out of the use of motor vehicle. In our view, the claims referred to in S. 110 are appliable only to cases of claims against the owner or the driver of the motor vehicle or the insurer as the case may be and not as against strangers. The proper forum for adjudicating the claim against the strangers is <ORG>. The jurisdiction of the Civil mCo is not, in our view, barred by S. 110F of the Act".

9. A single Judge of <ORG> in <CITATION> , 1982 ACJ 99: (AIR 1982 Him Pra 11), while considering the contention of the claimant that he be awarded compensation against <ORG> as it had failed to maintain the road because it was the sagging of the road that had led to the accident held that the respondent-State of Himachal Pradesh although being, the owner of the road and responsible for its maintenance might be liable in fort for such a claim but on a consideration of the scheme of the Act and the context in which S. 110 appears, the jurisdiction of <ORG> appointed under S. 110 of the Act, is restricted to entertaining claims and giving awards only against the insurers, owners and drivers of the vehicles involved in the accidents and not against any other persons and a close scrutiny of the provisions of Ss. 110 to 110B appears to lend ample support to that view.

10. The learned single Judge of <ORG> in <CITATION> , 1982 ACJ 374: (AIR 1982 Del 282) too had to deal with a like contention. In the case before him, scooter had fallen in a pit on the road as result whereof the claimant was injured. He sought compensation before <ORG> whose duty it was to maintain the roads. The learned Judge held that in view of the provisions of S. 110B , the remedy of the owner, if any against the respondents lay before <ORG> and not before the <ORG>. The learned Judge approvingly quoted the view taken by <ORG> in Swaranalata's case (AIR 1974 Gauhati 31)(supra) and <ORG> <ORG> case (AIR 1975 Andh Pra 222)(supra).

11. <ORG> in <CITATION> , AIR 1982 All 310 however, took a different view of the matter. The question that arose for consideration of <ORG> in <NAME> case (supra0 was as to whether <ORG> had the jurisdiction to entertain a claim against the railway. The facts of the case were that various claimants were travelling by a Tempo-Taxi, which collided with the Allahabad-Saharanpur passenger at Sarai Gopal Railway crossing. As a result, the claimants sustained bodily injuries. The claimants filed claim petitions before the <ORG> against both the owner of the tempo-taxi as well as the applicant namely <ORG> represented by the General Manager, <ORG>. In the claim petiton it was alleged that the accident had occurred due to the negligence of the employees of the railway staff at the aforesaid railway crossing. The employees had wrongly kept the level crossing wide open for the highway traffic to apss at a time when the aforesaid train happened to be passing through that point.

12. It was asserted on behalf of <ORG> that the claim against the railway was only triable before <ORG>. <NAME>, J. who delivered the opinion for the Bench held that <ORG> had the jurisdiction to adjudicate upon the claims for compensation agtainst the railway in the case in hand and that the provisions of S. 110B of the Act did not limit the jurisdiction of the <ORG> to the awarding of compensation against persons other than those mentioned in the said section. The following observations of <NAME>, J. ion this regard can be noticed with advantage:--

"11. Then there is S. 110B on which the applicant mainly relies. It reads thus:--

"110B. Award of <ORG>--On receipt of an application for compensation made under S. 110A , <ORG> shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make any award determining the amount of compensation which ppears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award <ORG> shall specify the amount which shall be paid by the insturer or owner or driver of the vehfile involved in the accident or by all or any of them as the case may be".

12. We are clearly of the opinion, upon an provisions and the scheme of the enactment as projected by these provisions, that <ORG> constituted under the Act is empowered to adjudicate upon all claims for eompensation in respect of accident involving the death or the bodily injury to persons, where the accident arises out of the use of a motor vehicle and, that in awarding compensation in respect of such an accident <ORG> <ORG> is empowered to award compensation not only against the insurer and the owner and the driver of the motor vehicle but also against those on account of whose negligence the accident may have been caused. The words "in respect of accidents............... arising out of the use of the motor vehicle............" occurring in S. 110(1) are words of the widest possible amplitude. We see no reason either on the plain language of S. 110 or in any other allied provisions ofr the scheme of the Act as manifested by the relevant provisions, which may have inhibited or barred the jurisdiction of <ORG> to entertain an application for compensation in respect of third parties, in the present case, the <ORG>.

13. As mentioned above, the Motor Vehciles Act is a comprehensive Code. <ORG> have been constituted, in our opinion, to entertain all claims in respect of accidents arising out of the use of motor vehicle. It cannot be disputed that where the death or bodily injoury is caused to the claimant in an accident arising out of the use of motor vehicle and as a result of the negligence of the owner or the driver of the motor vehicle as well as of a third party, the claim so far as the owner or insurer or the driver of the motor vehicle are concerned would lie before <ORG> under the Act in terms of S. 110 . The civil Court will indisputably have nojurisdiction to entertain the claim against the insurer or owner or driver in view of the express bar imposed by S. 110F .

14. If, therefore, were to accept the submission of the applicant it must follow as a necessary corollary that in regard to the same accident as against the third party, the claim would lie elsewhere, namely, the civil <ORG>. In theat event it would not be difficult to see that two conflicting decisions are likely to come into existence. The <ORG> may hold the driver of the motor vehicle wholly at fault and responsible for the accident and on that ground award compensation against the owner of the motor vehicle or the driver or the insurer. The Civil. <ORG> may, on the other hand seized of the case againt the third party in respect of same accident, may come to an exactly opposite conclusion and hold some one else responsible for the accident and bodily injuries to the claimant.

15. Such a result cannot have been intended by the legislature. On the plain language of S. 110 , therefore, we have no hesitation in coming to the concludion that the claims in question were maintainable against the <ORG>. In our opinion a complete adjudication of all the claims for compensation in respect of an accident arising out of the use of the motor vehicle was intended to be provided for under the Act and consequently unless all the parties involved in the accident are arrayed as opposite parties before the same forum and are heard on the question of negligence, the matter cannot be property and effectively disposed of. For, otherwise, if the claimant is compelled to institute his claim before the <ORG> only against the owner and drived of the vehicle and insurer and is left to sue the remaining persons responsible for the accident the adjudication cannot be said to be complete and final.

Under the Circumstances, the only reasonable interpretation which has appealed to us it that suggested by the learned counsel for the claimants, namely, that the claims were maintanable against the <ORG> also.

16. We may now turn to S,. 100B to see whether there is anything therein whichmight be construed as restricting them ambit of S. 110 . The first part of S. 110B has been expressed in general terms. It provides that <ORG> shall after giving the parties an opportunityof being heard hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specify the person or persons to whom compensation shall be paid. In the first part, which is the substantive part, there is no indication that <ORG> cannot award any compensation against persons other than the insurer or the owner or thedrive fot he motor vehicle. Stress was, however, made on the second part of S. 110B which provides that in maing the award <ORG> shall specify the amount which shall be paid by the insurer or the owner or the driver of the vehicle in question. It was submitted that this limits the power of <ORG> only to these three classes of persons.

17. We are unable toaccept the above contention,. "The second part of s. 110 comes into operation and is attracted only because it is necessary to approtion the liability between the insurer or the owner is accordance with the relevant provisions of the Act specifying the limits of liability of the insurer. It does not in our opinion, in any way curtail or restrict the power of <ORG> to award compensation against a third party who may be found to have contributed to the accident involving the death or bodily injuries to persons arising out of the use of the motor vehcile. In our opinion, the second part of S. 110B enjoins the <ORG> to approtion the liability between the insurer and the owner of the vehicle, where the <ORG> holds the owner or the driver responsible for the injury caused to the claimant".

With respect, I entirely concur in the view that <NAME>, J. has taken and the reasoning adopted by him and further find myself unable to concur in the view taken by the Gauhati, Andhra Pradesh, Himachal and Delhi <ORG> min thecases referred to above.

13. Section 110A indicates the person or persons who could invoke the jurisdiction of the <ORG> S. 110B , however, is not enacted by the <ORG> in my opinion to indicate the persons against whom the compensation could be claimed. The said provision merely envisaged that in the event of a finding that an owner or driver of the vehicle was liable to pay compensation then it could specify the amount which the insurer, if any, and the owner and the driver was to pay. In a given case the insurer of the vehicile may not be liable to pay the entire compensation amount which had been found to be payable as a result of the negligence of the driver of the vehicle and so a <ORG> has to additionally specify as to what amount the driver has to pay. Also in a given case, an award can be made only against the driver and the insurance company See 1967 Accomadation C J. 312 (Punj). In such a case the limit of the liability of the driver and the insurer too may have to be fiexed by the <ORG>, if the Statute had fixed the outside limit of theliability of the insurer.

14. I see no reason as to why <ORG> cannot award compensation against the owner of the tree if the accident resulted from th falling of the tree or against the owner of the building if the accident resulted from the falling of the building on the car and from the owner of the road if the accident resulted as a result of non-maintenance of the road in proper condition, if the allegation in the petition is that the accident occurred as a result of the negligence of the owner of the tree or the owner of the building or the owner of the road or the persaon whose liability it was to maintain the road in proper condition.

15. In the case in hand, it cannot be denied that the accident arose out of the use of the motor vehicle i.e., the accident arose as a result of the use of the motor vehicle.

16. In the case in hand, the <ORG> had the jurisdiction to identify the fault of the parties in question. In case it finds that the staff of the <ORG> was at fault and the acccident had occurred as a result of their negligence, then the <ORG> is entitled to award compensation to the claimants gainst the respondents. if, on the other hand, it holds that the accident had occurred as a result of the negligence of the driver of the motor amount that is payable in terms of S. 110B of the Act.

17. For the reasons aforementioned, I hold that if it is alleged that claim for compensation arose in respect of an accident arising out of the use of motor vehicle, then <ORG> would have the jurisdiction to adjudicate upon t eh claim and award compensation against the party whom it finds to be responsible for the accident and further specify the amount of compensation in terms of s. 110B , if the said provision is found to be attracted to the facts of the given case.

18. In the result, I set aside the order and finding given by the <ORG> and remit the case to the <ORG> to proceed with the matter in accordance with law and the observations made in this judgment. No costs.

<NAME>, J.

19. This claim petition under Motor Vehicles Act filed by the appellant for the grant of compensation for personal injuries and the damage caused to his car was dismissed by the <ORG> on a preliminary objection that it has no jurisdiction to entertain and try the same. Aggrived thereby he has come up in this appeal. The matter came up for hearing in the first instance before a learned single judge who referred it to <ORG>. <ORG> further referred it to <ORG> in view of the conflict of view between the <ORG> decisions of various <ORG>.

20. The claimant along with <NAME> on June 23, 1979 was returning from Panchkula to Chandigarh in Car No. CH 8851 driven by him at about 1. 30 a. m. When he was crossing Gate No. 121 on Panchkula-Zirakpur Road a railway train struck against his car. It was alleged that the engine was without lights, the <ORG> crossing gate was lying open and there was no red light to stope traffic on either side of the gate. It was pleaded that the accident was caused entirely due to the carelessness and negligence of the <ORG> authorities including the driver of the train and the gateman.

21. The claim was contested by the respondent who raised a preliminary objection that <ORG> had no jurisdiction to entertain and try the claim against them which was sustained and the petition dismissed.

22. The claims arising out of motor accidents being causes of civil nature used to be instituted and tried by <ORG>. the Legisdlature in view of ever increasing accidents caused by indisciplined and fast moving traffic enacted Motor Vehicles Act (No. 100 of 1956) to ameliorate the suffereings of injured and dependent claimants of the deceased and to provide cheaper and speedier remedy to them. By virtue of the provisions of S. 110 . Motor Vehicles, Act, substituted by the Amendment Act in place of the original section, the State Government were empowered to constitute one or more Motor Accident Claims Tribunals for purposes of adjudicating upon clims for compensation in respect of accidents involving death or bodily injury to persons arising out of the use of motor vehicles or damages to the property of third party or both. It was further provided by s. 110F that where <ORG> 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 <ORG> for that area.

23. The precise point raised and canvassed befoer the <ORG> was that uness the alleged accident had occurred out of the use of a motor vehicle which necessarily means its negligent driving, the claim would not lie with the <ORG> and instead would be entertainable by the civil Court alone. so, it was contended that the <ORG> would have no jurisdiction to entertain the claim where the allegationn is that the accident took place because of thenegligence of any other authority in the maintenance of the the road or any other such like cause. The contention prevailed with most of the High Courts till a discordant note was struck by <ORG> in <CITATION> , AIR 1982 All 310.

24. For the first time, this matter came up before a Division Bench of <ORG> in <CITATION> ., AIR 1974 Gauhati 31, though in an indirect way. The accident in that case had taken place between tje nis amd tje Railway trian on a Railway crossing. The claim was filed against the owner of the bus and <ORG> alleging that the accident had taken place because of the negligence of the driver of the bus. One of the pleas raised in the defence was that the accident took place not due to the negligent driving of the bus, but because of the negligence on the part of the Railway authorities in leaving the gate at the level crossing unmanned. An objection ancillary to this plea made was that eh Railway authority was a necessary party and in its absenceo the claim petition could not be tried. After noticing the provisions of s. 110B and S. 110F , the Bench overruled the objection in the following terms:--

"From the scheme of this group of sections it will be clear that the claims tribunals have compensation for death of or injury to persons arising out of use of motor vehicles. The <ORG> has got no jurisdiction to enforce any such claim against any other person or authority except the owner, the driver and the insurer of the motor vehicle involved in the accident, as will be evident from the provisions of S. 110B . The being the legal position, there was no scope for the petitioners to implead <ORG> in these proceedings before the Claims <ORG>. If they have been able to prove that the accident arose out of any negligence of rashness in the use of the motor vehicle, they will succeed, otherwise they will fail. In this view of the case I hold that the claim petitioners are not bad for non-joinder of <ORG>".

Though there is no detailed discussion or reasoning for the view expressed, but apparently the learned Judges relied on the provisions of s. 110B to hold that the <ORG> under the act has no jurisdiction to enforce a claim against any other person or authorty except the owner, the driver and the insurer of the motor vehicle involved in the accident.

25. In <ORG> Commissioner. <CITATION> , AIR 1975 Andh Pra 222, a collison took place between a goods train and a lorry on accoungt of which the owner of the lorry and <ORG> had to deposit certain amounts under the Workmen's Compensation Act for the deaths of some labourers and the injuries to theothers. Later on, the owner and the Insurance company filed a suit for the recovery of those amounts from <ORG> alleging that the accident had taken place because of the negligence of the employees of the <ORG>. At the appellate stage, an objection was raised that the claim having arisen out of the use of a motor vehicle was triable only by the <ORG> and not by <ORG>, and the Division Bench overruled the same observing thus:--

"It is tue that the jurisdiction of <ORG> under S. 110 is stated to be to adjudicate upon claims in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles. It is therefore submitted that it would include a clim against any person provide that the accident arose out of the use of a motor vehiclause But if we have regard to the scheme of the Act and the context in whichS. 110 appears, it is clear that the claim referred to in the section can have reference only to claims against the owner or the driver of themotor vehicle concerned in the accident. It could not have been the intention of the framers of the Act to include claim against other persons as well. The Motor Vehicles Act is an Act to consolidate and amend the law relating to motor vehicles. This section occurs in the chapter dealing with insurance of motor vehicles against third party risks. The object behind this section is to provide for a speedy and effective machinery for persons injured in accidents arising out of the use of the motor vehicles against the owners and drivers and insurers of motor vehicles. To accept the contention of the learned counsel for the respondent that it would include claims against all persons would lead., in our view, the consequences which were never contemplated by the framers of the Motor Vehicles Act . For instance, a person proceeding in a motor vehicle may be injured by an accident resulting from the fall of a tree or the collapse of a building. It cannot bessaid that the occupants can lay a clim in the <ORG> constituted under the Motor Vehicles Act against the owners of thebuilding or of the tree. if it was due to the negligence of such owner that such accident occurred. Similarly in this case, we do not think the provisions of the Motor Vehicles Act were intended to enable the parties injured or the owner of the lorry to make a claim against the railway, simply because the accident arose out of the use of a motor vehicle. In our view, the claims referred to in S. 110 are applicable only to cases of claims against theowner or the driver of the motor vehicle or the insurer as the case may be and not as against strangers. The proper forum for adjudicating the claim against the strangers is a civil Court. The jurisdiction of <ORG> is not in our view barred by S. 110F of the Act".

26. <CITATION> , 1982 Accomadation CJ 99: (AIR 1982 Him Pra 11), a truck belonging to <ORG> fell down into a deep khud near Ganasidhar resulting in the death of the driver and the owner of the goods. The claim petition filed before the <ORG> was dismissed on the finding that the accident had happened on account of giving way of false projection of the road which was supported on wooden logs and not due to the negligence of the truck driver. In the appeal before <ORG> an alternate plea was raised that even if the accident be taken to have occurred on account of sagging of the road, the <ORG> would be liable in tort to pay the compensation being owner of the road. The plea was turned down holding that the <ORG> has no jurisdiction to entertain any claim against the <ORG> as owner of the road for the following reasons:--

" Section 110 empowers the State government to appoint <ORG> for the purpose of adjudicating upon claims for compensation in espect of accidents 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 and to define the local limits of their jurisdiction. S. 110A enumerates the persons who are competent to apply for grant of such compensation to such Triunals. This section further provides that an application for compensation of the type mentioned above shall be made in such form and shall contain such particulars as may be prescirbed,. It also provides for the period of limitation within which an application for compensation can be made before the <ORG> and further empowers the <ORG> to condone the delay if sufficient cause is shown. s. 110B which is imporrtant from the point of view for the issue in hand, requires the <ORG> to hear the parties, hold an enquiry into the claim and to make its award determining the amount of compensation which appears to it to be just. After the <ORG> makes is award so determining the amount of compensation, it is further required to specify the person or persons rto whom the compensation shall be paid"

27. <CITATION> , 1982 Acc CJ 374: (AIR 1982 Delhi 282), the claimant alleging that while he was going on his scooter on the ring road at about 10 p. m. the front wheel of the scooter fell in a pit on the road and overturned resulting in grievous injuries to him, filed a claim petition against <ORG>, Delhi, to recover Rs. 25,000/- by way of compensation. It was held that the Tribunal has no jurisdiction to entertain the claim on the grounds that if the opposite party had no connection with the vehicle involved in the accident, he cannot be made liable under the Act; and that hte jurisdiction of <ORG> to award compensation is restricted against driver, owner or the insurer of the vehicle involved in the accident as mentioned in s. 110B of the Act.

28. As noticed above, <ORG> of <ORG> in <NAME> case (AIR 1982 All 310) (supra) for the first tribunal is empowered to award compensation not only against the insurer, the owner and the driver of the motor vehicle, but also against the <ORG> on the following ratio:--

"<ORG> constituted under the Act is empowered to adjudicate upon all claims for compensation in respect of accident involving the death or the bodily injury to persons, were where the accident arises out of the use of a motor vehicle and, in awarding compensation in respect of such an accident <ORG> is empowered to awared compensation not only against the insurer and the owner and the driver of the motor vehicle but also against those on account of whose negligence the accident may have been caused. The words "in respect of accidents....... arising out of the use of the motor vehicle.... occurring in S. 110(1) are words of the widest possible amplitude. There is no reason eithr on the plain language of S. 110 or in any other allied provisions or the schme of the Act as manifested by the relevant provisions, whichmayhave inhibited or barred the jurisdiction of <ORG> to entertain an application for compensation in respect of third parties in the present case, the <ORG>.

The second part of S. 110B which provides that in maing the award <ORG> shall specify the amount which shall be paid. by the insurer or the owner or the driver of the vehicle in question does not in any way curtail por restict the power of <ORG> to award compensation against a third party who may be found to have contributed to the accident. Where the driver or the owner of the motor vehicle is found to have been negligent and the injuries are found to have been caused as a result of that negligence, the liability has necessarily to be apportioned between the insurer and the owner in view of the provisions of the Act. It was to give effect to this statutory requirement that the second part of S. 110B enjoins the <ORG> to apportion the liability between the insurer and the owner of the vehicle, where <ORG> <ORG> holds the owner or the driver responsible for the injury caused to the claiment. s. 110B, thus, does not curtail the width or amplitude of S. 110 which is the source of power of <ORG> under the Act.

Moreover, a complete adjudication of all the claims for compensation in respect of an accident arising out of the use of motor vehicle was intended to be provided for under the Act and consequentloy unless all the parties involved in the accident are arrayed as opposite parties before the same forum and are hear on the question of negligence, the matter cannot be properly and effectivly disposed of. For, otherwise, if the claimant is compelled to institute his cloaim before the <ORG> only against the owner anhjd driver of the vehicle and insurer and is left to sue the remaining person responsible for the accident, the adjudicaion cannot be said tobe complete and final".

29. Relying on the above observations in <NAME> case, (AIR 1982 All 310)(supra), my learned brother <NAME>, <NAME> has opined that a clim for compensation would be trible by the <ORG> so long as the death or the injuries are stated to have been caused while the deceased or the injured was travelling in a motor vehicle no matter whether the accident took place because of the negligence of the driver of the motor vehicle or any foreign anency. With utmost respect I find it difficult to go so far and, in my view, the claim petition would be entertainable by the <ORG> under the Act only if the accident is alleged to have taken place because of the negligent dirving of the motor vehicle, though in the alternative the plea may be that the accident too,k place because of the composite negligence or the negligence of an age4ncy other than in the driver of the motor vehicle./ If primarily the accident is alleged to have taken place because of the negligent driving of the nmotor vehicle, the claim would be maintainable even against the agencies other than the driver, the owner and the insurer of the motor vehicle if compensation is claimed against the them in the alternative or jointly with the former because of composite negligence.

30. In all the above nnoted cases in which the view has been taken that a claim petition against the persons other thant he owner, driver and the instuer is not maintainable before the <ORG> under the Act, reliance has been placed on that part of s. 110B which provides that that in maing the award the Claims <ORG> shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of thme, as the case may be. This provision, in my view, in no way indicates either that the jurisdiction of the Claims <ORG> is confined to give award against the insurer, or owner or driver or curtails the jurisdiction conferred on the <ORG> under the earlier portion of the section which authorises him to determine the amount of compensation to be payable to the claimants or any one of them. The latter portion of this section requires specification of the liablity amongst the insurer or owner or driver because it hbas reloevancy only mongst them. On the question of apportionment, if the liability is found to be composite of the owner, driver or insurer of the vehicle on the one hand and some other party on the other, the question of apportionment between the two set of parties would not arise. Similarly, if the liability to pay compensation is entirely fixed on a party other than the owner, driver or the insureer of the motor vehicle, again the question of apportionment would not airse. It is for this reason that the apportionment clause is confined to the insurer or owner or driver of the vehicle and the other persons are not named in the provision and not because the intention was to limit jourisdiction of the<ORG> to award compensation against the said three persons only.

31. Now, take for example, when accident is proved to have taken place because of the negligence of the driver, th owner may plead that he is not vicariously liable for the negligence because the driver was acting beyond his duties or against his instructions. Similarly, Insurer can take the plea that the driver was an unlicensed driver or that he was using the vehicle for an unauthorised purpose when the accident took place. Also the insurer is entitled to plead that his liability is limited to certain extent according to the insurance policy or the provisions of the statute. In all such cases, the <ORG> would be called upon to specify as to who was liable and to what extent, to pay the amount of compensation assessed. But if there is a conclict between the said three persons on the one hand and some other person on the othe rsuch as <ORG> employee or the agency responsible for maintaining the road etc., the question of specification of the amount payable by each set of the parties would not arise because so far as the joint tort feasers are concerned all of them would be liable jointly and severally so far as the claimants are concerned. The answer to the problems, therefore, entirely depends on the interpretation of S. 110 under which the Claims <ORG>s are set up and conferred with the jurisdiction to deal with the claims for compensation. According to this provision, the Claims <ORG> is set up to adjudicate upon claims for compensation in respect of the accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehciles, or damages to any property of a third party so arising., or both. So, the <ORG> has not been conferred with the jurisdiction to deal with the claims of compensations in respect of all kinds of accidents. Instead, its jurisdiction is confined to claims of compensation in respect of those accidents which arise out of the use of motor vehicles. In other words, the use of motor vehicle must be the cause of the accident howsoever slight it may be and unless the accident the effect caused by the use of the motor vehicle it would not be possible to say that it has arisen out of the use of motor vehicle. The interpretation of similar words came up for consideration before <ORG> of <ORG> in <ORG> v. <NAME> & Leoyd Pty. Letd., 1967 Acc CJ 329. The words used in the insurance policy were "injury caused by or arising out of the use of the vehicle". <NAME>, J. wyhile agreeing with the judgment written by <NAME>. <NAME> observed:--

"The words, 'injury caused by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury'. Caused by connotes a 'direct' or 'proximate' relationship of cause and effect. 'Arising out of extends this to a result that is less immediate; but it still carries sense of consequence. It excludes cases of bodilyinjury in which the use of the vehicle is a merely causal concomitant not considered to be, in a relevant causal sense, a contributing factor".

32. As stated above, mylearned brother <NAME>, <NAME> has relied on <NAME> case (AIR 1982 All 310) (supra) for laying down the proposition that the claim would be triable by the <ORG> if in the accident a motor vehicle is involved, nomatter whether the accident has been caused by use of the motor vehicle or not. However, a close analysis of the facts and the observations made in the said case would show that the learned Judge there even did not go that fair. The claim was filed in that case both against the owner of the tempo-taxi as well as <ORG> represented by the General Manager, <ORG> which would necessarily mean that the allegation of negligence was both against the driver of themotor vehicle as well as the <ORG> authorities, may be in the alternative or in composite form. The conclusion arrived at by the Bench was also that in the Circumstances the only reasonable interpretation which appealed to them was the one suggested by the learned counsel for the claimants, namely, that the claims were maintainable against the <ORG> also. It is, therefore, apparent that neither there wass any question before the said Bench as to whether the claim would be maintainable against the <ORG> authorities alone nor any opinion was expressed in this regard. The observation of the Bench in that case that they saw no reason either on the plain language of S. 110 or in any other allied provision or the scheme of the Act as manifested by the relevant provisions, which may have inhibited or barred the jurisdiction of the Claims <ORG> to entertain an pplication for compensation in respect third parties, that is the <ORG>, have to be appreciated in the context of the facts there. When so done, it wouldbe evident that the observations related to a case where them claim was of composite, nature and not against a third party alone, that is, the <ORG>. I am, therefore, of the considered view that nothing said even in <NAME> case (supra) can be understood tomean that the claim petition would been entertainable by the <ORG> where the motor vehicle has not contributed to the cause, howsoever slight it may be, of the accident resultinhg in the death or bodily injury.

33 The claim in the present case has been filed against <ORG> laone alleging that he accident took place entirely becaue of their carelessness and negligence and that of the driver of the train and the gateman. There being no allegation that the motor vehicle in any way contributed to the cause of the accident, it cannot be said that the same had arisen out of the use of the motor vehicle. As such the present claim would not be entertainable by the <ORG> and instead would be competent only in <ORG>. This appeal, therefore, must fail and is accordingly dismissed. No costs.

<NAME>, <NAME>

34. I have the privilege to go through the judgments prepared by <NAME> and <NAME>. separately. On giving my thoughtful consideratio. I agree with the view taken by <NAME>, J.

35. In view opf majority judgment, the appeal fails and is accordingly dismissed. No. costs.

36. Appeal dismissed.