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Occupants’ Rights Upheld: Supreme Court Orders Rehabilitation or Compensation Under Town Planning Scheme.

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CASE TITLE – Jaffar Ali Nawab Ali Chaudhari & Ors. v. The Municipal Corporation of Greater Mumbai

CASE NUMBER – Civil Appeal No.… of 2023 (Special Leave Petition (C) No. 4441 of 2020)

DATED ON – 06.11.2023

QUORUM – Justice Vikram Nath & Justice Rajesh Bindal

 

FACTS OF THE CASE

The appellants were found to be in possession of the property in dispute from the year 1976 onwards. It was even assessed to tax by the Municipal Corporation. The litigation started with the issuance of notice dated 20.02.2001 under Section 314 read with Section 394 of the Mumbai Municipal Corporation Act, 1888 to Nawab Ali Suleman, predecessor-in-interest of the appellants. The same was challenged by filing a Civil Suit, which was decreed on 27.03.2003 restraining the Corporation from taking any action against the occupants in pursuance of notice dated 20.02.2001. Subsequent thereto, fresh notices dated 17.01.2004 and 22.06.2007 were issued to the predecessor-in-interest of the appellant under Section 89 read with Section 165 of the Act. Earlier notice was replied to on 22.01.2004. However, still without considering the reply filed by stand taken by the predecessor-in interest of the appellants in pursuance to notice dated 17.01.2004, an order was passed on 25.06.2007 under Section 89 of the Act calling upon him to surrender possession of the plot. The same was challenged by filing the Civil Suit. During the pendency of the aforesaid suit, Nawab Ali died, and the appellants were brought on record as his legal representatives. The suit was decreed by the Trial Court on 29.09.2011 holding notices dated 17.01.2004 and 22.06.2007 and order dated 25.06.2007 illegal. The respondent being aggrieved against the judgment and decree of the Trial Court preferred appeal before the High Court. The appeal was accepted by the High Court. The aforesaid judgment and decree of the High Court was impugned in this said appeal. The short argument raised by learned counsel for the appellants is that in terms of the Town Planning Scheme, as notified on 01.08.1994 and the subsequent circulars issued by the Corporation from time to time, the appellants who are in possession of the property in dispute are entitled to be rehabilitated or paid compensation. The genuine claim of the appellants is not being considered though undisputedly they were found to be in possession of the property in dispute from the year 1976 onwards.

 

ISSUE

Whether it is within the Appellants’ rights to ask for consideration of their claim either for allotment of an alternative site or compensation for the premises in their use and occupation.

 

COURT ANALYSIS AND JUDGEMENT

After hearing learned counsel for the parties, The Hon’ble Supreme Court stated that the present appeal deserves to be allowed without going into much details for the reason that admittedly, the appellants were found to be in possession of the property in dispute from the year 1976 onwards as per census certificate dated 24.05.1978. They further stated that in terms of the Town Planning Scheme, notified on 01.08.1994 and subsequent circulars, the claim of any occupant of the property is required to be considered for rehabilitation or for payment of compensation. The appellants are still in possession of the property, which is stated to be coming in the alignment of 60 feet T.D. Road. It was noted that the only prayer of the appellants is that their claim for rehabilitation or payment of compensation be considered in terms of the Town Planning Scheme, which has not been considered. The Hon’ble Supreme Court held that instead of relegating the parties to litigate further, the present appeal can be disposed of with a direction to the Corporation to consider the claim of the appellants in terms of the Town Planning Scheme either for rehabilitation or payment of compensation, and that the needful shall be done within a period of three months from the date of receipt of copy of the order.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Gauhati Court Rules Driver’s Negligence Responsible for Accident: NFR Not Liable for Compensation in Unmanned Railway Crossing Case  

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Case title:  UNION OF INDIA & ANR VS PARTHIVJYOTI SAIKIA

Case no.:   Case No.: MACApp. /349/2013                       

Dated on:  28th May 2024

Quorum:  Hon’ble. MR Justice PARTHIVJYOTI SAIKIA

FACTS OF THE CASE

This is an appeal under Section 173 of the Motor Vehicles Act challenging the judgment and order dated 19.07.2013 passed by the Motor Accident Claims Tribunal, Tinsukia in MAC Case No.23/2010. On 13.11.2009 at about 6.18 P.M., late Bibhnu Bharali was travelling insides the driver’s cabin of the TATA Magic ACE Pick Up vehicle bearing Registration No.AS-23 AC-0846. The vehicle was driven by Lok Bahadur Chetri. The handyman Hori Sonar was also present inside the cabin along with the deceased and the driver. When the vehicle tried to cross one unmanned Railway crossing near Laipuli, a train coming from Lidu towards Dibrugarh had hit the aforesaid vehicle. The deceased sustained grievous injuries and succumbed to his injuries. Therefore, Smt. Rekha Bharali, the wife of the deceased, his two children and his parents filed a claim petition before the Tribunal seeking compensation. Shri Bharat Bharali and Shri Lok Bahadur Chetri, the owner and the driver of the vehicle bearing Registration No.AS-23-AC-0846, the Insurance Company of the said vehicle and the present appellant were arraigned as defendants in that case. In his written statement, Shri Bharat Bharali has claimed that his vehicle was insured with a valid Insurance Policy. He, therefore, claimed that the Insurance Company is liable to pay compensation. The driver Lok Bahadur Chetri has stated in his written statement that he did not notice the incoming train due to heavy fog. He further claimed that the train did not use its horn. The National Insurance Company Limited in its written statement has pleaded that since the vehicle bearing Registration No.AS-23-AC-0846 was a goods carrying commercial vehicle, it cannot carry passengers. The appellant Union of India has stated in his written statement that the incident took place because of carelessness and negligence of the driver of the vehicle bearing Registration No.AS-23-AC-0846. On the basis of the evidence on record, the Tribunal directed the National Insurance Company Limited to pay compensation of ₹4,03,550/- to the claimant along with interest @ 6% per annum. The Tribunal further directed the present appellant to pay an amount of ₹4,03,550/- to the claimant along with interest @ 6% per annum.

ISSUES

  • Whether Bibhnu Bharali @ Bishnu Bharali died on 13.11.2009 as a result of rash and negligent driving of TATA Magic ACE Pick Up vehicle bearing Registration No.AS-23-AC-0846?
  • Whether the claimants are entitled to get any compensation? if so, to what extent and from whom?
  • Whether the accident occurred as a result of negligent act of NF Railways?

LEGAL PROVISIONS

Motor Vehicles Act, 1988

Section 173: Appeals This section allows any person aggrieved by an award of a Claims Tribunal to appeal to the High Court. The appeal must be filed within 90 days from the date of the award.

Section 173 of the Motor Vehicles Act, 1988: Governs the appeal process.

Section 161 of the Railways Act, 1989: Establishes the duty of care required at unmanned level crossings and defines the negligence that contributed to the accident.

Railways Act, 1989

Section 161: Negligently crossing unmanned level crossing This section penalizes anyone who negligently crosses an unmanned level crossing. Punishment: Imprisonment which may extend to one year.

Negligence Defined: Crossing without stopping or caring to stop the vehicle to observe for any approaching train. Crossing even when an approaching train is in sight.

CONTENTIONS OF THE APPELLANT

Ms. Chakraborty has pointed out to Section 161 of the Railways Act, 1989, which states that if any person driving or leading a vehicle, is negligent in crossing an unmanned level crossing, he shall be punished with imprisonment which may extent to one year. At this stage, a brief visit to Section 161 of the Railways Act, would be fruitful, it reads as under: “161. Negligently crossing unmanned level crossing. — If any person driving or leading a vehicle is negligent in crossing an unmanned level crossing, he shall be punishable with imprisonment which may extend to one year. Explanation. —For the purposes of this section, “negligence” in relation to any person driving or leading a vehicle in crossing an unmanned level crossing means the crossing of such level crossing by such person— (a)without stopping or caring to stop the vehicle near such level crossing to observe whether any approaching rolling stock is in sight, or (b)even while an approaching rolling stock is in sight. According to Ms. Chakraborty, Lok Bahadur Chetri, the driver of the vehicle bearing Registration No.AS-23-AC-0846 never stopped or cared to stop the vehicle near the level crossing to observe whether any approaching train was in sight. The learned counsel further submitted that it is the fault of the driver for which the accident took place.

CONTENTIONS OF THE RESPONDENTS

No representation.

COURT’S ANALYSIS AND JUDGEMENT

 I have considered the submissions of Ms. Chakraborty. The driver Lok Bahadur Chetri has stated in his evidence that when he had reached the level crossing, the headlights of his vehicle were in switched on mode. He further stated that before crossing the Railway crossing, he did not stop the vehicle but he had looked towards Dibrugarh direction and his handyman had looked towards Lidu direction. When they found no train on the track, they proceeded towards the level crossing. The driver further stated in his evidence that just before him, an Army truck had crossed the Railway unmanned level crossing and he just followed that truck. Immediately, a train coming from Lidu direction had hit his vehicle. The driver has stated in his evidence that he never heard the sound of an incoming train nor he had heard the whistle of the train. In this case, except Lok Bahadur Chetri, there are no eye witnesses to the occurrence. Section 161 of the Railways Act, 1989, makes it compulsory for the drivers of every vehicle crossing an unmanned level crossing, to stop and to observe whether any train is coming, before crossing the level crossing. The driver Lok Bahadur Chetri has stated in his evidence that he did not stop his vehicle before crossing the level crossing. He has stated that though he did not stop before crossing the level crossing, he had looked for incoming train in the direction of Dibrugarh while his handyman had looked towards Tinsukia/Lidu direction. The driver further stated that when he and his handyman did not see any incoming train, he took the vehicle forward for crossing the level crossing. At this stage, I find it hard to believe that the driver did not hear the sound of a huge incoming train. Now, it is clear on the face of the record that the driver Lok Bahadur Chetri had violated the provision of law as laid down in Section 161 of the Railways Act, 1989. It is proved that the accident took place because of the negligence of Lok Bahadur Chetri who was driving the vehicle bearing Registration No.AS-23-AC-0846. In that case, the appellant NF Railways is not liable to pay any compensation to the claimant. For the aforesaid reasons, the appeal is allowed. The impugned judgment and order dated 19.07.2013 passed by the learned Motor Accident Claims Tribunal, Tinsukia in MAC Case No.23/2010 directing the appellant NF Railways to pay a compensation of ₹4,03,550/- to the claimant(s) along with interest @ 6% per annum, is set aside. The MAC Appeal is disposed of.

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Judgement Reviewed by – HARIRAGHAVA JP

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Indigency Status Misjudged: Supreme Court Sets Aside High Court Order; Urges Quick Appeal Decision.

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CASE TITLE – ALIFIYA HUSENBHAI KESHARIYA v. SIDDIQ ISMAIL SINDHI & ORS.

CASE NUMBER – (Neutral Citation: 2024 INSC 457)

DATED ON – 27.05.2024

QUORUM – Justice J.K. Maheshwari & Justice Sanjay Karol

 

FACTS OF THE CASE

The appellant, who was the original claimant before the Motor Accident Claims Tribunal, [Court of Motor Accident Claims Tribunal (Auxiliary) & 10th (Adhoc) Addl. District Court Jude, Jamnagar] in M.A.C.P.No.255 of 2011, was injured in an accident on 4th July 2010, while riding pillion on a bike, which was hit by a truck. Having sustained injuries, she was admitted for medical treatment at a hospital for a period of fourteen days and subsequently she underwent plastic surgery. At the time of the accident, she was earning Rs.3,000/- per month, but, post the accident, she sustained permanent disablement, and hence had not been able to work thereafter. A claim was filed for Rs.10 lakhs with 18% interest and costs. The Tribunal vide Award dated 17th October 2016, awarded a sum of Rs.2,41,745/- with 9% interest from the date of claim petition till the date of realization and proportionate costs. Dissatisfied thereby, the claimant-appellant approached the High Court of Gujarat by way of Regular First Appeal No.2611/2017. Misc. Civil Application No.3/2018 was filed therein by which the claimantappellant prayed for permission to file the said First Appeal as an indigent person. The High Court vide judgment and order dated 7th August, 2018 dismissed the Misc. Civil Application

 

ISSUES

Whether the High Court of Gujarat had erred in it’s judgement and the Appellant should be recognized as an Indigent Person.

 

LEGAL PROVISIONS

Order XLIV Rule 3(2) of the Code of Civil Procedure, 1908, deals with determining the financial status of someone seeking to appeal as an indigent person.

 

COURT ANALYSIS AND JUDGEMENT

The High Court of Gujarat whose order has been impugned stated that “the applicant– appellant cannot be considered to be indigent person and therefore, he has to pay court fees first. The Learned counsel for the applicant, however, submitted that, till date, no amount is received by the applicant. It is open for the applicant to pursue the said remedy before appropriate forum. Present application cannot be entertained.” The Hon’ble  Supreme Court upon viewing this chose to first refer to one of it’sprevious judgements, where the definition of an Indigent Person was prescribed, “A person may proceed as poor person only after a court is satisfied that he or she is unable to prosecute the suit and pay the costs and expenses. A person is indigent if the payment of fees would deprive one of basic living expenses, or if the person is in a state of impoverishment that substantially and effectively impairs or prevents the pursuit of a court remedy.” The ground, upon which the claimant-appellant’s application to file the appeal as an indigent person was rejected, was that she had received compensation by way of the Award of the Tribunal, and therefore, she was not indigent. The Hon’ble Supreme Court found this observation to be belied by the impugned order itself as the learned Single Judge had recorded the submission of the counsel for the claimant-appellant that no money stood paid to her at that point in time. So even though she had been awarded a sum, her indigency was not extinguished thereby. And thereby, held that the High Court was incorrect in rejecting the Misc. Application. They further viewed Order XLIV Rule 3(2), of the Code of Civil Procedure, 1908, where it states that the inquiry into the question whether or not he is an indigent person shall be made by the Appellate Court. And noted that The Appellate Court, in accordance with the above, did not conduct any inquiry. The same was necessitated since nothing on record speaks of the claimant-appellant having filed the claim before the learned Tribunal as an indigent person. The Hon’ble Supreme Court stated that she had not yet received the money and, therefore, at the time of filing the appeal she was arguably indigent. And second, that the statutory requirement under the C.P.C., as described above, was not met , therefore, held that the order of the learned Single Judge has to be set aside, and allowed the Appeal. They also stated that since the Award was given in 2016, and the appeal to be recognized as an Indigent was rejected in 2018, the Hon’ble Supreme Court instructed the High Court that the appeal filed by the claimant-appellant be decided expeditiously, and preferably within a period of six months from the date of receipt of the copy of this judgment.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Indigency Status Misjudged: Supreme Court Sets Aside High Court Order; Urges Quick Appeal Decision.

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CASE TITLE – ALIFIYA HUSENBHAI KESHARIYA v. SIDDIQ ISMAIL SINDHI & ORS.

CASE NUMBER – (Neutral Citation) 2024 INSC 457

DATED ON – 27.05.2024

QUORUM – Justice J.K. Maheshwari & Justice Sanjay Karol

 

FACTS OF THE CASE

The appellant, who was the original claimant before the Motor Accident Claims Tribunal, [Court of Motor Accident Claims Tribunal (Auxiliary) & 10th (Adhoc) Addl. District Court Jude, Jamnagar] in M.A.C.P.No.255 of 2011, was injured in an accident on 4th July 2010, while riding pillion on a bike, which was hit by a truck. Having sustained injuries, she was admitted for medical treatment at a hospital for a period of fourteen days and subsequently she underwent plastic surgery. At the time of the accident, she was earning Rs.3,000/- per month, but, post the accident, she sustained permanent disablement, and hence had not been able to work thereafter. A claim was filed for Rs.10 lakhs with 18% interest and costs. The Tribunal vide Award dated 17th October 2016, awarded a sum of Rs.2,41,745/- with 9% interest from the date of claim petition till the date of realization and proportionate costs. Dissatisfied thereby, the claimant-appellant approached the High Court of Gujarat by way of Regular First Appeal No.2611/2017. Misc. Civil Application No.3/2018 was filed therein by which the claimant-appellant prayed for permission to file the said First Appeal as an indigent person. The High Court vide judgment and order dated 7th August, 2018 dismissed the Misc. Civil Application

 

ISSUES

Whether the High Court of Gujarat had erred in it’s judgement and the Appellant should be recognized as an Indigent Person.

 

LEGAL PROVISIONS

Order XLIV Rule 3(2) of the Code of Civil Procedure, 1908, deals with determining the financial status of someone seeking to appeal as an indigent person.

 

COURT ANALYSIS AND JUDGEMENT

The High Court of Gujarat whose order has been impugned stated that “the applicant– appellant cannot be considered to be indigent person and therefore, he has to pay court fees first. The Learned counsel for the applicant, however, submitted that, till date, no amount is received by the applicant. It is open for the applicant to pursue the said remedy before appropriate forum. Present application cannot be entertained.” The Hon’ble  Supreme Court upon viewing this chose to first refer to one of it’sprevious judgements, where the definition of an Indigent Person was prescribed, “A person may proceed as poor person only after a court is satisfied that he or she is unable to prosecute the suit and pay the costs and expenses. A person is indigent if the payment of fees would deprive one of basic living expenses, or if the person is in a state of impoverishment that substantially and effectively impairs or prevents the pursuit of a court remedy.” The ground, upon which the claimant-appellant’s application to file the appeal as an indigent person was rejected, was that she had received compensation by way of the Award of the Tribunal, and therefore, she was not indigent. The Hon’ble Supreme Court found this observation to be belied by the impugned order itself as the learned Single Judge had recorded the submission of the counsel for the claimant-appellant that no money stood paid to her at that point in time. So even though she had been awarded a sum, her indigency was not extinguished thereby. And thereby, held that the High Court was incorrect in rejecting the Misc. Application. They further viewed Order XLIV Rule 3(2), of the Code of Civil Procedure, 1908, where it states that the inquiry into the question whether or not he is an indigent person shall be made by the Appellate Court. And noted that The Appellate Court, in accordance with the above, did not conduct any inquiry. The same was necessitated since nothing on record speaks of the claimant-appellant having filed the claim before the learned Tribunal as an indigent person. The Hon’ble Supreme Court stated that she had not yet received the money and, therefore, at the time of filing the appeal she was arguably indigent. And second, that the statutory requirement under the C.P.C., as described above, was not met , therefore, held that the order of the learned Single Judge has to be set aside, and allowed the Appeal. They also stated that since the Award was given in 2016, and the appeal to be recognized as an Indigent was rejected in 2018, the Hon’ble Supreme Court instructed the High Court that the appeal filed by the claimant-appellant be decided expeditiously, and preferably within a period of six months from the date of receipt of the copy of this judgment.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Karnataka HC upholds that accidental fall from train entitles to receive compensation from the railway tribunals even if that falls within the ambit of “self-infliction”‘.

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Case title: Rojamani (since deceased represented by LRs) and Union Bank of India.

Case no: M.F.A. NO.3651/2016 (RCT)

Dated on: 19thApril, 2024

Quorum: The Hon’ble Mr. Justice H.P. Sandesh

Facts of the case:

On 22.02.14 the deceased Jayamma along with her sister went to Channapatna railway station and purchased the railway ticket to go to Ashokapuram Mysore. Both the of them had to board the Tuticorin express and realised that the said train would not go to Ashokapuram they alighted from the train while alighting the deceased lost her balance and sustained injuries resulting in her death. The respondent railway disputed the claim and denied their liability by stating that the death was not due to accidental fall, within the Section 123 of the railway Act alighting from train which amounts to self-inflicted injuries by virtue of provision of sect124 of railway act. The railway tribunal while affirming that deceased was a bona-fide passenger but denied the compensation on the grounds that the fall of deceased was due to her own voluntary act.

Contentions of the appellant:

Tribunal failed to appreciate that the deceased was an aged person and not a daily commuter. So, when she realized that she boarded the wrong train she alighted suddenly and lost her balance resulting to fatal injuries. In Jameela V. UOI, the counsel for the appellant held that the act amount to mere negligence and not criminal negligence. The counsel relied on the judgement of the SC of Rina Devi V. UOI , reported in 2018 AIR (SC) 2362 that death or injury in course of boarding or deboarding the train will be an untoward incident. Victim will be entitled to compensation and wont fall under section124A merely on plea of negligence as contributory factor. In, Anuradha V. UOI held that “Even the deceased boarded in a wrong train having a valid journey ticket and died while alighting the train that does not mean that he was not a bona fide passenger and on that ground claim cannot be rejected”.

Contentions of the respondent:

The counsel of respondents contended that it’s a clear case of attempt to deboard from running train when it was noticed that they boarded the wrong train for which they relied on Kerala court decision on Joseph P.T. V. UOI AIR 2014, Kerala. Held that passenger moving from a boarded train off side is amounting to carelessness and would be self-inflicting and cannot claim compensation.

Legal provisions:

Section 16 of Railway Claims Tribunal Act, 1987- A person seeking any relief in respect of the matters referred to in sub-section (1) 8 [or sub-section (1A)] of section 13 may make an application to the Claims Tribunal.

Section 124A of Indian Railway Act, 1989- Section 124A of the Indian Railways Act, 1989 pertains to compensation for untoward incidents.

Issue:

Whether the fall amounts to accidental fall within the purview of section of 123 of the Indian Railways Act?

Court analysis and judgement:

Its clear that from section 124 of the act has no compensation if passenger dies or suffers from injuries due to suicide, self- inflicted harm or due to insanity. The court considered that principles laid down in Jameela V UOI, that the deceased dead is not criminal and railway cannot claim compensation. The court has relied on apex court on UOI V. Prabhakaran held that strict liability can hold railways for compensation due to his own fault. The court goes ahead and states that strict liability is also to be considered. Principles laid down in Rine devi and Anuradha’s case is also applicable to the present case. In view of the aforesaid appeal the miscellaneous appeal was allowed and the order of railway tribunal is set aside by compensating an amount of 4,00,000 with 7% interest from date of filing. The tribunal committed in envoking section 124 of Indian Railways Act by concluding that it’s a self -inflicted injury and reasoning of tribunal is erroreneous and judgements referred above by appellants comes to their aid. The court says that if the compensation is less than 8,00,000 it will be compensated compeletly.

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Judgement reviewed by- Parvathy P.V

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