- (1.) THE present petition has been preferred against the order passed by the Permanent Lok Adalat, Garhwa vide order dated 25th September, 2008 in P.L.A. Case No. 10 of 2008, which is at Annexure - 3 to the memo of the present petition and it is submitted by learned counsel for the petitioner that Permanent Lok Adalat has no power, jurisdiction and authority to decide the dispute on merits. Catena of decisions has been rendered by this Court, which are reported in 2008 (3) JLJR 513, 2009 (3) JCR 374 : AIR 2009 (NOC) 2632 : 2009 (2) AIR Jhar R 970 and 2009 (4) JCR 455. Never any consent has been taken by the petitioner before passing decision on merits of the dispute by the Permanent Lok Adalat. Prime duty of the Permanent Lok Adalat is of conciliator and not of adjudicator. Permanent Lok Adalat cannot wear a rob of the Court. This aspect of the matter has not been properly appreciated by the Permanent Lok Adalat and, hence, the order passed by the Permanent Lok Adalat deserves to be quashed and set aside.
(2.) I have heard learned counsel for the respondent - State, who has submitted that no error has been committed by the Permanent Lok Adalat in deciding the dispute on merits, looking to sub-section (8) of S.22 - C of the Legal Services Authorities Act, 1987 and, therefore, the present petition deserves to be dismissed. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, I, hereby, quash and set aside the order passed by the Permanent Lok Adalat, Garhwa dated 25th September, 2008 in P.L.A. Case No. 10 of 2008 (Annexure - 3 to the memo of the petition) mainly for the following facts and reasons : - (i) It appears that Permanent Lok Adalat has lost sight of the fact that prime duty of the Permanent Lok Adalat is to play role of a conciliator and not of an adjudicator. Until and unless written consent by the parties to the dispute, no decision on merits can be given by the Permanent Lok Adalat. (ii) By obtaining consent in writing, Permanent Lok Adalat will work as an arbitrator and the decision will be binding to the consent of the parties. The role of Permanent Lok Adalat will be, after obtaining written consent like an arbitrator otherwise Permanent Lok Adalat can never decide the dispute on merits between the parties. (iii) It has been held by this Court in the case of Bharat Sanchar Nigam Limited v. The State of Jharkhand and Anr. as reported in 2008 (3) JLJR 513 that it is the prime duty vested in the Permanent Lok Adalat under sub-section (7) of S.22 - C of the Legal Services Authorities Act, 1987 (hereinafter referred as the Act, 1987) to offer the terms of the settlement. If the terms of the settlement have not been offered by the Permanent Lok Adalat then, no decision can be given on merits. Paragraph 18 of the said judgment reads as under : - "18. In the instant case, the respondents claim compensation of Rs. 10,000/- (ten thousand) and cost of Rs. 2,000/- (two thousand) on the allegation that his telephone connection remain out of order for about one month i.e. from 8-5-2005 to 2-6-2005. The appellant refuted the said allegation and stated that because of cable fault, the telephone remains out of order and as per the departmental rule, a rebate was sanctioned for the interruption and thereby respondent was adequately compensated. In spite of the aforesaid fact, Permanent Lok Adalat exercised the adjudicatory role and ignoring the Telegraph Act and the Rules, awarded compensation of Rs. 10,000/- and cost of Rs. 2,000/- without any basis. In our opinion, instead of exercising adjudicatory role, the Permanent Lok Adalat ought to have acted in such a manner to bring the parties into a settlement. The duty of the Permanent Lok Adalat is to bring the parties to a settlement and to pass award instead of adjudicating a dispute and pass an award without taking notice of the Act and the Rules under which claim was entertainable. In our considered opinion, Permanent Lok Adalat has no jurisdiction to directly invoke the provision of sub-section (8) of S.22 - C and decide the dispute on merit against the will of the party. As the basic object and power of enacting Chapter VIA is to get the disputes settled at the pre - litigation stage the provision of sub-section (8) become redundant where the provisions of sub-sections (4) to (7) of S.22 - C of the Act." (Emphasis supplied) (iv) It has been held by this Court in the case of State Bank of India, Dhanbad v. State of Jharkhand and Anr. as reported in 2009 (3) JCR 374 : (AIR 2009 (NOC) 2632 : 2009 (2) AIR Jhar R 970) that before passing an order under sub-section (8) of S.22 - C of the Act, 1987, it is the duty of the Permanent Lok Adalat to make the parties aware that if they are inviting decision on merits, the provisions of the Indian Evidence Act and the provisions of the Code of Civil Procedure are not applicable as per S.22 - D of the Act, 1987 nor the appeal is tenable at law and, thereafter, if the parties are giving consent in writing then only Permanent Lok Adalat can decide the dispute on merits between the parties, otherwise not. Once, consent in writing is given by both the parties and if they are inviting adjudication on merits then, the role of Permanent Lok Adalat will be alike the role of an arbitrator and, therefore, it can decide the dispute on merits, otherwise Permanent Lok Adalat has no power, jurisdiction and authority to decide the dispute on merits. In the facts of the present case, never such consent was given by the petitioner, much less, in writing by inviting decision on merits. This aspect of the matter has not been properly appreciated by the Permanent Lok Adalat. Paragraph Nos. 6 (vii, viii and ix) of the said judgment read as under : - "(vii) Now the question arises how a Permanent Lok Adalat can switch over to sub-section (8) of S.22 - C of the Act, 1987, for playing its adjudicatory role. It appears from sub-section (8) of S.22 - C of the Act, 1987, that Permanent Lok Adalat can decide the dispute if the dispute is not relating to any offence and if no settlement has been arrived at, after following the procedure under sub-section (7) of S.22 - C of the Act, 1987. As per S.22 - D of the Act, 1987, neither the provisions of the Code of Civil Procedure, 1908 are applicable, nor the provisions of Indian Evidence Act, 1872 are applicable. Likewise, the order passed by the Permanent Lok Adalat, as per S.22 - E of the Act, 1987, is not an appealable order and, therefore, the Permanent Lok Adalat must make the parties aware of the aforesaid aspect and, even if, they are giving consent for playing an adjudicatory role by the Permanent Lok Adalat, then only the Permanent Lok Adalat can decide the dispute on merits. Thus, under sub-section (7) of S.22 - C of the Act, 1987, Permanent Lok Adalat must offer the terms of settlement on its own. If the settlement is not arrived at, then the Permanent Lok Adalat should inform the parties that whether they wish that dispute may be decided on merits by Permanent Lok Adalat. This option ought to have been given and there must be a positive answer from both the parties. If one of the parties to the dispute is denying the adjudication of the dispute, Permanent Lok Adalat shall not decide the dispute on merits. Permanent Lok Adalat shall also make the parties aware that it is not bound by the provisions of the Code of Civil Procedure and likewise, it is also not bound by the provisions of Indian Evidence Act. Permanent Lok Adalat will also make the parties aware before exercising powers under sub-section (8) of S.22 - C of the Act, 1987 that the award, passed by the Permanent Lok Adalat, will be a final one and no appeal shall lie and despite this awareness, if both the parties to the dispute are giving consent that Permanent Lok Adalat can decide the dispute on merits, then only Permanent Lok Adalat shall decide the dispute on merits, otherwise the matter will again go to the normal course or the parties will be free to take recourse under the law. This safeguard is necessary to make the parties aware, because several parties to the dispute may not be agreeable for their matters to be decided by the Permanent Lok Adalat, where neither the provisions of Code of Civil Procedure nor the provisions of Indian Evidence Act is applicable. Even, no appeal is provided under the Act, 1987 against the award of Permanent Lok Adalat under S.22 - E of the Act, 1987. (viii) Looking to the scheme of the Act, it appears that any of the parties to a dispute can make an application to a Permanent Lok Adalat for settlement of the dispute, as per sub-section (1) of S.22 - C of the Act. Thus, any complex matter may come to the Permanent Lok Adalat unilaterally, upon an application by a single party, or without a joint application by the parties to the dispute also, any party can prefer an application before the Permanent Lok Adalat for settlement of the dispute and, therefore, Permanent Lok Adalat ought to follow, as stated hereinabove, the procedure and the requirement of sub-section (7) of S.22 - C of the Act, 1987, and if no settlement is arrived at, then again, option should be given to the parties to the dispute, after making them aware of the non - applicability of the provisions of the Code of Civil Procedure and the provisions of Indian Evidence Act and also that there shall be no appeal against the award, passed by the Permanent Lok Adalat, and even after his awareness, if both the parties given consent that Permanent Lok Adalat may decide the dispute on merits, then only Permanent Lok Adalat shall exercise powers under sub-section (8) of S.22 - C of the Act, 1987, but, if one of the parties is refusing for adjudication, on merits, of the dispute by Permanent Lok Adalat, it shall not decide the dispute on merits. The primary role of the Permanent Lok Adalat is settlement and it can wear a rob of the Court for playing adjudicatory role, only upon consent of all the parties to the dispute and not otherwise. (ix) In the facts of the present case, neither the procedure, as stated hereinabove, under sub-section (7) of S.22 - C of the Act, 1987, has been followed i.e. giving the terms of settlement, by Permanent Lok Adalat to the parties to the dispute, nor their consent has been taken prior to playing an adjudicatory role under sub-section (8) of S.22 - C of the Act, 1987, is a condition precedent. Willingness of the parties to the dispute for adjudication, on merits, of a dispute, is at a pivotal position. Permanent Lok Adalat is basically not a Court at all. Only as an exceptional case, with consent of the parties, the Permanent Lok Adalat can play an adjudicatory role. It is a prime duty, vested in the Permanent Lok Adalat, before exercising powers under sub-section (8) of S.22 - C of the Act, 1987, to make the parties aware about non - applicability of the provisions of Code of Civil Procedure and the provisions of the Indian Evidence Act and also that the award, passed by the Permanent Lok Adalat, is a non - appealable order and, thereafter, the Permanent Lok Adalat must ask for the consent of the parties to the dispute. Such consent must be reduced in writing by the parties, so as to avoid future complications and upon taking such pursis / joint application, signed by both the parties to the dispute that they are ready and willing for getting decision on merits, by the Permanent Lok Adalat, of their dispute, and they are aware that the provisions of the Code of Civil Procedure and the provisions of Indian Evidence Act are not applicable and the award, passed by the Permanent Lok Adalat, is also not appealable, this type of written joint pursis joint application, signed by both the parties, must be taken on record, henceforth, by the Permanent Lok Adalat, and thereafter only, it shall exercise the powers of deciding, on merits, the dispute or disputes between the parties under sub-section (8) of S.22 - C of the Act, 1987. If there is no consent by any of the parties to the dispute, Permanent Lok Adalat shall refrain itself, from exercising powers under sub-section (8) of S.22 - C of the Act, 1987. It has also been held by the Hon'ble Supreme Court in the case of State of Punjab v. Jalour Singh (supra), as reported in 2008 (2) SCC 660 : AIR 2008 SC 1209, in paragraph No. 9, as under : "9. But we find that 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 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 claims." (Emphasis supplied) (v) Thus, in view of the aforesaid decision also, Permanent Lok Adalat cannot decide the dispute on merits unless a written consent has been given by the parties and that too after following the procedure under sub-section (7) of S.22 - C of the Act, 1987. (vi) It has also been decided by this Court in the case of Branch Manager, National Insurance Company Ltd., Dhanbad v. Brahamdev Prasad and Anr. as reported in 2009 (4) JCR 455 that unless there is written consent given by parties, Permanent Lok Adalat cannot decide the dispute on merits. (vii) Permanent Lok Adalat cannot wear a rob of the Court and cannot decide the dispute on merits without following the procedure under sub-section (7) of S.22 - C of the Act, 1987 and without informing the parties of the proceeding before the Permanent Lok Adalat, no provision of the Code of Civil Procedure or provision of the Indian Evidence Act is applicable and no appeal is tenable at law and, thereafter also, if the parties are given written consent then only Permanent Lok Adalat can decide the dispute on merits because once the consent is given, the role of Permanent Lok Adalat will be alike the role of an arbitrator.
(3.) AS a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, I hereby quash and set aside the order passed by learned Permanent Lok Adalat, Garhwa vide order dated 25th September, 2008 in P.L.A. Case No. 10 of 2008 (Annexure - 3 to the memo of the petition).;