Monday, 22 August 2016

What procedure to be followed by Lok Adalat when a matter is settled?

The language of the regulation is so explicit that there is

no room for doubt about the role of the Lok Adalat, the nature of the

award and the procedure to be followed by the Lok Adalat when a

matter is settled. It can be summarised thus:



      (a) The Lok Adalat only guides and assists the parties to reach

a settlement or compromise.

      (b) It is the duty of the Lok Adalat to ensure that the parties

fully understood the terms of the settlement or compromise before it

is recorded.

      (c) The terms of the settlement or the compromise shall be

reduced into writing.

      (d) The award shall be written in regional language used in the

local courts or in English. It shall contain the particulars of the case,

namely, the number of the case, the name of the court, the names

of the parties, date of receipt of the case by the Adalat, the number

assigned to it in its permanent register and the date of the

settlement.

      (e) Both parties shall sign or affix their thumb impressions in it.

      (f) Where the parties are represented by counsel, they shall

also be required to sign the settlement.

      (g) The members of the Lok Adalat shall countersign it.

      (h) The document containing the terms of the settlement or

compromise becomes an award when the parties sign or affix their

thumb impressions in it and the members of the Lok Adalat counter

sign it.

      To this it may be added that if there is a provision for payment

of any sum, it shall be expressed in figures as well as words.

IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                         PRESENT:

                               THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

                        THURSDAY, THE 18TH DAY OF AUGUST 2016

                                                OP(C).No. 2696 of 2015 (O)
                                               

                K.S.SUNIL, 
Vs
         SHERLY,
                      


       Validity of three awards passed by Lok Adalat under Section

21 of the Legal Services Authorities Act 1987 on a reference made

to it in three suits is under challenge.

       2. The picture that emerges from the facts relating to the

proceedings before the Lok Adalat, of which one of the members

was a judicial officer and the other an advocate, is a mosaic of

callousness,    casual    approach,     disrespect    for   the    statutory

procedure, breach of the rules of grammar of the language and

expressions which do not make any sense. It has catapulted the

parties to the suits, who are members of a family, into a

controversy which is worse than the one which is the cause of

action for the suits.

        3. The petitioner is the brother of the respondents. They and

their mother, Padmavathy, had in their joint ownership 13 cents of

land. In a partition that took place in 1992 five cents was allotted

to the petitioner and eight cents jointly to the respondents and the

mother. After the death of the mother the petitioner filed

O.S.No.2291 of 2014 in Munsiff Court, Kodungallur for partition of

the right of the mother and separate allotment of his share in it.

Respondents filed O.S.No.2936 of 2014 claiming exclusive title to

above said 8 cents and praying for fixation of its boundary. On the



allegation that in the partition deed of 1992 some mistakes crept into

the description of the properties the petitioner filed O.S.No.165 of

2015 for rectification of the deed.

     4. The disputes between the parties were          referred to Lok

Adalat. At the Adalat the disputes were settled and Exts P7, P8 and

P9 awards were passed, which are extracted below.

     Award in O.S.No.2936 of 2014

                  "Both parties present. Discussed. Matter
            settled. The plaintiff agreed to execute and
            register release deed in respect of 13 cents of
            property situated in Sy.No.580/1 of Mothala
            village(1330/1974), in favour of defendant on a
            consideration of 30 lakhs. The plaintiff agreed to
            vacate the plaint schedule property in getting
            consideration and agreed to execute and register
            release deed or any other deed of their choice on
            or   before    31.12.2015.    Expenses    for   the
            execution shall bear the defendant. Award
            passed."

     Award in O.S.No.2291 of 2014

                  "Both parties present. Matter settled in
            view of award passed in O.S.No.2936 of 2014.
            Award in O.S.No.2936 of 2014 in all connection
            matter."

     Award in O.S.No.165 of 2015

                  "Both parties present. Discussed. Matter
            settled in view of Award passed in O.S.No.2936
            of 2014".

     5. The main ground stated in this Original Petition is that it is

not the terms of the compromise the parties entered into which are

recorded in Ext P7 Award. It is specifically stated that the amount the


petitioner agreed to pay the respondents was Rs.13,00,000/-(Rupees

Thirteen lakhs only) and not Rs.30,00,000/-(Rupees Thirty lakhs

only) as stated in Ext P6 award.

      6. Heard Sri Babu Karukapadath and Sri K.B.Pradeep learned

counsel    appearing    for  the    petitioner   and the respondents

respectively.

      7. The function of a Lok Adalat organised under Section 19 of

the Legal Services Authority Act 1987 (hereinafter called the Act ) is

only to help the parties to the dispute arrive at a compromise or

settlement, which is seen from Section 20(3) of the Act which is

extracted below:

                   "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."




      8. The Adalat cannot enter a finding. It can only record the

compromise or settlement between the parties. Section 20(4) of the

Act is relevant in this context. It runs as follows:


            "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."


      9. Adalat cannot forgo the principles of fair play in helping the

parties arrive at a compromise or settlement. The principle that it is

not sufficient that justice is done but it should appear to have been

done applies to the proceedings in the Lok Adalat also.

      10. It is to be borne in mind that the award passed by a Lok

Adalat is final. Sub sections (1) (2) and (4) of Section 22E are the

relevant provisions in the Act, which are as follows:

                  "22E. Award of Permanent Lok Adalat
            to be final-(1) Every award of the Permanent
            Lok Adalat under this Act made either on merit
            or in terms of a settlement agreement shall be
            final and binding on all the parties thereto and
            on persons claiming under them.

                  (2) Every award of the Permanent Lok
            Adalat under this Act shall be deemed to be a
            decree of a civil court.

                  (3) xxx xxx xxx

                  (4) Every award made by the Permanent
            Lok Adalat under this Act shall be final and shall
            not be called in question in any original suit,
            application or execution proceeding.

                  (5)xxx xxx xxx

      11. The nature and the effect of an award passed by Lok Adalat

was considered by the Supreme Court in P.T.Thomas v. Thomas

Job (2005) 6 SCC 478 = AIR 2005 SC 3575). The apex court has

observed:

            "The Lok Adalat shall proceed and dispose of
            cases    and   arrive   at  a   compromise    or
            settlement by following legal principles, equity
            and natural justice. In a Lok Adalat award the



             endeavor 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 the result of a
             contest on merits, just as a regular suit by a
             court in a regular trial is, however, it is as
             equal and on a par with a decree on
             compromise and will have the same binding
             effect and be conclusive. 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. The effect is the same. The
             award of Lok Adalat is final and permanent
             which is equivalent to a decree executable, and
             the same is an ending to the litigation among
             the parties."

       12. When the award cannot be challenged in a suit or execution

proceedings or even in appeal the Lok Adalat should make sure that

its proceedings are transparent and not vitiated by procedural

illegalities or irregularities. Its proceedings should inspire confidence

in the public, failing which the very existence of the institution will be

at peril. To ensure its credibility, Lok Adalat shall comply with the

procedure prescribed by the statues scrupulously.

       13. In exercise of the powers given to it, the National Legal

Services Authority, which is the central authority, constituted under

a Section 3 of the Act has made the National Legal Services Authority

(Lok Adalats) Regulations, 2009.

       14. Regulation No.17, which is relevant, runs thus:

                    17. Award-(1) Drawing up of the award is
             merely an administrative act by incorporating the
             terms of settlement or compromise agreed by



           the parties under the guidance and assistance
           from Lok Adalat.

                  (2) When both parties sign or affix their
           thumb impression and the members of the Lok
           Adalat countersign it, it becomes an award (see
           a specimen at Appendix I). Every award of the
           Lok Adalat shall be categorical and lucid and
           shall be written in regional language used in the
           local courts or in English. It shall also contain
           particulars of the case, viz., case number, name
           of court and names of parties, date of receipt,
           register number assigned to the case in the
           permanent register (maintained as provided
           under regulation 20) and date of settlement.
           Wherever     the   parties  are   represented  by
           counsel, they should also be required to sign the
           settlement or award before the members of the
           Lok Adalat affix their signature.

                  (3) xxx     xxx xxx

                  (4)xxx xxx xxx

                  (5). Member of the Lok Adalat shall ensure
           that the parties affix their signatures only after
           fully understanding the terms of settlement
           arrived at and recorded. The members of the Lok
           Adalat shall also satisfy themselves about the
           following before affixing their signatures:-

                  (a) that the terms of settlement are not
           unreasonable or illegal or one-sided; and

                  (b) that the parties have entered into the
           settlement voluntarily and not on account of any
           threat, coercion or undue influence.


     15. The language of the regulation is so explicit that there is

no room for doubt about the role of the Lok Adalat, the nature of the

award and the procedure to be followed by the Lok Adalat when a

matter is settled. It can be summarised thus:



      (a) The Lok Adalat only guides and assists the parties to reach

a settlement or compromise.

      (b) It is the duty of the Lok Adalat to ensure that the parties

fully understood the terms of the settlement or compromise before it

is recorded.

      (c) The terms of the settlement or the compromise shall be

reduced into writing.

      (d) The award shall be written in regional language used in the

local courts or in English. It shall contain the particulars of the case,

namely, the number of the case, the name of the court, the names

of the parties, date of receipt of the case by the Adalat, the number

assigned to it in its permanent register and the date of the

settlement.

      (e) Both parties shall sign or affix their thumb impressions in it.

      (f) Where the parties are represented by counsel, they shall

also be required to sign the settlement.

      (g) The members of the Lok Adalat shall countersign it.

      (h) The document containing the terms of the settlement or

compromise becomes an award when the parties sign or affix their

thumb impressions in it and the members of the Lok Adalat counter

sign it.

      To this it may be added that if there is a provision for payment

of any sum, it shall be expressed in figures as well as words.



      16. Ext P7 award has two sheets. The first one is a printed

form. Apart from the signatures of the members of the Lok Adalat

three signatures appear on it. The identity of the persons who put

the signatures is not shown in it. But it is admitted that they are the

parties to the suit. The judicial officer and the advocate who were the

members of the Lok Adalat have put their signatures below the

signatures of the parties. It may be mentioned that even the name of

the judicial officer is not correctly written. The signature of the

counsel of any of the parties is not seen anywhere. No part of the

settlement appears on this sheet. Even the names of all the parties

to the proceedings are not mentioned but, only of one of the

plaintiffs, and of the defendant; nor their addresses.

      17. The terms of the settlement allegedly made by the parties

are contained in the second sheet. Apparently, this is an independent

document. It is a type written one. There are several corrections

made in ink. Though there are two plaintiffs, singular is used as if

there is only one plaintiff. The parties have not put their signatures in

this sheet, nor their counsel. It bears only the signatures of the

judicial officer and the advocate who constituted the Lok Adalat. The

amount which the petitioner is shown to have agreed to pay is not

given in words, but only in figures.

      18. I have no doubt that this is not a solitary incident. I came

across an award passed by Lok Adalat in which the parties came to



an 'agreement' with regard to an amount payable by one of the

parties to the other. But the amount was not shown in the award, nor

the means to ascertain it. A division bench of this court in

Rajagopala Rao G.K. and another v. State Police Chief and

Others (2016(3) KHC 917) took a serious note of similar

irregularities committed by another Lok Adalat. The division bench

held:

                    "But    we  stumbled  across    a  glaring
             illegality in the manner in which the earlier civil
             proceedings between the contesting parties
             were handled in a Lok Adalath constituted
             under the Legal Services Authorities Act, 1987
             (in short, "the Act"). We are terribly disturbed
             by the fact that vagueness in the terms of
             settlement arrived at between the parties (that
             too relatives) in a Lok Adalath is the root cause
             for the subsequent disputes between them.
             Even now they are unable to harmonise their
             relationship and restore cordiality. If anybody
             blames the handlers of the Lok Adalath for
             prolonged agony of the parties, no one will be
             able to defend them for palpable reasons."

The division bench has directed that Lok Adalats shall see that the

awards passed "are not only legal, but also confirming to the norms

prescribed for a decree with all the required details in clear and

explicit terms".

      19. About more than one century ago in Taylor v. Taylor

(1875)1 Ch D 426) it was held that where a power is given to do a

certain thing in a certain way the thing must be done in that way or

not at all and other methods of performance are necessarily



forbidden. This rule was approved by the Privy Council in Nazir

Ahmad v King.Emperor (AIR 1936 PC 253(2) and has been

followed by the Supreme Court in State of Gujarat v. Santilal (AIR

1969 SC 634), Kashmir University v. Mohammed Yasin (AIR

1974 SC 238), Ramchandra Keshav Adke (Dead) by Lrs. v.

Govind Joti Chavare and others (AIR 1975 SC 915) and

Sampuran Singh v. State of Punjab(AIR 1982 SC 1407) and by

this court in Lakshmikutty Amma v. Vijayalakshmikutty (1992

(2) KLT 341).

       20. Regulation 17 (supra) requires that the award shall be in

writing and both parties shall sign it or affix their thumb impressions

in it. This is a provision similar to the one contained in Order 23 Rule

3 C.P.C, which also directs that the compromise shall be in writing

and signed by the parties.

       21. In Gurpreet Singh v. Chatur Bhuj Goel (AIR 1988 SC

400) the Supreme Court held that the direction that the agreement

should be reduced into writing and signed by the parties cannot be

dispensed with. If this requirement is not met, the court shall

proceed with the matter as if there is no compromise. The object of

the provision is to prevent false and frivolous pleas that a suit has

been adjusted wholly or in part by a lawful agreement or

compromise, the apex court has observed. In K.Venkatachala Bhat

and another v. Krishna Nayak (JT 2005(3) SC 161) the



Supreme Court held that the effect of Order 23 Rule 2 C.P.C is that if

the compromise is not signed by the parties, it cannot be recorded by

the court.

      22. The discussion made above compels me to hold that Ext P7

is not an award passed by the Lok Adalat in the eye of law since

there is no means to ascertain whether the petitioner agreed to the

terms recorded in it, which is the result of violation of mandatory

provisions in the relevant statutes. Consequently, Exts P8 and P9 are

also invalid. The trial court shall take up the suits and proceed with

their trial. But if the parties want to refer the dispute to Lok Adalat

again, the court shall comply with the request.

      In the result, this Petition is allowed. Exts P7, P8 and P9 awards

are declared invalid. The trial court is directed to take up the suits

and proceed with their trial. But if the parties want to refer the

dispute to Lok Adalat again, the court shall comply with the request.




                                                        Sd/-

                                             K.ABRAHAM MATHEW
                                                        JUDGE



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