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2019 DIGILAW 1545 (RAJ)

Vimala Devi Tawari v. Ashok Kumar Sadh

2019-05-16

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - This writ petition under Articles 226 and 227 of the Constitution of India has been preferred claiming the following reliefs: "(i) by an appropriate writ, order or direction, the impugned judgment and award dated 27.11.2018 (Annexure-7) passed by the learned Permanent Lok Adalat, Bikaner in Application No.72/2017 (Ashok Kumar Vs. Man Mohan Dammani & Ors.) may kindly be declared illegal and the same be quashed and set aide with all consequential proceedings. (ii) any other appropriate writ, order or direction, which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners. (iii) costs throughout may kindly be awarded in favour of the petitioners." 2. Brief facts of this case, as noticed by this Court, are that the petitioner No.1 is having a land admeasuring 23869.95 sq. feet situated at Mohalla Outside Jassusar Gate, Gajner Road, Bikaner. 3. The aforesaid land was given to respondent No.2, the builder for the purpose of construction of a building complex on it, and in this context, a developer agreement was executed between the parties. The respondent No.2 was to construct a building complex accordingly on the land in question and to sell the flats in question. 4. The respondent No.1 filed an application before the Permanent Lok Adalat for recovery of possession of flat against the petitioners and respondent No.2 alleging that the Sukhsagar Apartment was constructed, in which respondent No.1 booked a flat situated in 'B' Block at third floor of the apartment admeasuring 1160 sq. feet 5. The respondent No.1 booked the flat in question for a consideration Rs.23,20,000/-, and further, a sum of Rs.1,00,000/- in cash was to be paid to the respondent No.2, which has been paid. The respondent No.1 paid a sum of Rs.9,28,000/- and the remaining amount to the tune of Rs.14,00,000/- was also paid in cash to the respondent No.2. The respondent No.1 thus claimed to have paid a sum of Rs.24,28,000/- in totality for the flat in question. 6. The respondent No.1 paid a sum of Rs.9,28,000/- and the remaining amount to the tune of Rs.14,00,000/- was also paid in cash to the respondent No.2. The respondent No.1 thus claimed to have paid a sum of Rs.24,28,000/- in totality for the flat in question. 6. The possession of the flat was handed over to the respondent No.1 in December, 2015, but since a lot of work was pending in the flat and was not as per the stipulated conditions, therefore, the possession of the flat was returned back to the respondent No.2 for doing the necessary works, but the same remained lacking. 7. The petitioner claimed that the complete formalities, as per the developer agreement, were to be conducted by respondent No.2, and the allegations being made by the respondent No.1 upon the petitioners No.1 and 2 were baseless. The petitioners No.1 and 2 further claimed that the receipts of the amount being paid to them were forged and fabricated. The petitioners also claimed that to escape the liability of Rs.1,04,000/-, in lieu of the generator charges, society charges and service tax, the respondent No.1 was trying to contend that the possession of the flat was with the petitioners. 8. The matter came up before the learned Permanent Lok Adalat and both the parties filed their affidavits and documents, and an award was passed after hearing both the parties on 27.11.2018, which is under challenge. 9. Learned counsel for the petitioners submitted that the impugned award dated 27.11.2018 was illegal, and the forum, which was for the purpose of settlement and conciliation of the dispute, has in fact gone on to adjudicate the dispute on merits, and final reliefs, orders and directions on the merits of the case have been passed, which is contrary to the spirit of the Permanent Lok Adalat. 10. In support of his submission, learned counsel for the petitioners relied upon the judgment rendered by this Hon'ble Court at Jaipur Bench in Axis Bank Ltd. & Anr. Vs. Mohit Polytech Pvt. Ltd. (S.B. Civil Writ Petition No.16647/2016 decided on 28.03.2017), relevant portion of which reads as under:- "The Permanent Lok Adalat seems to be influenced even by the fact that agreement was running in 12 to 15 pages and was not explained without taking note of the fact that respondent was not compelled to sign the document without reading it. The complaint does not raise issue taken by the Permanent Lok Adalat thus even ignoring the pleading, impugned order has been passed." 11. Learned counsel for the petitioners has also placed reliance on the precedent law laid down by the Hon'ble Supreme Court in Life Insurance Corporation of India Vs. Suresh Kumar , (2011) 7 SCC 491 , relevant portion of which reads as under: "3. In our considered opinion, the impugned order passed by the Lok Adalat which has received its affirmation at the hands of the High Court suffers from incurable legal infirmity. The permanent Lok Adalat is not a regular court authorised to adjudicate the disputes between the parties on merits. It is needless to state that permanent Lok Adalat has no jurisdiction or authority vested in it to decide any lis, as such, between the parties even where the attempt to arrive at an agreed settlement between the parties has failed. It is a clear case where the Lok Adalat converted itself into a regular court and disposed of the claim of the respondent on merits. The impugned order suffers from jurisdictional error and is liable to be set aside. The orders passed by the permanent Lok Adalat as well as the High Court are, accordingly, set aside." 12. Reliance has also been placed by learned counsel for the petitioners on the judgment rendered by the Hon'ble Jharkhand High Court in Sandip Ekka Vs. Selesta Kerketa , (2011) AIR(Jhar) 130, relevant portion of which reads as under:- "5.. . . . . .The predominant role of the Permanent Lok Adalat is of a conciliator and not of an adjudicator. It has been held in the decisions rendered by this Court reported in 2009(4) JLJR 129 as well as in 2008 (3) JLJR 513 that the Permanent Lok Adalat can decide the dispute, on merits only when there is consent, in writing, by parties, to the dispute. For the reasons stated in the aforesaid judgments, the order passed by the Permanent Lok Adalat, Simdega in MJC Case No.28 of 2008 dated 27th July, 2009 is, hereby, quashed and set aside." 13. Learned counsel for the petitioners has also relied upon the judgment rendered by the Hon'ble Gauhati High Court in Deputy Divisional Manager, Shillong & Anr. Vs. Smt. Jharna Ghosh , (2011) AIR Gauhati 205, relevant portion of which reads as under:- "16. Learned counsel for the petitioners has also relied upon the judgment rendered by the Hon'ble Gauhati High Court in Deputy Divisional Manager, Shillong & Anr. Vs. Smt. Jharna Ghosh , (2011) AIR Gauhati 205, relevant portion of which reads as under:- "16. As matter of fact, the Permanent Lok Adalat should not consider itself as a normal court meant for adjudication of disputes. The Permanent Lok Adalat, may not cross the barrier set up by the Act and decide the issue on merits donning the robe of a Civil Court. The experienced judicial officer manning the Permanent Lok Adalat should utilize their knowledge and perception for reconciliation and not for deciding the dispute on merit, since for deciding such dispute on merit other Courts of appropriate jurisdiction are available. Unless the consent is given in writing by both the parties, the Permanent Lok Adalat has no power, jurisdiction and authority to decide the issue on merits, under sub-section (8) of Section 22C of the Act. As the basic object of enacting 22C is to get the disputes settled at the pre-litigation stage, resorting to the provisions of sub-section (8) of Section 22C of the Act, would be inappropriate, since the Permanent Lok Adalat failed to apply the provisions of sub-section (4) to (7) of Section 22C of the Act." 14. Learned counsel for the petitioners further submitted that the Permanent Lok Adalat has directly delivered the decision on merits by adjudicating the facts of the case, whereas the ambit of the award of the Lok Adalat ought to be in accordance with law. 15. Learned counsel for the petitioners also submitted that disputed questions of fact were involved and on the basis of oral evidence, the Permanent Lok Adalat has proceeded to make adjudication, alike the suit proceedings. 16. Learned counsel for the petitioners further submitted that complete responsibility was of respondent No.2 to construct building complex, whereas the award has been passed against the petitioners and the liability has been unlawfully shifted upon the petitioners, whereas it ought to have been with the respondent No.2, the builder. 17. 16. Learned counsel for the petitioners further submitted that complete responsibility was of respondent No.2 to construct building complex, whereas the award has been passed against the petitioners and the liability has been unlawfully shifted upon the petitioners, whereas it ought to have been with the respondent No.2, the builder. 17. On the other hand, learned counsel for respondent No.1 submitted that the sale in question is not disputed by any of the parties as the respondent No.2 had executed an agreement for construction of the building complex on the land, but after completion of the construction, 20% of the flats were to be handed over to the petitioners, to be sold in accordance with the ratio of distribution arrived at between the parties. 18. Learned counsel for respondent No.1 further submitted that payment of the complete amount of Rs.9,28,000/- by cheque as well as Rs.15,00,000/- in cash, as per the terms and conditions, has already been made by the respondent No.1, and thus, it was the duty of the parties i.e. petitioners and respondent No.2 to hand over proper possession of the flat to respondent No.1, with complete and proper amenities, as per the stipulated terms and conditions. 19. Learned counsel for the respondent No.1 also submitted that both the parties were in agreement, and though the said agreement was verbal between the parties, but the complete payment in lieu of the flat in question has not been denied by the petitioners and respondent No.2, and thus, it is an admitted fact that the complete amount has been paid. 20. Learned counsel for respondent No.1 further submitted that as per the amendment made by the State of Rajasthan vide notification dated 29.12.2014 as well as Central Government Notification dated 16.02.2016, the services of the residential subject were included in the Permanent Lok Adalat, and therefore, the jurisdiction was there with the Permanent Lok Adalat to decide the issue on merits, and once the fact of receiving the amount, as per the agreement, has been admitted and the sale of the concerned flat has also been admitted, there requires no other proof to support the verbal agreement between the parties, and thus, the award was lawfully passed by the Permanent Lok Adalat. 21. 21. Learned counsel for respondent No.1 further submitted that the Permanent Lok Adalat has properly adjudicated the matter after giving proper opportunity of hearing to both the parties as provided in Section 22(C)(8) of the Legal Services Authorities Act, 1987 and in accordance with Section 22(D) as there was no disputed questions of fact involved in the present case, because the verbal agreement in question regarding sale of flat has been admitted by the petitioner No.1, and that, receipts of the payments have already been produced by respondent No.1, though denied. 22. Learned counsel for respondent No.1 also submitted that the Permanent Lok Adalat has gone into all the details furnished by the parties, and thus, the protection given to the respondent No.1 as a buyer/purchaser of the flat on the third floor of Sukhsagar Apartment in 'B' Block admeasuring 1160 sq. feet was lawful and had to be complied with. 23. Learned counsel for respondent No.1 further submitted that broadly, the terms and conditions have not been denied, and if there is any dispute between the petitioners and respondent No.2, it is for them to resolve. 24. In support of his submissions, learned counsel for respondent No.1 relied upon the judgment rendered by this Hon'ble Court in Executive Officer, Municipal Council, Asind & Anr. Vs. The Permanent Lok Adalat, Bhilwara & Anr. (S.B. Civil Writ Petition No.18204/2018 decided on 20.02.2019), relevant portion of which reads as under:- "5. I have perused the award passed by the permanent Lok Adalat. I find that the Municipal Board had recovered a sum of Rs. 70,000/- as development charges from the respondent and the drain which is running in front of the plot of the respondent has not been covered as per the Act of 2009. The Municipal Board is duty bound to cover the drain and the cost of the expenditure has to be borne from the funds which they collect by way of development charges. 6. It is also noticed that the property, which is in question, is a commercial land and registry for the property was made by the Municipal Board in favour of the applicant on 02.04.2014 but he has preferred a complaint as there is no access to the plot on account of drain having not been covered by the Municipal Board. 7. It is also noticed that the property, which is in question, is a commercial land and registry for the property was made by the Municipal Board in favour of the applicant on 02.04.2014 but he has preferred a complaint as there is no access to the plot on account of drain having not been covered by the Municipal Board. 7. It is also noticed that the respondent had made several applications to the Municipal Board from 2017 upto 2018 for getting the drain covered but to no avail. Taking into consideration all the aspects the permanent Lok Adalat had issued notices and as in terms of the Legal Services Authority Act, it was for the Municipal Board to have taken the clue and immediately covered the drain but it seems that the drain was not covered and the permanent Lok Adalat had to exercise its power under Section 22 (B) of the Act and pass a mandatory order. 8. In the circumstances if a compensation has been directed to be awarded no errors can be said to have been committed by the permanent Lok Adalat. 9. This Court also noticed that the Municipal Board instead of implementing the order of the permanent Lok Adalat had preferred the writ petition and the order has been stayed. 10. Thus, if even today the drain has not been covered the duty of the Municipal Board is to see that their citizens are not harassed. Instead of getting the construction of covering the drain, the Municipal Board is engaged in litigation for normal reasons. 11. In the circumstances while upholding the order passed by the permanent Lok Adalat, the Municipal Board is directed to implement the order and complete the construction of covering of the drain positively within one month from today. 12. Apart from the observation made by the permanent Lok Adalat, if the order is not complied with the respondent shall be free to initiate contempt proceedings against the Chairman of the Municipal Board who is personally liable for the implementation of the order of the permanent Lok Adalat. 13. The compensation and the amount as directed by the permanent Lok Adalat shall also be paid to respondent within said period without fail. 14. The Municipal Board shall be free to recover the said cost from the concerned Executive Engineer who is responsible to get the drain covered. 15. 13. The compensation and the amount as directed by the permanent Lok Adalat shall also be paid to respondent within said period without fail. 14. The Municipal Board shall be free to recover the said cost from the concerned Executive Engineer who is responsible to get the drain covered. 15. The writ petition is dismissed." 25. Learned counsel for respondent No.1 has also placed reliance on the precedent law laid down by the Hon'ble Supreme Court in Interglobe Aviation Limited Vs. N. Satchidanand , (2011) 7 SCC 463 , relevant portion of which reads as under: "32. We may also at this juncture refer to the confusion caused on account of the term Permanent Lok Adalat being used to describe two different types of Lok Adalats. The LSA Act refers to two types of Lok Adalats. The first is a Lok Adalat constituted under Section 19 of the Act which has no adjudicatory functions or powers and which discharges purely conciliatory functions. The second is a Permanent Lok Adalatestablished under Section 22-B(1) of the LSA Act to exercise jurisdiction in respect of public utility services, having both conciliatory and adjudicatory functions. The expression "Permanent Lok Adalat" should refer only to Permanent Lok Adalatsestablished under Section 22-B(1) of the LSA Act and not to the Lok Adalats constituted under Section 19. However, in many States, when Lok Adalats are constituted under Section 19 of the LSA Act for regular or continuous sittings (as contrasted from periodical sittings), they are also called as Permanent Lok Adalatseven though they do not have adjudicatory functions. 33. In LIC v. Suresh Kumar , (2011) 7 SCC 491 this Court observed: "It is needless to state that Permanent Lok Adalat has no jurisdiction or authority vested in it to decide any lis, as such, between the parties even where the attempt to arrive at an agreed settlement between the parties has failed." The said decision refers to such a "Permanent Lok Adalat" organised under Section 19 of the Act and should not be confused with Permanent Lok Adalats constituted under Section 22-B(1) of the Act. To avoid confusion, the State Legal Services Authorities and the High Courts may ensure that Lok Adalats other than the Permanent Lok Adalats established under Section 22-B(1) of the Act in regard to public utility services, are not described as Permanent Lok Adalats. To avoid confusion, the State Legal Services Authorities and the High Courts may ensure that Lok Adalats other than the Permanent Lok Adalats established under Section 22-B(1) of the Act in regard to public utility services, are not described as Permanent Lok Adalats. One way of avoiding the confusion is to refer to the Lok Adalats constituted under Section 19 of the Act on a regular or permanent basis as "Continuous Lok Adalats". Be that as it may." 26. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court is of the opinion that though the agreement being sought to be implemented by the Permanent Lok Adalat is oral, but the factual matrix of the Sukhsagar Apartment and respondent No.1 booking the flat situated in 'B' Block at the third floor of the apartment admeasuring 1160 sq. feet is not disputed. Further, it is not disputed that the respondent No.1 has paid a total sum of Rs.24,28,000/- in lieu of the flat in question and such flat without proper amenities was being handed over to the respondent No.1, which was refused by him. 27. The agreement between the petitioners and the respondent No.2 has also been perused by this Court, and which clearly envisages that such flat shall be constructed in tandem by both of them and shall be provided to the respective buyers. 28. The receipts are also on record and even if denied, the wholesome payment is not denied by the petitioners. This Court finds that the only dispute is whether the payment remained with the petitioners or respondent No.2. The conveyance deed i.e. the sale deed, which is on record, has also been perused by this Court. 29. The factual matrix of the case has been taken care of by the Permanent Lok Adalat, whereby the complete transaction has been recorded and the liability of the petitioners as the principal owners of the land in question and the initiator of the project of constructing the flats of Sukhsagar Apartment is not denied. Hence, on a complete perusal of the record as per the documents as well as the precedent law cited at the Bar, this Court finds that the award passed by the learned Permanent Lok Adalat is well justified. Therefore, no interference is called for in this writ petition. 30. Hence, on a complete perusal of the record as per the documents as well as the precedent law cited at the Bar, this Court finds that the award passed by the learned Permanent Lok Adalat is well justified. Therefore, no interference is called for in this writ petition. 30. Consequently, the present writ petition is dismissed. Stay Application No.264/2019 also stands dismissed accordingly.