SANJEEV PRAKASH SHARMA,J. - (1.) Reportable The petitioner assails the order dated 08.06.2018 passed by the Permanent Lok Adalat whereby the petitioner is being asked to forcefully participate in the conciliation proceedings.
(2.) Learned counsel for the petitioner submits that the Permanent Lok Adalat does not have the jurisdiction to hear the case and it could not have directly invoked the provisions of Section 22-C and decide the dispute against the wishes of the party. Learned counsel submits that the Chapter VI A enacted in the Legal Services Authority Act, 1987 is incorporated essentially with the object and power to settle disputes at the pre-litigation stage and for the said purpose sub-Sections 4 to 7 of Section 22-C require conciliation proceedings to be conducted, however, as the petitioner does not want to enter into conciliation proceedings, the Permanent Lok Adalat cannot force the petitioner to participate in the proceedings initiated by the respondents under Section 22-C itself.
(3.) Learned counsel submits that the Supreme Court in the case of United Insurance Company v. Ajay Sinha And Another, 2008 (7) SCC 454 has observed that no one can be forced to participate in the conciliation proceedings and the Permanent Lok Adalat was required to first take consent of the parties before taking up the proceedings under Section 22-C wherein the Apex Court states as under:- "22. The term "conciliation" is defined under the Act. It should, therefore, be considered from the perspective of Arbitration and Conciliation Act, 1996. In order to understand what Parliament meant by 'Conciliation', we have necessarily to refer to the functions of a 'Conciliator' as visualized by Part III of the 1996 Act. Section 67 describes the role of a conciliator. Sub-section (1) states that he shall assist parties in an independent and impartial manner. Sub-section (2) states that he shall be guided by principles of objectivity, fairness and justice, giving consideration, among other things, to the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties. Sub-section (3) states that he shall take into account "the circumstances of the case, the wishes the parties may express, including a request for oral statements". Sub-section (4) is important and permits the 'conciliator' to make proposals for a settlement. This section is based on Article 7 of UNICTRAL Conciliation Rules. 25. Chapter VI-A stands independently. Whereas, the heading of the Chapter talks of pre-litigation, conciliation and settlement, Section 22-C(8) of the Act speaks of determination. It creates another adjudicatory authority, the decision of which by a legal fiction would be a decision of a civil court. It has the right to decide a case. The term 'decide' means to determine ; to form a definite opinion ; to render judgment. (See Advanced Law Lexicon 3rd Edition 2005 at 1253). Any award made by the Permanent Lok Adalat is executable as a decree. No appeal thereagainst shall lie. The decision of the Permanent Lok Adalat is final and binding on parties. Whereas on the one hand, keeping in view the Parliamentary intent, settlement of all disputes through negotiation, conciliation, medication, Lok Adalat and Judicial Settlement are required to be encouraged, it is equally well settled that where the jurisdiction of a court is sought to be taken away, the statutory provisions deserve strict construction. A balance is thus required to be struck. A court of law can be created under a statute. It must have the requisite infrastructure therefor. Independence and impartiality of Tribunal being a part of human right is required to be taken into consideration for construction of such a provision. When a court is created, the incumbents must be eligible to determine the lis. 26. An option is given to any party to a dispute. It may be a public utility service provider or a public utility service recipient. The service must have some relation with public utility. Ordinarily, insurance service would come within the public utility service. But having regard to the statutory scheme, it must be held to be included thereunder. It is one thing to say that an authority is created under a statute to bring about a settlement through Alternate Dispute Resolution mechanism but it is another thing to say that an adjudicatory power is conferred on it. Chapter VI-A, therefore, in our opinion, deserves a closure scrutiny. In a case of this nature, the level of scrutiny must also be high. (See Anuj Garg and Ors. v. Hotel Association of India and Ors., (2008) 3 SCC 1). 27. Sub-section (1) of Section 22C speaks of settlement of disputes. The authority has to take recourse to conciliation mechanism. One of the essential ingredients of the conciliation proceeding is that nobody shall be forced to take part therein. It has to be voluntary in nature. The proceedings are akin to one of the recognized ADR mechanism which is made of Medola. It may be treated on a par with Conciliation and Arbitration. In such a case the parties agree for settlement of dispute by negotiation, conciliation or mediation. The proceedings adopted are binding ones, whereas the arbitration is a binding procedure. Even in relation to arbitration, an award can be the subject matter of challenge. The provisions of the Arbitration and Conciliation Act, 1996 shall apply thereto. The jurisdiction in terms of section 34 of the Arbitration and Conciliation Act, 1996 is wide. The court in exercise of the said jurisdiction may enter into the merit of the case but would be entitled to consider as to whether the arbitrator was guilty of misconduct. If he is found to be biased, his award would be set aside. The scope of voluntary settlement through the mechanism of conciliation is also limited. If the parties in such a case can agree to come to settlement in relation to the principal issues, no exception can be taken thereto as the parties have a right of self-determination of the forum, which shall help them to resolve the conflict, but when it comes to some formal differences between the parties, they may leave the matter to the jurisdiction of the conciliator. The conciliatior only at the final stage of the proceedings would adopt the role of an arbitrator.";