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2012 DIGILAW 601 (PAT)

Shambhoo Nath v. State of Bihar

2012-04-11

SAMARENDRA PRATAP SINGH

body2012
ORDER 1. The petitioner has prayed for quashing of the order and award dated 31.5.2008, passed by the Special/Permanent Lok Adalat, Gaya in Partition suit no.194 of 2007 as well as order dated 13.11.2009, passed by the same court in Pre-Litigation Case No.82 of 2008, rejecting his petition for setting aside the said award. 2. Before I take the grounds of challenge raised by the petitioner, it would be necessary to notice the facts of the case in brief: (i) The petitioner is plaintiff of Title Suit no.194 of 2007 filed in court of Sub-Judge, Gaya, in which respondent no.2 (Vishwanath Kumar) and respondent no.3 (Smt. Sarswati Devi) were defendant nos. 1 and 2 respectively. The petitioner Shambhoo Nath and respondent no.2 Vishwanath Prasad are own sons of Smt. Sarswati Devi, defendant no.2/respondent no.3. 3. The plaintiff-petitioner prayed for the following reliefs in the title suit: “(A) A preliminary decree of partition of 1/3rd share of the plaintiff in the suit land be passed. (B) After appointment of a survey knowing pleader commissioner a separate takhta of 1/3rd share of the plaintiff be carved out. (C) Plaintiff’s share regarding the payment of the loans to the banks be ascertained. (D) Cost of the suit. (E) Any other relief/reliefs this learned court deem fit just and proper.” 4. On 24.05.2008, the parties filed a detailed and exhaustive compromise petition with respect to their assets and liabilities. The trial court referred the suit and compromise petition dated 24.05.2008 (Annexure-2) to Permanent Lok Adalat with consent of the parties for expeditious disposal. The Special Lok Adalat/Permanent Lok Adalat passed the award on 31.05.2008 (Annexure-3) in terms of compromise petition with consent of the parties duly endorsed by their respective advocates. The award was signed by all the members including the Presiding Officer. After some time, Shambhoo Nath (petitioner) and his mother Sarswati Devi filed a Misc. petition before Permanent Lok Adalat for recalling the award and return of the plaint of Original Title Partition suit no.194 of 2007 to the court of Sub-Judge-I, Gaya for trial. The Miscellaneous petition filed by the petitioner and respondent no.3 was registered as Pre-Litigation case no. 82 of 2009. 5. petition before Permanent Lok Adalat for recalling the award and return of the plaint of Original Title Partition suit no.194 of 2007 to the court of Sub-Judge-I, Gaya for trial. The Miscellaneous petition filed by the petitioner and respondent no.3 was registered as Pre-Litigation case no. 82 of 2009. 5. The petitioner has raised the following grounds: (i) That the Presiding Officer was not present in the court on the date of making of the award and as such there was no Coram and the award is bad in law. (ii) The Special Lok Adalat/Permanent Lok Adalat has no jurisdiction to take cognizance of the dispute where the value of property exceeds Rs.10,00,000/- (Ten lac) in view of Section 22 (C) of the Legal Services Act, 1987. 6. I will take up, ground no.1: Ref.: Ground no.1: That the Presiding Officer was not present in the court on the date of making of the award and as such there was no Coram and the award is bad in law. 7. The petitioner has contended that the Presiding Officer was not present in the court on the date of making of the award and as such the award has no legal sanctity. I find that the award has been signed by all the members of the Special Lok Adalat/Permanent Lok Adalat including the Presiding Officer Sri H.N. Singh. The petitioner too does not state that the award does not bear the signature of the presiding officer. He does not even state that the signature is ante-dated. No evidence or supporting material has been brought on record to show that the Presiding Officer was not present in the court on the date of passing of the award. The allegation is vague and too ambiguous to be accepted and is accordingly rejected. 8. Ref.: Ground no.2: The Special Lok Adalat/Permanent Lok Adalat has no jurisdiction to take cognizance of the dispute where the value of property exceeds Rs.10,00,000/- (Ten lac) in view of Section 22 (C) of the Legal Services Act, 1987. 9. The petitioner states that the Special Lok Adalat/Permanent Lok Adalat does not have jurisdiction to take cognizance of the matter where the value of the property exceeds rupees ten lac. 9. The petitioner states that the Special Lok Adalat/Permanent Lok Adalat does not have jurisdiction to take cognizance of the matter where the value of the property exceeds rupees ten lac. He contends that as the value of the property in this case admittedly exceeds rupees ten lac, the Special Lok Adalat/Permanent Lok Adalat lacked jurisdiction to take cognizance of such matter. 10. Learned counsel contended that if an authority has got no jurisdiction in law to entertain a particular dispute and erroneously proceeds to determine the rights of the parties, no amount of consent or acquiescence of the parties will create the jurisdiction in that court or authority. Furthermore, an inherent lack of jurisdiction cannot be cured by the action of the parties. Counsel for the petitioner in support of his submissions has relied upon a decision in case of Raghuraj Prasad Singh Vs. Basudeo Singh & Ors., reported in AIR 1950 Pat. 318 , Full Bench decision of this court in case of Shyam Nandan Sahi and Ors. Vs. Dhanpati Kuer, reported in A.I.R. 1960 Pat. 24, Mohal Lal and Ors. Vs. The Charge Officer, reported in 1974 BBCJ 458 , and the Managing Committee of Sri Chandra Mishra Prathmik Sah Madhya Sanskrit Vidyalaya & Anr. Vs. The State of Bihar & Ors., reported in 2001(1) PLJR 426 . 11. The respondent no.3, Smt. Sarswati Devi, all along has sided with the petitioner, supports his case. 12. The respondent no.2 (the brother of the petitioner), who is main contestant in the case submits that the Special Lok Adalat/Permanent Lok Adalat rightly rejected the prayer made by the petitioner in Pre-Litigation case no. 82 of 2008, to recall the award dated 31.05.2008 (Annexure-2). 13. Mr. Rajendra Prasad Singh, learned senior counsel appearing on behalf of respondent no.2 submits that where the parties have once subjected themselves to the jurisdiction of a court which does not lack inherent jurisdiction, one cannot later on turn around and submit that the court would not have pecuniary jurisdiction to try the case, particularly when the matter has already been decided. 14. 14. From the pleadings, the core issue that emerges is whether the subject matter of the case would fall under Section 22-C of the Legal Services Authority Act, 1987 which puts a bar on the Special Lok Adalat/Permanent Lok Adalat to exercise jurisdiction in the matter where the value of the property in dispute exceeds Rs. 10 lac. 15. Here, I cannot but agree with the submission of the petitioner that when statute specifically bars jurisdiction of a court to entertain an application beyond pecuniary limit, no amount of consent would create a jurisdiction in the Lok Adalat to entertain such matter. The answer to the reference, whether the subject matter would fall within the ambit of Section 22-C of the Act would require due cognizance of relevant provisions of Legal Services Authorities Act, 1987. 16. Chapter-VI-A was inserted by Section 37 of 2002 with effect from 11.06.2002. Section 22-A to 22-C of the Act were introduced under this new Chapter. Section 22-A (a) defines Permanent Lok Adalat. Sub-Section (b) of Section 22-A(1)(b) defines public utility service, which is quoted herein below: “22-A. Definitions. – In this Chapter and for the purposes of sections 22 and 23, unless the context otherwise requires,- (a) “Permanent Lok Adalat” means a Permanent Lok Adalat established under sub-section (1) of section 22-B; (b) “public utility service” means any- (i) transport service for the carriage of passengers or goods by air, road or water; or (ii) postal, telegraph or telephone service; or (iii) supply of power, light or water to the public by any establishment; or (iv) system of public conservancy or sanitation; or (v) service in hospital or dispensary; or (vi) insurance service, and includes any service which the Central Government or the State Government, as the case may be, may, in the public interest, by notification, declare to be a public utility service for the purposes of this Chapter”. 17. Section 22-B relates to Establishment of Permanent Lok Adalats. Section 22-B is quoted hereinbelows: “22-B. Establishment of Permanent Lok Adalats.- (1) Notwithstanding anything contained in section 19, the Central Authority or, as the case may be, every State Authority shall, by notification, establish Permanent Lok Adalats at such places and for exercising such jurisdiction in respect of one or more public utility services and for such areas as may be specified in the notification. (2) Every Permanent Lok Adalat established for an area notified under sub-section (1) shall consist of- (a) a person who is, or has been, a District Judge or Additional District Judge or has held judicial office higher in rank than that of a District Judge, shall be the Chairman of the Permanent Lok Adalat; and (b) two other persons having adequate experience in public utility service to be nominated by the Central Government or, as the case may be, the State Government on the recommendation of the Central Authority or, as the case may be, the State Authority, appointed by the Central Authority or, as the case may be, the State Authority, establishing such Permanent Lok Adalat and the other terms and conditions of the appointment of the Chairman and other persons referred to in clause (b) shall be such as may be prescribed by the Central Government.” 18. Section 22- C of the Act upon which the petitioner has laid huge emphasis refers to cognizance of cases by Permanent Lok Adalat and the same is quoted for easy reference: “22-C. Cognizance of cases by Permanent Lok Adalat.- (1) Any party to a dispute may, before the dispute is brought before any Court, make an application to the Permanent Lok Adalat for the settlement of dispute: Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law: Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees: Provided also that the Central Government, may, by notification, increase the limit of ten lakh rupees specified in the second proviso in consultation with the Central Authority. (2) After an application is made under sub-section (1) to the Permanent Lok Adalat, no party to that application shall invoke jurisdiction of any Court in the same dispute. (2) After an application is made under sub-section (1) to the Permanent Lok Adalat, no party to that application shall invoke jurisdiction of any Court in the same dispute. (3) Where an application is made to a Permanent Lok Adalat under sub-section (1), it – (a) shall direct each party to the application to file before it a written statement, stating therein the facts and nature of dispute under the application, points or issues in such dispute and grounds relied in support of, or in opposition to, such points or issues, as the case may be, and such party may supplement such statement with any document and other evidence which such party deems appropriate in proof of such facts and grounds and shall send a copy of such statement together with a copy of such document and other evidence, if any, to each of the parties to the application; (b) may require any party to the application to file additional statement before it at any stage of the conciliation proceedings; (c) shall communicate any document or statement received by it from any party to the application to the other party, to enable such other party to present reply thereto. (4) When statement, additional statement and reply, if any, have been filed under sub-section (3), to the satisfaction of the Permanent Lok Adalat, it shall conduct conciliation proceedings between the parties to the application in such manner as it thinks appropriate taking into account the circumstances of the dispute. (5) The Permanent Lok Adalat shall, during conduct of conciliation proceedings under sub-section (4), assist the parties in their attempt to reach an amicable settlement of the dispute in an independent and impartial manner. (6) It shall be the duty of every party to the application to cooperate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it. (6) It shall be the duty of every party to the application to cooperate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it. (7) When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of opinion that there exist elements of settlement in such proceedings which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned. (8) Where the parties fail to reach at an agreement under sub-section (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute”. 19. It would appear from the bare perusal of Section 22-C (i) of the Act that a person may file an application for settlement of dispute, which has not been earlier brought before any court. The second proviso to Section 22-C (i), with which we are mainly concerned, prohibits Permanent Lok Adalat from taking cognizance in the matter where the value of the property in dispute exceeds Rs.10 lac. The question would arise as to which dispute the proviso to Section 22-C is referring to. 20. The term a dispute mentioned in Sub-Section (i) of Section 22-C is obviously referring to dispute in respect of subject matter under Section 22-A (b)(i), (ii), (iii), (iv) and (v) under Chapter-VI-A, which was introduced simultaneously with Sections 22-B and 22-C vide Act 37 of 2002. The dispute mentioned in Section 22-C (a) is not referring to all types of dispute, but to disputes under the Chapter which is in respect of “public utility service”, enumerated in Section 22-A (b) of the Act. The dispute under this Chapter would not cover the dispute other than the one mentioned in Chapter VI-A or any other service which the Central Government or the State Government in the Public interest, by notification declare to be a public utility service. 21. The dispute under this Chapter would not cover the dispute other than the one mentioned in Chapter VI-A or any other service which the Central Government or the State Government in the Public interest, by notification declare to be a public utility service. 21. This Chapter VI-A is distinct from Chapter VI in so much so that the Lok Adalat has been empowered to decide the dispute up to 10 lac, even if the parties do not agree to a settlement. The Permanent Lok Adalat under Section 22-C does not only perform the role of conciliator but also of an arbitrator and adjudicator. This is the reason, the provision has been confined to public utility service and that too with a maximum cap of 10 lac. The jurisdiction of Lok Adalats under Section 22-C would not extend to matter in private domain, which matter or dispute could be resolved only by means of conciliation, compromise or settlement under Chapter VI of the Act, 1987. 22. Chapter VI consists of Section 19 to 22. Section 19 refers to Organization of Lok Adalats. Section 19 (5) states that a Lok Adalat would have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of- (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any Court for which Lok Adalat is organized: 23. However, the Lok Adalat would not have jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. 24. Section 20 talks of the circumstances in which the Lok Adalats can take cognizance of the case. 25. Sub-Section (ii) of Section 20 (1) states that a matter can be referred to Lok Adalat, if the parties agree for the same or one of the parties makes an application and the court is satisfied that the matter is an appropriate one to be referred to Lok Adalat. A case, in which a compromise petition has been filed by the parties would be an appropriate matter which can be referred to Lok Adalats under Section 20 (1) of the Act. Sub-Section 5 of Section 20 states that if no compromise or settlement is arrived between the parties, the record shall be returned to the court from which the reference has been received. Sub-Section 5 of Section 20 states that if no compromise or settlement is arrived between the parties, the record shall be returned to the court from which the reference has been received. If the parties approached the Lok Adalat on their own in terms of Section 20(2) read with Section 19(5) (ii) and no settlement could be arrived at, the matter has to be referred to seek remedy in the appropriate court under Section 20(6) of the Act. Section 20 of the Act is quoted herein below for easy reference: “20. Cognizance of cases by Lok Adalats.- (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; or (ii) the Court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the Court shall refer the case to the Lok Adalat: Provided that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such Court except after giving a reasonable opportunity of being heard to the parties. (2) Notwithstanding anything contained in any other law for the time being in force, the Authority or Committee organizing the Lok Adalat under sub-section (1) of section 19 may, on receipt of an application from any one of the parties to any matter referred to in clause (ii) of sub-section (5) of section 19 that such matter needs to be determined by a Lok Adalat, refer such matter to the Lok Adalat, for determination: Provided that no matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other party. (3) Where any case is referred to a Lok Adalat under sub-section (1) or where a reference has been made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. (3) Where any case is referred to a Lok Adalat under sub-section (1) or where a reference has been made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. (4) Every Lok Adalat shall, while determining any reference before it under this Act, act with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity, fair play and other legal principles. (5) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it to the Court, from which the reference has been received under sub-section (1) for disposal in accordance with law. (6) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, in a matter referred to in sub-section (2), that Lok Adalat shall advice the parties to seek remedy in a Court. (7) Where the record of the case is returned under sub-section (5) to the Court, such Court shall proceed to deal with such case from the stage which was reached before such reference under sub-section (1).” 26. Section 21 of the Act talks about Award of Lok Adalat arrived at on the basis of compromise/settlement. The provisions is quoted herein below: Section 21(1) and 21-(2) are quoted herein below: “21. Award of Lok Adalat - (1) Every award of the Lok Adalat shall be deemed to be a decree of a Civil Court or, as the case may be, an order of any other Court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the Court fee paid in such case shall be refunded in the manner provided under the Court-Fee Act, 1870 (7 of 1870). (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any Court against the award.” 27. (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any Court against the award.” 27. It would appear from bare perusal of Section 19(5) and 20 that nature and types of cases that can be referred to Lok Adalat is not circumscribed, neither there is any limit on its jurisdiction to take cognizance of disputes of any value. Section 21 under the same Chapter states that Lok Adalat can make award on the basis of compromise or settlement. Sub-Section 2 of Section 21 states that every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award. 28. Section 21 states that award of Lok Adalat would be deemed to be a decree of a Civil Court. Sub-Section 2 of 21 states that every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award. 29. The Lok Adalats organized under Chapter VI, which started on periodic note and in make shift arrangements soon gained momentum on account of its acceptability and wide success in settling disputes. In a short span of time, it acquired permanence with fix place of sittings. The legislature broadened the nomenclature of Lok Adalat as Permanent Lok Adalat vide Amendment Act 37 of 2002. Since then, the term Permanent Lok Adalat invariably is being used for Lok Adalat. Section 22 of the Act is quoted herein below for easy reference. “22. Powers of [Lok Adalat or Permanent Lok Adalat].- (1) The [Lok Adalat or Permanent Lok Adalat] shall, for the purposes of holding any determination under this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely:- (a) the summoning and enforcing the attendance of any witness and examining him on oath; (b) the discovery and production of any document; (c) the reception of evidence on affidavits; (d) the requisitioning of any public record or document or copy of such record or document from any Court or office; and (e) such other matters as may be prescribed. (2) Without prejudice to the generality of the powers contained in sub-section (1), every [Lok Adalat or Permanent Lok Adalat] shall have the requisite powers to specify its own procedure for the determination of any dispute coming before it. (3) All proceedings before a [Lok Adalat or Permanent Lok Adalat] shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code (45 of 1860) and every (Lok Adalat or Permanent Lok Adalat] shall be deemed to be a Civil Court for the purpose of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)”. 30. It is evident from perusal of Sections 19 to 22 under Chapter VI and that of Section 22-A to 22-C introduced under chapter VI-A in 2002, that under Section 22-C, the Permanent Lok Adalat would exercise jurisdiction only in respect of the matter of public utility service mentioned in Section 22-A and not in cases in private domain. The Permanent Lok Adalat organized under Chapter VI can take cognizance in private domain, if the parties consent or arrive at an agreement, irrespective of its value. The Permanent Lok Adalat under Chapter VI performs only conciliatory roles without any restrain on its pecuniary jurisdiction, whereas Permanent Lok Adalat under Section 22-C of Chapter VI-A not only performs role of conciliator but also an arbitrator and adjudicator. 31. The case law relied upon by the petitioner would have no relevance, as the dispute between private parties would not come within the ambit of Section 22-C of the Act, which bars cognizance of dispute exceeding Rs.10 lac. There is no restriction on a Permanent Lok Adalat/Lok Adalat to settle dispute between two private parties on the basis of consent and compromise involving properties worth more than 10 lac under Section 22 Chapter-VI of the Act. 32. In the instant case, the dispute was between private parties and did not relate to public utility service as defined under Section 22-A. The Permanent Lok Adalat on the basis of compromise had made the award under Section 21 of the Act, 1987. Chapter VI does not place any pecuniary limit on authority of Permanent Lok Adalat to take cognizance of the case under Section 20 of the Act. Chapter VI does not place any pecuniary limit on authority of Permanent Lok Adalat to take cognizance of the case under Section 20 of the Act. The petitioner as such has misdirected himself in placing reliance upon second proviso to Section 22-C under Chapter-VI-A, inserted by Act 27 of 2002. 33. Chapter VI-A as well as Section 22-C of the Act have been inserted in the Legal Services Authorities Act, 1987 by amendment Act of 2002 for constitution of Permanent Lok Adalat for the purpose of Pre-Litigation Conciliation and Settlement of dispute referred to under the same Chapter. The pecuniary restriction conferred under Section 22-C of the Act is in reference to disputes mentioned under the Chapter and not otherwise. The instant dispute is not covered under Section 22-A or 22-C. 34. In the result, I do not find any infirmity in the impugned order, dated 13.11.2009 passed by Special Lok Adalat/Permanent Lok Adalat in Pre-Litigation case no. 82 of 2008 refusing to quash the award, dated 31.05.2008. 35. The petitioner lastly contended that respondent no.2 has not adhered to the terms of compromise and as such the same should be revoked on this ground alone. On the other hand, the respondent no.2 submits that he has duly complied with the term and it is the petitioner, who is trying to go back on the terms of the compromise. 36. The compromise duly entered and signed by the parties before the Permanent Lok Adalat cannot be set aside on the said ground under the writ jurisdiction. However, it will be open for the petitioner or respondent that if so advised may take remedy available under the law. 37. The application is dismissed.