Madras High Court Gulzar Begum-vs-Lok Adalat on 24 March, 2011
THE HONOURABLE Mr. JUSTICE T.RAJA
W.P.No.14956 of 2010 and
M.P.No.1 of 2010
Gulzar Begum … Petitioner
Tamil Nadu State Legal Services Authority,
Chennai 600 104.
2.Syed Akbar Ali … Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorarified mandamus to call for the records of the award dated 21.03.2009 passed by the Lok Adalat on the file of the I Additional Family Court, Chennai, quash the same and to remand back the M.C.No.478 of 2004 to the I Additional Family Court for further and expeditious proceedings.
For Petitioner :Mr.T.Mohan
For Respondent :Mr.A.R.Suresh for R2
Aggrieved by the award dated 21.03.2009 passed by the Lok Adalat on the file of the I Additional Family Court, Chennai, the petitioner has filed the present writ petition under Article 226 of the Constitution of India seeking to quash the same with a prayer to remand back the M.C.No.478 of 2004 to the I Additional Family Court for further and expeditious proceedings.
2. Mr.T.Mohan, the learned counsel appearing for the petitioner submitted that the petitioner-Gulzar Begum is the legally wedded wife of the 2nd respondent/Syed Akbar Ali and the marriage between them was solemnized on 18.06.1987. Though they had marital life only for about four years in their matrimonial home at No.18, Yasin Khan Street, Issa Pallavaram, Chennai 600 043, yet during that period, the petitioner/wife was subjected to various acts of violence, torture, abuse and harassment by the 2nd respondent/husband. Further, the learned counsel for the petitioner submitted that the petitioner/wife was deprived of even basic requirements, such as adequate food and on account of such deprivation and physical and mental abuse, her health was got badly deteriorated, which resulted further health complications due to mal-nourishment and abuse. Only after 17 years of marriage, that is, in the year 2004, the petitioner/wife came to light that the 2nd respondent/husband had married another woman by name, A.Mehrunissan and has been living with her at No.34, Thiruvalluvar street, Nehru Nagar, Velachery, chennai. In the year 2004, the 2nd respondent/husband completely deserted the petitioner and moved out of the matrimonial house by living with the said Mehrunissa. The said fact was neither informed nor he obtained the consent from the petitioner before or after marrying the said Mehrunissa and that apart, the 2nd respondent has not even taken any permission from his employer, namely, the Chennai Port Trust, for his second marriage, wherein he was drawing a salary of Rs.30,000/- per month approximately. In view of the hidden fact, the petitioner/wife has filed M.C.No.478 of 2004 before the I Additional Family Court, Chennai, seeking maintenance for a sum of Rs.3000/- per month in the year 2004, as then he was drawing a salary of Rs.15,212/- per month. Further, a criminal case was also filed in C.C.No.24130 of 2004 against the 2nd respondent before the Chief Metropolitan Magistrate, Egmore, Chennai, for commission of offences under Sections 498A, 406 and 494 of IPC and yet another criminal case before the Judicial Magistrate, Tambaram, Chennai, for commission of offences under Sections 147, 448 and 427 of IPC. Surprisingly, when these criminal cases, which are non compoundable in nature, are pending before the competent criminal Court, the I Additional Family Court referred the M.C.No.478 of 2004 for determination and settlement to the Lok Adalat. The Lok Adalat, on receipt of the said case in M.C.No.478 of 2004, after several hearings, passed an award on 21.03.2009 directing the 2nd respondent/husband to pay a sum of Rs.3,000/- per month towards maintenance from 01.04.2009 till the life time of the petitioner/wife without arrears for five years, with a further direction to the 2nd respondent that he will execute a settlement deed in favour of the petitioner/wife by granting her life interest in respect of the house in which the petitioner is residing at No.18, Yasin Khan Street, Issa Pallavaram, Chennai, from the time of their marriage. Besides, the Lok Adalat further held that either parties will withdraw the civil and criminal cases filed by them against each other.
3. At this juncture, the grievance brought forthwith by the learned counsel for the petitioner is that the award passed by the Lok Adalat was not preceded by any proper settlement talks and the terms of the settlements were not explained to the petitioner/wife. Secondly, her erstwhile counsel was also not present during the said proceedings, when the above said award was passed. Thirdly, the petitioner/wife was merely informed that she would get Rs.3,000/- per month immediately and she being in an extremely vulnerable financial position with debts and no means of any financial support, agreed to sign the settlement papers without knowing that this arrangement would continue for her life time and the said arrangement was not even informed to the petitioner. On the other hand, the petitioner under the impression that she could, depending upon her needs, 2nd respondent’s financial position and the impact of inflation, approach the Court for enhancement of maintenance. Though the petitioner’s erstwhile counsel arrived at the Lok Adalat, just prior to the passing of the award, her erstwhile counsel also did not advise the petitioner about the legal implication, as the then counsel was under the impression that the 2nd respondent counsel would have done so.
4. Further grievance of the petitioner, he added, that even this meagre amount of Rs.3,000/- was not even paid by the 2nd respondent/husband, which, ultimately, compelled the petitioner to file Crl.O.P.No.10076 of 2010 before this Court seeking a direction to dispose of the pending M.P.No.427 of 2009 in 478 of 2004 on the file of the I Additional Family Court expeditiously. Noting the indigenous circumstances of the petitioner/wife, this Court has also given a direction, by order dated 30.04.2010, to dispose of the M.P.No.427 of 2009 in 478 of 2004 within a period of three months from the date of receipt of the order.
5. By summing up his case, the learned counsel for the petitioner contended that the Lok Adalat has no jurisdiction to determine any dispute relating to the offences, that are not compoundable under any law, when the petitioner has filed criminal cases against the 2nd respondent under Sections 498A and 147 of IPC. Further, it was contended that the petitioner being an illiterate woman coming from economically a backward family, taking advantage of her illiteracy and without even taking consent to the proceedings, the 2nd respondent obtained an order from the Lok Adalat.
6. In support of his submission, he has also relied upon a judgment of the Apex Court in the case of United India Insurance Co. Ltd. Vs. Ajay Sinha and another (2008 (7) SCC 454) for a proposition that the Permanent Lok Adalat shall not have any jurisdiction in respect of the matter relating to an offence not compoundable under any law.
7. He has relied upon yet another judgment in the case of the Branch Manager, United India Insurance Co. Ltd. Vs. State of Jharkhand and another (IV (2005) ACC 356) to say that if any party wants to challenge the award based on the settlement passed by the Lok Adalat ignoring the pendency of the criminal case of non compoundable offence, the same can be done by filing a petition under Articles 226 or 227 of the Constitution of India, therefore, he contended that the award passed by the Lok Adalat is liable to be set aside.
8. In reply, Mr.A.R.Suresh, the learned counsel appearing for the 2nd respondent, by filing detailed counter, prayed for dismissal of the writ petition, as the writ petition is not maintainable either on facts or in law. Further, he submitted that the petitioner and the 2nd respondent are the husband and wife and after their marriage in the year 1987, they have lived together happily till 2004. In view of the small misunderstanding in the family, the petitioner filed a complaint in the W1 All women Police Station, Thousand Light, Chennai, for the alleged offences under Sections 498(A), 494 of IPC r/w Section 4 of the D.P.Act in Crime No.16/2004. In view of the criminal complaint, the 2nd respondent was taken by the police and kept in illegal custody. Taking advantage of the said criminal case followed by the illegal custody, the petitioner has taken out the possession of the immovable properties situated at No.18, Yasin Khan Street, Pallavaram, chennai, where the petitioner is now residing in one portion and has let out the other portions for a monthly rent of Rs.22,000/-. Besides, the petitioner has taken the possession of the property at No.27, Kalavai Street, Chindadripet, Chennai, and has also leased out the 2nd floor of the building for Rs.2,00,000/- and also rented out the ground floor and first floor each for Rs.10,000/-, totalling Rs.20,000/- and that apart, she has sold the land at Vepampattu, for a valuable sale consideration of Rs.5,00,000/-. Hence, all put together, she is enjoying the rents of Rs.42,000/- per month, apart from the interest for Rs.7,00,000/-. In the meanwhile, the said criminal complaint was taken on file by the learned Chief Metropolitan Magistrate, Chennai, in C.C.No.24130 of 2004 and the same is also pending. That apart, the petitioner has also preferred a case in M.C.No.478 of 2004 before the I Additional Family Court, Chennai, claiming maintenance. Further, a suit in O.S.No.314 of 2005 filed before the learned District Munsiff, Alandur, and a criminal case preferred in Crime No.65 of 2005 before the Pallavaram Police Station are also pending. Apart from the above said cases, she has also preferred a suit through her brother before the learned XVIII Assistant City Civil Judge, Chennai, in O.S.No.5264 of 2004, alleging that the 2nd respondent has taken a loan of Rs.1,00,000/-.
9. Further, in his submission, it was contended that when the proceedings in M.C.No.478 of 2004 have begun, during the course of cross-examination, the petitioner herself agreed for the compromise before the learned Judge and only after obtaining her consent, the above said matter was referred to the Lok Adalat. Before the Lok Adalat, since the petitioner has given her consent to withdraw all the cases instituted against the 2nd respondent, and to deliver the vacant possession of the remaining portions at Pallavaram and also to deliver the vacant possession of the entire property at Chindatheripet, the 2nd respondent agreed to pay the maintenance at Rs.3,000/- per month and further agreed to settle a part of his property situated at Pallavaram, which is presently under her possession and enjoyment. On that basis, recording the said compromise, the Lok Adalat passed an award. Having agreed to withdraw all the cases, including O.S.No.5264 of 2004, obtained a sum of Rs.25,000/- from the 2nd respondent, hence, it was submitted that it is not open to the petitioner to go against the compromise. Further, it was submitted that as against the agreement to withdraw all the cases, the petitioner has failed to comply the Lok Adalat award by reopening the cases in M.C.No.478 of 2004 through M.P.No.427 of 2009 and O.S.No.5264 of 2004 and also C.C.No.24130 of 2004. As a result, the learned Chief Metropolitan Magistrate, Egmore, conducted the trial and finally, finding him innocent, acquitted the 2nd respondent and his mother and sister from the criminal case for the alleged offences under Section 498(A), 494, 406 of IPC and Section 4 of the Dowry Prohibition Act in C.C.No.24130 of 2004 in judgment dated 21.12.2010 and on that basis, he prayed for dismissal of the present writ petition.
10. Heard the learned counsel appearing on either side and perused the materials available on record.
11. First of all, the question needs answer is, whether the award passed by the Lok Adalat is challengable under Article 226 of the Constitution of India. A three Bench judgment of the Apex Court in the case of State of Punjab & Another Vs. Jalour Singh & Others (MANU/SC/7021/08) answers in the affirmative as follows:- It is true that where an award is made by Lok Adalat in terms of a settlement arrived at between the parties, (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution, that too on very limited grounds. But where no compromise or settlement is signed by the parties and the order of the Lok Adalat does not refer to any settlement, but directs the respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not an award of the Lok Adalat. The question of challenging such an order in a petition under Article 227 does not arise.
12. In the instant case, it is admittedly true that when maintenance proceedings were initiated by the petitioner/wife in M.C.No.478 of 2004 before the I Additional Family Court, Chennai, and considering the prospects of compromise, the matter was referred to the Lok Adalat, whereat, after the initiatives to compromise the dispute, ultimately, consent was given by the petitioner/wife to withdraw all the cases both criminal and civil cases filed against the 2nd respondent/husband and she being in an extremely vulnerable financial position with debts and no means of any financial support, agreed to sign the settlement papers for a monthly maintenance of Rs.3,000/- without knowing that this arrangement would continue till her life time. However, after the agreement to withdraw all the cases, the petitioner reopened all the cases both criminal and civil cases by filing a petition, as a result, the award passed by the Lok Adalat was neither complied with nor obeyed by both parties, that is, the petitioner/wife failed to adhere to the terms of the award by reopening the criminal cases, that are non-compoundable in nature and from the husband’s side, he failed to pay the agreed monthly maintenance to his wife. At this juncture, the grievance of the petitioner, as pleaded by her counsel, is that the Lok Adalat has committed a serious mistake in passing the award directing the petitioner to withdraw the criminal case relating to Penal offences under the IPC and the Dowry Prohibition Act, which are not compoundable under the Criminal Procedure Code. Further, the Lok Adalat has no jurisdiction whatsoever in the matter, when the value of the property exceeds ten lacs rupees.
13. In this context, it is useful to a refer to a judgment of the Apex Court in United India Insurance Co. Ltd.’s case (cited supra), wherein at paragraph 22, it was held thus:-
22. Section 89 of the Code of Civil Procedure inter alia was enacted to promote resolution of disputes through mutual settlement. Chapter VI-A of the Act seeks to achieve a different purpose. It not only speaks of conciliation qua conciliation but conciliation qua determination. Jurisdiction of Permanent Lok Adalat, although is limited but they are of wide amplitude. The two provisos appended to Section 22-C (1) of the Act curtail the jurisdiction of the Permanent Lok Adalat which are as under :- Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law:
Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees:
Section 22-C delineates the jurisdiction of Permanent Lok Adalat to take cognizance of cases filed before it and the said provision is extracted below:-
"22-C.- Cognizance of cases by Permanent Lok Adalat :-
1. Any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute:
Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law:
Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees:
Provided also that the Central Government, may, by notification, increase the limit of ten lakh rupees specified in the second proviso in consultation with the Central Authority.
(2) After an application is made under sub- section (1) to the Permanent Lok Adalat, no party to that application shall invoke
jurisdiction of any court in the same dispute.
(3) … …. ….
(4) … …. ….
(5) The Permanent Lok Adalat shall, during conduct of conciliation proceedings under sub- section (4), assist the parties in their attempt to reach an amicable settlement of the dispute in an independent and impartial manner.
(6) It shall be the duty of every party to the application to cooperate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it.
(7) When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of opinion that there exist elements of settlement in such proceedings which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned. (8) Where the parties fail to reach at an agreement under sub-section (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute."
From a bare reading of Section 22(C) of the Act, it is manifest that any party to a dispute may, before going to a Court of Law or other Forum, approach the Permanent Lok Adalat for settlement of the dispute. The proviso to this section very clearly provides that the Permanent Lok Adalat shall have no jurisdiction in respect of any matter relating to an offence non-compoundable in nature. It further provides that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lacs of rupees. Admittedly, in this case, a criminal case was filed in C.C.No.24130 of 2004 against the 2nd respondent/husband before the Chief Magistrate, Egmore, Chennai, for commission of offences under Sections 498A, 406 and 494 of IPC and yet another criminal case before the Judicial Magistrate, Tambaram, Chennai, for commission of offences under Sections 147, 448 and 427 of IPC. In spite of that, the Lok Adalat has wrongly determined the issue involving non compoundable offence and erroneously settled the dispute.
14. Further, a mere reading of the above said provisions goes to show that the Permanent Lok Adalat, in terms of Section 22-D of the Act, while conducting conciliation proceedings or deciding a dispute on merits is not bound by the provisions of the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872. Besides, the party approaching the Lok Adalat will enjoy several benefits like exemption from payment of Court fees. Even if court fee is already paid, the entire amount will be refunded if the dispute is settled at Lok Adalat. Secondly, the parties will have the speedy trial of the disputes, for, there is no strict compliance of procedural laws like Civil Procedure Code and Evidence Act, while addressing the claim by the Lok Adalat. Thirdly, the parties to the disputes can directly interact with the Judge through their counsel. Fourthly, the award of the Lok Adalat is binding on the parties and it has got the status of a decree of a Civil Court and it is non-appealable, which gives quietus to the issue. Fifthly, in deciding the disputes, the Lok Adalat is guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice. Sixthly, the jurisdiction of the Civil Court to call in question any award made by the Permanent Lok Adalat is explicitly barred. Seventhly, it has the jurisdiction to transfer any award to a civil court and such civil court is mandated to execute the order as if it were the decree by a civil court. But, if the Lok Adalat, over-stepping its jurisdiction, proceeds to decide any criminal case, which involves offences of non-compoundable nature, undoubtedly, the award passed would suffer from serious illegality. In other words, if any award is passed in an effort to close down any criminal case involving Penal offences, which are not compoundable in nature, such award will be a nullity. The present case being one such instance, the award passed by the Permanent Lok Adalat directing the petitioner/wife to withdraw criminal cases of non-compoundable in nature, the same cannot be considered to be an award in the eye of law.
15. Admittedly, in the instant case, when the parties appeared before the Lok Adalat, both the parties agreed to withdraw civil and criminal cases filed by them against each other and the husband has agreed to pay a maintenance amount of Rs.3,000/- per month from the first week of April’2009 till the life time of the wife, however, later on, both the parties to the award violated the terms by not fulfilling their commitment. Therefore, as the award passed by the Lok Adalat directing the petitioner to withdraw even the criminal cases filed for offences under Sections 498A and 147 of IPC, which are admittedly non-compoundable in nature, as per the judgment of the Apex court in United India Insurance Co. Ltd.’s case (cited supra), wherein it was held that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence of non-compoundable under any law and also the Permanent Lok Adalat shall not have jurisdiction in the matter where the value of the property in dispute exceeds rupees ten lacs, the same is not maintainable
16. Further, it is pertinent to mention that M.Y.Iqbal, C.J., as His Lordship was then sitting in the Bench of the Jharkhand High Court, had an occasion to decide a similar issue in the case of Branch Manager, United India Insurance Co. Ltd. Vs. State of Jharkhand and another (IV (2005) ACC 356) holding that the Permanent Lok Adalat has no jurisdiction to proceed with a criminal case, which involves offences of non-compoundable in nature registered under Section 379 of IPC.
17. After going through the various judgments of the Apex Court and the High Court of Jharkhan as mentioned above, I am of the opinion that the impugned order passed by the Lok Adalat is bad in law and, is liable to be set aside. This writ petition is, therefore, allowed as prayed for and the impugned order passed by the Lok Adalat is set aside. No Costs. M.P.No.1 of 2010 is closed.
Tamil Nadu State Legal Services Authority,
Chennai 600 104