Patna High Court - Orders
Bibi Sayeeda Khatoon & Ors vs The State Of Bihar & Ors on 25 April, 2014
Author: Ravi Ranjan
Bench: Ravi Ranjan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14255 of 2008
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1. Bibi Sayeeda Khatoon wife of Sayed Md. Suleman,
2. Anjum Parween daughter of Late Sayed Md. Sulemen
3. Md. Safdar Hussain son of Late Sayed Md. Sulemen
4. Md. Haidar Ali son of Late Sayed Md. Sulemen
5. Md. Asgar son of Late Sayed Md. Sulemen
6. Md. Akhtar son of Late Sayed Md. Sulemen
7. Md. Ahsan son of Late Sayed Md. Sulemen
All are resident of Mohalla Rasulpur, P.O. Hayaghat, P.S. Hayaghat,
District- Darbhanga.
.... .... Petitioners
Versus
1. The State of Bihar
2. The Secretary Legal Service Authority, Darbhanga.
3. Syed Badrul Hussain son of Late Sayed Mahmood Hussain, resident of
village Rasulpur, P.O. and P.S. Hayaghat, District Darbhanga.
.... .... Respondents
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Appearance :
For the Petitioners : Mr. K.N. Chaubey, Senior Advocate
Mr. Ratan Kumar Sinha, Advocate
For Respondent No.3 : Mr. B.P. Pandey, Senior Advocate
Mr. Jagarnath Singh, Advocate
For the State : Mr. Indrajeet Bhushan, A.C. to G.P.2.
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CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN
ORAL ORDER
18 25-04-2014Order dated 04.08.2005 and the Award dated 10.08.2005 passed by the Permanent Lok Adalat, Darbhanga in P.L.A. Case No. 71/2005, contained in Annexures 3 and 4 respectively, are under challenge in this writ application.
The petitioners have alleged that the compromise is fraudulent and the Award is collusive one and, thus, is fit to be set aside.
Shorn of unnecessary details, the facts necessary for consideration of this case stands enumerated as under:- Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 2
The respondent no. 3 filed a petition disclosing it to be a title suit impleading his father Syed Mahmood Hussain as sole defendant. A copy of the application/plaint stands appended as Annexure 1. The property in dispute stands described in Schedule I of Annexure 1. The case of the private respondent was that he was looking after the person and property of the defendant, i.e., his father and being pleased by which the defendant, on 31.01.1998 in presence of the relations and well-wishers, orally gifted the land described in Schedule I to him and delivered possession thereof.
Subsequently, on 21.07.2005 he had also executed a memorandum of such gift in favour of the plaintiff/applicant. The respondent no.
3 claims that by virtue of the aforesaid gift he had acquired perfect title and possession of the property. However, he has alleged in the plaint that the defendant subsequently started interfering into the title and possession of the plaintiff-petitioners and threatened to again transfer the property already gifted to him. Thus, a cloud was cast upon the claim of the plaintiff and as such he was compelled to resort to such proceeding by filing a suit/application.
He sought following reliefs in the aforesaid case:-
" 1. That on adjudication of the facts as stated above the Court be pleased to hold that the defendant had orally gifted the suit property and later on executed Yaddast with respect to the same on 21.7.2005.
2. That the court be pleased to declare the Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 3 title and possession of the plaintiff over the suit land and confirm the same.
3. That the court be pleased to hold and declare that the oral Gift dated 30.1.1998 and Yaddast Gift dated 21.7.2005 are valid and genuine and the defendant has got no concern with the same.
4. That the court be pleased to pass an award in favour of the plaintiff with respect to the suit land.
5. That the court be pleased to grant any other relief and pass an award with respect to the same as the Court deems fit.
6. That the Court be pleased to grant decree for permanent injunction restraining the defendant from transferring the suit and dispossessing in any way."
The case was registered on 27.07.2005 as P.L.A. Case No. 71/2005. It appears from the order-sheet of the case, which stands appended as Annexure 3, that it was directed to be posted for hearing on point of admission. It further appears that on 29.07.2005 a compromise petition was filed on behalf of the respondent no. 3 and his father, i.e., the sole defendant, which was accepted on 04.08.2005 and Award was prepared in terms of compromise arrived between the parties which declares that the private respondent is the title holder and in possession of the property in question. However, subsequently, the sole defendant filed a petition before the Lok Adalat Darbhanga, which was registered as Miscellaneous Case No. 80 of 2005, stating that the compromise petition was forged and fabricated as he had not Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 4 signed such petition. A copy of the petition has been appended as Annexure 5 in which it was stated that he had never gifted any property in favour of the private respondent and had not executed any memorandum (Yadast of gift) on 21.07.2005, i.e., the document which was relied by the plaintiff-applicant(respondent no. 3 herein). Thus, he sought that the Award so prepared be declared null and void. The petition was supported by an affidavit also. However, during the pendency of the aforesaid Miscellaneous Case he died and the petitioners claimed that they were substituted in his place in the case being his heirs and also purchasers through a registered sale deed dated 05.08.2005. Thereafter, the writ petition is silent as to what had happened in the miscellaneous case. However, in paragraph nos. 9 and 15 of the counter affidavit filed on behalf of the respondent no. 3, it has been disclosed that Miscellaneous Case No. 80 of 2005 was dismissed on 05.02.2009 for want of prosecution. It has further been disclosed in the counter affidavit that the petitioners have also filed Title Suit No. 103 of 2006 in the court of the Sub-Judge for declaration of title and also for declaration that the compromise filed in Title Suit No. 71/2005 and the Award dated 10.08.2005 prepared by the Lok Adalat are forged and fabricated. However, an affidavit has been filed on behalf of the petitioners Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 5 that under wrong impression such title suit was filed and subsequently a petition has been filed for withdrawal of the suit.
In the aforesaid backgrounds of the matter, I have heard the parties and perused the records of this case.
Learned counsel for the petitioners, at the time of hearing, has raised a short question for consideration. It has been submitted that the Award prepared by the Permanent Lok Adalat is in teeth of the law laid down by a Division Bench of this Court in L.P.A. No. 233 of 2013 disposed of on 16.01.2014 as the Lok Adalat has directly entertain a petition over stepping the mandate of section 20(2) and (3) of the Legal Services Authorities Act, 1987(hereinafter to be referred to as "the Act") read with Regulation 33 of the Bihar State Legal Services Authority Regulations, 1998(hereinafter to be referred to as "the Regulations"). He raises another question as to whether a Permanent Lok Adalat would be competent to dispose of such matter? Learned counsel has drawn attention of this Court towards section22-A(a) of the Act which defines the Permanent Lok Adalat as established under sub-section (1) of section 22-B of the Act. Section 22-B of the Act lays down that, notwithstanding anything contained in section 19, the Central Authority or, as the case may be, every State Authority shall, by notification, establish Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 6 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. He submits that there is no provision declaring and empowering the Permanent Lok Adalat to hear the matters adjudicating the lis between the parties. Thus, it is contended that the action is fully without jurisdiction. Learned counsel places reliance upon a decision rendered by the Apex Court in Interglobe Aviation Ltd. v. N. Satchidanand [(2011) 7 Supreme Court Cases, 463] specially paragraphs 32 and 33 thereof in support his submission. It is urged that the Apex Court has laid down that there are different types of Lok Adalats one of which is being organized under section 19 of the Act which has no adjudicatory function and power in respect of any case or matter relating to an offence not compoundable under any law whereas under section 22-B of the Act a Lok Adalat is established to exercise both, i.e., the conciliatory and adjudicatory function but only for public utility services. It is further contended that a Single Bench of this Court in C.W.J.C. No. 2283 of 2013(Vishundeo Prasad Singh v. Ashuish Kumar and others) disposed of on 01.08.2013, after following the aforesaid decision, has also declared such action of Permanent Lok Adalat as illegal, unauthorised, beyond jurisdiction and nullity in law. Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 7 Thus, it is contended that the Award would be null and void in the eyes of law.
Per contra, Mr. Jagarnath Singh, learned counsel appearing for the respondent no. 3, has contended that though the Award appears to have been prepared by concluding one but, in fact, it has been prepared by a continuous Lok Adalat which has been organized under section 19 of the Act and as such, the Award concerned cannot be thrown away simply on ground that it bears a wrong nomenclature.
However, in my considered opinion, the aforesaid issue would not be required to be gone into in view of the first and the foremost infirmity which has been pointed out by the petitioners. Even if it is assumed that the Award has been prepared by the continuous Lok Adalat and not by Permanent Lok Adalat, the mandates of section 20(2) and (3) of the Act as well as Regulation 33 of the Regulations were followed but that has admittedly not been done.
For better appreciation, the relevant provisions of section 19(5) as well as section 20(2) and (3) of the Act are reproduced as under:
"19. Organisation of Lok Adalats.--
xx xxx xx (5) A Lok Adalat shall have jurisdiction to Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 8 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 the Lok Adalat is organized:
Provided that the Lok Adalat shall have no jurisdiction in respect of any cas3e or matter relating to an offence not compoundable under any law.
20. Cognizance of cases by Lok Adalats. -
xx xx xx (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."
Regulation 33 of the Regulations which would also be necessary for consideration of the of the lis is also being reproduced as under:-
"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 Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 9 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."
From the conjoint reading of the aforesaid provisions of the Act and Regulations as well as the law laid down by the Apex Court in Interglobe Aviation Ltd.(supra) it would appear that the Lok Adalat organized under section 19 of the Act has only got conciliatory jurisdiction and it cannot adjudicate a case. There are Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 10 two modes of approaching such Lok Adalats. First mode would be reference of suit to it by any court of competent jurisdiction for conciliatory purpose then, upon such conciliation having been made, a compromise can be accepted and Award can be prepared by the Lok Adalat. Secondly, the concerned person even without filing any suit before the competent civil court may, in case of any possibility of settlement of dispute existing between certain persons, approach either the Secretary of the District Authority/Chairman or Taluka Legal Services Committee or the concerned authority in the District which is empowered to organize Lok Adalat under section 19 of the Act which would be required to examine the matter and if such authority deems it fit to refer the matter for pre-litigation settlement, and only thereafter, if it finds, it shall issue notice along with a copy of the petition to the opposite party and after granting reasonable opportunity to him/her, it may refer the same to the Lok Adalat and direct the parties to appear before the Lok Adalat for the pre-litigation settlement. On matter being 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, would be required to keep the record of the papers and advise the parties to seek a remedy in a Court of law. However, if the matter is Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 11 settled then Award would be prepared by the Lok Adalat.
In the case in hand, it appears that a plaint seeking certain reliefs has been directly filed before the Lok Adalat without moving the Legal Services Authority. In the plaint , as has been observed above, certain reliefs have been sought which were declaratory in nature for holding the oral gift to be valid and genuine transaction and, thereafter, for passing an Award in favour of the plaintiff with respect to the suit land. The plain reading of the application which is in a form of plaint discloses that adjudication of the issues was sought as the plaint was not accompanied with any compromise petition for declaration of settlement between the parties as the compromise petition was filed after two days of the registration of the case on 29.07.2005.
Now the question for determination would be as to whether the Lok Adalat was empowered to register such a pre- litigation matter?
Even if assuming that it was not a Permanent Lok Adalat established under section 22-B rather it was a continuous Lok Adalat organized under section 19(1) of the Act, the answer would have be in negative as a plain reading of sections 19, 20(2) and 20(3) of the Act as well as Regulation 33 of the Regulations along with the law laid down by the Apex Court in Interglobe Aviation Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 12 Ltd.(supra) one would come to a conclusion that the Lok Adalat organized under section 19 of the Act has to confine itself to a conciliatory function but it cannot adjudicate a matter. Thus, in my considered opinion, the first error was committed by the Lok Adalat at the time of registration of the case itself as it could not have accepted and registered a matter which was required to be adjudicated. However, at a subsequent stage, a compromise petition was filed. But it will give rise to another question, i.e., even if it is assumed that a case for conciliation was directly filed before the Lok Adalat whether it was competent to directly entertain it? The answer would be in negative in view of the law laid down by the Division Bench which has clearly laid down that the concerned person would have to approach the Legal Services Authority which would be required to examine the matter and issue notice to the opposite party and thereafter would pass a reasoned order and in case it thinks that there is possibility of settlement of the matter, it would direct the parties to appear thereafter before the Lok Adalat for pre-litigation settlement. This is admitted case of the parties that the respondent no. 3 has not resorted to the same and the Lok Adalat has directly entertained the compromise petition.
Thus, in my considered opinion, the Lok Adalatl has Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 13 committed grave error of jurisdiction by entertaining such application directly on both counts, as discussed above, and, therefore, the Award would have to be declared a nullity in the eyes of law.
At this juncture, Mr. Jagarnath Singh, learned counsel appearing for the respondent no. 3, has submitted that such declaration should not be made by this Court as the petitioners do not have any locus standi to approach this Court in a writ petition. It is submitted by him that, in a family governed by Mohammedan Law, even the first class heirs have no right over the property in the life time of father and the property having been obtained by oral gift, the interest of other legal heirs stands ousted. It is next contended that the petitioners, after getting themselves substituted in place of the deceased father of the respondent no. 3, did not pursue Miscellaneous Case No. 80 of 2005 which was dismissed for want of prosecution and they have also filed Title Suit for declaring the Award null and void, therefore, it is contended that the present writ petition should not be entertained.
In my considered opinion, aforesaid submissions made on behalf of the respondent no. 3 are to be noted only for being rejected. It is admitted position that the petitioners along with the respondent no. 3 are heirs of late Mahmood Hussain and in the Patna High Court CWJC No.14255 of 2008 (18) dt.25-04-2014 14 absence of gift all of them are entitled for a share in his property. Thus, in my considered opinion, the petitioners are definitely having a locus to challenge the Award.
It is true that the Award would be binding upon the parties only, thus, the petitioners are not bound by the Award not being a party to the proceeding, however, since the matter has been brought to the notice of this Court and Award has been found to have been prepared by the Lok Adalat over stepping its jurisdiction and is a nullity in law, this Court cannot ignore the same and allow it to survive.
Accordingly, this writ application is allowed and the Award concerned is set aside.
It is made clear that this Court has not expressed its opinion on the merit of the cases of the respective parties as the Award has been set aside only on the ground that the Lok Adalat has exceeded its jurisdiction in entertaining such compromise petition and preparing the Award contrary to the mandates of section 20(2) and 20(3) of the Act and Regulation 33 of the Regulations. Thus, the parties would be at liberty to approach a competent forum for redressal of their grievance.
(Dr. Ravi Ranjan, J) AFR SC/-