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Introduction:
1.
Lok Adalats in India
ADR has been an integral part of our historical past. Like the
zero, the concept of Lok Adalat (Peoples' Court) is an innovative
Indian contribution to the world jurisprudence. The institution of
Lok Adalat in India, as the very name suggests, means, People's
Court. "Lok" stands for
"people" and the vernacular meaning of the
term "Adalat" is the court. India has a long tradition and history
of such methods being practiced in the society at grass roots
level. These are called panchayat and in the legal terminology,
these are called arbitration. These are widely used in India for
resolution of disputes ? both commercial and non-commercial. Other
alternative methods being used are Lok Adalat (People's Court),
where justice is dispensed summarily without too much emphasis on
legal technicalities. It has been proved to be a very effective
alternative to litigation.
The ancient concept of
settlement of dispute through mediation, negotiation or through
arbitral process known as "Peoples' Court verdict" or decision of
"Nyaya-Panch" is conceptualized and institutionalized in the
philosophy of Lok Adalat. Some people equate Lok Adalat to
conciliation or mediation, some treat it with negotiations and
arbitration. Those who find it different from all these, call it
"Peoples' Court". It involves people who are directly or
indirectly affected by dispute resolution.
The salient features of this
form of dispute resolution are participation, accommodation,
fairness, expectation, voluntariness, neighbourliness,
transparency, efficiency and lack of animosity.
The concept of Lok Adalats was
pushed back into oblivion in last few centuries before
independence and particularly during the British regime. Now, this
concept has, once again, been rejuvenated. It has, once again,
become very popular and familiar amongst litigants. This is the
system which has deep roots in Indian legal history and its close
allegiance to the culture and perception of justice in Indian
ethos. Experience has shown that it is one of the very efficient
and important ADRs and most suited to the Indian environment,
culture and societal interests.
Camps of Lok Adalats were
started initially in Gujarat in March 1982 and now it has been
extended throughout the Country.
The evolution of this movement
was a part of the strategy to relieve heavy burden on the Courts
with pending cases and to give relief to the litigants who were in
a queue to get justice. The first Lok Adalat was held on March 14,
1982 at Junagarh in Gujarat the land of Mahatma Gandhi. Lok
Adalats have been very successful in settlement of motor accident
claim cases, matrimonial/family disputes, labourdisputes, disputes
relating to public services such as telephone, electricity, bank
recovery cases and so on.
Some statistics may give us a
feeling of tremendous satisfaction and encouragement. Up to the
middle of last year (2004), more than 200,000 Lok Adalats have
been held and therein more than16 million cases have been settled,
half of which were motor accident claim cases. More than one
billion US dollars were distributed by way of compensation to
those who had suffered accidents. 6.7 million persons have
benefited through legal aid and advice.
The Statistics of the Gujarat
State Legal Services Authority as to the number of cases disposed,
the amount of compensation paid etc have been annexed herewith.
1.1
Legislation pertaining to Lok Adalats
The advent of Legal Services Authorities Act, 1987 gave a
statutory status to Lok Adalats, pursuant to the constitutional
mandate in Article 39-A of the Constitution of India, contains
various provisions for settlement of disputes through Lok Adalat.
It is an Act to constitute legal services authorities to provide
free and competent legal services to the weaker sections of the
society to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disabilities,
and to organize Lok Adalats to secure that the operation of the
legal system promotes justice on a basis of equal opportunity.
Even before the enforcement of the Act, the concept of Lok Adalat
has been getting wide acceptance as People's Courts as the very
name signifies. Settlement of disputes at the hands of Panchayat
Heads or tribal heads was in vogue since ancient times. When
statutory recognition had been given to Lok Adalat, it was
specifically provided that the award passed by the Lok Adalat
formulating the terms of compromise will have the force of decree
of a court which can be executed as a civil court decree.
1.2
Procedure at Lok Adalat:
The procedure followed at a Lok Adalat is very simple
and shorn of almost all legal formalism and rituals. The Lok
Adalat is presided over by a sitting or retired judicial officer
as the chairman, with two other members, usually a lawyer and a
social worker. It is revealed by experience that in Lok Adalats it
is easier to settle money claims since in most such cases the
quantum alone may be in dispute. Thus the motor accident
compensation claim cases are brought before the Lok Adalat and a
number of cases were disposed of in each Lok Adalat. One important
condition is that both parties in dispute should agree for
settlement through Lok Adalat and abide by its decision. A Lok
Adalat has the jurisdiction to settle, by way of effecting
compromise between the parties, any matter which may be pending
before any court, as well as matters at pre-litigative stage i.e.
disputes which have not yet been formally instituted in any Court
of Law. Such matters may be civil or criminal in nature, but any
matter relating to an offence not compoundable under any law
cannot be decided by the Lok Adalat even if the parties involved
therein agree to settle the same. Lok Adalats can take cognizance
of matters involving not only those persons who are entitled to
avail free legal services but of all other persons also, be they
women, men, or children and even institutions. Anyone, or more of
the parties to a dispute can move an application to the court
where their matter may be pending, or even at pre-litigative
stage, for such matter being taken up in the Lok Adalat whereupon
the Lok Adalat Bench constituted for the purpose shall attempt to
resolve the dispute by helping the parties to arrive at an
amicable solution and once it is successful in doing so, the award
passed by it shall be final which has as much force as a decree of
a Civil Court obtained after due contest.
1.3
Finality of Lok Adalat award:
One issue which raises its head often is the finality of
the award of the Lok Adalat. During the Lok Adalat, the parties
agree to abide by the decision of the judge at the Lok Adalat.
However, it is often seen that later, the same order is challenged
on several grounds. In one of the recent decisions, the Supreme
Court of India has once again laid to rest all such doubts. In
unequivocal terms, the Court has held that award of the Lok Adalat
is as good as the decree of a Court. The award of the Lok Adalat
is fictionally deemed to be decrees of Court and therefore the
courts have all the powers in relation thereto as it has in
relation to a decree passed by itself. This, includes the powers
to extend time in appropriate cases. The award passed by the Lok
Adalat is the decision of the court itself though arrived at by
the simpler method of conciliation instead of the process of
arguments in court.
1.4 Consent of Parties
The most important factor to be considered while deciding the
cases at the Lok Adalat is the consent of both the parties. It can
not be forced on any party that the matter has to be decided by
the Lok Adalat. However, once the parties agree that the matter
has to be decided by the Lok Adalat, then any party cannot walk
away from the decision of the Lok Adalat. In several instances,
the Supreme Court has held that if there was no consent the award
of the Lok Adalat is not executable and also if the parties fail
to agree to get the dispute resolved through Lok Adalat, the
regular litigation process remains open for the contesting
parties.
The Supreme Court has also
held that compromise implies some element of accommodation on
each side. It is not apt to describe it as
total surrender.
A compromise is always
bilateral and means mutual adjustment. Settlement is termination
of legal proceedings by mutual consent. If no compromise or
settlement is or could be arrived at, no order can be passed by
the Lok Adalat.
1.5 Benefits of Lok Adalat
The benefits that litigants derive through the Lok Adalats are
many. # First, there is no court fee and even if the case is
already filed in the regular court, the fee paid will be refunded
if the dispute is settled at the Lok Adalat.
#
Secondly, there is no strict
application of the procedural laws and the Evidence Act while
assessing the merits of the claim by the Lok Adalat. The parties
to the disputes though represented by their advocate can interact
with the Lok Adalat judge directly and explain their stand in the
dispute and the reasons therefore, which is not possible in a
regular court of law.
#
Thirdly, disputes can be
brought before the Lok Adalat directly instead of going to a
regular court first and then to the Lok Adalat.? Fourthly, the
decision of the Lok Adalat is binding on the parties to the
dispute and its order is capable of execution through legal
process. No appeal lies against the order of the Lok Adalat
whereas in the regular law courts there is always a scope to
appeal to the higher forum on the decision of the trial court,
which causes delay in the settlement of the dispute finally. The
reason being that in a regular court, decision is that of the
court but in Lok Adalat it is mutual settlement and hence no case
for appeal will arise. In every respect the scheme of Lok Adalat
is a boon to the litigant public, where they can get their
disputes settled fast and free of cost.
#
Last but not the least,
faster and inexpensive remedy with legal status.
The system has received
laurels from the parties involved in particular and the public and
the legal functionaries, in general. It also helps in emergence of
jurisprudence of peace in the larger interest of justice and wider
sections of society. Its process is voluntary and works on the
principle that both parties to the disputes are willing to sort
out their disputes by amicable solutions. Through this mechanism,
disputes can be settled in a simpler, quicker and cost-effective
way at all the three stages i.e. pre-litigation,
pending-litigation and post-litigation.
Overall effect of the scheme
of the Lok Adalat is that the parties to the disputes sit across
the table and sort out their disputes by way of conciliation in
presence of the Lok Adalat Judges, who would be guiding them on
technical legal aspects of the controversies.
The scheme also helps the
overburdened Court to alleviate the burden of arrears of cases and
as the award becomes final and binding on both the parties, no
appeal is filed in the Appellate Court and, as such, the burden of
the Appellate Court in hierarchy is also reduced. The scheme is
not only helpful to the parties, but also to the overburdened
Courts to achieve the constitutional goal of speedy disposal of
the cases. About 90% of the cases filed in the developed countries
are settled mutually by conciliation, mediation etc. and, as such,
only 10% of the cases are decided by the Courts there. In our
country, which is developing, has unlike the developed countries,
number of Judges disproportionate to the cases filed and, hence,
to alleviate the accumulation of cases, the Lok Adalat is the need
of the day.
2.
Permanent Lok Adalats
During the last few years Lok Adalat has been found to be a
successful tool of alternate dispute resolution in India. It is
most popular and effective because of its innovative nature and
inexpensive style. The system received wide acceptance not only
from the litigants, but from the public and legal functionaries in
general. In India, during the last few years Lok Adalat has been
functioning continuously and permanently in every district centre.
In taluk centres also sittings of Lok Adalats have been held
successfully. Several thousands of pending cases and disputes
which had not reached law courts have been settled through Lok
Adalats.
The major defect of the
mechanism of Lok Adalat is that it cannot take a decision, if one
of the parties, is not willing for a settlement, though the case
involves an element of settlement. The adamant attitude shown by
one among the parties will render the entire process futile. Even
if all the members of the Lok Adalat are of the opinion that the
case is a fit one for settlement, under the present set-up, they
cannot take a decision unless all the parties consent.
In his inaugural address at
the second annual meet of the State Legal Services Authorities,
1999, the then Hon'ble Chief Justice Dr A.S. Anand airing him
views stated thus:
"There will be no harm if
Legal Services Authorities Act is suitably amended to provide that
in case, in a matter before it, the Judges of the Lok Adalats are
satisfied that one of the parties is unreasonably opposing a
reasonable settlement and has no valid defence whatsoever against
the claim of the opposite party, they may pass an award on the
basis of the materials before them without the consent of one or
more parties. It may also be provided that against such awards,
there would be one appeal to the court to which the appeal would
have gone if the matter had been decided by a court.... This
course, I think, would give relief to a very large number of
litigants coming to Lok Adalats at prelitigative stage as well as
in pending matters."
In 2002, Parliament brought
about certain amendments to the Legal Services Authorities Act,
1987. The said amendment introduced Chapter VI-A with the caption
PRE LITIGATION CONCILIATION AND SETTLEMENT. Section 22-B envisages
establishment of "PERMANENT LOK ADALATS (PLA)" at different places
for considering the cases in respect of Public Utility Services
(PUS).
If there is a dispute with
respect to PUS, as per Section 22-C(1), any party to such a
dispute can, before bringing it to a court of law for
adjudication, make an application to PLA for the settlement of
that dispute. The party making such application need not be a
party who raises a claim against a public utility service. If a
claim is made by one against a public utility service, the
establishment carrying out the public utility service can also
raise that dispute before PLA to resolve it. The only limitation
is that PLA shall not have jurisdiction to consider a dispute
relating to an offence not compoundable under any law or any
matter where the value of the property in dispute exceeds Rs 10
lakhs. But the Central Government can, by an appropriate
notification, increase this limit. Once an application has been
made to PLA by one party, no party to that application shall
invoke the jurisdiction of any court in the same dispute.
PLA has to be established by
the National Legal Services Authority or the State Legal Services
Authorities. It shall have three members; the Chairman, who is or
has been a District Judge or an Additional District Judge or has
held a judicial office higher in rank than that of a District
Judge and two other members having adequate experience in public
utility service. Such persons shall be appointed by the State or
the Central Authority, as the case may be, upon nomination by the
respective Governments. But at the same time, such nomination
shall be on the recommendation of the Central or the State
Authority. Section 22-C(3) provides that when an application is
filed raising a dispute, the parties shall be directed to file
written statements with appropriate proof, including documents and
other evidence. Copies of documents produced and statements made
by the parties shall be given to each other. Thereafter PLA shall
conduct conciliation proceedings between the parties to bring
about an amicable settlement to the dispute. It is the primary
duty of PLA as per Section 22-C(4). While conducting such
conciliation proceedings, it is incumbent on the members of PLA to
assist the parties to reach an amicable settlement.
The parties are also obliged
to cooperate in good faith with PLA. If PLA is of the opinion that
"there exist elements of settlement in such proceedings, which may
be acceptable to the parties", it shall formulate the terms of
possible settlement, communicate its observations to the parties
and if the parties agree, the settlement shall be signed and an
award shall be passed in terms of such settlement and copies of
the award shall be furnished to the parties. See Section 22-C(7).
It is also provided in sub-section (8) that in cases where there
exist elements of settlement, but the parties fail to reach at an
agreement, "the Permanent Lok Adalat shall, if the dispute does
not relate to any offence, decide the dispute". "For the purpose
of holding any determination" the Permanent Lok Adalat shall have
the same powers as are vested in a civil court under the Code of
Civil Procedure, 1908 while trying a suit, in respect of summoning
and enforcing of attendance and examining of witnesses, discovery
or production of documents, reception of evidence on affidavits,
requisitioning of public records and documents and such other
matter as the Government may prescribe. PLA can specify its own
procedure for deciding the dispute coming before it and the
proceedings shall be deemed to be judicial proceedings. The award
of PLA, whether made on merit or on settlement shall be final and
binding on parties and be deemed to be a decree of a civil court.
It shall be executed as if it is a decree of a civil court having
jurisdiction in respect of the dispute involved. But the award
cannot be called in question in any "original suit, application or
execution proceedings". This, in effect, is the scheme of the
amendment establishing a Permanent Lok Adalat (PLA).
This will, certainly, prove to
be very effective, litigant-friendly and less-expensive mechanism
to resolve certain serious disputes. As PUS are rendered mainly by
corporate bodies, this virtually will be a forum for ordinary men
and women to ventilate their grievances against such corporate
bodies. In the changing economic scenario of the country where
insurance, communication and other services are thrown open to
corporate giants, it is all the more necessary to provide for
cost-effective and delay-free tools for resolution of disputes.
PLA is a structured clubbing conciliatory mode with certain
features of arbitration to arrive at decisions under given
circumstances. There is sharp criticism against this
machinery both in its constitution and its functioning especially
from lawyers. The main opposition against the amendment is based
on the following viz. (1) with regard to the constitution of PLA;
(2) insofar as PLA is given the power to decide a dispute unlike
the ordinary Lok Adalats (LA) envisaged as per Section 19 of the
Act which only conciliates the dispute; and (3) absence of
provision for appeal against the decision of PLA.
It is submitted that there is
no basis for these criticisms. As the Government is nominating the
members, there may be political consideration in their
appointment, it is said. It is true that the members of PLA shall
be nominated by the respective Governments. But such nomination
shall be, in terms of Section 22-B(2)(b) of the Act, on
recommendation by the Legal Services Authority concerned. After
such nomination, they have to be appointed by the Legal Services
Authority concerned. So there is no chance for the Government's
nominee getting appointed.
There is a Central Authority
called the "National Legal Services Authority". Its patron is the
Hon'ble Chief Justice of India. Its Executive Chairman is the seniormost Judge of the Supreme Court of India. Two among the
members are two Chairmen of the State Legal Services Authorities
who are invariably sitting Judges of the High Courts concerned.
Another member is the Secretary of the Department of Legal Affairs
and there is a Member Secretary who is a District Judge. Apart
from that, there are members like the Secretary, Department of
Expenditure, and members appointed by the Government in
consultation with the Chief Justice of India. Those persons shall
be eminent persons in the field of law or persons of repute in the
legal services schemes or eminent social workers.
So far as the State Legal
Services Authorities are concerned, it is headed by a
Patron-in-Chief who is none other than the Hon'ble Chief Justice
of the High Court. In almost all the State Authorities, except
perhaps one or two, a sitting Judge of the High Court functions as
the Executive Chairman. A District Judge functions as the Member
Secretary.
So far as Kerala is concerned,
the other members are the Registrar of the High Court, the
Advocate-General, the Director General of Prosecutions, the
Chairman of the Bar Council of Kerala, President of the Kerala
High Court Advocates' Association, the Law Secretary, the Finance
Secretary, Director of Health Services, Director General of
Police, Chairman, Kerala State Women's Commission and persons
having special knowledge and practical experience in social
service etc. Other State Authorities also have similar
constitution. It is these authorities with such eminent
personalities which shall recommend the names of the members of
PLA. It is a body consisting of the Chief Justice of the High
Court and a sitting Judge who is the Executive Chairman of the
State Authority, which consists of eminent persons in the legal
field that recommends such members. Members so recommended shall
have to be nominated by the Government. The members so nominated
shall have to be appointed by the authority concerned as members
of PLA. It cannot be taken that the members so recommended by the
authority shall be on political consideration or incompetent to
function as members of PLA. It cannot be taken that a body
consisting of the Chief Justice and a sitting Judge or retired
Judge and other persons with the status of a District Judge and
Advocate-General, Chairman of Bar Council etc. will recommend
incompetent persons to be members of PLA. These respectable
persons, it is hoped, will always recommend only competent
persons. It cannot be presupposed that these respectable bodies
consisting of very eminent persons will recommend incompetent
incumbents.
There is criticism that the
persons so appointed will not have legal background. Presently,
the specialised tribunals are appointed with the representatives
of social organisations or experts. In the case of machineries set
up to try disputes raised by consumers, members other than
Chairman are persons without legal background. Even in
administrative tribunals, persons without legal background, but
only with administrative experience are appointed as members.
Along with persons with judicial background experts or experienced
persons without legal background are also appointed in other
alternative dispute redressal forums.
The second criticism is with
regard to the functioning of PLA insofar as it is given the power
to decide a dispute when the parties do not agree for a
settlement. While deciding the dispute, it is made clear that the
provisions of the Code of Civil Procedure and the Indian Evidence
Act will not have application. In other words, the determination
or decisions will be in a summary manner. As already mentioned
above, PLA is given ample power in the matter of reception of
evidence, examination of witnesses etc. the power that a civil
court has. A decision is possible only in those cases where in the
opinion of the Permanent Lok Adalat "there exist elements of
settlement". In such cases, PLA formulates the terms of a possible
settlement and gives such terms to the parties concerned for their
observations. These observations will be considered on the basis
of evidence produced by the parties. If they do not come to a
settlement, PLA shall decide the dispute. That means, PLA is not
given the power to decide every dispute coming before it. Only
those disputes where there exist elements of settlement can be
decided by the Permanent Lok Adalat. The decision or the opinion
of the Permanent Lok Adalat as to whether there exist elements of
settlement is also a matter which can be subjected to judicial
review under Article 226 of the Constitution of India. Therefore,
there shall be a check in that respect as well.
It is further ensured in the
Act that while deciding the dispute on merit, PLA shall be guided
by the "principles of natural justice, objectivity, fair play,
equity and other principles of justice". Thus, a fair procedure is
always envisaged. Therefore, there is no reason for any criticism
on the power granted to PLA to decide the dispute in the event of
a settlement not being arrived at despite the existence of an
element of settlement.
It cannot be said that there
is no appeal against the decision of PLA. So far as the ordinary
Lok Adalats (LA) are concerned which is in existence even prior to
the amendment and is still being continued no appeal will lie
against an award of that Lok Adalat. The ordinary LA adopts only a
conciliatory method and does not decide a dispute. Therefore,
disputes are settled on consent of the parties. When a dispute is
settled based on consent, no appeal need lie from any such order
or award even if there is a settlement in court. Under the civil
procedure law also no appeal shall lie from a decree passed on
consent of the parties. This is the reason the Act declares that
"no appeal shall lie to any court against the award" of ordinary
Lok Adalat (LA) envisaged in Chapter VI of the Act.
But the award of Permanent Lok
Adalat (PLA) envisaged in the newly introduced Chapter VI-A is
different. If it is an award upon consent of parties and is as a
result of compromise, necessarily, nobody will think of an appeal.
When there is a decision by PLA, as the parties did not agree for
a compromise, it is possible that the aggrieved party may think of
an appeal. Every award of the Permanent Lok Adalat, whether it is
based on consent of the parties, or on compromise or upon the
decision, "shall be deemed to be a decree of a civil court". Thus
the decision taken by PLA will have all the attributes of a decree
of a civil court. It will be taken and considered in all respects,
as a decree of a civil court. Every decree, unless it is appealed
against and so long as it is allowed to continue, will be final
and binding on the parties. Same is the case of an award of PLA.
It is true that there is no provision for appeal. But appeal is
not expressly excluded, in the case of award of PLAs. It is not
stated anywhere in the Act that an award of a PLA shall not be
called in question in any appeal, as is done in the case of the
award of an ordinary Lok Adalat (LA) in Section 21(2) of the Act.
Certainly, appeal will lie
only if it is provided somewhere by law. Otherwise, one cannot
file an appeal. It seems that the provision of Section 96(1) CPC
could be relied on to establish that an appeal is not excluded. As
already mentioned above, the award of PLA has all the attributes
of a civil court decree and it is deemed as a decree of a civil
court. Section 96(1) of the Code of Civil Procedure, 1908
provides:
Save where otherwise
expressly provided in the body of this Code or by any other law
for the time being in force, an appeal shall lie from every decree
passed by any court exercising original jurisdiction to the court
authorized to hear appeals from the decisions of such court." When
the award of PLA is treated as a decree of civil court and as it
is not otherwise provided in the Legal Services Authorities Act
that no appeal shall lie from such award, necessarily, that being
deemed a civil court decree, an appeal shall lie from that decree.
An award of PLA shall be
executed by a civil court "having local jurisdiction" depending
upon the amount of the decree. Necessarily, an appeal shall also
lie to a court depending upon the quantum of the amount involved
in the decree or to the High Court being a decision of a body
consisting of three persons of which a District Judge or a retired
District Judge is the Chairman. So there is possibility for a
judicial review in an appeal.
In the case of the awards of
ordinary Lok Adalat (LA), the statute specifically provides that
it shall not be challenged in an appeal. But the very same
legislature did not legislate such a provision when it dealt with
the award of PLA. The manifest difference in the provisions
relating to the awards of PLA and LA is not accidental. The
difference really means that an appeal is possible against an
award of PLA in terms of Section 96(1) of the Code of Civil
Procedure, when it is not specifically barred by the Legal
Services Authorities Act, 1987 and as the award has all the
attributes of a decree of a civil court. Even otherwise, the
jurisdiction under Article 226 of the Constitution of India cannot
be ruled out, being one among the basic features of the
Constitution of India. Therefore, the criticism that the award of
PLA cannot be called in question in a higher forum has no force.
Moreover, PLA is a machinery to settle or decide disputes relating
to public utility services. In the changing economic scenario, the
establishments rendering public utility services, enumerated in
the Act might be run by corporate sectors. Common people may have
claims against these corporates. If they are given a speedy and
inexpensive remedy to resolve their grievances, it should be
welcomed.
Lawyers can very well apprise
the client of the demerits, if any, of the machinery of PLA. In
spite of that, if the party is inclined to resort to the cheaper
remedy, it cannot be said that the legislation is antilitigant, as
there is no compulsion that one shall first approach PLA before
approaching a court of law.
Of course, as already
mentioned, the party other than the claimant also can raise the
dispute before PLA and it is likely that PLA may render a
decision, if no settlement is arrived at, in spite of the
existence of elements of settlement. Thus an award may come
against a person who really did not desire to avail of this remedy
in respect of his claims. In such circumstances, he can either
resort to an appeal, or at any rate, to proceedings under Article
226 of the Constitution of India. It cannot be argued that the
members of PLA will be biased in their decision and that they may
even defeat the decision of the Chairman by forming a majority on
extraneous considerations. Even if it happens so in a rare
situation, certainly it can be corrected either in a proceeding
under Article 226 of the Constitution of India or in an appeal as
mentioned above.
There shall be some definite
qualifications for the other members of PLA. Presently what is
required is that they shall have "adequate experience in public
utility service". This is too vague a phraseology. It is always
advisable to spell out definite qualifications, so that the
litigants will have confidence that the persons deciding their
disputes are sufficiently qualified and able.
As already mentioned above, it
is possible, if somebody raises a claim against public utility
services, the latter can bring that dispute before PLA. PLA may
take some time to render a decision. In case no compromise is
arrived at, and if the case involves no element of settlement what
will happen, if in the meantime the period of limitation is over,
so far as the claimant party is concerned Can it be taken that he
has been "prosecuting with due diligence in civil proceedings" in
a court Because, so far as PLA is concerned, he was not the party
initiating the dispute. The Lok Adalat is not treated as a court,
but only vested with certain powers of a civil court or shall be
deemed to be a civil court for the purpose of Section 195 and
Chapter XXVI of the Code of Criminal Procedure, 1973. These
aspects require consideration.
3.
Scope For Judicial Review
-A Critical Study
Objective of Lok Adalat is to settle the disputes which are
pending before the courts, by negotiations, conciliation and by
adopting persuasive commonsense and humane approach to the
problems of the disputants.
The large population of India
and the illiterate masses have found the regular dispensation of
justice through regular courts very cumbersome and ineffective.
The special conditions prevailing in the Indian society and due to
the economic structure, highly sensitized legal service is
required which is efficacious for the poor and ignorant masses.
The Lok Adalat movement is no more an experiment in India. It is
now a success and but needs to be replicated in certain matters.
In this chapter the
researchers have tried to arrive at whether there is any need for
a judicial review in the current status and scenario of Lok
Adalats with the necessary critical study over the matter with
possible solutions and suggestions as and when needed.
As aforesaid in the objective
of the Lok Adalats, the intention of the legislator has been to
put an end to the disputes summarily and reduce the burden of the
courts. Therefore, the Lok Adalats decide the matters on a
consent/ compromise basis. The Lok Adalat passes the award after
the parties have agreed on the settlement and have given consent
over it.
The Lok Adalat will passes the
award with the consent of the parties, therefore there is no need
either to reconsider or review the matter again and again, as the
award passed by the Lok Adalat shall be final. Even as under
Section 96 of C.P.C. that "no appeal shall lie from a decree
passed by the Court with the consent of the parties". The award of
the Lok Adalat is an order by the Lok Adalat under the consent of
the parties, and it shall be deemed to be a decree of the Civil
Court, therefore an appeal shall not lie from the award of the Lok
Adalat as under Section 96 C.P.C.
In Punjab National Bank v.
Lakshmichand Rai the High Court held that "The provisions of the
Act shall prevail in the matter of filing an appeal and an appeal
would not lie under the provisions of Section 96 C.P.C. Lok Adalat
is conducted under an independent enactment and once the award is
made by Lok Adalat the right of appeal shall be governed by the
provisions of the Legal Services Authorities Act when it has been
specifically barred under Provisions of Section 21(2), no appeal
can be filed against the award under Section 96 C.P.C." The Court
further stated that "It may incidentally be further seen that even
the Code of Civil Procedure does not provide for an appeal under
Section 96 against a consent decree. The Code of Civil Procedure
also intends that once a consent decree is passed by Civil Court
finality is attached to it. Such finality cannot be permitted to
be destroyed, particularly under the Legal Services Authorities
Act, as it would amount to defeat the very aim and object of the
Act with which it has been enacted, hence, we hold that the appeal
filed is not maintainable.
The High Court of Andhra
Pradesh held that, in Board of Trustees of the
Port of Visakhapatnam v. Presiding Officer, Permanent, Lok Adalat-c` The
award is enforceable as a decree and it is final. The endeavour is
only to see that the disputes are narrowed down and make the final
settlement so that the parties are not again driven to further
litigation or any dispute. Though the award of a Lok Adalat is not
a result of a contest on merits just as a regular suit by a Court
on a regular suit by a Court on a regular trial, however, it is as
equal and on par with a decree on compromise and will have the
same binding effect and conclusive just as the decree passed on
the compromises cannot be challenged in a regular appeal.
"The truth is, a judgment by
consent is intended to put a stop to litigation between the
parties just as much as is a judgment which results from the
decision of the Court after the matter has been fought out to the
end. And I think it would be very mischievous if one were not to
give a fair and reasonable interpretation to such judgments, and
were to allow questions that were really involved in the action to
be fought over again in a subsequent action."
To the like effect are the
following observations of the Judicial Committee in - 'Kinch v.
Walvott', :-
"First of all their Lordships are clear that in relation to this
plea of estoppel it is of no advantage to the appellant that the
order in the libel action which is said to raise it was consent
order. For such a purpose and order by consent, not discharged by
mutual agreement, and remaining unreduced, is as effective as an
order of the Court made otherwise than by consent and not
discharged on appeal."
On this authority it becomes
absolutely clear that the consent order is as effective as an
order passed on contest, not only with reference to the conclusion
arrived at in the previous suit but also with regard to every step
in the process of reasoning on which the said conclusion is
founded.
When we say "every step in the
reasoning" we mean the findings on the essential facts on which
the judgment or the ultimate conclusion was founded. In other
words the finding which it was necessary to arrive at for the
purpose of sustaining the judgment in the particular case will
operate as estoppel by judgment.
In all the above judgments, it
has clearly been laid down that, a matter of consent decree need
not go on an appeal. However, the power of judicial review in a
given case is implicit under the Constitution unless expressly
excluded by a provision of the Constitution. This power is
available to correct any order passed by a statutory authority
which is violative of any of the provisions of the statute. The
Lok Adalat is a creation of statute and gets jurisdiction from it
and hence this Court is competent to go into an order passed by
it, to decide whether the order in question is valid in law. The
writ jurisdiction of the High Court cannot be circumscribed by
provisions of any enactment as is to be found in Section 21 of the
Act and it can always exercise its jurisdiction if an order, left
alone, would amount to abrogating the rule of law.
The question of appeal and
judicial review in the case of a PLA is however different. It
cannot be said that there is no appeal against the decision of PLA.
So far as the ordinary Lok Adalats (LA) are concerned
which is in
existence even prior to the amendment and is still being
continued no appeal will lie against an award of that Lok Adalat.
The ordinary LA adopts only a conciliatory method and does not
decide a dispute. Therefore, disputes are settled on consent of
the parties. When a dispute is settled based on consent, no appeal
need lie from any such order or award even if there is a
settlement in court. Under the civil procedure law also no appeal
shall lie from a decree passed on consent of the parties. This is
the reason the Act declares that "no appeal shall lie to any court
against the award" of ordinary Lok Adalat (LA) envisaged in
Chapter VI of the Act.
But the award of Permanent Lok
Adalat (PLA) envisaged in the newly introduced Chapter VI-A is
different. If it is an award upon consent of parties and is as a
result of compromise, necessarily, nobody will think of an appeal.
When there is a decision by PLA, as the parties did not agree for
a compromise, it is possible that the aggrieved party may think of
an appeal. Every award of the Permanent Lok Adalat, whether it is
based on consent of the parties, or on compromise or upon the
decision, "shall be deemed to be a decree of a civil court". Thus
the decision taken by PLA will have all the attributes of a decree
of a civil court. It will be taken and considered in all respects,
as a decree of a civil court. Every decree, unless it is appealed
against and so long as it is allowed to continue, will be final
and binding on the parties. Same is the case of an award of PLA.
It is true that there is no provision for appeal. But appeal is
not expressly excluded, in the case of award of PLAs. It is not
stated anywhere in the Act that an award of a PLA shall not be
called in question in any appeal, as is done in the case of the
award of an ordinary Lok Adalat (LA) in Section 21(2) of the Act.
Certainly, appeal will lie
only if it is provided somewhere by law. Otherwise, one cannot
file an appeal. It seems that the provision of Section 96(1) CPC
could be relied on to establish that an appeal is not excluded. As
already mentioned above, the award of PLA has all the attributes
of a civil court decree and it is deemed as a decree of a civil
court. Section 96(1) of the Code of Civil Procedure, 1908
provides:
Save where otherwise
expressly provided in the body of this Code or by any other law
for the time being in force, an appeal shall lie from every decree
passed by any court exercising original jurisdiction to the court
authorized to hear appeals from the decisions of such court.
When
the award of PLA is treated as a decree of civil court and as it
is not otherwise provided in the Legal Services Authorities Act
that no appeal shall lie from such award, necessarily, that being
deemed a civil court decree, an appeal shall lie from that decree.
An award of PLA shall be
executed by a civil court "having local jurisdiction" depending
upon the amount of the decree. Necessarily, an appeal shall also
lie to a court depending upon the quantum of the amount involved
in the decree or to the High Court being a decision of a body
consisting of three persons of which a District Judge or a retired
District Judge is the Chairman. So there is possibility for a
judicial review in an appeal.
In the case of the awards of
ordinary Lok Adalat (LA), the statute the very same legislature
did not legislate such a provision when it dealt with the award of
PLA. The manifest difference in the provisions relating to the
awards of PLA and LA is not accidental. The difference really
means that an appeal is possible against an award of PLA in terms
of Section 96(1) of the Code of Civil Procedure, when it is not
specifically barred by the Legal Services Authorities Act, 1987
and as the award has all the attributes of a decree of a civil
court. Even otherwise, the jurisdiction under Article 226 of the
Constitution of India cannot be ruled out, being one among the
basic features of the Constitution of India. Therefore, the
criticism that the award of PLA cannot be called in question in a
higher forum has no force.
The question of appeal in case
of Lok Adalat and Permanent Lok Adalat is therefore clear. The
whole intention of the legislator has been to provide for a
finality of the proceedings since the matters were to be settled
on a compromise basis.
There is always the scope to
go for a writ petition to challenge the award in case of any grave
illegality. The probability of fraud, misrepresentation, force etc
while arriving at the consent or compromise cannot be ruled out.
There is again a chance that the one of the parties may not be in
a position to understand the nature of the legality of the
proceedings and an award has been passed due to the sheer
negligence of the judge.
The likelihood of such events
cannot be ruled out. In Mansukhlal Vithaldas Chauhan v. State of
Gujarat, it was held that; The duty of the Court is to confine
itself to the question of legality. Its concern should be, (i)
whether the decision-making authority exceeded its powers?; (ii)
committed an error of law; (iii) committed a breach of the rules
of natural justice; (iv) reached a decision which no reasonable
Tribunal would have reached; or (v) abused its powers. In the
case on hand the Lok Adalat exceeded its powers, committed an
error of law, committed breach of the rules of natural justice and
abused its powers. Even if this Court were to strictly confine
itself to the question of legality, the impugned order cannot
still be tolerated as it suffers from all the foibles that justify
interference under Article 226 of the Constitution.
The Karnataka State Bar
Council was opposed to the section in the Act which said if one
party approached the permanent Lok Adalat, the other party had no
option but to participate in the litigation. This was opposed to
the canons of justice, the lawyers said. "The right of judicial
review or appeal is fundamental in all legal matters and making
the decision of the permanent Lok Adalats final, without the right
of appeal, will vest unrestricted power in the hands of a tribunal
in which two non-officials can dominate... it will impair the
administration of justice,'' they said.
In Election Commission of
India v. Union of India and Ors., the Apex Court while dealing
with the powers of the Court under the Constitution to interfere
with an order passed by the Election Commission, laid down: "There
are no unreviewable discretions under the constitutional
dispensation. The overall constitutional function to ensure that
constitutional authorities function within the sphere of their
respective constitutional authority is that of the Courts". The
enunciation by the Apex Court making even an order by a
constitutional authority reviewable should leave no doubt in any
one's mind that a discretion exercised by a statutory authority
would be well-within the reviewable discretion of this Court.
N.L.Rajag, President of
Concumer Courts, Bar Association also pointed out that Permanent
Lok Adalats do perform and can perform invaluable service as
conciliators or mediators. But then to tell parties that even if
they do not agree to settle the matter the Lok Adalat would go
ahead and pass a decree which will then be binding on them, is
horrendously arbitrary and unreasonable.
But one tends to forget the
forum of judicial review is always open for the parties through
the writ petitions. This is a basic feature of the Constitution
and cannot be ruled out. Denial of it would be unfair and
unwarranted.
The ultimate result would be
that all these matters will come knocking at the doors of the High
Court, thus suffocating an already overloaded High Court.
_________________________________________
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Articles:
The
author can be reached at: karthyaeni@legalserviceindia.com /
