Gauhati High Court
All Guwahati Educated Unemployed ... vs All Guwahati Municipal Corporation And ... on 27 March, 2006
Equivalent citations: AIR2006GAU132, AIR 2006 GAUHATI 132, 2006 A I H C (NOC) 370 (GAU), (2006) 3 GAU LR 509, (2006) 2 GAU LT 518
Author: D. Biswas
Bench: Chief Justice, D. Biswas
JUDGMENT D. Biswas, J.
1. The aforesaid writ petitions pose an identical question of law and, hence, all the petitions have been taken up together for disposal. The question to be answered in this batch of writ petitions is whether the Member-Secretary, Assam State Legal Services Authority is authorized under the provisions of the Legal Services Authorities Act, 1987, hereinafter referred to as the 'Act', to invoke and exercise the powers vested with a permanent Lok Adalat under the provisions of Chapter VIA of the Act?
2. We have heard Mr. B.C. Das and Mr. S. S. Sharma, learned senior counsel for the writ petitioners. The argument advanced by the learned senior counsel have been endorsed by the counsel representing the petitioners in all other writ petitions. Mr. H. Roy, learned senior counsel appeared for the Member-Secretary, Assam State Legal Services Authority.
3. Before the question formulated is addressed, we would like to clear the facts which culminated in these writ petitions. The Member-Secretary, Assam State Legal Services Authority in pursuance of the provisions of Section 22B(1) of the Act issued notices to the writ petitioners taking cognizance of various complaints received by him from different persons for adjudication of the disputes raised in accordance with the provisions of Chapter VIA of the Act. The orders passed in different cases have been challenged in all these writ petitions. Precisely, different Benches of this Court presided over by the learned Single Judges suspended the operation of the orders passed by the Member-Secretary pending disposal of the writ petitions.
4. Mr. B. C. Das, learned senior counsel submitted that the powers and functions of the Member-Secretary as provided in Sub-section (3) of Section 6 are to be exercised within the bounds of the rules as may be prescribed by the State Government and/ or as may be assigned by the Executive Chairman of the State Authority. The powers, according to Mr. Das, are relatable to the powers and functions of the State Authority as defined in Section 7 of the Act. The Member-Secretary cannot transcend beyond what have been prescribed by the State Government or assigned to him by the Executive Chairman. Highlighting different provisions of the Act, Mr. Das submitted that the concept of a permanent Lok Adalat and the powers given to it are completely independent of the powers and functions of the State Authority. The State Authority and the Permanent Lok Adalats are required to act within the limits of their respective powers as specified in the Act, and obviously one cannot assume the jurisdiction of the other.
5. Mr. Roy, learned senior counsel for the State Authority highlighting different provisions of the Act, Rules and Regulations argued at length in answering the above question. Mr. Roy referred to the powers of the Executive Chairman of the State Authority under Sub-section (3) of Section 6 which provide that the Member-Secretary may exercise such powers and perform such duties under the Executive Chairman, as may be prescribed by the Government or as may be assigned to him by the Executive Chairman. The learned Counsel further brought to the notice of the Court the note dated 21-3-2005 placed before the Executive Chairman by the Member-Secretary requesting for nominating him to discharge the functions of Lok Adalat in 'pre-litigation conciliation and settlement'. According to Mr. Roy, the Member-Secretary acted in pursuance of the approval given to him by the Executive Chairman.
6. Chapter III of the Act provides for constitution of the State Legal Services Authority and defines its powers and functions. Sub-section (1) empowers the State Government to constitute Legal Services Authority for the State to exercise the powers and to discharge the functions under the Act. Sub-section (2) of Section 6 provides that a State Authority shall consist of the Chief Justice of the High Court as the Patron-in-Chief; a serving or retired Judge of the High Court, to be nominated by the Government in consultation with the Chief Justice who shall be the Executive Chairman; and such number of other members to be nominated by the Government in consultation with the Chief Justice. Sub-section (3) provides for appointment of the Member-Secretary by the State Government in consultation with the Chief Justice. The person to be appointed as the Member-Secretary must belong to the State Higher Judicial Service, not lower in rank than that of a District Judge. It further provides that the Member-Secretary shall perform such duties as may be prescribed by the State Government or as may be assigned to him by the Executive Chairman. This necessarily connotes that the Executive Chairman may authorize the Member-Secretary only to exercise such powers and perform such duties which are relatable to the powers of the State Authority embodied in Sub-section (2) of Section 7. Sub-section (2) of Section 7 reads as follows
7.(2) Without prejudice to the generality of the functions referred to in Sub-section (1), the State Authority shall perform all or any of the following functions, namely:
(a) give legal service to persons who satisfy the criteria laid down under this Act;
(b) conduct Lok Adalats; including Lok Adalats for High Court cases;
(c) undertake preventive and strategic legal aid programmes; and
(d) perform such other functions as the State Authority may, in consultation with the Central Authority fix by regulations.
7. On the other hand, Chapter VIA, introduced by way of amendment in 2002, consists of Section 22A to 22E. For better appreciation it would be apposite to quote hereinbelow the provisions in Section 22A:
22A. Definitions.- In this Chapter and of 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 22B.
(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 purpose of this Chapter.
8. The provisions in Clause (a) of Section 22A provides for establishment of a Permanent Lok Adalat as provided in Section 22B. Sub-section (1) of Section 22B empowers the Central Government or in relation to a State, the State Government to establish Permanent Lok Adalats to exercise the powers defined in Clause (b) of Section 22A. A Permanent Lok Adalat, as provided in Sub-section (2) of Section 22B, shall consist of a District Judge or Additional District Judge or a person, who has held judicial office higher in rank than that of a District Judge as the Chairman, and two other persons having adequate experience in public utility service to be nominated by the Central Government or the State Government, as the case may be, as Members. A Permanent Lok Adalat so established is authorized to take cognizance of cases under Section 22C. Section 22D prescribes the procedure to be followed by the Permanent Lok Adalat and Section 22E, inter alia, provides that every award of the Permanent Lok Adalat shall be final and binding on all the parties and that every award of the Permanent Lok Adalat shall be deemed to be a decree of a civil Court.
9. The powers of the State Authority as above are purely administrative in nature. The provisions in Section 6 and 7 do not contemplate delegation of any power of a Permanent Lok Adalat under Chapter VIA of the Act to any person or authority. The powers of the State Authority is essentially administrative in nature, and have no nexus with the judicial powers of a Lok Adalat or a Permanent Lok Adalat. There is no room for doubt that a Permanent Lok Adalat is a concept introduced by the Amendment Act No. 37 of 2002 to deal with and dispose of disputes at a pre-litigation stage. Therefore, neither the State Authority nor the Executive Chairman, is authorized under the law to nominate the Member-Secretary to invoke and exercise the powers of a Permanent Lok Adalat under Chapter VIA of the Act. The distinctive features between the two set up i.e. the State Authority and the Permanent Lok Adalat admits of no ambiguity or confusion as to their independent entity. A Member-Secretary may have the requisite qualification to hold the post of Chairman of a Permanent Lok Adalat, but the scheme of the Act does not contemplate appointment of a person to hold both the posts. A Permanent Lok Adalat comes into existence only when it is established by the State Government in relation to a State in the manner as provided in Section 22B. In absence of establishment of a Permanent Lok Adalat by the concerned Government, the question of exercise of powers under Clause (b) of Section 22A by any other authority does not arise. The State of Assam have not established any Permanent Lok Adalat in any place within the territorial limits of the State. Therefore, the entire exercise by the Member-Secretary to decide disputes under Chapter VIA is a nullity.
10. We have taken into consideration the provisions in the National Legal Services Authority Rules, 1995; the Permanent Lok Adalat (the Terms and Conditions of Appointment of Chairman and the Persons) Rules, 2003 and the Assam State Legal Services Authorities Regulations, 1998. We are unable to discern anything in these Rules and Regulations even to infer that the Legislature have ever contemplated exercise of powers of a Permanent Lok Adalat by any other authority. Such a provision cannot be visualized in exercise of the rule making powers. The powers of the Executive Chairman in Sub-section (3) of Section 6 will have to be read within the bounds of the powers and functions of the State Authority, and not beyond that. Consequently, the exercise of powers of Permanent Lok Adalat by the Member-Secretary in pursuance of the authority given by the Executive Chairman by the order dated 21-3-2005 is without jurisdiction and warrants our interference.
11. In the result, the writ petitions are allowed. The impugned orders in all the writ petitions are quashed, and the Member-Secretary is restrained from exercising the powers of a Permanent Lok Adalat henceforth. The Member-Secretary is further directed to maintain and keep the records of all such cases in his custody for onward transmission to the Permanent Lok Adalat as and when established.