Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 105 (GAU)

Union of India v. Sanjit Singh

2005-02-07

T.NANDAKUMAR SINGH

body2005
JUDGMENT T.N.K. Singh, J. 1. Heard Mr. N. Ibotombi, learned CGSC appearing for the Petitioners and Mr. A. Nilamani Singh, learned senior counsel assisted by Mr. Ng. Premkumar, learned Advocate and Mr. A. Bimol, learned Counsel for the Respondents. 2. The following facts in a nutshell will be sufficient for deciding the present writ petition: On 14.3.1984 there was a volley ball match at Naoria Pakhanglakpa Volley Ball Ground at Heirangoithong, Imphal and there were about 3000 (three thousand) spectators including the present Petitioners No. 3, 4, 5 and other members of CRPF. Suddenly, the CRPF personnel witnessing the said volley ball match fired several rounds from their service firearms in or around the said volleyball ground. In the said incident 13 (thirteen) civilians/spectators were injured and also one CRPF constable died. For the said unfortunate incident Shri Y. Ibotombi Singh, the then District and Sessions Judge, (later on Judge of the Gauhati High Court), was appointed by the Government of Manipur under the Commission of Inquiry Act, 1952 for holding an inquiry. For claiming compensation a number of civil suits including the present Original Suit were filed by the legal representatives of those thirteen civilians who were killed in the said incident before the competent Civil Court. While the said civil suit was pending before the Court of Additional District Judge (Fast Track Court), Manipur East at Imphal, the Respondents filed an application under Section 89 of the Code of Civil Procedure (CPC) read with Section 20(1)(i)(b) of the Legal Services Authorities Act, 1987 referring connected civil suits to the Lok Adalat for amicable settlement and disposal of the original suit. The Respondents filed he said application for referring to the Lok Adalat only on the ground which are quoted hereunder: 6. That the Plaintiff/Petitioner is destitute of any adequate means at all to bear the expenses of litigation, particularly when it has been prolongated now for nearly two decades. They are desirous of and agreeable to have his case referred to the concerned Lok Adalat for settlement. 7. That the futility of protracted litigation in civil suits yielding no discernible result and relief is to be abhorred and despised so as to constrain all litigants of ordinary prudence to aspire for settlement of the matter in dispute on reasonable terms and conditions. 8. 7. That the futility of protracted litigation in civil suits yielding no discernible result and relief is to be abhorred and despised so as to constrain all litigants of ordinary prudence to aspire for settlement of the matter in dispute on reasonable terms and conditions. 8. That the Plaintiff/Petitioners have the firm belief that there are chances of such settlement as aforesaid and that the matter is an appropriate one to be taken cognizance of by the Lok Adalat. In this connection, it will be expedient to give a reasonable opportunity of being heard to the Defendant's/opposite parties in order to ascertain whether there are chances of settlement as afore-mentioned. 3. To the said application of the Respondents under Section 89, Code of Civil Procedure read with Section 20(1)(i)(b) of the Legal Services Authorities Act, 1987, the present Petitioners filed objection seriously objecting that there is absolutely no element of settlement of the said suit which may be acceptable to them. The main ground of objection taken by the present Petitioners in the said objection are quoted hereunder: 7. That with reference to para No. 6 of the application, it is to state again that the Plaintiff has to prove that he/she is an indigent person as the burden of proving the same lies on him/her. The Plaintiff/Petitioner himself/herself is also responsible for prolonged litigation as he/she has not pressed the Court for speedy disposal of the case. As far as the matter of referring the case to the Lok Adalat, it is to state that the same can be referred only when both parties mutually agree for a compromise or settlement in the instant case, it is very clear that the CRPF have no fault whatsoever insofar as it relates to the said firing incident and as such the question of accepting the claims made by the Plaintiff and the question of coming to a compromise does not come at all. 8. That, with reference to para No. 7 of the application, it is to say that the contention of the Plaintiff/Petitioner regarding protracted litigations have no substance. Further, when there is no fault or mistake on the part of the CRPF, the question of settlement or compromise as asked by the Plaintiff does not arise. 9. 8. That, with reference to para No. 7 of the application, it is to say that the contention of the Plaintiff/Petitioner regarding protracted litigations have no substance. Further, when there is no fault or mistake on the part of the CRPF, the question of settlement or compromise as asked by the Plaintiff does not arise. 9. That, with reference to para No. 8, it is to say again that there is no scope for coming to a compromise or settlement in between the parties as the CRPF did not do any sort of illegal act or thing in the said firing incident and also as they have no liability whatsoever in connection with the said matter. 4. The learned Fast Track Court passed an order dated 1.10.2002 for formulating terms of settlement for observation of the parties before referring the said Original Suit to the Lok Adalat. The learned Fast Track Court while passing the order dated 1.10.2002 had made a finding that on examination of the plaint/application along with the supporting documents, it appears that there exists element of settlement: Thus, in view of the provisions laid down in Section 89 of the Code of Civil Procedure as amended upto date he formulated terms of settlements consisting of three terms. The present writ Petitioners had submitted their observations to the said terms of settlement formulated by the learned Fast Track Court stating that the Defendant/opposite parties (writ Petitioners) would like to state again that the question of giving compensation to the Plaintiff/Petitioner (Respondents) never come in the present picture of the case as the CRPF did not do any illegal act or other things in the said firing incident. The learned Fast Track Court passed the impugned judgment and order dated 31.12.2002 with the observation and finding that it appears that there exists element of settlement between the parties and as such the connected Original Suits are referred to the Lok Adalat for settlement under Section 89(1)(c) of Code of Civil Procedure, 1908 amended by the Code of Civil Procedure (Amendment) Act 48/89 and accordingly, ordered that the record of the connected O.S. be sent for Lok Adalat for settlement under Section 89(2)(b)of the Code of Civil Procedure, 1908. Accordingly, the present petition is filed against the impugned order dated 31.12.2002. 5. Accordingly, the present petition is filed against the impugned order dated 31.12.2002. 5. As Section 89, Code of Civil Procedure is relevant in the present case, for easy reference and also for better appreciation of Section 89, it would be pertinent to see the very wording of Section 89, Code of Civil Procedure, Sub-section (1) and Sub-section (2)(a)(b) are quoted hereunder: 89. Settlement of disputes outside the Court: (1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for- (a) Arbitration; (b) Conciliation; (c) Judicial settlement including settlement through Lok Adalat; (d) Mediation. (2) Where a dispute has been referred- (a) For arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act; (b) To Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of Sub-section (1) of Section 20 of the Legal Services Authorities Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; For easy reference Section 20(1) of the Legal Services Authorities Act, 1987 is also quoted hereunder: 20. Cognizance of cases by Lok Adalat. (1) Where in any case referred to in Clause (i) of Sub-section (5) of Section 19. (i)(a) The parties thereof agree; or (b) One of the parties thereof makes an application to the Court for referring the case to the Lok Adalat for settlement and if such Court is prima facie satisfied that there are chances of such settlement; (ii) The Court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat. 6. The learned Counsel for the writ Petitioners seriously contended that the present writ petition is maintainable and this Court in exercise of the power under Article 227 read with Article 226 of the Constitution can quash the present impugned judgment and order dated 31.12.2002 passed by the learned Fast Track Court. 6. The learned Counsel for the writ Petitioners seriously contended that the present writ petition is maintainable and this Court in exercise of the power under Article 227 read with Article 226 of the Constitution can quash the present impugned judgment and order dated 31.12.2002 passed by the learned Fast Track Court. It is further submitted that in the facts and circumstances stated above, there is absolutely no element for settlement of the said Original Suit between the present Petitioners and Respondents and therefore, in the absence of jurisdictional fact of "element of settlement" for exercising the power under Section 89, Code of Civil Procedure the learned Fast Track Court had acted beyond the parameter of Section 89 of the Code of Civil Procedure in passing the impugned judgment and order dated 23.12.2002. learned Counsel for the Petitioners referred to the decision of the Apex Court in the case of Salem Advocate Bar Assn. Tamil Nadu v. Union of India, reported in AIR 2003 SC 189 , and submits that the procedure under Section 89, Code of Civil Procedure would be attracted only if the parties agree to bring an amicable settlement between the parties. The modalities which are to be formulated in the manner in which Section 89, Code of Civil Procedure could be resorted to according to the decision of the Apex Court in the case of Salem Advocate Bar Assn. (supra) have not been formulated. The Apex Court (3 Judges) in the case of Sadhana Lodh v. National Insurance Co. Ltd. reported in (2003) 3 SCC 524 , held that where the remedy for filing a revision before the High Court under Section 115, Code of Civil Procedure has been expressly barred by the said enactment, only in such case a petition under Article 227 of the Constitution would lie not under Article 226 of the Constitution. 7. Article 227 of the Constitution is confined only to see whether an inferior Court or tribunal has proceeded within its parameter and not to correct an error apparent on the face of record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate Court or tribunal. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate Court or tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or to weigh the evidence upon which the inferior Court or tribunal purported to have been passed the order or to correct error of law in the decision. The Apex Court (2 Judges) in the case of Surya Dev Rai v. Ram Chander Rai and other reported in (2003) 6 SCC 675 , held that the writ of certiorari is issued for correcting gross errors of jurisdiction while supervisory jurisdiction under Article 227 is exercised for keeping subordinate Court within the bounds of their jurisdiction. Further, the power under either of the Articles to be used sparingly i.e. where judicial conscience of High Court dictate it-practical considerations while correcting error during the pendency of suit or proceeding point out-High Court has to choose between causing delay by its intervention and need for eminence occasioned. Therefore, the supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Court within the bounds of their jurisdiction, and also when a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise the jurisdiction which it does have or the jurisdiction though available is exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby the High Court may step into exercise its supervisory jurisdiction. Paragraph Nos. 24 and 38 of the SCC in Surya Dev Rai (supra) are quoted hereunder: 21. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary Court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate Courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the Court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. 38. Such like matters frequently arise before the High Court. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder: (1) Amendment by Act 46 of 1999 with effect from 1.7.2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by Code of Civil Procedure. Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory prosecution under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross of patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case. 8. The Apex Court in the case of Trimbak Gangadhar v. Remochandra Ganesh Bhide reported in AIR 1977 SC 1222 held that "it is well settled rule of practice of this Court not to interfere with the exercise of discretionary power under Articles 226 and 227 of the Constitution merely because two views are possible on the fact of a case. It is well established that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where blatant or flagrant error in procedure or law has crept or where the order passed result in manifest injustice, that a Court can justify interference under Article 227 of the Constitution. It is well established that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where blatant or flagrant error in procedure or law has crept or where the order passed result in manifest injustice, that a Court can justify interference under Article 227 of the Constitution. The Apex Court in the case of State of Himachal Pradesh v. Dhanwant Singh reported in AIR 2004 SC 1636 , held that in so far as the statute providing for finality of the order or decision passed or rendered in accordance with the provisions of the statute are concerned, it maybe stated that it is well settled that such a statutory provision cannot take away the constitutional right given under Articles 32, 226 and 227 of the Constitution. The Apex Court in the case of State of Bihar and other v. Phulan Rani and another reported in (2004) 7 SCC 555 , held that (para 7 of the SCC) runs as under: 7. The specific language used in sub-section (3) of Section 20 makes it clear that the Lok Adalat can dispose of a matter by way of a compromise or settlement between the parties. Two crucial terms in Sub-sections (3) and (5) of Section 20 are 'compromise' and 'settlement'. The former expression means settlement of differences by mutual concessions. It is an agreement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands. As per Terms de laley "compromise is a mutual promise of two or more parties that are at controversy". As per Bouvier it is "an agreement between two or more persons, who, to avoid a law suit, amicably settle their differences, on such terms as they can agree upon". The word "compromise" implies some element of accommodation on each side. It is not apt to describe total surrender (See N.F.U. Development Trust Ltd. Re 1). A compromise is always bilateral and means mutual adjustment. "Settlement" is termination of legal proceedings by mutual consent. The case at hand did not involve compromise or settlement and could not have been disposed of by the Lok Adalat. If no compromise or settlement is or could be arrived at, no order can be passed by the Lok Adalat. Therefore, the disposal of Writ Petition No. 13555 of 1994 filed by Respondent is clearly impermissible. The case at hand did not involve compromise or settlement and could not have been disposed of by the Lok Adalat. If no compromise or settlement is or could be arrived at, no order can be passed by the Lok Adalat. Therefore, the disposal of Writ Petition No. 13555 of 1994 filed by Respondent is clearly impermissible. From the ratio laid down in Phulan Rani (supra) by the Supreme Court it is crystal clear that power under Section 20 of the Legal Services Authorities Act, 1987 could be resorted to only when compromise or settlement between the parties arrived at. But in the present case, the learned Fast Track Court passed judgment and order dated 31.12.2002 by assuming the jurisdiction under Section 89 of the Code of Civil Procedure, which he does not have as, there is total missing of jurisdictional facts that is "existence of element of settlement" between the present writ Petitioners and the Respondents. Therefore, the learned Fast Track Court had acted beyond the bounds of his jurisdiction under Section 89 of the Code of Civil Procedure. Therefore, for keeping the learned Fast Track Court within the bounds of its jurisdiction, the present application under Article 227 of the Constitution of India is maintainable. Further, the judicial conscience of this Court dictates that there should be inordinate delay in disposing the said suit filed before the Fast Track Court by the Respondents, against the present Petitioners if the impugned order dated 31.12.2002 is not interfered with. 9. For the reasons above said, the impugned order dated 31.12.2002 is hereby quashed. In order to avoid further delay in disposing the said Original Suit which has been pending for a number of years, the learned trial Court should make an endeavour to complete the trial for final disposal as soon as possible. Parties are directed to appear before the trial Court on 22.2.2005. No order as to costs.