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2014 DIGILAW 65 (PAT)

Srinivash Rai v. Mahendra Rai

2014-01-16

NAVIN SINHA, VIKASH JAIN

body2014
NAVIN SINHA, J.:–The present appeal arises from order dated 21.9.2012 in C W J C No.2492 of 2004. The Learned Single Judge set aside the Award by the Lok Adalat, Rohtas at Sasaram, in Partition Case no. 358(D) of 2001 dated 29.3.2001 on allegations of fraud and also observed that the Award given in a family dispute will not bind the parties when it is questioned by one of them. 2. It is necessary to notice the facts of the case, the provisions of the Legal Services Authority Act, 1987,(hereinafter referred to as the Act) and the Bihar State Legal Services Authority Regulations 1998, framed under Section 29 A of the Act. Also relevant for discussion is the law discussed in (2010) 8 SCC 24 (Afcon Infrastructure Limited & Another Vs. Cherian Varkey Construction Company Private Limited & Others) along with the National Legal Services Authority (Lok Adalat) Regulations,2009. 3. Claiming to be governed by the Mitakshara school of Hindu law, as karta, the father of the Appellant filed Partition Suit No.358 (D) of 2001 on 29.3.2001 before the Lok Adalat, Sasaram, impleading his sons, their minor chidren and his own wife as defendants. The relief sought was to confirm the partition of the properties to different branches of the family according to Schedules A,B,C and D. The Award was passed on the same day. The Appellant on 19.8.2003 questioned the Award before the Lok Adalat in Misc. case 9(m) of 2003 alleging that he had signed all papers given by his elder brother in good faith. Subsequently the Appellant suspected foul play on part of his elder brother. On obtaining copy of the Award he learnt that his brother had cheated him by changing the allotment of properties. The Appellant alleged that the Award had been obtained by playing fraud. The application was held to be not maintainable under Section 22-E of the Act. The writ petition was filed thereafter. 4. Section 20 of the Act reads as follows :— 20. The Appellant alleged that the Award had been obtained by playing fraud. The application was held to be not maintainable under Section 22-E of the Act. The writ petition was filed thereafter. 4. Section 20 of the Act reads as follows :— 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 if 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 organising 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. (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. (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 advise 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). 5. The reference to the Lok Adalat may therefore be at the pre-litigation stage or may be made by the Court. When the matter is referred to the Lok Adalat pursuant to Section 89 of the Code of Civil Procedure, the Act provides procedures to be followed. In Afcons (supra) it was observed :— “28. All other suits and cases of civil nature in particular the following categories of cases (whether pending in civil courts or other special tribunals/forums) are normally suitable for ADR processes: (ii) All cases arising from strained or soured relationships, including ? disputes relating to partition/division among family members/coparceners/co-owners;” 6. In the present case, no Partition Suit was filed before a competent Court and the matter consequentially referred to the Lok Adalat. An application in the form of a Partition Suit was filed directly before the Lok Adalat at the pre-litigation stage. Though its institution was not prohibited under the Act, the procedure prescribed under the Regulation 33 of the Bihar State Legal Services Authority Regulations 1998 was not followed.— “33. Lok Adalat at the Pre-Litigation stage. An application in the form of a Partition Suit was filed directly before the Lok Adalat at the pre-litigation stage. Though its institution was not prohibited under the Act, the procedure prescribed under the Regulation 33 of the Bihar State Legal Services Authority Regulations 1998 was not followed.— “33. Lok Adalat at the Pre-Litigation stage. (1) On receipt of an application by the Secretary of the District Authority/Committee or the Chairman of the Taluka Legal Services Committee, as the case may be, for settlement of a dispute at pre-litigation stage, he shall examine the matter and if he deems it fit to refer the matter for pre-litigation settlement, he shall issue a notice along with copy of the application and documents, if any, to the opposite party for appearing before him. (2) The Secretary of the District Authority/ Chairman or Taluka Legal Services Committee, as the case may be, after hearing the parties, if he thinks proper to refer the matter to the Lok Adalat, he shall direct the parties to appear before the Lok Adalat for pre-litigation settlement on the date fixed for the Lok Adalat. (3) The matter so referred, if not settled at the pre-litigation stage by the Lok Adalat, the Secretary/Chairman of the District Authority/Taluka Committee, as the case may be, shall keep the record of the papers and shall advise the parties for seeking remedy in a Court. And if any of the parties is entitled to get legal aid, he shall direct the same to apply for legal aid to the proper authority. (4) In cases which are referred to the Lok Adalat at the pre-litigation stage, the version of the parties and other documents submitted by them along with the original Award of the Lok Adalat shall form part of judicial record. (5) After Lok Adalat is over, the record of the cases of pre-litigation stage, shall remain in the custody of the Secretary/Chairman of the District Authority/Taluka Committee, as the case may be.” 7. (5) After Lok Adalat is over, the record of the cases of pre-litigation stage, shall remain in the custody of the Secretary/Chairman of the District Authority/Taluka Committee, as the case may be.” 7. In Afcon (supra) pre-litigation reference was noticed observing as follows :— “38…..Though the settlement agreement in a conciliation or a settlement award of a Lok Adalat may not require the seal of approval of the court for its enforcement when they are made in a direct reference by parties without the intervention of court, the position will be different if they are made on a reference by a court in a pending suit/proceedings. As the court continues to retain control and jurisdiction over the cases which it refers to conciliations, or Lok Adalats, the settlement agreement in conciliation or the Lok Adalat award will have to be placed before the court for recording it and disposal in its terms.” The National Legal Services Authority (Lok Adalat) Regulations,2009, (hereinafter referred to as the NALSA Regulations, 2009) likewise provides the procedure for pre-litigation reference as follows :— “12. Pre Litigation Matters : (1) In a pre-litigation matter it may be insured that the Court for which a Lok Adalat is organised has territorial jurisdiction to adjudicate in the matter. (2) Before referring a pre-litigation matter to Lok Adalat the Authority concerned or Committee, as the case may be, shall give a reasonable hearing to the parties concerned. Provided that the version of each party, shall be obtained by the Authority concerned or, as the case may be, the Committee for placing it before the Lok Adalat. (3) An Award based on settlement between the parties can be challenged only on violation of procedure prescribed in Section 20 of the Act by filing a petition under Articles 226 and 227 of the Constitution of India.” 8. In the present case, the application was filed by the parties before the Lok Adalat at the pre-litigation stage. The Award was passed the same day that the application of settlement was filed. On the face of the proceedings, the procedure prescribed for a pre-litigation reference to the Lok Adalat was not followed. The Award dated 29.3.2001 in case no.358 (D) of 2001 is therefore vitiated without furthermore. 9. In L P A No.1923 of 2009 (Nawal Kishore Prasad Singh & ors. On the face of the proceedings, the procedure prescribed for a pre-litigation reference to the Lok Adalat was not followed. The Award dated 29.3.2001 in case no.358 (D) of 2001 is therefore vitiated without furthermore. 9. In L P A No.1923 of 2009 (Nawal Kishore Prasad Singh & ors. vs. State of Bihar & ors) setting aside a pre-litigation Award it was observed as follows by the Division Bench :— “A direction is issued to all Lok Adalats not to entertain the property disputes or the disputes involving contentious issues in Lok Adalat and not to record compromise in respect of such disputes, especially the property disputes. Violation of this direction will be treated as contempt of this Court.” 10. The Division Bench did not bar pre-litigation reference to Lok Adalat by the parties. But such settlement has to be in accordance with the statutory provisions. Due care and caution has to be exercised before referring the matter to the Lok Adalat. In contradistinction the reference made by the Court carries inherent procedural safeguards. Any settlement Award by a Lok Adalat contrary to the statutory provisions arising from a pre-litigation reference will obviously attract application of directions in (Nawal Kishore Prasad Singh). 11. The Lok Adalat is required to satisfy itself with regard to the identity of the parties present before it at the time for pronouncement of Award as also required by Rule 17 of the NALSA Regulations, 2009. It shall be advisable for it to require documentary identification issued by Government or semi Government authorities and make a brief narration of the same in the order-sheet. 12. The District Legal Services Authorities in each District of the State shall ensure that pre-litigation reference to the Lok Adalat of family property disputes are made strictly and only in accordance with statutory procedures. A copy of this order shall be made available by the concerned Authority to every new incumbent appointed as a Judicial or non-judicial member of a Lok Adalat. 13. A copy of this order be forwarded to Member Secretary, Bihar State Legal Services Authority for circulation to all District Legal Services Authority for needful compliance. 14. The Appeal is dismissed.