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2013 DIGILAW 192 (KER)

K. K. Mohanan v. Sasi Ananda

2013-03-04

C.K.ABDUL REHIM

body2013
Judgment : 1. This writ petition filed under Article 227 of the Constitution of India seeking to quash Ext.P7 award passed by the 'Lok Adalat', organised by the Legal Services Committee, Chenganoor Taluk, under Section 19 of the Legal Services Authorities Act, 1987 (hereinafter referred to as the 'Act'). The main ground of challenge is that the petitioner had not participated in the Adalat nor he had signed the settlement/compromise, and hence the award is not valid. The petitioner herein, who is represented in this proceedings through a power of attorney holder, is the defendant in O.S. Nos.19/2008, 31/2008 and 32/2008 on the files of the Sub Court, Chenganoor. He had filed written statements in all the 3 cases. Since the petitioner left to Gulf countries, he could not participate in the Lok Adalat. Instead his wife attended to the Lok Adalat, on receiving notice. It is alleged that the petitioner's wife was demanded to sign some papers to which she obliged without knowing that it is a compromise. Contention of the petitioner is that the wife who had signed the compromise is not a party to the suit and she was not authorised to arrive at or to sign any compromise on behalf of the petitioner. Hence it is contended that there is no valid settlement arrived and there cannot be any valid award under Section 20 of the Act. 2. On a perusal of Ext.P7 award it is evident that the plaintiff in th suit as well as the wife of the petitioner had only signed the compromise, which forms part of the award. Another signature contained in Ext.P7 is that of a Member of the Lok Adalat, who is an Advocate. The award bears signature of the Secretary of the Taluk Legal Services Committee, Chenganoor. The award or the settlement/compromise was not seen signed either by the defendant or by his counsel. Even if it is assumed that the petitioner's wife had voluntarily signed the settlement/compromise after fully knowing the contents thereof, question arises as to the validity of Ext.P7 award, as an executable decree as provided under Section 22 (3) of the Act. 3. Sri. Sathyanatha Menon, learned counsel for the respondents had raised a preliminary issue regarding maintainability of the writ petition. 3. Sri. Sathyanatha Menon, learned counsel for the respondents had raised a preliminary issue regarding maintainability of the writ petition. Since Ext.P7 assumes characteristics of a civil decree, challenge against its sustainability cannot be looked into in a writ petition filed under Article 227, is the contention. According to the counsel, the supervisory jurisdiction vested under Article 227, which is visitorial in nature cannot be exercised to grant such a relief. It is pertinent to note that, Section 21 (2) of the Act provides that every award of the Lok Adalat shall be final and will be binding on all the parties to the dispute, and no appeal shall lie to any court against the award. Therefore it is evident that a party aggrieved by an award of the Adalat is not permitted to challenge the same in appeal or revision/review. Question as to whether the impugned award is one issued with proper jurisdiction or as to whether the award is capable of having validity as on order or decree of a court of law, is a fundamental question. It affects the very sustainability of the award itself. If the award suffers from any basic illegality or infirmity which vitiates its validity, execution of such an award will cause severe prejudice and irreparable injuries to the party affected. Question as to whether it is non est under law is a matter which can definitely be looked into by this court in exercise of jurisdiction under Articles 226 or 227. If the award is a non est under law, then declining interference will lead to grant of enforceability to the same, which cannot be permitted. Prevention of such gross illegality arising out of erroneous exercise of powers conferred under the Statute need to be restrained, in exercise of the supervisory jurisdiction vested on this court. Therefore the contention with respect to maintainability cannot be accepted. 4. Question to be decided is as to whether the award can be sustained when one of the parties to the lis or his authorised agent or attorney has not signed the compromise/ settlement. Learned counsel for the petitioner had drawn my attention to relevant provisions in the Act. Section 19 (5) provides that Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the "parties to a dispute" in respect of any case. Learned counsel for the petitioner had drawn my attention to relevant provisions in the Act. Section 19 (5) provides that Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the "parties to a dispute" in respect of any case. Under Section 20 (3) of the Act it provided that the Lok Adalat shall proceed to dispose the case and arrive at a compromise or settlement "between the parties". The procedure contemplated under the Kerala State Legal Services Authority Regulations, 1998 insist upon that, an award of the Lok Adalat should be signed by the "parties to the dispute". Regulation 33 specifically provides so. It is contended that if the petitioner or his duly authorised agent has not signed the award and hence the same cannot be treated as valid under the provisions of the Act. 5. In this regard, learned counsel for petitioner had placed reliance on a decision of the hon'ble Supreme Court in State of Punjab V. Jalour Singh (2008 (2) KLT 236) (SC). It is held therein that Lok Adalats have no adjudicatory or judicial functions and their functions relates purely to conciliation. Making of an award is merely an administrative act of incorporating terms of the settlement or compromise, agreed by the parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat. In that case there was no compromise or settlement signed by the parties and the order of the Lok Adalat does not reflected any settlement. The order only directed the respondents either make payment if he agrees to the order or to approach the High Court to dispose of the appeal on merits. The hon'ble apex court held that it do not constitute an award of the Lok Adalat. It is pointed out that there is emphasis on the aspects of compromise/settlement signed by the parties to have the effect of an order of Adalat. 6. The above decision was followed by the hon'ble Supreme Court in Moideen Sevamandir V. Kutty Hassan (2009) 1 KLT 235 (SC). Learned counsel for the petitioner also placed a reliance on a decision of the High Court of Allahabad in Jai Devi Hans V. Beena Singh and others (AIR 2005 AP 349). 6. The above decision was followed by the hon'ble Supreme Court in Moideen Sevamandir V. Kutty Hassan (2009) 1 KLT 235 (SC). Learned counsel for the petitioner also placed a reliance on a decision of the High Court of Allahabad in Jai Devi Hans V. Beena Singh and others (AIR 2005 AP 349). It is held therein that consent of both the parties is a condition precedent for any lawful order which can be passed by Lok Adalat, so as to bind the parties. The High Court of Andra Pradesh in the decision in Bal Reddy V. Taluka Legal Services Committee and others (AIR 2012 AP 60) held that validity of the award cannot be sustained when one of the party to the settlement/compromise was absent and there is no prior settlement agreement between parties who are co-sharers of the property. 7. Learned counsel for the respondent had drawn my attention to a decision of the hon'ble apex court in Bar Council of India V. Union of India (2012 (3) KLT 557). It is held therein that award of the permanent Lok Adalat on merits is made final and binding and cannot be called in question in any forum or court of law under Section 22E (1) and (4) of the Act. In such case the proposition that the aggrieved person can approach the High Court under Articles 226/227 of the Constitution challenging such award, in the absence of any right of appeal, is completely misplaced. The writ jurisdiction under Article 226/227 is extremely limited in such cases and is not substitute for the appellate jurisdiction. But it is to be noticed that Sections 22C to 22E deals with procedure to be followed by the permanent Lok Adalat established under Section 22B. Sub section 8 of Section 22C as well as Section 22D enumerate that when parties fails to reach at an agreement, the permanent Lok Adalat can decide the dispute. Section 22E provides that every award of the Permanent Lok Adalat either passed on merits or in terms of settlement agreement, shall be final. But in contra distinction, the Lok Adalats organised under Section 19 of the Act is not vested with any power to decide a dispute, as observed by the hon'ble Supreme Court in State of Punjab's case (cited supra). But in contra distinction, the Lok Adalats organised under Section 19 of the Act is not vested with any power to decide a dispute, as observed by the hon'ble Supreme Court in State of Punjab's case (cited supra). The award of the Lok Adalat is not an independent verdict nor it is a conclusion arrived through any decision making process. The Adalats have no adjudicatory or judicial functions and their functions relates purely to conciliation. Therefore in order to constitute a valid award, it should be based on a compromise/settlement arrived between the "parties to the dispute" and it should be signed by the "parties to the dispute". 8. Learned counsel for the respondent had placed reliance on a decision of the High Court of Madras in B.V. Bhuvaneshwari V. P. Perumalappan. It is held therein that, contention to the effect that the award passed by the Lok Adalat is invalid because the terms of settlement was not signed by the parties to the proceedings, cannot be accepted. That court, after analysing the factual situations prevalent, held that it is not proper for the petitioner, who was not a party to the proceedings, to say that she is not a debtor. There was evidence to the effect that the petitioner was also a borrower in the loan transaction and she too had every right to participate in the proceedings before the Lok Adalat. Therefore she cannot plead ignorance or attribute fraud on the part of the quasi judicial authority, that too after participating in the proceedings, While analysing the said decision I do not find any dictum applicable to the case at hand. Further, the said decision has no binding force on this court. 9. Since the power vested on the Lok Adalat under Section 20 of the Act is only to persuade the participants to arrive at a settlement and to record the settlement in the award, it is mandatory that there should be a settlement arrived between the "parties to the dispute". The award should reflect consent of the parties to the dispute regarding such settlement. As per the Regulations it is mandatory that the award should contain signature of the parties to the dispute. Under such circumstances it is to be held that the impugned award does not satisfy such essential requirements, and it cannot be held as valid. 10. The award should reflect consent of the parties to the dispute regarding such settlement. As per the Regulations it is mandatory that the award should contain signature of the parties to the dispute. Under such circumstances it is to be held that the impugned award does not satisfy such essential requirements, and it cannot be held as valid. 10. In the result the writ petition is allowed and Ext.P7 is hereby quashed. The suits O.S. Nos. 19/2008, 31/2008 and 32/2008 are directed to be restored on the files of the Sub Court, Chenganoor. That court will proceed further with the suits and dispose of the same at the earliest possible. The parties shall appear before that court through their respective counsel for further steps, on 25-03-2013. 11. It is made clear that the above judgment will not stand in the way of the court below attempting compromise of the suits by resorting the provisions of the Legal Services Authorities Act, 1987, after restoration of the cases.