S.C. Das JUDGMENT
S.C. Das, J.
1. Two issues fell for our consideration in this writ petition namely--
"(i) Whether Legal Services Authorities/Committees are authorized and/or empowered to constitute a Lok-Adalat in the form otherwise than prescribed by the Legal Services Authorities Act, 1987.
(ii) Whether a Lok-Adalat constituted under Section 19 of the Legal Services Authorities Act can pass an order in an adjudicatory manner without having any compromise or settlement arrived between the parties to a dispute."
2. We have heard learned counsel Mr. A. Dasgupta for the petitioners and learned counsel, Mr. S. Lodh for the respondent Nos. 3, 4, 5(a), 5(b) and 8 respectively. Other respondents have chosen to remain absent.
3. The fact, in short, is that the respondent No. 3, Dhirendra Kumar Das by filing a petition on 14.02.2012, before the Sub Divisional Legal Services Committee, Belonia, put up a pre-litigative dispute for settlement against Manindra Kumar Das (Dhupi), father of the writ petitioners and some others and sought partition of the property mentioned in the schedule of the petition. It was registered as pre-litigative dispute case No. 29/2012 before the Temporary Lok-Adalat, Belonia. By first order dated 14.02.2012 notice was issued on the opposite parties mentioned in the petition and on the next date i.e. on 29.03.2012 the Lok-Adalat in the absence of Manindra Kumar Das (Dhupi) passed an order to demarcate the land mentioned in the petition made by respondent No. 3 and appointed a Survey Commissioner to do the same. On 26.04.2012 the Lok-Adalat passed the following order:--
"26.04.2012
1st party is present.
Bulu Das S/O Birendra Kr. Das, Anjan Das S/O Manindra Kr. Das, Matilal Das and Manik Das are present for second party. Sudhan Das though appeared has left for ailment as stated by his brothers.
Seen the report of the Survey Commissioner. It is stated that at the time of demarcation, objection was raised by Anjan Das, S/O Manindra Kr. Das for which he could not proceed with the investigation.
Anjan Das is present today and has filed a written objection.
An application is filed by the 1st party praying for correction of the father's name of Sudhan Das, 2nd party which is allowed. Accordingly correction is made in the application. It is also stated in the application that of his two sisters, Surabala Dhupi is dead but Snehalata Dhupi is alive. So it is prayed to implead her as party. The prayer is allowed.
Seen the objection of Anjan Das made on behalf of Manindra Kr. Das which has no connection with demarcation as ordered. However, Anjan Das is heard on his objection and he is ultimately understood that demarcation has no bearing about his apprehension that some of the co-sharers may sell their share to outsiders. Accordingly, he has given the assurance that he will not make any further objection in the demarcation. Accordingly, he has given the assurance that he will not make any further objection in the demarcation. Accordingly, Survey Commissioner shall go to the disputed land issuing notice to all second party members including Snehalata Dhupi. Second Party members present today has agreed to pay Rs. 1000/- to the Survey Commissioner on the date of the work. Survey Commissioner shall file his report on the next date.
To 24.5.12 for Report."
4. Thereafter on 24.5.2012 Lok-Adalat disposed the matter with the following order:--
"24.5.2012
Both the party are present. S.C. has submitted a report.
2nd Party namely Manindra Kumar Dhupi submitted an objection stating that due to his illness he could not attend at the time of partition of the land, but the 2nd party did not submit any document in support of his illness.
Hence the objection prayer is rejected.
The rest 2nd Party did not raise any objection against the report of the S.C.
The report of the S.C. is accepted.
Thus this petition is disposed of.
Make necessary entry."
5. The above orders clearly show that objection was filed by Manindra Kumar Das (Dhupi), the predecessor of the petitioners in respect of the appointment of Survey Commissioner for demarcation as well as after the report was submitted by the Survey Commissioner. There is nothing in the above orders that the parties to the pre-litigative dispute arrived at a compromise and/or settlement in respect of the dispute raised by respondent No. 3 before the Lok-Adalat. However, the Lok-Adalat accepted the report of the Survey Commissioner and passed the final order.
6. The orders passed by Lok-Adalat show that it was a temporary Lok-Adalat constituted by the Sub Divisional Legal Services Committee. Chapter VI of the Legal Services Authorities Act, 1987 (hereinafter mentioned as the Act) deals with Lok-Adalats. Section 19 prescribes the provision regarding organization of Lok-Adalat and Section 20 prescribes the provision in respect of cognizance of cases by Lok-Adalat. For ready reference, both the Sections are quoted hereunder--
"19. Organisation of Lok Adalats.--(1) Every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or, as the case may be, Taluk Legal Services Committee may organise Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit.
(2) Every Lok Adalat organised 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 Supreme Court Legal Services Committee or the High Court Legal Services Committee, or as the case may be, the Taluk Legal Services Committee, organising such Lok Adalat.
(3) The experience and qualifications of other persons referred to in clause (b) of sub-section (2) for Lok Adalats organised by the Supreme Court Legal Services Committee shall be such as may be prescribed by the Central Government in consultation with the Chief Justice of India.
(4) The experience and qualifications of other persons referred to in clause (b) of sub-section (2) for Lok Adalats other than referred to in sub-section (3) shall be such as may be prescribed by the State Government in consultation with the Chief Justice of the High Court.
(5) A 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."
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 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 (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 advice the parties to seek remedy in a court.
(7) Where the record of the case is returned under subsection (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)."
7. Under Chapter-VIA of the Act, Section 22A defines 'Permanent Lok Adalat' and 'Public Utility Service'. Section 22B prescribes Establishment of Permanent Lok Adalat and Section 22C prescribes the cognizance of cases by permanent Lok Adalat. For ready reference, the provisions are quoted hereunder:--
"22A. Definitions.--In this Chapter and for 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 purposes of this Chapter.
22B. Establishment of Permanent Lok Adalats.--(1) Notwithstanding anything contained in section 19, the Central Authority or, as the case may be, every State Authority shall, by notification, establish 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.
(2) Every Permanent Lok Adalat established for an area notified under sub-section (1) shall consist of -
(a) a person who is, or has been, a District Judge or Additional District Judge or has held judicial office higher in rank than that of a District Judge, shall be the Chairman of the Permanent Lok Adalat; and
(b) two other persons having adequate experience in public utility service to be nominated by the Central Government or, as the case may be, the State Government on the recommendation of the Central Authority or, as the case may be, the State Authority,
appointed by the Central Authority or, as the case may be, the State Authority, establishing such Permanent Lok Adalat and the other terms and conditions of the appointment of the Chairman and other persons referred to in clause (b) shall be such as may be prescribed by the Central Government.
22C. Cognizance of cases by Permanent Lok Adalat.--(1) Any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute:
Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law:
Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees:
Provided also that the Central Government may, by notification, increase the limit of ten lakh rupees specified in the second proviso in consultation with the Central Authority.
(2) After an application is made under sub-section (1) to the Permanent Lok Adalat, no party to that application shall invoke jurisdiction of any court in the same dispute.
(3) Where an application is made to a Permanent Lok Adalat under sub-section (1), it-
(a) shall direct each party to the application to file before it a written statement, stating therein the facts and nature of dispute under the application, points or issues in such dispute and grounds relied in support of, or in opposition to, such points or issues, as the case may be, and such party may supplement such statement with any document and other evidence which such party deems appropriate in proof of such facts and grounds and shall send a copy of such statement together with a copy of such document and other evidence, if any, to each of the parties to the application;
(b) may require any party to the application to file additional statement before it at any stage of the conciliation proceedings;
(c) shall communicate any document or statement received by it from any party to the application to the other party, to enable such other party to present reply thereto.
(4) When statement, additional statement and reply, if any, have been filed under sub-section (3), to the satisfaction of the Permanent Lok Adalat, it shall conduct conciliation proceedings between the parties to the application in such manner as it thinks appropriate taking into account the circumstances of the dispute.
(5) The Permanent Lok Adalat shall, during conduct of conciliation proceedings under sub-section (4), assist the parties in their attempt to reach an amicable settlement of the dispute in an independent and impartial manner.
(6) It shall be the duty of every party to the application to co-operate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it.
(7) When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of opinion that there exist elements of settlement in such proceedings which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned.
(8) Where the parties fail to reach at an agreement under sub-section (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute."
8. A bare reading of the provisions prescribed in Chapter VI and VIA of the Act makes it abundantly clear that under Section 19, a Lok Adalat may be constituted by the Legal Services Authorities or Committees which is authorized to dispose of the disputes/cases pending before a Court of law as well as pre-litigative dispute which is not brought before a Court of law. There is nothing in the provision that the Legal Services Authorities or Committees can constitute a Lok Adalat with the nomenclature "Temporary Lok-Adalat" under Section 19 of the Act. Section 22B prescribes the provision of establishment of Permanent Lok Adalat as defined in Section 22A (a) in respect of any public utility services. So the permanent Lok Adalat constituted under Section 22B has the power to dispose only in respect of a dispute over public utility services as defined in Section 22A(b) of the Act. It is, therefore, clear that neither under Section 19 nor under Section 22B, there is any room for the Legal Services Authorities or Committees to constitute a Lok Adalat with the nomenclature "Temporary Lok Adalat"
9. No doubt the Legal Services Authorities or Committees may constitute Lok Adalat for some particular dispute or for particular type of dispute in a particular area or for a particular time but that must be a Lok Adalat either constituted under Section 19 or a Permanent Lok Adalat under Section 22B. There cannot be a nomenclature in the name and style "Temporary Lok Adalat". Therefore, we are of firm opinion that the Lok Adalat constituted by the Sub Divisional Legal Services Committee in the name and style "Temporary Lok Adalat" was beyond jurisdiction of the Sub Divisional Legal Services Committee.
10. The second point which fell for our consideration as noted hereinbefore is very important. The Legal Services Authorities Act 1987 has been enacted with a view to provide free and competent legal services to the weaker sections of the society to ensure that opportunities of securing justice are not denied to any citizen by reason of economic or other disabilities and also with a view to provide statutory backing to the institution of Lok Adalats, which has become very popular and through which a large number of cases are quickly disposed of on amicable settlement. It is widely recognized that the advantage of Lok Adalat is multifarious. It is absolutely conciliatory in nature. The Judges/Conciliators of the Lok Adalat shall assist the parties to arrive at a settlement of the disputes and in the event parties arrive to such a settlement, the Lok Adalat shall put its hand and seal to such settlement which shall be deemed to be a decree of the Civil Court as prescribed in Section 21 of the Act.
11. In the case at hand, respondent No. 3 made application before the Sub Divisional Legal Services Committee for having partition of the property mentioned in the petition. Manindra Kumar Das (Dhupi), the father of the petitioners was made a party in that petition. It is quite clear in the orders passed by the Lok Adalat which has been reproduced hereinbefore that objection was raised by said Manindra Kumar Das (Dhupi), since deceased, and in his absence his son Anjan Das (Dhupi), the petitioner herein, but in spite of such objection a Survey Commissioner was appointed, report obtained and thereafter a final order was passed accepting the Survey Commissioner's report whereunder some demarcations of the joint property was made. There is nothing in the record to show that the parties arrived at a conciliation and/or compromise to settle the dispute. The orders of the Lok Adalat also do not show as to what was the dispute between the parties and how the Conciliators upheld the disputing parties to settle their dispute. Sub Section (5) of Section 19 of the Act clearly stipulates that the Lok Adalats shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute. There is no indication in the orders passed by the Lok Adalat that the Lok Adalat consisting of the Presiding Officer and two other Conciliators i.e. respondent Nos. 1 and 2 herein made any attempt for a compromise or settlement between the parties. Unless there is a compromise or settlement between the parties, the Lok Adalat derives no jurisdiction to pass an order on a dispute and thereby bind any party under that order.
12. The jurisdiction, power and function of Lok Adalat have been categorically explained by the Apex Court in the case of State of Punjab & Anr. v. Jalour Singh & Ors., reported in MANU/SC/7021/2008 : (2008) 2 SCC 660. The observation made by the Apex Court in that reported case has been followed in all subsequent cases adjudicated by the Apex Court and the High Courts. The observation of the Apex Court reads thus:
"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 the principles of justice, equity and fair play. When the LSA Act refers to 'determination' by the Lok Adalat and 'award' by the Lok Adalat, the said Act does not contemplate nor require an adjudicatory judicial determination, but 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 agree 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.
Many sitting or retired judges, while participating in the Lok Adalats as members, tend to conduct the 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 the Lok Adalats, will drive the litigants away from the Lok Adalats. The Lok Adalats should resist their temptation to play the part of judges and constantly strive to function as conciliators. The endeavour 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 claim.
The order of the Lok Adalat in this case (extracted in para 3), shows that it assumed a judicial role, heard parties, ignored the absence of consensus, and increased the compensation to an extent it considered just and reasonable, by a reasoned order which is adjudicatory in nature. It arrogated to itself the appellate powers of the High Court and 'allowed' the appeal and 'directed' the respondents in the appeal to pay the enhanced compensation of Rs. 62,200 within two months. The order of the Lok Adalat was not passed by consent of parties or in pursuance of any compromise or settlement between the parties. Such an order is not an award of the Lok Adalat. Being contrary to law and beyond the power and jurisdiction of the Lok Adalat, it is void in the eye of the law."
13. The Supreme Court in the case of B.P. Moideen Sevamandir & Anr. v. A.M. Kutty Hasan, reported in MANU/SC/8467/2008 : (2009) 2 SCC 198 explained the purpose and scope of Lok Adalat. We are inclined to quote here the observations of the Apex Court in Para 8, 9, 10, 11 and 12 which read as follows:--
"8. When a case is referred to the Lok Adalat for settlement, two courses are open to it : (a) if a compromise or a settlement is arrived at between the parties, to make an award, incorporating such compromise or settlement (which when signed by the parties and countersigned by the members of the Lok Adalat, has the force of a decree); or (b) if there is no compromise or settlement, to return the record with a failure report to the court. There can be no third hybrid order by the Lok Adalat containing directions to the parties by way of final decision, with a further direction to the parties to settle the case in terms of such directions. In fact, there cannot be an 'award' when there is no settlement. Nor can there be any 'directions' by the Lok Adalat determining the rights/obligations/title of parties, when there is no settlement. The settlement should precede the award and not vice versa.
9. When the Lok Adalat records the minutes of a proceeding referring to certain terms and directs the parties to draw a compromise deed or a memorandum of settlement and file it before the court, it means that there is no final or concluded settlement and the Lok Adalat is only making tentative suggestions for settlement; and such a proceeding recorded by the Lok Adalat, even if it is termed as an 'award', is not an 'award of the Lok Adalat'.
10. Although the members of Lok Adalats have been doing a commendable job, sometime they tend to act as Judges, forgetting that while functioning as members of Lok Adalats, they are only statutory conciliators and have no judicial role. Any overbearing attitude on their part, or any attempt by them to pressurize or coerce parties to settle matters before the Lok Adalat (by implying that if the litigant does not agree for settlement before the Lok Adalat, his case will be prejudiced when heard in court), will bring disrepute to Lok Adalats as an alternative dispute resolution process (for short 'ADR process') and will also tend to bring down the trust and confidence of the public in the Judiciary.
11. In this case the proceedings dated 25.5.2007 is termed as an 'award'. It is also described as an 'order' and 'directs' the appellant to vacate certain buildings on or before 31.7.2007 and further directs that on such surrender, another portion shall belong to the appellants. Such an 'award' could have been made by the Lok Adalat only when there was a final settlement between the parties. The procedure adopted by the Lok Adalat on 25.5.2007, was clearly erroneous and illegal. The learned Counsel for the respondent stated that the Lok Adalat followed the said procedure of passing an 'Award' dated 25.5.2007 and directing parties to file a compromise in the court, only to enable the appellants to get refund of court fee. We fail to understand how the question of refund of court fee can have any bearing on the compliance with the statutory requirements relating to a settlement and award by a Lok Adalat.
12. Such strange orders by Lok Adalats are the result of lack of appropriate rules or guidelines. Thousands of Lok Adalats are held all over the country every year. Many members of Lok Adalats are not judicially trained. There is no fixed procedure for the Lok Adalats and each Adalat adopts its own procedure. Different formats are used by different Lok Adalats when they settle the matters and make awards. We have come across Lok Adalats passing 'orders', issuing 'directions' and even granting declaratory relief, which are purely in the realm of courts or specified Tribunals, that too when there is no settlement."
14. It is abundantly clear that the so called "Temporary Lok Adalat" constituted by the Sub Divisional Legal Services Committee, Belonia did not follow the legal provisions prescribed for resolution of dispute by the Lok Adalat. The dispute what is mentioned in the petition of respondent No. 3 relates to partition of some land jointly owned by the parties to the dispute and such a dispute does not come within the purview of "Permanent Lok Adalat". So the dispute would obviously come under the purview of a Lok Adalat under Section 19 of the Act. No doubt a Lok Adalat constituted under Section 19 of the Act can take cognizance of such dispute and resolve it subject to a compromise or settlement between the parties to the dispute. A Lok Adalat has no adjudicatory jurisdiction to settle a dispute if any of the parties do not agree to the compromise or settlement.
15. The Supreme Court in the case of Kanwar Singh Saini v. High Court of Delhi, reported in MANU/SC/1111/2011 : (2012) 4 SCC 307 in Para 22 has observed--
"22. There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the mater, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute".
16. In view of the discussions made above, we are of firm opinion that the so called "Temporary Lok Adalat" constituted by the Sub Divisional Legal Services Committee was not according to the provisions prescribed by the Legal Services Authorities Act and the order passed by the Lok Adalat without compromise or settlement between the parties was a nullity and therefore, the entire proceeding of the Lok Adalat has been quashed.
17. Send a copy of this order to the Sub Divisional Legal Services Committee, Belonia.
18. The writ petition accordingly stands disposed of.
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