Jammu & Kashmir High Court - Srinagar Bench
Chief Engineer (Pwd)R&B; & Others vs Ghulam Ahmad Sheikh & Ors on 26 March, 2018
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR
Case No: OWP 802/2017 Dated : 26th of March , 2018
Chief Engineer (PWD) R&B & ORS VERSUS Gh. Ahmad Sheikh & Ors
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No
FOR THE PETITIONER/s : MR. Q.R.SHAMAS
FOR THE RESPONDENT/s: . MR. MIR MAJID BASHIR
(M.K.HANJURA-J) 01/ By the medium of this writ petition, the petitioners have assailed the orders dated 29-03-2017 & 25-05-2017 passed by the Chairman Tehsil Legal Services Committee, Handwara, (respondent No.1), inter alia, on the grounds that although the parties did not arrive at any settlement, yet the Chairman Legal Services Authority, without any jurisdiction, determined the issue by assuming unto himself the powers of a Civil Court. It is stated that in terms of the section 18(4) of the J&K Legal Services Authorities Act 1997 (for short Act of 1997), the jurisdiction of the Lok Adalat is limited to the extent of seeking a settlement or compromise between the parties and not to determine the issue on evidence or merit. The petitioners, while referring to a full bench decision of the apex Court delivered in case titled State of Punjab and another versus Jalore Singh & another, reported in 2008 ACJ 2874, have stated that the settled law is that the functions of the Lok Adalat are conciliatory and Lok Adalats do not enjoy adjudicatory powers. The petitioners have proceeded to state that the award of the Lok Adalat is amenable to the writ jurisdiction of the Hon'ble High Court. It is well settled position of law that if the case does not involve settlement or compromise, the Lok Adalat cannot dispose of the same. To substantiate so, the petitioners have referred to and relied on the law laid down in the case titled State of Punjab versus Pholan Rani & others, reported in AIR 2007 SCC 555. 02/ The petitioners have further pleaded in the petition that the respondent No.1 had to restrict himself to the mandate of the Act of 1997 but he considered and concluded the case on the basis of the documents, which, allegedly, indicate that the amount is due to the applicants and directed the petitioner No.3 herein to release the amount of Rs. 33/- lacs. Thus, what is manifest is that no compromise or settlement was arrived at between the parties. 03/ The petitioners have averred further that the procedure adopted by the respondent No.1, in passing the impugned orders, is novel, inasmuch as, he was supposed to pass an award in terms of section 20 of the Act of 1997, which has not been done by the Authority. The impugned orders are beyond jurisdiction and these cannot sustain in the eyes of law. In the end, the petitioners have stated and submitted that the orders, impugned herein, being bad in law and the Lok Adalat having no jurisdiction to entertain the case and pass such orders, therefore, this Court may set aside the impugned orders by allowing the writ petition and the application, filed by the respondents, at the pre-litigation stage, seeking settlement, be dismissed.
04/ Respondents 2 to 4 have filed their response, wherein they have categorically denied any illegality or any jurisdictional error in the orders impugned and, therefore, they have stated that the same do not warrant any interference by this Court. They have further stated that the petitioners have filed the writ petition in the official capacity and they have not sought leave from the Government of J&K, in particular Department of Law, Justice & Parliamentary Affairs, which is a pre- requisite. Respondents have further stated that while exercising the power u/s 18 & 19 of the Act of 1997, the Authority, which was seized of the subject matter of the lis, neither passed any award nor rejected the pre-trial application. However, on the basis of the candid statement of the Executive Engineer, R&B Division, Handwara - petitioner No.3 herein, who after receiving the information from the concerned office, stated that he will settle the claim, the direction for the release of the amount of Rs.33/- lacs was passed by the Authority. Respondents have further stated that when the direction for the release of the aforesaid amount was passed, the matter was ordered to be listed for a future date. However, the petitioners, thereafter, chose not to appear. Show Cause notices were issued to the petitioners, but instead of appearing before the Authority, they decided to approach this Court on fallacious grounds, questioning the jurisdiction of the Authority. The respondents have further contended that no award was passed but efforts were made to facilitate settlement for the undisputed liability. The respondents have also averred that the petitioners being guilty of suppression of facts, cannot be allowed to contradict their own official record and admissions made before the Authority, which culminated in the passing of the impugned orders. The respondents have finally submitted that the writ petition being bereft of any substance, be dismissed.
05/ Heard & considered.
06/ Sections 18 & 19 of the Act of 1997, to which reference has been made in the pleadings of the parties, require to be delineated and enumerated below and these read as under :
"18. Organization of Lok Adalat:- (1) The State Authority or District Authority or the High Court Legal Services Committee or, as the case may be, Tehsil Legal Services Committee may organize Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit.
(2) Every Lok Adalat organized for an area shall consist of such number of--
(a) serving or retired judicial officers; and
(b) other persons, of the area as may be specified by the State Authority or the District Authority or the High Court Legal Services Committee, or as the case may be, the Tehsil Legal Services Committee, organizing such Lok Adalats.
(3) the experience and qualification of persons referred to in clause (b) of sub-Section (2) for Lok Adalats shall be such as may be prescribed by the Government in consultation with the Chief Justice of the High Court.
(4) Lok Adalat shall have jurisdiction to 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 case or matter relating to an offence not compoundable under any law.
19. Cognizance of cases by Lok Adalats.--(1) Wherein any case referred to in clause (1) of sub-section (4) of section 18,--
(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 prima facie satisfied that there are chances of such settlement ; or
(ii) the court is satisfied that the matter as 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 (I) of section 18 may, on receipt of an application from anyone of the parties to any matter referred to in clause (ii) of sub-section (4) of section 18 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 the 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, 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)."
07/ The order dated 29-03-2017 of CJM Handwara (Chairman Tehsil Legal Service Authority), impugned herein, is relevant for the determination of this petition and it reads as under :
"The application for pre litigation has been put up before this court in which notice was issued to the respondent first through Advocate Nadeem and then defendant No.5 appeared on behalf of non-applicants. On the appearance of the non-applicant No5, he apprised court that the work done has been applicant prior to his joining to the present post and that he will take up the matter with the then concerned Executive Engineer who allotted the work of the applicant.
The Ld. counsel for the applicant has put on record photo copy of the communication of letter No. 6145 dated 20.03.2017 which was sent by the Executive Engineer Handwara to Superintendent Engineer, Baramulla wherein, it was written that the work was completed in the year 2014 and that the Executive Engineer is competent to dispose of the claim of the petitioner. It is the claim of the applicants that they have constructed a Steel decked bridge measuring 1x30 meter Span over the Nallah Talari at Turkhapora - Khahipora village and submitted bill No. 129 dated 07.09.2015 after duly verified from different authorities and that since he has done work for an amount of Rupees Eight Six Lakh however the amount of rupees fifty three lakh released in favour of the applicants after the deductions and that the rest of amount of rupees 33 lakh is pending with the respondent No.5.
The Ld. counsel further apprised the court that an amount of rupees fifty three lakhs has been verified by the same office headed by Executive Engineer after perusing the same bills which were pending in his office that they are making excuses for making payment of rupees thirty three lakhs on one or the other pretext.
Since, the Executive Engineer non applicant No.5 has apprised the court on his appearance that he will see and verified the claim of the applicants from his predecessor and will pay the claim after receiving the information from the concerned office. Since photocopies put on record by the ld. counsel submitted in reply to letter No. 6145 dated 20.03.2017 issued by Superintendent Engineer, PWD (R&B) Circle Baramulla/Kupwara clearly notified in which he has submitted that Divisional level itself will take appropriate orders to pass the remaining bills of the applicant. Accordingly, in view of the submissions and intimation, the Executive Engineer is directed to release the amount of rupees thirty three lakhs by or before fifteen days from the date of order. Let the file shall be listed before the Lok Adalat on 08.04.2018."
08/ Another order dated 25.05.2017 of Chief Judicial Magistrate (CJM),Handwara (Chairman Tehsil Legal Service Authority), which has also been assailed in the petition and is germane in the context of the decision of this petition, states as follows :
"In the above titled application, an order was passed on 29.03.2017 against the non-applicant to release an amount of rupees thirty three lakhs by or before fifteen days and when the said order was not complied by the non-applicant two show cause notices were issued against them but of no avail. The casual approach on behalf of the non applicant i.e. Executive Engineer R&B Division, Handwara is sufficient to hold that he has no regards for court order.
It is out of place to mention here that application is pending since 14.02.2017 till date applicant i.e. Executive Engineer, R&B Division Handwara has not released an amount and has not adhere the orders of court direction. This court is constrained to take action against the Executive Engineer R&B Division, Handwara and by this order the Treasury Officer Handwara is directed to seize the Major Head Account of the Executive Engineer R&B Division Handwara till further orders. Put up on 06.06.2017."
09/ The question that arises for consideration is whether the orders aforesaid passed by the CJM, Handwara (Chairman Tehsil Legal Service Authority) are in inconsonance with the law and the rules governing the subject. The Apex Court of the country in the case of "State of Punjab Vs Jalour Singh", reported in AIR 2008 SC 1209, directed the High Court to decide the appeal of State against the order of tribunal on merits while determining the import and scope of sub-sections 3, 4 , 5 and 7 of Section 19 of the Legal Services Authorities Act, 1987 as applicable to the State of Punjab and it held as follows :
"8. It is evident from the said provisions that Lok Adalats have no adjudicatory or judicial functions. Their functions relate purely to conciliation. A Lok Adalat determines a reference on the basis of a compromise or settlement between the parties at its instance and puts its seal of confirmation by making an award in terms of the compromise or settlement. When the Lok Adalat is not able to arrive at a settlement or compromise, no award is made and the case record is returned to the court from which the reference was received, for disposal in accordance with law. No Lok Adalat has the power to "hear" parties to adjudicate cases as a court does. It discusses the subject-matter with the parties and persuades them to arrive at a just settlement. In their conciliatory role, the Lok Adalats are guided by principles of justice, equity, fair play. When the L.S.A Act refers to "determination' by the Lok Adalat and 'award' by the Lok Adalat, the said Act does not contemplate nor require a non-adjudicatory determination based on a compromise or settlement, arrived at by the parties, with guidance and assistance from the Lok Adalat. The 'award' of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision-making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat."
9. But we find that many sitting or retired Judges, while participating in Lok Adalats as members, tend to conduct Lok Adalats like Courts, by hearing parties, and imposing their views as to what is just and equitable, on the parties. Sometimes they get carried away and proceed to pass orders on merits, as in this case, even though there is no consensus or settlement. Such acts, instead of fostering alternative dispute resolution through Lok Adalats, will drive the litigants away from Lok Adalats. Lok Adalats should resist their temptation to play the part of Judges and constantly strive to function as conciliators. The endeavor and effort of the Lok Adalats should be to guide and persuade the parties, with reference to principles of justice, equity and fair play to compromise and settle the dispute by explaining the pros and cons, strengths and weaknesses, advantages and disadvantages of their respective claims."
10/ Sub-Section 3, 4 ,5 and 7 of Section 20 cited above are in complete harmony and correspond to the provisions of Sub- Sections 3, 4, 5 and 7 of Section 19 of J&K Legal Services Authorities Act, 1997. Section 19 (5) (1) of the Legal Services Authority Act, as it applies to Punjab, is a replica of Section 18 Sub-Section 4, as it applies to the State of J&K. 11/ Taking into consideration the ratio of the judicial precedent cited above, the function of the Lok Adalat relates to conciliation. The Lok Adalats determine a reference on the basis of the settlement and compromise between the parties and puts its seal of confirmation by making an award in terms of the settlement and the compromise. In the instant case no reference has been made for placing the matter before the Lok Adalat nor has any Award been passed. The orders impugned have been passed after hearing the parties for the adjudication of the case and the Act does not contemplate or require any adjudicatory judicial determination but non adjudicatory determination based on compromise and settlement arrived by the parties.
12/ The application for the settlement of the case at pre- litigation stage here in this petition was filed by the respondents before the Chairman Legal Services Authority. The Chairman Legal Services Authority in terms of the provisions of the law detailed above was required to seek the consent of both the parties for referring the matter to the Lok Adalat and the matter could only be referred to the Lok Adalat thereafter. No attempt has been made in that direction. The Chairman of the Lok Adalat has not recorded any order to state that the matter requires to be referred to the Lok Adalat and no opportunity, as envisaged under Section 19 of the Act, has been given to the petitioners. The learned CJM, has imposed his views in the order without there being any settlement or compromise, which is against the tenets of law. He has recorded the order in such a fashion and manner as if he had to pass a final judgement in a case. In framing the first order, he has taken refuge under the documents that were produced before him by the respondents without recording any settlement or compromise. 13/ It was on the notice issued in the application, seeking pre litigation settlement, that the respondent No.5 appeared before the trial Court. The Chairman, as is reiterated here, exercised his jurisdiction in the absence of any legal reference in terms of section 19 of the Act. The Chairman cannot make a reference on his own when the parties do not extend any request to the effect. It is only when an Award is made by the Lok Adalat in terms of a settlement/compromise which the parties acknowledge and in token thereof they put their signatures to it that it can be executed. 14/ In view of the preceding analysis, this petition succeeds and is, accordingly, allowed. The orders impugned in this petition are set aside. The respondents' claim shall revive for its consideration in accordance with the law. The trial Court record shall be returned forthwith.
15/ Disposed of along with connected IAs.
TARIQ Mota
SRINAGAR.
26-03-2018 (M.K.HANJURA)
JUDGE