Chattisgarh High Court
Dinesh Mehta vs The State Of Chhattisgarh on 20 March, 2024
Neutral Citation
2024:CGHC:10359
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 4379 of 2022
Dinesh Mehta S/o Ramnik Lal Mehta Aged About 61 Years R/o Sm 79,
Padamanabhpur, Ward No.42, Durg- 491001 Chhattisgarh.
---- Petitioner
Versus
1. The State Of Chhattisgarh Through The Commissioner, Municipal
Corporation, District : Durg, Chhattisgarh
2. The Revenue Officer (Market) Municipal Corporation, District : Durg,
Chhattisgarh
3. Ramnik Lal Mehta S/o Late Shanti Lal Mehta Aged About 85 Years R/o
Kela Badi, District : Durg, Chhattisgarh
4. Rajesh Kumar Mehta S/o Ramnik Lal Mehta Aged About 52 Years R/o
Kela Badi, District : Durg, Chhattisgarh
---- Respondents
(Cause Title taken from Case Information System) For Petitioner : Mr. Mohit Kumar, Advocate.
For Respondents 1 & 2 : Ms. Pragati Koushik, Advocate on behalf of Mr. Sandeep Dubey, Advocate.
For Respondents No. 3 & 4 : Mr. P. R. Patankar, Advocate Hon'ble Mr. Justice Rakesh Mohan Pandey Order on Board 20.03.2024
1. The petitioner has filed this instant petition seeking the following relief(s):-
"(A) That, this Hon'ble Court may kindly be pleased to call for entire records, pertaining to case of Petitioner.
(B) That, the Hon'ble Court may kindly be pleased to set-aside the Order Dt. 02.07.2022 by the President, Permanent Lok Adalat (Public Utility Services), Durg CG against the Present-
Petitioner and issue Direction/Directions to Respondent No. 1 and 2 to complete the entire process to transfer the lease of Neutral Citation 2024:CGHC:10359 2 questionable property in the name of Present-Petitioner seeing that there should be no loss of any right and substance of the Petitioner.
(C) That, the Hon'ble Court may kindly be pleased to grant Interim-Relief/Stay on resale/transfer of questionable property by all/any of the Respondent/s.
(D) That, the Hon'ble Court may kindly be pleased to grant any other ancillary/relief, as it may deem fit and proper in the facts and circumstances of the case."
2. Essential facts leading to filing the instant petition are that the petitioner participated in the auction proceedings and Shop No. 7-A situated at Indira Market, Durg, which is within the area of Municipal Corporation, Durg (henceforth "subject shop") was allotted to him and the lease agreement was entered into between the petitioner and the Municipal Corporation, Durg on 19.09.1994. The Municipal Corporation, Durg behind the back of the petitioner, transferred the subject shop to the brother of the petitioner based on a forged acknowledgment letter of oral partition dated 13.03.1997. When the petitioner came to know about this fact, he made a representation before the Municipal Corporation, Durg, but, since no action was taken on the said representation, he filed an application under Section 22-A of the Legal Services Authorities Act, 1987 (henceforth "Act, 1987) making prayer to quash the order of mutation passed in favour of respondent No. 4 and for return of the subject shop. Learned Permanent Lok Adalat, Durg vide order dated 02.07.2022 dismissed the application filed by the petitioner on the ground that no prior notice was issued to the Municipal Corporation, Durg according to provisions contained in Section 401 of the Municipal Corporation Act, 1956 and the aforesaid application was moved after a lapse of 24 years.
3. Learned counsel appearing for the petitioner would submit that the learned Permanent Lok Adalat committed a grave error of law in dismissing the Neutral Citation 2024:CGHC:10359 3 application under Section 22-A of the Act, 1987 moved by the petitioner making prayer to quash the order of mutation passed in favour of respondent No. 4 and for return of the subject shop. He would further submit that there was a dispute between two brothers and the subject shop was fraudulently recorded in the name of respondent No. 4 based on a forged and fabricated acknowledgment letter of partition. He would also submit that the aforesaid application was moved within limitation from the date of knowledge; therefore, the finding recorded by the learned Permanent Lok Adalat concerning the delay in filing the application is erroneous. He would next submit that the petitioner made various representations to the Municipal Corporation for redressal of his grievances, therefore, it cannot be said that no notice was given to the Municipal Corporation before filing of application under Section 22-A of the Act, 1987 and the findings recorded by the learned Permanent Lok Adalat in this regard are also erroneous and, as such, the impugned order passed by the learned Permanent Lok Adalat is liable to be quashed.
4. Per contra, learned counsel appearing for respondents No. 3 & 4 while opposing the submissions made by learned counsel for the petitioner would vehemently submit that the application under Section 22-A of the Act, 1987 moved by the petitioner was not maintainable. He would further submit that according to provisions contained in Section 22-A of the Act, 1987, the grievance of the petitioner would not fall within the definition of 'public utility service'. He would also submit that the application moved by the petitioner was hopelessly barred by limitation and no plausible explanation was given by the petitioner for the same. He would next submit that in the year 1996 itself, the consent was given by the petitioner for the transfer of an electric meter in the name of respondent No. 4. It is further contended that acknowledgment of partition was signed by the petitioner and his siblings; therefore, the petitioner cannot deviate from the acknowledgment, which was given by him in a fit state of mind.
Neutral Citation 2024:CGHC:10359 4
5. Learned counsel appearing for respondents No. 1 & 2 would endorse the submissions made by learned counsel for respondents No. 3 & 4.
6. I have heard learned counsel for the parties and perused the material placed on the record with utmost circumspection.
7. At this stage, it would be appropriate to notice the provisions contained in Section 22-A of the Legal Services Authorities Act, 1987, which is reproduced below:-
"22-A. Definitions. - In this Chapter and for the purposes of section 22 and 23, unless the context otherwise requires, -
(a) "Permanent Lok Adalat" means a Permanent Lok Adalat established under sub-section (1) of section 22-B;
(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 of 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, in the public interest, by notification, declare to be a public utility service for the purposes of this chapter.
8. From a bare reading of Section 22-A (b) of the Act, 1987, which defines 'public utility service', it is quite vivid that the Municipal Corporation and its services are not covered within the definition of 'public utility service'. It appears that the application moved by the petitioner before the Permanent Lok Adalat was not maintainable at all, though it was entertained by the said Court and the impugned order was passed.
9. It is a well-settled principle of law that the Court with a lack of jurisdiction cannot try the lis any more and an order passed by such a Court is a nullity and Neutral Citation 2024:CGHC:10359 5 its invalidity can be challenged on the basis of the doctrine of coram non judice. Such a plea can be taken by any person at any stage.
10. The Hon'ble Supreme Court in the matter of Kiran Singh and others Vs. Chaman Paswan and others reported in AIR 1954 SC 340 in para 6 while dealing with a similar issue held as under:-
"6. The answer to these contentions must depend on what the position in law is when a court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of Section 11 of the Suits Valuation Act is on that position. It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court or Monghyr was coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of Section 11 of the Suits Valuation Act on this position."
11. The Hon'ble Supreme in the matter of Hira Lal Patni v. Sri Kali Nath reported in 1961 SCC OnLine SC 42, observed and held as under:-
"4. The only ground on which the decision of the High Court is challenged is that the suit instituted on the original side of the Bombay High Court was wholly incompetent for want of territorial jurisdiction and that, therefore, the award that followed on the refernece between the parties and the decree of Court, under execution, were all null and void. Strong reliance was placed upon the decision of of the privy council in the case of Ledgard v. Bull. In our opinion, there is no substance in this contention. There was no inherent lack of jurisdiction in the Bombay High Court where the suit was instituted by the plaintiff-decree holder. The plaint had been filed after obtaining the necessary leave of the High Court under clause 12 of the Letters Patent. Whether the leave obtained had been rightly obtained or wrongly obtained is not a matter which can be agitated at the execution case. The Neutral Citation 2024:CGHC:10359 6 validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it. But in the instant case there was no such inherent lack of jurisdiction. The decision of the Privy council in the case of Ledgard v. Bull is an authority for the proposition that consent or waiver can cure defect of jurisdiction but cannot cure inherent lack of jurisdiction. In that case, the suit had been instituted in the Court of the Subordinate Judge, who was incompetent to try it. By consent of the parties, the case was transferred to the Court of the District Judge for convenience of trial. It was laid down by the Privy Council that as the court in which the suit had been originally instituted was entirely lacking in jurisdiction, in the sense that it was incompetent to try it, whatever happened subsequently was null and void because consent of parties could not operate to confer jurisdiction on a court which was incompetent to try the suit. That decision has no relevance to a case like the present where there could be no question of inherent lack of jurisdiction in the sense that the Bombay High Court was incompetent to try a suit of that kind. The objection to its territorial jurisdiction is one which does not go to the competence of the court and can, therefore, be waived. In the instant case, when the plaintiff obtained the leave of the Bombay High Court on the original side, under clause 12 of the Letters Patent, the correctness of the procedure or of the order granting the leave could be questioned by the defendant or the objection to the territorial jurisdiction of the court, raised by him in his written statement. It is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court can be waived and this principle as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure. Having consented to have the controversy between the parties resolved by reference to arbitration through court, the defendant deprived himself of the right to question the authority of the court to refer the matter to arbitration or of the arbitrator to render the award. It is clear, Neutral Citation 2024:CGHC:10359 7 therefore, that the defendant is stopped from challenging the jurisdiction of the Bombay High Court to entertain the suit and to make the reference to the arbitrator. He is equally stopped from challenging the authority of the arbitrator to render the award. In our opinion, this conclusion is sufficient to dispose of the appeal. It is not, therefore, necessary to determine the other points in controversy, including the question, whether the Decrees and Orders Validating Act, 1936 (Act 5 of 1936) had the effect of validating what otherwise may have been invalid."
12. Taking into consideration the law laid down by the Hon'ble Supreme Court and the facts of the present case it is quite vivid that the application moved by the petitioner before the Permanent Lok Adalat was not within the purview of Section 22 (A)(b) of the Act, 1987, which defines 'public utility service'; further, the Court below had no authority to entertain such claim. The Court below exceeded in its jurisdiction in entertaining the claim of the petitioner and passing the order impugned, therefore, the order passed by the Permanent Lok Adalat is null and void; and the same is liable to be and is hereby quashed/set aside. However, the petitioner would be at liberty to take recourse to law, if so advised.
13. With the aforesaid observation(s) and direction(s), this writ petition is allowed. Sd/-
(Rakesh Mohan Pandey) Judge amita