ORDER
The Court
1. In this petition the petitioners have challenged the award dated 17-11-1999 passed by the Lok Adalat in O.S. No. 189 of 1998, produced as Annexure-A to the writ petition.
2. This writ petition raises important questions of law which have a bearing on the powers/functions of the Lok Adalat to decide a dispute. What are the parameters of its statutory power in the matter of determining a dispute? Does its role limited to merely striving to bring about a compromise or can it go beyond that and decide the dispute even where one of the parties to the dispute is not agreeable for a compromise but is keen to fight it out on merits? What is the role of the State as a defendant in a declaratory suit? Is it a mere formal party or should it evince substantial interest in the matter in its capacity as the representative of the people in order to preclude any public injury that would result in the event of the plaintiff succeeding in his endeavour? What is the remedy available to the State when it is facing the wrong end of the stick as a result of an order passed by the Lok Adalat? Should the order be final or is it open to challenge under Articles 226 and 227 of the Constitution of India? All these questions arise for my consideration in this case. These questions can be determined only against the back-ground of facts as set out in the writ petition. Accordingly, I proceed to state the facts giving rise to this petition.
3. The facts in brief which led to the filing of the present petition are as follows:
The respondent-plaintiff filed the suit in O.S. No. 189 of 1998 on the file of the Principal Civil Judge (Junior Division), Jamkhandi for a decree of mandatory injunction declaring the plaintiff as belonging to Hindu Simpi caste and not Hindu Lingayat. The plaintiff also filed an application under Section 80(2) of the Civil Procedure Code along with an affidavit praying for dispensing with the issue of the notice under Section 80 of the Civil Procedure Code. The Court took up the matter on 10-12-1998 to consider the application filed under Section 80(2) of the Civil Procedure Code. The Court allowed the application and dispensed with the notice under Section 80 of the Civil Procedure Code. Notices were ordered to the defendants and the case was called again on 4-11-1999. On 4-11-1999 the learned Counsel for the plaintiff filed a memo praying that the matter be referred to Lok Adalat. Notices were ordered to the defendants returnable by 17-11-1999. On 17-11-1999 the Court proceeded to refer the case under the Legal Services Authorities Act, 1987.
4. On 23-11-1999 the Lok Adalat took up the matter. After perusing the documents produced by the plaintiff the Lok Adalat decreed the suit despite remonstration by the Additional Government Pleader that he had no authority to enter into any settlement in the matter and he requires the sanction of the State before he could agree for any settlement. Dismissing this objection as merely an administrative process and the plaintiff cannot be denied relief on that count, the Lok Adalat passed the award that is impugned herein.
5. Heard the learned Government Pleader Mr. K. Shantharaj. The respondent is unrepresented and he has remained absent despite service of notice. The Court requested Mr. D.N. Nanjunda Reddy, learned Counsel, to assist the Court as Amicus Curiae, Mr. D.N. Nanjunda Reddy made his submissions after going through the records of the case.
6. The Legal Services Authorities Act, 1987 ('the Act' for short) was promulgated to provide free and competent legal service to the weaker section of the society and to organise Lok Adalats to ensure that the operation of the legal system promotes justice on the basis of equal opportunity. Chapter VI of the Act exclusively deals with Lok Adalats.
7. Sub-section (5) of Section 19 of the Act deals with the jurisdiction of the Lok Adalat to determine and to arrive at a compromise or settlement between the parties to a dispute. The type of cases over which Lok Adalat can exercise jurisdiction is brought out in Sub-section (5). It reads:
'(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 organised:
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'.
Barring matters relating to an offence not compoundable under any law, the Lok Adalat has jurisdiction to determine and arrive at a compromise in respect of any case which falls within its jurisdiction. Taking cognisance of the cases by Lok Adalats is governed by Section 20 whichstates:
'20(1) Wherein 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 mater is an appropriate one to be taken cognisance 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'.
(emphasis supplied)
In the case on hand, the case has been referred by the Civil Court on being satisfied that it is appropriate to be taken cognisance of by the Lok Adalat. We are concerned with Clause (ii) to Section 20. This power of the Civil Court to refer the matter to Lok Adalat is hedged by the proviso that no case shall be referred to Lok Adalat except after giving a reasonable opportunity of being heard to the parties.
8. It is a matter of record, in the present case, that the matter was referred to Lok Adalat on the memo filed by the learned Counsel for the plaintiff only. On 17-11-1999 the Lok Adalat has passed the following Order:
'This case is referred to Lok Adalat for settlement and disposal by the Principal Civil Judge (Junior Division) and Judicial Magistrate First Class, Jamkhandi. Hence, proceeded for disposal under the Legal Services Authorities Act, 1987 (With Rules 1996 and Regulations 1997) in general and Sections 20 and 21 in particular.
The parties to the matter and their respective Counsels are present.
This is a suit for a declaration and mandatory injunction that he belongs to Hindu Simpi and not Hindu Lingayat.
Perused the documents i.e., School Leaving Certificate issued by Government P.B. High School, Jamkhandi. Whereas it is mentioned in Column No. 7 as Hindu Lingayath, I have also perused the Caste Certificate issued by the Tahsildar, Jamkhandi. The Caste Certificate is a public document. It carries legal value. In Column No. 7 of the document, it is shown as Hindu Simpi, Considering the Certificate issued by the Tahsildar, the suit of the plaintiff deserves to be decreed.
Accordingly, the suit of the plaintiff is decreed in part.
It is hereby declared that the plaintiff belongs to Hindu Simpi and not Hindu Lingayat.
The defendants in general and defendants 1, 3 and 4 shall rectify the records to the above effect, within two months. In case of failure of the rectification the plaintiff shall proceed to file the execution petition for further reliefs. Draw decree accordingly. No cost.
Some of the defendants in person who were present, referred to put their initials on the order sheet. Before that, during the discussion in the chamber of the Principal Civil Judge (Senior Division) and Additional Chief Judicial Magistrate, Jamkhandi, the learned Additional Government Pleader for the State, who participated in the discussion, submitted that he has no authority to enter into settlement arid sanction by the State Government is required and it may take some months to get the sanction over this aspect of the matter. I contacted Hon'ble Principal District and Sessions Judge, Bijapur over phone for guidance in the matter and suggested to defer the matter till the Additional Government Pleader gets sanction by the concerned. Getting administrative sanction by the Additional Government Pleader is purely an administrative act and not a judicial act. So he is directed to expedite to get the administrative sanction and render valuable assistance the Lok Adalat for speedy disposal of the cases on or before 4 months from this day'.
(emphasis supplied)
The order in the case does not bear out that the parties were subsequently heard on the question of reference, except noting their presence. The power to refer the case to Lok Adalat vested in the Civil Court under Section 20 of the Act being subject to the rider as contained in the proviso, any reference either under Sub-clause (b) of Clause (i) or (ii) will be invalid if the parties are not heard in the matter. When the reference made is not valid in the eye of law, the Lok Adalat would not derive jurisdiction to determine any dispute and the Lok Adalat cannot take cognisance of the case under Sub-section (3) of Section 20.
9. The Civil Court has given a short shrift to Section 20 of the Act and has referred the matter to the Lok Adalat without the consent of the defendants for such reference. The Civil Court even if prima facie is satisfied under Sub-clause (b) of Clause (i) that there are chances ofsettlement, still it is barred from acting thereunder if the proviso to Section 20 is not complied with by giving a reasonable opportunity. Compliance with the proviso to Section 20 is condition precedent for reference by the Civil Court. In this case, the Civil Court having referred the matter without complying with the proviso to Section 20 is bad in law.
10. The jurisdiction that the Lok Adalat derives under Sub-section (5) of Section 19 is hedged by the expression to determine and arrive at a compromise or settlement'. In legal terminology it connotes the jurisdiction that could be exercised by the Lok Adalat cannot extent to deciding a dispute where one of the parties is not amenable or agreeable to a compromise or settlement. The moment one of the parties to the dispute expresses unwillingness to arrive at a compromise or settlement, the Lok Adalat would stand stripped of its jurisdiction to deal with the dispute in any manner.
11. How the Lok Adalat should deal with a reference, before it, finds mention in Sub-rule (4) of Rule 20 of the Act. It reads:
'(4) Every Lok Adalat shall, while determining any reference before it under this 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'.
On a reading of the impugned award, I am constrained to place on record that while the Lok Adalat had done its utmost to give effect to the first part of Sub-rule (4) in disposing of the reference with utmost expedition, but regrettably has given a complete go-by to the latter part of the clause which enjoins on it a duty to be guided by the principles of justice, equity and fair play. What is more, the Lok Adalat has gone overboard by even brushing aside the remonstration of the Government Pleader pleading his inability to enter into a compromise and proceeded to decide the reference on merits which course was not open to it in law as it is totally lacking in jurisdiction to decide a reference on merits, when one of the parties is unwilling to enter into a compromise. How and why this course was adopted by the Lok Adalat is difficult to fathom. But suffice to say that the resultant award is hopelessly without jurisdiction and contravenes the principles of justice, equity and fair play. Sub-section (5) of Section 20 postulates the only option that the Lok Adalat has to adopt where no compromise or settlement is arrived at between the parties in the following manner:
'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 to the Court, from which reference has been received under Sub-section (1) for disposal in accordance with law'.
The matter would then revert back to the Civil Court where it will be proceeded with from the stage at which it was referred under Sub-section (1).
12. The various sections of the Act excerpted hereinabove reveal that the jurisdiction enjoyed by the Lok Adalat is limited to making an effort at bringing about a settlement between the parties to the dispute with the object of disposing of the case finally, thereby obviating the necessity of driving the parties to go up in revision or in appeal which, in most cases, would become essential if the cases were to be decided on merits. Sub-section (5) of Section 19 of the Act well and truly defines and demarcates the parameters beyond which the Lok Adalat cannot traverse. It is a clear case of 'thus far' and 'no further' and any transgression of this limit by the Lok Adalat would render the proceedings a nullity.
13. The expedition displayed by the Lok Adalat in disposing of the case virtually on merits almost thrusting the order down the throat of the defendants, despite their explicit remonstration for any settlement in the matter, defeats the very purpose for which this Act was enacted. The disposal of the case by the Lok Adalat in the face of refusal by the Government Advocate to agree on a compromise, is an exercise in gross violation of the provisions of the Act. The Lok Adalat has exceeded its jurisdiction and the resultant order impugned herein is, therefore, one passed without the authority of law. The impugned order is, therefore, liable to be quashed.
14. It would then take me to the next question as to what should happen to such an order and whether this Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India can interfere in the matter to put at rest the impugned order in the face of Sub-section (2) of Section 21 of the Act which bars any appeal to any Court against the award. The said sub-section reads:
'21(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute and no appeal shall lie to any Court against the award'.
(emphasis supplied)
15. 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. 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. In the present case, an extraordinary situation has arisen in which an order is passed without jurisdiction and no statutory remedy is available to the State which is the affected party. The relief granted by the Lok Adalat to the plaintiff being one without jurisdiction is, therefore, a nullity. Its continuance would lead to public injury, in that, if really the plaintiff does not belong to the caste to which he claimed to belong, the right that has accrued to him by virtue of the order impugned would enable him to compete for and get a job which was exclusively reserved for a certain caste, thus depriving the same to a person really hailing from that caste. In Mansukhlal Vithaldas Chauhan v. State of Gujarat, a defence was taken that the judgment passed by the High Court cannot be questioned before the Apex Court as it had become final. Dealing with the said defence, the Apex Court held:
'The contention that the judgment passed by the High Court cannot be questioned in these proceedings as it had become final is wholly devoid of substance. The appellant had questioned the legality of the sanction on many grounds, one of which was the sanctioning authority did not apply its own mind and acted at the behest of the High Court which issued a mandamus to sanction the prosecution. Since the correctness and validity of the sanction was assailed before the Supreme Court, the High Court judgment has necessarily to be considered and its impact on the sanction. The so-called finality cannot shut out the scrutiny of the judgment in terms of actus curiae neminem gravabit as the order of the High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the appellant, who had a valuable right of fair trial at every stage, from the stage it began till the conclusion of the proceedings'.
(emphasis supplied)
It is apparent and it is a matter of record that the Government is not willing to accede to the claim of the respondent that he belongs to Simpi Caste. In such a situation, it is always desirable that the petitioner-State should be provided with an opportunity to defend its cause. If the State is prevented from doing so, under the guise of finality, it would lead to public injury and denial of a fair trial to the State. It is essential that in the interest of justice such public injury must be prevented, where necessary, by interference under Article 226 of the Constitution.
16. Adverting to the scope of judicial review and its limits their Lordships in Mansukhlal's case, supra, observed:
'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.
17. The question whether this Court would have jurisdiction to issue writs under Article 226 of the Constitution even in matters where the statute specifically excludes the jurisdiction of 'Courts' is also no longer res integra. In Union of India v. Narasimhalu, the Apex Court had occasion to deal with the question whether the jurisdiction of the High Court is also excluded where by clear implication of the statute the jurisdiction of the Civil Court is excluded. The Apex Court after considerable discussion on the issue, observed:
'But the exclusion of the jurisdiction of the Civil Court to entertain a suit does not exclude the jurisdiction of the High Court to issue high prerogative writs against illegal exercise of authority by administrative or quasi-judicial Tribunals. The finality which may be declared by the statute qua certain liability either by express exclusion of the jurisdiction of the Civil Court or by clear implication does not affect the jurisdiction of the High Court to issue high prerogative writs'.
The broader concept of justice would always demand adherence to the fundamental principles of judicial procedure. Strict compliance with the provisions of the statute concerned and refraining from exercising the powers not vested in it would have ensured such adherence by the Lok Adalat. In the case on hand the order having been passed in violation of the fundamental principles of judicial procedure and in addition, the order passed being not within the competence of the Lok Adalat, the dicta in Narasimhalu's case, supra, would apply to the facts of this case on all fours. In fact, the impugned order craves for the interference of this Court under Article 226 of the Constitution.
18. In the result, for the reasons stated above, this writ petition succeeds and the same is allowed. Rule is issued. Impugned order dated 17-11-1999 is quashed. The case shall be taken by the Civil Court forthwith and it shall proceed in accordance with law from the stage at whichit stood at the time of reference to the Lok Adalat. I place on record the valuable assistance rendered by Mr. Nanjunda Reddy as Amicus Curiae.