Patna High Court - Orders
Ram Pravesh Singh vs The State Of Bihar & Ors on 17 November, 2011
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16830 of 2011
Ram Pravesh Singh
Versus
The State Of Bihar & Ors
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ORDER
4. 17.11.20111. I have heard the learned counsel Sri Rajesh Kumar Mishra on behalf of the petitioner.
2. This writ application has been filed by the petitioner for setting aside the order dated 28.12.2010 passed by Permanent Lok Adalat in Lok Adalat Case No.(M) of 2010 Sasaram at Rohtas whereby the application filed by the petitioner for setting aside the award on the ground of fraud has been rejected.
3. The short fact giving rise to this case may be stated that respondent No.3 filed a case being case No. 272 (D) of 2010 before Permanent Lok Adalat, Sasaram, Rohtas praying therein that Schedule „A‟ property be partitioned. Only the respondent No.7 was made the respondent who is father of petitioner. During the proceeding of the case the respondent Nos. 3 to 6 and respondent No.7 filed a compromise application and member of Parmanent Lok Adalat allowed the compromise application on 22.9.2010 and award was prepared making the compromise application a part of the award.
4. The present petitioner on coming to know that the award was passed without notice to him he 2 applied before Permanent Lok Adalat by filing Misc. Case No. 9 (M) of 2010. The contention of the petitioner is that in case No. 272 (D) of 2010 the petitioner who was necessary party was not added as party and he is the owner of the property. The petitioner of case No. 272 (D) of 2010 deleberately suppressed the fact and partitioned the property and thereby they have procured the order and award from permanent Lok Adalat by playing fraud. The three daughters of respondent No.7 have also not been made party. The petitioner further alleged that he never married respondent No.3 and that respondent No.4 and 5 are not his sons.
5. The respondent appeared and filed joint reply stating that the property is self acquired property of respondent No.7 and the petitioner was destroying the property so respondent No.7 has willfully given the property to respondent Nos. 3 to 6. Since the property is self acquired property of respondent No.7 the petitioner was not necessary party.
6. By the impugned order permanent Lok Adalat dismissed the Misc. Case filed by the petitioner on the ground that under Section 22 (1) of the Legal Service Authority Act there is no provision to set aside the order or award on any ground.
7. The learned counsel Mr. Mishra appearing on behalf of the petitioner submitted that the permanent 3 Lok Adalat has wrongly interpreted the law and has wrongly refused to exercise a jurisdiction vested in it by law and if the impugned order is not set aside the petitioner shall suffer serious loss and it would occasion grave injustice. The learned counsel further submitted that it is well settled principles of law that fraud vitiates the judgment or award of court and therefore, the application has to be filed before the court on which fraud was played upon. Here as the respondents obtained the award of the permanent Lok Adalat by playing fraud on permanent Lok Adalat the Misc. case was maintainable and permanent Lok Adalat had the authority to investigate the same and on finding of fraud, has the power to set aside the award. The learned counsel relied upon a decision reported in (2006) 7 SCC 416 Hamja Haji v. State of Kerala, 2003 Andhra Pradesh 32 Smt. Anita v. R. Rambilas and unreported order of this Court dated 29.4.2011 passed in C.W.J.C. No. 2768 of 2010 (Md. Saidullah @ Sikandar v. State of Bihar and others). On these grounds, the learned counsel submitted that after setting aside the order and the award the permanent Lok Adalat may be directed to pass order on merit.
8. In the case of Hamja Haji (Supra) the Hon‟ble Apex Court held that when a decision is vitiated by fraud, proper course would be to approach 4 the court which has rendered the decision for redressal. Section 44 of the Evidence Act gives jurisdiction and authority to a court to consider and decide the question whether a prior adjudication is vitiated by fraud. It appears that in that case the Hon‟ble Apex Court found that the petitioner before Forest Tribunal suppressed material facts and put a false claim which he knew to be false and obtained order in his favour from Forest Tribunal so it was not a case of Lok Adalat. Likewise the case before the Andhra Pradesh High Court also do not relate to the Legal Service Authority Act, 1987.
9. So for the unreported order of this Court is concerned the same has been passed basing the order on the decision of the Apex Court in Hamja Haji case and it has been held that Lok Adalat does not stand divested of its power to examine the aspect of fraud. With due respect I must say that the Division Bench decision of this Court dated 6.11.2009 passed in C.W.J.C. No. 14426 of 2009 (Meena Choudhary vs. Dr. Dilip Choudhary) was not brought to the notice of the Single Bench which passed the order. The division bench in similar situation has held as follows:
"As discussed and held earlier, power of Lok Adalat are not co-extensive with that of civil courts who have full power to take evidence including oral evidence and also to exercise necessary powers under Section 151 of the Code of Civil Procedure. In such situation, in our view, nothing in the 5 Code of Civil Procedure or other law can render the petitioners remediless and following the law noticed above in the case of Smt. Anita (Supra), we hold that the petitioners will be entitled to invoke plenary jurisdiction of civil court to claim necessary relief on the ground of fraud or even on the grounds available to petitioner no.1. As a proposition of law it is well established that a person who was not a party to the proceeding, will not be bound by any order passed therein unless he or she was impleaded through a representative like Karta or an authorized agent who may in appropriate situations represent others.
With these observations, this writ petition is disposed of."
10. In 2006 (8) SCC 364 State of Punjab and others v. Ganpat Raj the Apex Court at paragraph 6 and 7 has held as follows :
"6. The matters which can be taken up by the Lok Adalat for disposal are enumerated in Section 20 of the Act which reads as follows:
"20. Cognizance of cases by Lok Adalats. (1) Where in any case referred to in clause (i) of sub-section (5) of Section 19,
(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 is prima facie satisfied that there are chances of such settlement; or
(ii) the court is satisfied that the matter is 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 6 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 organizing 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.
(4) Every Lok Adalat shall, while determining any reference before it under this Act, 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 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 7 which was reached before such reference under sub-section (1)."
7. The specific language used in sub- section (3) of Section 20 makes it clear that the Lok Adalat can dispose of a matter by way of a compromise or settlement between the parties. Two crucial terms in sub-sections (3) and (5) of Section 20 are "compromise"
and "settlement". The former
expression means settlement of
differences by mutual concessions. It is an agreement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands. As per Termes de la Ley, "compromise is a mutual promise of two or more parties that are at controversy". As per Bouvier it is "an agreement between two or more persons, who, to avoid a law suit, amicably settle their differences, on such terms as they can agree upon".
The word "compromise" implies some element of accommodation on each side. It is not apt to describe total surrender. (See NFU Development Trust Ltd.,Re2). A compromise is always bilateral and means mutual adjustment. "Settlement" is termination of legal proceedings by mutual consent. The case at hand did not involve compromise or settlement and could not have been disposed of by the Lok Adalat. If no compromise or settlement is or could be arrived at, no order can be passed by the Lok Adalat. Therefore, the disposal of Civil Writ Petition No. 943 of 2000 filed by the respondent is clearly impermissible."
11. In (2011) 7 SCC 463 Inerglobe Aviation Limited v. N. Satchidanand the Hon‟ble Apex Court has held that permanent Lok Adalat is not a "court". Paragraph 32 and 33 are quoted hereunder :
"32. We may also at this juncture refer to the confusion caused on account of the term Permanent Lok Adalat being 8 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 Adalat established 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 Adalats established 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 Adalats even though they do not have adjudicatory functions.
33. In LIC v. Suresh Kumar 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 agree settlement between the parties has failed."
The said decision refers to such a "Permanent Lok Adalat" organized 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. One way of avoiding the confusion is to refer to the Lok Adalats constituted under Section 19 of the Act on a regular or 9 permanent basis as "Continuous Lok Adalats". Be that as it may."
12. In (2011) 7 SCC 491 Life Insurance Corporation of India Vs. Suresh Kumar the Hon‟ble Apex Court at paragraph 3 has held as follows:
"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 authorized 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 and as well as the High Court are, accordingly, set aside."
13. Admittedly, in Bihar no Permanent Lok Adalat under Section 22-B of the Legal Service Authority has been constituted till today. The Lok Adalat which are functioning in Bihar are Lok Adalat constituted under Section 19 of the Legal Service Authority Act. The said Lok Adalat constituted under Section 19 are made to sit continuously, therefore, the Lok Adalats in every District is loosely called as permanent Lok Adalat. One should not be confused with this continuous Lok Adalat 10 and the permanent Lok Adalat which are yet to be constituted in Bihar under section 22 B of legal service Authority Act.
14. As has been held by the Hon‟ble Apex Court in the aforesaid decision s that permanent Lok Adalat is not a court and has no jurisdiction or authority vested in it to decide any lis. If no compromise or settlement is or could be arrived at, no order can be passed by the Lok Adalat. Here in the present case at our hand so far the miscellaneous case filed by the petitioner is concerned there is no question of compromise between the parties arises. The question raised by the petitioner that he was necessary party and that he was not made party as such the order of Permanent Lok Adalat (continuous Lok Adalat) is vitiated depends on the finding on the point raised by the respondent that the property is self acquired property of respondent no.7. Likewise the parentage of respondent no.4 and 5 and marital status of respondent no.3 with petitioner is also raised in misc. Case. The question is if the Lok Adalat is not a court then whether it has the jurisdiction to decide these points as question of playing fraud is dependent on the findings on these points. In my opinion the Lok Adalats have got no adjudicatory function and are not authorized to adjudicate the lis on merit as has been held by the Apex Court. The division bench decision of 11 this court referred to above also held so.
15. So far the submission of the learned counsel for the petitioner that permanent Lok Adalat has no jurisdiction to take cognizance of partition suit is concerned also I find no force as the learned counsel relied on the provisions as contained in section 22-B of the Legal Service Authority. According to the learned counsel the permanent Lok Adalat can take cognizance of cases relating to public utility service only. I have said above that in Bihar no permanent Lok Adalat has been constituted any where under Section 22-B of the legal Service Authority Act. The Lok Adalat which has passed the order is Lok Adalat constituted under Section 19 of the Legal Service Authority Act. The powers have been enumerated in section 20 of the Legal Service Act which has been quoted above. Therefore, section 22-B has got no application in this case and also in Bihar in respect of the order passed by Lok Adalat constituted under section 19 of the Legal Service Authority Act which have been made to sit continuously and loosely called as "Permanent Lok Adalat". It should be called as continuous Lok Adalat to avoid any confusion.
16. In view of my above discussion I find that the Lok Adalat by the impugned order has rightly rejected the misc. case filed by the petitioner. Therefore, there is no illegality in the impugned order. The petitioner 12 may approach to the civil court in view of Division Bench decision quoted above.
17. In the result I find no merit in this writ application thus, it is dismissed.
S.S. (Mungeshwar Sahoo, J.) A.F.R.