No Acts & Articles mentioned in this case
1
HIGH COURT OF ANDHRA PRADESH
AMARAVATI
WRIT PETITION No.20458 OF 2019
Between:
Badugu Panduranga Rao, S/o. Subba Rao,
resident of Krishnapuram Village,
Pamidimukkala Mandal, Krishna District.
….Petitioner.
And:
1. The Legal Services Authority,
rep. by its Secretary, Krishna
District at Machilipatnam and 6
others.
….Respondents.
DATE OF JUDGMENT PRONOUNCED: 24.03.2022.
SUBMITTED FOR APPROVAL:
HON’BLE SRI JUSTICE C. PRAVEEN KUMAR
&
THE HON’BLE SRI JUSTICE RAVI NATH TILHARI
1. Whether Reporters of Local newspapers may Yes/No
be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the fair
Copy of the Judgment? Yes/No
________________________
C. PRAVEEN KUMAR ,J
________________________
RAVI NATH TILHARI ,J
2
*HON’BLE SRI JUSTICE C. PRAVEEN KUMAR
&
*HON’BLE SRI JUSTICE RAVI NATH TILHARI
+WRIT PETITION No.20458 OF 2019
%24.03.2022
Between:
# Badugu Panduranga Rao, S/o. Subba Rao,
resident of Krishnapuram Village,
Pamidimukkala Mandal, Krishna District.
….Petitioner.
And:
1. $ The Legal Services Authority,
rep. by its Secretary, Krishna
District at Machilipatnam and 6
others.
….Respondents.
! Counsel for the petitioner : Sri Narasimha Rao Gudiseva
^ Counsel for the 1
st respondent : Sri S. Lakshmi Narayana Reddy
Counsel for the respondents 2 to 5 : Sri K. Venkatesh
Counsel for the respondents 6 to 9:Sri Y. Nagi Reddy, standing counsel
< Gist:
> Head Note:
? Cases referred:
1
2011 (1) ALD 174 (DB)
2
AIR 2017 Supreme Court 4428
3
AIR 2008 Supreme Court 1209
4(2005) 6 SCC 478
5
2020(1) Andhra LD 527
6
2010 SCC OnLine AP 925
7
(2005) 6 SCC 478
8
AIR 2008 Supreme Court 1209
9
AIR 2017 Supreme Court 4428
10
2000 SCC OnLine AP 462
11
(2020) 13 SCC 285
12(2019) 14 SCC 526
13
AIR 1954 SC 340
14
(2005) 7 SCC 791
15
(2020)6 Supreme Court Cases 557
16
AIR 1964 SC 477
17
(2019) 10 SCC 695
18
(2015) 10 SCC 1
19
2020 SCC OnLine SC 887
20
(1984) 2 SCC 244
21
(2008) 9 SCC 413
22
(2011) 7 SCC 463
23
2021 SCC OnLine SC 898
24
1990(1) SCC 193
25
AIR 2011 SC 514
26
2020(1) Andhra LD 527
3
HON’BLE SRI JUSTICE C. PRAVEEN KUMAR
&
HON’BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.20458 OF 2019
JUDGMENT : (per Hon‟ble Sri Justice Ravi Nath Tilhari)
1. Heard Sri Narasimha Rao Gudiseva, learned counsel for the
petitioner, Sri S. Lakshmi Narayana Reddy, learned counsel for the 1
st
respondent-Legal Services Authority, Sri K. Venkatesh, learned counsel
for the respondents 2 to 5 and Sri Y. Nagi Reddy, learned standing
counsel for the respondents 6 to 9.
2. By means of this writ petition under Article 226 of the Constitution
of India, the petitioner-Badugu Panduranga Rao is challenging the award
dated 02.11.2017 passed in Pre Litigation Case P.L.C.No.636 of 2017 by
Lok Adalat Bench, Machilipatnam , Krishna District presided over by
Additional Senior Civil Judge, Machilipatnam.
3. The facts of the case are that the petitioner who worked as
Assistant Line Man in A.P.Transoco was married on 24.08.2000 with one
Padmaja, daughter of the respondents 2 and 3, and out of their wedlock,
the respondents 4 and 5 were born, who are minors and studying in
junior classes. On 06.09.2012, Padmaja committed suicide and the
respondents 2 and 3 lodged FIR in Crime No.67 of 2012 dated
06.09.2012 under Section 304-B Indian Penal Code (IPC) against the
petitioner in Banthumilli Police Station, but finally, in S.C.No.165 of
2013 the petitioner was acquitted by the court of VI Additional District
and Sessions Judge, Machilpatnam at Krishna District, vide judgment
dated 26.06.2018.
4. The minor children respondents 4 and 5 filed P.L.C.No.636 of 2017
through respondents 2 and 3, before the 1
st
respondent the District Legal
Services Authority, Machilipatnam (Lok Adalat Bench) against the
petitioner and the petitioner‟s superior officers, in which the
respondents 2 and 3 and their relatives and followers pressurized and
4
threatened the petitioner to settle the issue. Consequently under
pressure and threat the petitioner signed illegal and improper settlement.
Even the terms and conditions of such settlement were neither shown to
the petitioner nor to his superior officers to which they had not
consented. The Lok Adalat at Machilipatnam, passed the award on
02.11.2017, on such settlement with as many as eleven conditions, as
under:-
“Award
At the intervention of the members of Lok Adalat, this matter
between both the parties with the following conditions:
“1. Both the parties agreed to withdraw the cases filed against
each other.
2. The 1
st respondent agreed to pay the arrears amount during
the period i.e from September, 2012 to December, 2017
(Suspension period of 1
st respondent). Out of the said
arrears amount 75% of the amount shall be kept in a fixed
deposit in any Nationalised Bank in the name of Badugu
Venu Gopal till attaining his majority. The remaining 25%
of the arrears amount shall be kept in any nationalized
bank in the name of Minor Badugu Dindi Akshita till
attaining her majority. The maternal grand mother by name
Rajulapati Gopi Kumari will act as a guardian and nominee
for those amounts. She shall not misappropriate the said
amount. During the said period if the nominee will expire,
the maternal uncle Rajulapati Venkateswara Rao will act as
a guardian.
3. The 1
st respondent has executed gift deed in favour of
Minor girl Dindi Akshitha, an extent of 291 sq. yards
situated at Movva Village, vide document No.2603 on dt.
25.10.2017. The said gift deed kept in the name of maternal
grand mother, in case the maternal grand mother will expire
the maternal uncle R. Venkateswara Rao will act as
guardian, the said property shall not be ali enated to
anybody till the minor attains majority.
4. Petitioners agreed not to object the 1
st respondent to marry
any person at his wish.
5. The 1
st respondent agreed to pay half of his salary amount
in the name of Minors by name Badugu Venugopal and B.
Dindi Akshita. The respondent agreed to pay the said
5
amount till the marriage of Dindi Akshitha. The 1
st
respondent also agreed to pay the said amount till the
minor by name B. Venu Gopal attaining majority, for the
said amount the maternal grand mother R. Gopi Kumari will
act as a guardian, in case of her death the maternal uncle
R. Venkateswara Rao will act as guardian. The said person
shall not miss-appropriate the said amount and the same
will be deducted from the salary of 1
st respondent by R3 to
the account of guardian R. Gopi Kumari vide A/c
No.6268887866, Indian Bank, Movva Branch with IFSC
Code No.IDIB000MO43. the maternal grand mother agreed
to deposit the remaining maintenance amount in the FDR in
the name of minors.
6. The 1
st respondent shall pay an amount of Rs.4,00,000/- to
the in-laws of the 1
st respondent by name R. Nageswara Rao
and R. Gopi Kumri.
7. The 1
st respondent has got every right to see the minors at
the house of petitioners and at school.
8. The 1
st respondent is willing to pay 50% of the retirement
benefits to the 1
st minor ward B. Venu Gopal.
9. In event of any death of 1
st respondent the job under
compassionate grounds will be given to the 1
st minor ward
B. Venu Gopal.
10. The petitioner received all the silver and gold articles from
the 1
st respondent.
11. The petitioners and respondent No.1 shall not claim any
right or dispute over the movable or immovable property
against each other in future.”
Accordingly, an Award is passed.”
5. The petitioner‟s further case is that as per the terms of the award,
the petitioner has paid an amount of Rs.4,00,000/- to the respondents 2
and 3 and has executed a registered gift deed in favour of the minor
daughter respondent No.5, for an area of 291 sq. yards worth of
Rs.20,00,000/-; and 50% of his salary is being paid to the account of
the 2
nd
respondent through petitioner‟s Disbursing Officer, regularly.
The petitioner submitted that he shall not claim any right or dispute over
the movable or immovable property against each other in terms of the
Award.
6
6. Learned counsel for the petitioner submitted that as per the terms
of the award, the respondent No.2, petitioner‟s mother-in-law was
appointed to act as guardian and incase of her death, her son R.
Venkateswara Rao was to act as guardian of the minor children.
However, the respondent No.2 utterly failed to pay the school fees, to
provide medical aid and other basic amenities to the minor children. The
petitioner being the natural guardian is the only person to take good care
of the minor. The petitioner‟s son is staying with the petitioner and he is
looking after his welfare. The petitioner filed G.W.O.P.No. Nil in 2019 in
G.L.No.6769 of 2019, under Section 7 read with Section 10 of the
Guardian and Wards Act, 1890, for his appointment as guardian of the
minor children, but the learned District Judge rejected the same by order
dated 17.09.2019, in view of the Lok Adalat Award in P.L.C.No.636 of
2007.
7. Learned counsel for the petitioner submitted further that the Lok
Adalat Bench, passed the Award without jurisdiction, as the matter of
appointment of guardian of the minor is governed by the Guardian and
Wards Act, 1890 (for short, “the Act”) under which it is the learned
District Judge which has the jurisdiction to appoint guardian of the
person or property or both, of the minor. The Lok Adalat in the present
case was presided over by the Additional Senior Civil Judge, and was not
even presided by the learned District Judge, or Additional District Judge.
He submitted that apart from the fact that the award not having signed
by the petitioner voluntarily but under threat deserves to be quashed,
but even if the settlement was entered voluntarily and was signed by the
petitioner, the award is not binding and is open to challenge, being
nullity and void abinitio for want of jurisdiction in the Lok Adalat.
8. Learned counsel for the petitioner placed reliance on the
judgments in the cases of 1) Karuturi Satyanarayana and another vs.
7
K. Krishnaveni Durga Kumari
1
, 2) Bhargavi Construction and
another vs. Kothakapu Muthyam Reddy and others
2
, 3) State of
Punjab and another vs. Jalour Singh and others
3 and 4) P.T. Thomas
vs. Thomas Job
4
.
9. Learned counsel for the respondents 2 and 3 has submitted that
the writ petition is not maintainable as the award was passed by the Lok
Adalat on the settlement arrived at between the parties which was signed
by the petitioner and his advocate being fully aware of the terms and
conditions of the settlement. The award was passed way back in the
year 2017 and it is only after the rejection of the petitioner‟s application
for his appointment as guardian, by the Principal District Judge,
Machilipatnam on 17.09.2019 that the petitioner has filed the writ
petition and that too without challenging the order dated 17.09.2019. He
has further submitted that except the allegation, that the petitioner was
forced to sign the award, there is no evidence/material to substantiate
such a plea. He has placed reliance in the case of Balla Veera Venkata
Satayanarayan @ Sathi Babu v. State of Andhra Pradesh
5
.
10. Sri S. Lakshmi Narayana Reddy, learned counsel for the Legal
Services Authority, submitted that the respondents 4 and 5, the minor
children of the petitioner, filed application seeking maintenance through
respondents 2 and 3, against the petitioner, upon which in P.L.C.No.636
of 2017, the parties entered into settlement and thereupon the award
was passed. He submitted that since it was a case for grant of
maintenance and not a case for appointment of guardianship , the
submission of the petitioner‟s counsel that the award was without
jurisdiction, as the Lok Adalat was not presided over by the learned
District Judge or Additional District Judge, is misconceived. The Lok
Adalat had the jurisdiction. He further submitted that the award of the
1
2011 (1) ALD 174 (DB)
2
AIR 2017 Supreme Court 4428
3
AIR 2008 Supreme Court 1209
4
(2005) 6 SCC 478
5
2020(1) Andh LD 527
8
Lok Adalat based on the settlement, is final and binding and cannot be
challenged in writ petition under Article 226 of the Constitution of India
and particularly when signing of the award by the petitioner is not in
dispute. He has placed reliance on the judgments in the cases of Kataru
Anjamma vs. Chairman Lok Adlaat Bench -cum-I Additional Senior
civil Judge, Guntur and others
6
and P.T. Thomas vs. Thomas JOB
7
.
11. Respondents 6 to 9 have filed counter affidavit submitting that
they are duly complying with the terms of the Award without any
deviation and primarily the dispute is between the petitioner and the
other respondents. They are in no way concerned with their personal
allegations.
12. We have considered the submissions advanced by the learned
counsel for the parties and perused the material on record.
13. The points which arise for our consideration are:
i) Whether the writ petition challenging the Award of the Lok
Adalat is maintainable?
ii) Whether the Lok Adalat had the jurisdiction in the present
mater and whether the award under challenge is null and
void for want of jurisdiction?
14. We first proceed to consider the point of maintainability of the writ
petition challenging the award of the Lok Adalat.
15. The point is no more res-integra.
16. In State of Punjab vs. Jalour Singh and others
8
, the Hon‟ble
Supreme Court held 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
6
2010 SCC OnLine AP 925
7
(2005) 6 SCC 478
8
AIR 2008 Supreme Court 1209
9
be done only by filing a petition under Article 226 and/or Article 227 of
the Constitution of India and that too on very limited grounds.
17. It is apt to refer paragraph No.12 of Jalour Singh (supra) as
under:-
“12. 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…………………….”
18. In Bhargavi Construction and another vs. Kothakapu
Murthyam Reddy and others
9
, the Hon‟ble Supreme Court held that
the law laid down in Jalour Singh (supra) is binding on all the courts by
virtue of Article 141 of the Constitution of India and the only remedy
available to the aggrieved person is to file a writ petition under Article
226/227 of the Constitution of India in the High Court for challenging
the award passed by the Lok Adalat and it is then for the writ court to
decide as to whether any ground is made out by the writ petitioner for
quashing the award and, if so, whether those grounds are sufficient for
quashing the award.
19. It is apt to reproduce paragraphs 26 to 28 of Bhargavi
Construction (supra) as under:-
9
AIR 2017 Supreme Court 4428
10
26) This is what Their Lordships held in Para:
“12. It is true that where an award is made by the 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.
As already noticed, in such a situation, the High Court ought
to have heard and disposed of the appeal on merits.”
27) In our considered view, the aforesaid law laid down by this
Court is binding on all the Courts in the country by virtue of
mandate of Article 141 of the Constitution. This Court, in no
uncertain terms, has laid down that challenge to the
award of Lok Adalat can be done only by filing a writ
petition under Article 226 and/or Article 227 of the
Constitution of India in the High Court and that too on
very limited grounds.
28) In the light of clear pronouncement of the law by this
Court, we are of the opinion that the only remedy available
to the aggrieved person (respondents herein/plaintiffs) was
to file a writ petition under Article 226 and/or 227 of
the Constitution of India in the High Court for challenging
the award dated 22.08.2007 passed by the Lok Adalat. It was
then for the writ Court to decide as to whether any ground
was made out by the writ petitioners for quashing the
award and, if so, whether those grounds are sufficient for
its quashing.
20. Thus, it has been well settled in law that the award of the Lok
Adalat passed on the settlement can be challenged only by way of filing
writ petition under Article 226/227 of the Constitution of India, on
limited grounds and when writ petition is filed it is for the writ court to
11
decide whether any sufficient ground is made out or not for quashment
of the Lok Adalat award.
21. However, on this point learned counsel for the respondents 1 to 5
have vehemently placed reliance on paragraph No.23 of P.T. Thomas
(supra) to contend that the award of the Lok Adalat passed on settlement
cannot be challenged by any of the regular remedies available under law,
including by inviting Article 226 of the Constitution of India challenging
the correctness of the award on any ground.
22. In P.T. Thomas (supra), the Honb‟le Supreme Court held that the
Lok Adalat will pass the award with 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 Lo k Adalat shall be final and
permanent which is equal to a decree executable and the same is an
ending to the litigation among parties. Therefore, an appeal shall not lie
from an award of the Lok Adalat under Section 96(3) CPC. It is apt to
reproduce paragraphs 20 and 24 of P.T. Thomas (supra) as under:-
“20. The Lok Adalat shall proceed and dispose the cases and
arrive at a compromise or settlement by following the legal
principles, equity and natural justice. Ultimately the Lok Adalat
passes an award, and every such award shall be deemed to be a
decree of Civil Court or as the case may be, which is final”.
“24. 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 parties.”
23. In paragraph 23 of P.T. Thomas (supra), the Hon‟ble Supreme
Court only referred to what was held by the Andhra Pradesh High Court
in the case of Board of Trustees of the Port of Visakhapatnam vs.
Presiding Officer, District Legal Service Authority, Visakhapatnam
and another
10. Paragraph 23 of P.T. Thomas (supra) reads as under:
“23. The High Court of Andhra Pradesh held that, in Board of
Trustees of the Port of Visakhapatnam vs. Presiding Of ficer,
10
2000 SCC OnLine AP 462
12
Permanent, Lok Adalat-cum-Secretary, District Legal Services
Authority, Visakhapatnam and another reported in 2000(5) ALT
577, " The award is enforceable as a decree and it is final. In all
fours, 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 in 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 award of the Lok Adalat being akin to the same, cannot be
challenged by any regular remedies available under law including
invoking Article 226 of the Constitution of India challenging the
correctness of the award on any ground. Judicial review cannot
be invoked in such awards especially on the grounds as raised in
this writ petition.”
24. We also reproduce paragraph No.10 of Board of Trustees (supra)
to show that in Para No.23 of P.T. Thomas (Supra), part of para 10 of
Board of Trustees (supra) was only referred, as under:-
“10. Under this provision, the Lok Adalat is vested with jurisdiction in
respect of any case pending before a Court or any matter which is not
before the Court. The expressions used and the purposes behind are
very clear and distinct. This is in consonance with the objects which
are intended to be achieved and furthering the aims under Article 39-
A of the Constitution of India. Thus, it has all the powers not only to
take up the dispute pending before the Court but also in pursuance of
the applications filed before it during the proceedings. In fact the
'Legal Services' as defined Under Section 2(c) of the said Act includes
rendering of any service in the conduct of any case or other legal
proceeding before any Court or other authority or Tribunal and the
giving of advice on any legal matter, the object being to provide free
legal aid service which is also the one enshrined under Article 39-
A. Therefore, the assistance as contemplated is at all levels, not
restricted to only those on approaching the Court of law or authority
or Tribunal. Further it is not only with a view to settle pending cases
but to settle any impending matters and to provide such assistance,
this Legislation has stepped in. As per Section 22 of the Act, the
procedure vested in a Civil Court under the Code of Civil Procedure
while trying a suit in respect of the matters provided thereunder have
been made fully applicable, apart from enabling to frame its own
procedure. Under Section 21 of the said Act, an award of Lok Adalat
shall be deemed to be a decree of a civil Court and the same shall be
final and binding on all the parties and no appeal shall lie against the
13
said award. Therefore, the award is enforceable as a decree and it is
final. In all fours, 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 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 compromise it cannot be
challenged in a regular appeal, the award of the Lok Adalat being akin
to the same, it cannot be challenged by any regular remedies available
under law including invoking Article 226 of the Constitution of India
challenging the correctness of the award on any ground. Judicial
review cannot be invoked in such awards especially on the grounds as
raised in this writ petition.”
25. It is thus evident that in P.T. Thomas (supra), it was not held that
the award of the Lok Adalat cannot be challenged invoking Article 226 of
the Constitution of India on any ground. What was held, is in paragraphs
20 & 24 of the judgment as mentioned above. Reliance placed on para
23 in P.T. Thomas (supra) by the respondents‟ counsel is misplaced.
26. Learned counsel for the petitioner submitted that as per Regulation
12(3) of the National Legal Services Authority (Lok Adalats) Regulations,
2009 (“the Regulations, 2009”), writ petition is maintainable to challenge
the award of the Lok Adalat.
27. Replying to the above submission, the learned counsel for the
respondents, submitted that, then, the challenge can be only on the
ground of violation of the procedure prescribed in Section 20 of the Legal
Services Authorities Act, 1987 (the Act, 1987), but any such procedural
violation has not been established by the petitioner.
28. The Regulations, 2009, have been framed by the Central Authority,
in exercise of the power conferred by Section 49 of the Act, 1987.
14
29. Regulation 12, of the Regulations, 2009 provides as under:-
“12. Pre-Litigation matters:-
(1) In a Pre-litigation matter it may be ensured that the court for
which a Lok Adalat is organised has territorial jurisdiction to
adjudicate in the matter.
(2) Before referring a Pre-litigation matter to Lok Adalat the Authority
concerned or Committee, as the case may be, shall give a reasonable
hearing to the parties concerned.
Provided that the version of each party, shall be obtained by the
Authority concerned or, as the case may be, the Committee for
placing it before the Lok Adalat,
(3) An award based on settlement between the parties can be
challenged only on violation of procedure prescribed in Section
20 of the Act by filing a petition under Articles 226 and 227 of
the Constitution of India”.
30. A reading of the Regulation 12(3) shows that the only ground to
challenge the award of the Lok Adalat, based on the settlement between
the parties, by way of writ petition under Article 226/227 of the
Constitution of India, is, violation of the procedure prescribed in Section
20 of the Act, 1987. In other words, any challenge to the Lok Adalat
award based on settlement, cannot be made on any ground other than
the ground of violation of the procedure prescribed in Section 20 of the
Act, 1987, as per this regulation which uses the expression „only‟.
31. In view of Regulation 12(3), it requires consideration if the
jurisdiction of the High Court under Article 226/227 of the Constitution
of India can be restricted to a particular ground by such a Regulation.
32. Recently, in Maharashtra Chess Association vs. Union of
India
11
, the Hon‟ble Supreme Court has held that the role of the High
Court under the constitution is crucial to ensuring the rule of law
throughout its territorial jurisdiction. In order to achieve these
transactional goals, the powers of High Court under its writ jurisdiction
11
(2020) 13 SCC 285
15
are necessarily broad. They are, in aid of justice. No limitation can be
placed on the powers of the High Court in exercise of its writ jurisdiction.
The nature of power exercised by the Hig h Court under its writ
jurisdiction is inherently depending on the threat to the rule of law
arising in the case before it. The powers of the High Court in exercise of
its writ jurisdiction cannot be circumscribed by strict legal principles so as
to hobble the High Court in fulfilling its mandate to uphold the rule of
law. It has been reiterated that there are two clear principles which
emerge with respect to when a High Court ‟s writ jurisdiction may be
engaged; firstly, the decision of the High Court to entertain or not to
entertain a particular action in its writ jurisdiction is fundamentally
discretionary; and secondly, the limitations placed on the court‟s
decision to exercise or refuse to exercise its writ jurisdiction are self
imposed. If a High Court is tasked with being the final recourse to
upholding the rule of law within its territorial jurisdiction, it must
necessarily have the power to examine any case before it and make a
determination of whether or not its writ jurisdiction is engaged. Judicial
review under Article 226 is an intrinsic feature of the basic structure of
the Constitution.
33. It is apt to refer paragraphs 11 to 15 of Maharashtra Chess
Association vs. Union of India (supra) as under:-
11. Article 226 (1) of the Constitution confers on High Courts
the power to issue writs, and consequently, the jurisdiction to
entertain actions for the issuance of writs. The text of Article 226
(1) provides that a High Court may issue writs for the enforcement of
the fundamental rights in Part III of the Constitution, or “for any
other purpose”. A citizen may seek out the writ jurisdiction of the
High Court not only in cases where her fundamental right may be
infringed, but a much wider Article 226. (1) Notwithstanding
anything in article 32 every High Court shall have power, throughout
the territories in relation to which it exercises jurisdiction, to issue to
any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs,
including [writs in the nature of habeas corpus, mandamus,
16
prohibition, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any
other purpose] array of situations. Lord Coke, commenting on the
use of writs by courts in England stated:
“The Court of King‟s Bench hath not only the authority to correct
errors in judicial proceedings, but other errors and misdemeanors
[…] tending to the breach of peace, or oppression of the subjects, or
raising of faction, controversy, debate or any other manner of
misgovernment; so that no wrong or injury, public or private, can be
done, but that this shall be reformed or punished by due course of
law….”6 Echoing the sentiments of Lord Coke, this Court in Uttar
Pradesh State Sugar Corporation Limited v Kamal Swaroop Tondon7
observed that:
“35…It is well settled that the jurisdiction of the High Court
under Article 226 of the Constitution is equitable and discretionary.
The power under that Article can be exercised by the High Court “to
reach injustice wherever it is found.”
12. The role of the High Court under the Constitution is crucial to
ensuring the rule of law throughout its territorial jurisdiction. In
order to achieve these transcendental goals, the powers of the High
Court under its writ jurisdiction are necessarily broad. They are
conferred in aid of justice. This Court has repeatedly held that no
limitation can be placed on the powers of the High Court in
exercise of its writ jurisdiction. In A V Venkateswaran, Collector of
Customs, Bombay v Ramchand Sobhraj Wadhwani8 a Constitution
Bench of this Court held that the nature of power exercised by the
High Court under its writ jurisdiction is inherently dependent on the
threat to the rule of law arising in the case before it:
“10…We need only add that the broad lines of the general principles
on which the court should act having been clearly James Bagg‟s
Case (1572) 77 ER 1271 7 (2008) 2 SCC 41 8 (1962) 1 SCR 753, laid
down, their application to the facts of each particular case must
necessarily be dependent on a variety of individual facts which
must govern the proper exercise of the discretion of the Court,
and that in a matter which is thus pre -eminently one of
discretion, it is not possible or even if it were, it would not be
desirable to lay down inflexible Rules which should be applied
with rigidity in every case which comes up before the court.”
The powers of the High Court in exercise of its writ jurisdiction
cannot be circumscribed by strict legal principles so as to hobble
the High Court in fulfilling its mandate to uphold the rule of law.
13. While the powers the High Court may exercise under its
writ jurisdiction are not subject to strict legal principles, two clear
principles emerge with respect to when a High Court‟s writ
jurisdiction may be engaged. First, the decision of the High Court to
entertain or not entertain a particular action under its writ
17
jurisdiction is fundamentally discretionary. Secondly, limitations
placed on the court‟s decision to exercise or refuse to exercise its writ
jurisdiction are self- imposed. It is a well settled principle that the
writ jurisdiction of a High Court cannot be completely excluded by
statute. If a High Court is tasked with being the final recourse to
upholding the rule of law within its territorial jurisdiction, it
must necessarily have the power to examine any case before it
and make a determination of whether or not its writ jurisdiction
is engaged. Judicial review under Article 226 is an intrinsic feature
of the basic structure of the Constitution.
14. These principles are set out in the decisions of this Court in
numerous cases and we need only mention a few to demonstrate the
consistent manner in Minerva Mills v Union of India (1980) 3 SCC
625; L Chandra Kumar v Union of India (1997) 3 SCC 261, which
they have been re-iterated. In State of Uttar Pradesh v Indian Hume
Pipe Co. Limited, this Court observed that the High Court‟s decision
to exercise its writ jurisdiction is essentially discretionary:
“4…It is always a matter of discretion with the Court and if the
discretion has been exercised by the High Court not unreasonably, or
perversely, it is the settled practice of this Court not to interfere with
the exercise of discretion by the High Court.”
15. The principle was dwelt upon even prior to this. In Sangram
Singh v Election Tribunal, Kotah11 the court highlighted the
discretionary nature of the High Court‟s writ jurisdiction. The court
added that courts had themselves imposed certain constraints on the
exercise of their writ jurisdiction to ensure that the jurisdiction did
not become an appellate mechanism for all disputes within a High
Court‟s territorial jurisdiction. The court stated:
“14… The High Courts do not, and should not, act as courts of
appeal under Article 226. Their powers are purely discretionary and
though no limits can be placed upon that discretion it must be
exercised along recognized lines and not arbitrarily; and one of the
limitations imposed by the courts on themselves is that they will not
exercise jurisdiction in this class of case unless substantial injustice
has ensued, or is likely to ensue. They will not allow themselves to be
turned into courts of appeal or revision to set right mere errors of law
which do not occasion injustice in a broad and general sense, for,
though no legislature can impose limitations on thes e
constitutional powers it is a sound exercise of discretion to bear
in mind the policy of the legislature to have disputes about
these special rights decided as speedily as may be .” (Emphasis
supplied) 10 (1977) 2 SCC 724 11 (1955) 2 SCR 1 . The intention
behind this self-imposed rule is clear. If High Courts were to exercise
their writ jurisdiction so widely as to regularly override statutory
appellate procedures, they would themselves become inundated with
a vast number of cases to the detriment of the litigants in those
18
cases. This would also defeat the legislature‟s intention in enacting
statutory appeal mechanisms to ensure the speedy disposal of
cases……………………”
34. In Jalour Singh (supra), the Hon‟ble Supreme Court clearly laid
down that the challenge to the award of the Lok Adalat can be done only
by filing the writ petition under Article 226/227 of the Constitution of
India but on limited grounds. Simultaneously, it has been laid down that
it is for the writ court to decide as to whether any ground is made out by
the writ petitioners for quashing the award and if so whether those
grounds are sufficient for its quashing.
35. Thus, the writ jurisdiction of the High Court under Article 226 of
the Constitution of India being in aid of justice and to ensure rule of law
is of wide scope. The limitations on the High Court‟s power in exercise of
writ jurisdiction cannot be circumscribed by any statute. In every case
this court, considering various factors would determine its exercise of
discretionary power.
36. The interference in the exercise of writ jurisdiction, with an award
of the Lok Adalat based on settlement between parties, would certainly
be on limited grounds, but whether a particular ground of challenge falls
within the „limited grounds‟ or not, and whether on such ground the
award is to be interfered or not is to be determined only by the High
Court when the matter comes before it. Any limitation, that the power
will be exercised only on a specified ground can not be placed by a
statute. Similarly, a statute cannot provide that on existence of a
particular ground the power is to be exercised necessarily by the High
Court in the exercise of writ jurisdiction. Therefore, Regulation 12(3) of
the Regulations, 2009 providing that the award of the Lok Adalat can be
challenged by way of writ petition under Article 226/227 of the
Constitution of India only on the ground of violation of the provisions of
Section 20 of the Legal Services Authorities Act, 1907, cannot place such
19
restriction on the power of the High Court under Article 226 of the
Constitution of India, to quash the award of the Lok Adalalat on other
grounds as well, which the High Court may determine to be one of the
„limited grounds‟.
37. Procedural violation under Section 20 of the Act, 1987, may be one
of the limited grounds to quash the award of the Lok Adalat , in a
particular case, but it does not mean that merely because such a ground
is provided by Regulation 12(3), the High Court is bound to interfere. If,
in totality of various factors, the High Court determines that inspite of
procedural violation it is not proper to invoke the discretionary
jurisdiction, the High Court may also refuse to invoke its jurisdiction.
38. The exercise of discretion is guided by the judicial principles,
observing the self imposed restrictions. In a challenge to the Lok Adalat
award based on settlement, the Court will certainly keep in mind that
such awards are final and binding between the parties and are at par
the consent decree, executable as a decree of the civil court, against
which legislature did not provide for any statutory remedy of appeal or
revision and therefore would not act while exercising of writ jurisdiction,
as an appellate or the revisional court.
39. The ground of challenge here is the inherent lack of jurisdiction in
the Lok Adalat to appoint guardian of the minor.
40. In Om Prakash Agarwal vs. Vishan Dayal Rajpoot and another
12
referring to the judgment in the case of Kiran Singh v. Chaman
Paswan
13
followed in various later decisions, the Hon‟ble Apex Court
reiterated that a decree passed by a court lacking in inherent jurisdiction
is a nullity. It was held that the jurisdiction as to subject matter, is
totally distinct and stands on a different footing than no objection to the
lack of pecuniary or territorial jurisdiction. Where a court has no
12
(2019) 14 SCC 526
13
AIR 1954 SC 340
20
jurisdiction at all over the subject matter by reason of any limitation
imposed by the statute it cannot take up th at matter and an order
passed by such a court having no jurisdiction is a nullity.
41. It is apt to reproduce Paragraph 61 of Om Prakash Agarwal
(supra) as under:-
“61. In Harshad Chiman Lal Modi vs. DLF
Universal Ltd.,
14 this court had again considered
Section 21 and other provisions of Code of Civil
Procedure. In paragraph 30, following has been laid
down:
“30…………The jurisdiction of a court may be classified
into several categories. The important categories are
(i) territorial or local jurisdiction; (ii) pecuniary
jurisdiction; and (iii) jurisdiction over the subject matter. So
far as territorial and pecuniary jurisdictions are
concerned, objection to such jurisdiction has to be
taken at the earliest possible opportunity and in any
case at or before settlement of
issues. The law is well settled on the point that if such
objection is not taken at the
earliest, it cannot be allowed to be taken at a subsequent
stage. Jurisdiction as to subject matter, however, is
totally distinct and stands on a different footing.
Where a court has no jurisdiction over the subject
matter of the suit by reason of any limitation
imposed by statute, charter or commission, it cannot
take up the cause or matter.
An order passed by a court having no jurisdiction is a nullity.”
42. In Nusli Neville Wadia vs. Ivory Properties and others
15
the
Hon‟ble Supreme Court held that the jurisdiction is the authority of law
to act finally in a particular matter in hand. It is the power to take
cognizance and decide the cases. Jurisdiction is the foundation of
judicial proceedings. If the law confers a power to render a judgment or
decree then the Court has jurisdiction. The test of having no jurisdiction
by the court is that its judgment is amenable to attack in collateral
proceedings. If the court has inherent lack of jurisdiction, its decision is
14
(2005) 7 SCC 791
15
(2020)6 Supreme Court Cases 557
21
open to attack as a nullity. When there is want of general power to act
the court has no jurisdiction. Judgment within a jurisdiction is to be
immuned from collateral attack on the ground of nullity.
43. It is apt to refer paragraph 88 of Nusli Neville Wadia (supra) which
reads as under:-
“Given the discussion above, we are of the considered opinion
that the jurisdiction to entertain has different connotation from
the jurisdictional error committed in exercise thereof. There is a
difference between the existence of jurisdiction and the exercise
of jurisdiction. The expression jurisdiction has been used in CPC
at several places in different contexts and takes colour from the
context in which it has been used. The existence of jurisdiction is
reflected by the fact of amenability of the judgment to attack in
the collateral proceedings. If the court has an inherent lack of
jurisdiction, its decision is open to attack as a nullity. While
deciding the issues of the bar created by the law of limitation, res
judicata, the Court must have jurisdiction to decide these
issues.”
44. In Yakoob vs. K.S. Radhakrishnan
16, the Constitution Bench of the
Hon‟ble Supreme Court laid down that a writ of Certiorari under Article 226 of
the Constitution of India can be issued for correcting errors of jurisdiction
committed by inferior courts or tribunals and these are the cases where orders
are passed without jurisdiction or in excess of jurisdiction or as a result of
failure to exercise jurisdiction In General Manager, Electrical Rengali
Hydro Electric Project, Orissa and others vs. Giridhari Sahu and others
17, it
has been reiterated that the writ of Certiorari is intended t o correct
jurisdictional excesses which are clearly established. The jurisdictional error
may be from failure to observe the limits of its jurisdiction, or procedure
adopted by the body after validly assuming jurisdiction or violation of principles
of natural justice.
45. Therefore, in our considered view lack of inherent jurisdiction in Lok
Adalat, is one of the limited grounds to challenge its award .
46. Now we proceed to consider the second point i.e if the impugned award of
the Lok Adalat suffers from inherent lack of jurisdiction. In other words, if the
16
AIR 1964 SC 477
17
(2019) 10 SCC 695
22
Lok Adalat has jurisdiction in the matter of appointment of guardian of minor
by way of settlement between parties.
47. The brief look at the provisions under the Guardian & Wards
Act, 1890 is necessary:-
Section 7 of the Act, 1890 provides for power of the court to order
for guardianship. It reads as under:
“7. Power of the Court to make order as to guardianship.—
(1) Where the Court is satisfied that it is for the welfare of a
minor that an order should be made-- (a) appointing a
guardian of his person or property or both, or (b) declaring a
person to be such a guardian the Court may make an order
accordingly.
(2) An order under this section shall imply the removal of any
guardian who has not bee n appointed by will or other
instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other
instrument or appointed or declared by the Court, an order
under this section appointing or declaring another person to
be guardian in his stead shall not be made until the powers
of the guardian appointed or declared as aforesaid have
ceased under the provisions of this Act.
48. Section 9 of the Act, 1890 provides for the jurisdiction of the Court
to entertain application.
49. Section 4(5) of the Act defines „Court‟ as under:-
4. Definitions.—In this Act, unless there is something repugnant
in the subject or context,—
(5) “the Court” means—
(a) the District Court having jurisdiction to entertain an appli-
cation under this Act for an order appointing or declaring a person
to be a guardian; or
(b) where a guardian has been appointed or declared in pursuance
of any such application—
(i) the Court which, or the Court of the officer who, appointed or
declared the guardian or is under this Act deemed to have
appointed or declared the guardian; or
(ii) in any matter relating to the person of the ward the District
Court having jurisdiction in the place where the ward for the time
being ordinarily resides; or
(c) in respect of any proceeding transferred under section 4A, the
Court of the officer to whom such proceeding has been trans -
ferred.”
23
50. Section 10 provides for form of application, which reads as
under:—
“10. Form of application.—
(i) If the application is not made by the Collector, it shall be by
petition signed and verified in manner prescribed by the Code of
Civil Procedure, 1882 (14 of 1882)1, for the signing and verification
of a plaint, and stating, so far as can be ascertained,--
(a) the name, sex, religion, date of birth and ordinary residence of
the minor;
(b) where the minor is a female, whether she is married and if so,
the name and age of her husband;
(c) the nature, situation and approximate value of the property, if
any, of the minor;
(d) the name and residence of the person having the custody or
possession of the person or property of the minor;
(e) what near relations the minor has and where they reside;
(f) whether a guardian of the person or property or both, of the
minor has been appointed by any person entitled or claiming to be
entitled by the law to which the minor is subject to make such an
appointment;
(g) whether an application has at any time been made to the Court
or to any other Court with respect to the guardianship of the person
or property or both, of the minor and if so, when, to what Court and
with what result;
(h) whether the application is for the appointment or declaration of
a guardian of the person of the minor, or of his property, or of both;
(I) where the application is to appoint a guardian, the qualifications
of the proposed guardian;
(j) where the application is to declare a person to be a guardian, the
grounds on which that person claims;
(k) the causes which have led to the making of the application; and
(l) such other particulars, if any, as may be prescribed or as the
nature of the application renders it necessary to state.
(2) If the application is made by the Collector, it shall be by letter
addressed to the Court and forwarded by post or in such othe r
manner as may be found convenient, and shall state as far as
possible the particulars mentioned in subsection (1).
(3) The application must be accompanied by a declaration of the
willingness of the proposed guardian to act, and the declaration
must be signed by him and attested by at least two witnesses.”
51. Section 11 of the Act, 1890 provides for the procedure, on
admission of application, which reads as under:—
24
“11. Procedure on admission of application.-
(1) If the Court is satisfied that there is ground for proceeding on
the application, it shall fix a day for the hearing thereof and cause
notice of the application and of the date fixed for the hearing—
(a) to be served in the manner directed in the Code of Civil
Procedure, 1882 (14 of 1882)1 on—
(i) the parents of the minor if they are residing in 2[any State to
which this Act extends];
(ii) the person, if any, named in the petition or letter as having the
custody or possession of the person or property of the minor;
(iii) the person proposed in the application or letter to be appointed
or declared guardian, unless that person is himself the applicant,
and
(iv) any other person to whom, in the opinion of the Court, special
notice of the application should be given; and (b) to be posted on
some conspicuous part of the Court-house and of the residence of
the minor, and otherwise published in such manner as the Court,
subject to any rules made by the High Court under this Act, thinks
fit.
(2) The State Government may, by general or special order, re-quire
that when any part of the property described in a petition under
section 10, sub-section (1), is land of which a Court of Wards could
assume the superintendence, the Court shall also cause a notice as
aforesaid to be served on the Collector in whose district the minor
ordinarily resides and on every Collector in whose district any
portion of the land is situate, and the Collector may cause the
notice to be published in any manner he deems fit.
(3) No charge shall be made by the Court or the Collector for the
service or publication of any notice served or published under sub-
section (2).”
52. Section 12 provides for power to make interlocutory order for
production of minor and for interim protection of person or property of
minor. Section 13 provides for hearing of the application and evidences
on the date fixed before making an order.
53. Section 17 of the Act, 1890 provides for the matters to be
considered by the Court in appointing or declaring the guardian.
54. Section 17 of the Act, 1890 reads as under:—
“17. Matters to be considered by the Court in appointing
guardian.—
(1) In appointing or declaring the guardian of a minor, the Court
shall, subject to the provisions of this section, be guided by
25
what, consistently with the law to which the minor is subject,
appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the
Court shall have regard to the age, sex and religion of the
minor, the character and capacity of the proposed guardian and
his nearness of kin to the minor, the wishes, if any, of a
deceased parent, and any existing or previous relations of the
proposed guardian with the minor or his property.
(3) If minor is old enough to form an intelligent preference, the
Court may consider that preference.
(4) The Court shall not appoint or declare any person to be a
guardian against his will.”
55. Thus, from the aforesaid legal provisions of the Act, 1890, it is
clear that as per Section 7, where the Court is satisfied that it is for the
welfare of a minor that an order should be made appointing a guardian of
his person or property or both, or declaring a person to be such a
guardian, the Court may make an order accordingly. Section 8, however,
specifically provides that an order shall not be made under Section 7,
except on the application of (a) the person desirous of being, or claiming
to be the guardian of the minor or (b) any relative or friend of the minor;
or (c) the Collector of the District or other local area within which the
minor ordinarily resides or in which he has property; or (d) the Collector
having authority with respect to the class to which the minor belongs.
Section 8, therefore, clearly provides that no order under Section 7 shall
be passed except on an application by the person or authority as
mentioned in clause (a) to (d). It shows the legislative intent to make the
provision mandatory. In the case of Lachmi Narain v. Union of India,
[(1976) 2 SCC 953], the Hon'ble Supreme Court held that if the provision
is couched in prohibitive or negative language, it can rarely be directory,
the use of peremptory language in a negative form is per se indicative of
the intent that the provision is to be mandatory. In Nasiruddin v. Sita
Ram Agarwal, [(2003) 2 SCC 577], the Hon'ble Supreme Court held that
when negative words are used, the courts will presume that the intention
of the legislature was that the provisions are mandatory in character.
26
56. The form of the application is to be as per Section 10, according to
which if the application for appointment is not made by the Collector, it
shall be by petition signed and verified in the manner prescribed by the
Code of Civil Procedure, for the signing and verification of a plaint, and
stating, so far as can be ascertained, the points/information as
mentioned in Clauses (a) to (l). As per sub Section (3) the application
must be accompanied by a declaration of the willingness of the proposed
guardian to act, which declaration must be signed by the propose d
guardian and attested by at least two witnesses. In the view of this
Court, the above requirements of the application are with an object i.e, in
the interest of the child, to secure his welfare. In Dhaninder Kumar v.
Deep Chand, [1991 ALJ 25], the High Court of Allahabad followed the
Division Bench in Narottam v. Tapesra, [1934 ALJ 652] and held that “a
Judge is not authorized by law, in the absence of an application for
appointment of a guardian to pass an order appointing the guardian of a
minor. But, once an application has been filed in accordance with the
provisions of Section 10, the jurisdiction of the court comes into play”.
57. In the exercise of guardianship or custody jurisdiction, the welfare
of the minor and minor alone is of paramount consideration. Its neither
the rights of parents nor of anyone even under a statute. The court shall
be guided generally by Section 17 of the Act, 1890 i.e. guided by what
consistently with the law to which the minor is subject, appears in the
circumstances to be for the welfare of the minor, having regard to the
age, sex and religion of the minor, the character and capacity of the
proposed guardian and his nearness of kin to the minor, the wishes, if
any, of a deceased parent, and any existing or previous relations of the
proposed guardian with the minor or his property and if minor is old
enough to form an intelligent preference, the Court will also give due
weight to such preference.
27
58. In ABC v. State (NCT of Delhi)
18
, the Hon'ble Supreme Court has
held that in the matter of appointment or declaration of guardian of the
minor, the Court is called upon to discharge its parens patriae
jurisdiction. Upon a guardianship petition, being laid before the Court,
the child concerned ceases to be in the exclusive custody of the parents;
thereafter, until the attainment of majority, the child continues in curial
curatorship. In Smriti Madan Kansagra v. Perry Kansagra
19
, the
Hon'ble Supreme Court held that it is a well-settled principle of law that
the courts while exercising parens patriae jurisdiction would be guided
by the sole and paramount consideration of what would best subserve
the interest and welfare of the child, to which all other considerations
must yield. The welfare and benefit of the minor child would remain the
dominant consideration throughout. In Laxmi Kant Pandey v. Union of
India
20
, the Hon'ble Supreme Court held that the welfare of the child
takes priority above all else, including the rights of the parents.
59. In Nil Ratan Kundu v. Abhijit Kundu
21
, it was held that it is the
welfare of the minor and of the minor alone, which is the paramount
consideration. In paragraph 52 of the case of Nil Ratan Kundu (supra),
the Hon'ble Supreme Court summarised the principles of the custody of
minor children, which reads as under:—
“Principles governing custody of minor children:
52. In our judgment, the law relating to custody of a child is fairly well
settled and it is this : in deciding a difficult and complex question as
to the custody of a minor, a court of law should keep in mind the
relevant statutes and the rights flowing therefrom. But such cases
cannot be decided solely by interpreting legal provisions. It is a human
problem and is required to be solved with human touch. A court while
dealing with custody cases, is neither bound by statutes nor by strict
rules of evidence or procedure nor by precedents. In selecting proper
guardian of a minor, the paramount consideration should be the
welfare and well -being of the child. In selecting a guardian, the court
is exercising parens patriae jurisdiction and is expected, nay bound, to
give due weight to a child's ordinary comfort, contentment, health,
18
(2015) 10 SCC 1
19
2020 SCC OnLine SC 887
20
(1984) 2 SCC 244
21
(2008) 9 SCC 413
28
education, intellectual development and favourable surroundings. But
over and above physical comforts, moral and ethical values cannot be
ignored. They are equally, or we may say, even more important,
essential and indispensable considerations. If the minor is old enough
to form an intelligent preference or judgment, the court must consider
such preference as well, though the final decision should rest with the
court as to what is conducive to the welfare of the minor.”
60. In ABC (supra), the Hon'ble Supreme Court has further held that as the
intention of the Act is to protect the welfare of the child the applicability of
Section 11 which is procedural would have to be read accordingly. There is no
harm or mischief in relaxing its requirements to attain the intendment of the
Act, if the child's welfare is in peril. Thus, it is also settled that the purely
procedural provisions can be relaxed or even dispensed with, to attain the
intendment of the Act, if there is no harm or mischief in relaxing those
requirements, in the welfare of the child, which takes priority above all else. If
by relaxing the procedural provision, the welfare of the child would be
undermined or if the procedural law itself is intended for the welfare of the
minor, such provisions are not to be relaxed.
61. The welfare of the minor is to be considered and determined by the
Court with the proposed guardian; the factors under Section 17 of the
Act, 1890 are to be considered generally. It involves adjudication by
Court. In a pre litigation case, the Lok Adalat can pass an award only on
the basis of settlement. It has no adjudicatory role and cannot decide the
cases on merits. In Interglobe aviation Limited vs. N.
Satchidanand
22, the Hon‟ble Apex Court held that the Lok Adalat
constituted under Section 19 of the Act has no adjudicatory functions or
powers and it discharges purely conciliatory functions. In Estate Officer
vs. Colonel H.V. Mankotia (Retired)
23
, the Hon‟ble Supreme Court held
that as per Sub Section (5) of Section 19 of the Act, 1897, the Lok Adalat
shall have jurisdiction to determine and to arrive at a compromise or
settlement between the parties to a dispute. The Lok Adalat has no
jurisdiction at all to decide the matter on merits. Consequently, in our
22
(2011) 7 SCC 463
23
2021 SCC OnLine SC 898
29
view, Lok Adalat cannot pass award on settlement in cases which
necessarily involves adjudication. The law therefore, does not
contemplate appointment of guardian of minor by agreement between
parties.
62. Further, the jurisdiction to appoint guardian of a minor is parens
patriae jurisdiction, which literally means parent of the country and
refers traditionally to the role of the State as a sovereign and guardian of
persons under legal disability. When the court exercises the power as
parens patriae, it means that the court has to act as parent or
guardian of the person under legal disability. In the case of Charan Lal
Sahu v. Union of India, [(1990) 1 SCC 613], the Hon'ble Supreme Court
has held as under:—
“35. There is the concept known both in this country and
abroad, called parens patriae. Dr. B.K. Mukherjea in his “Hindu
Law of Religious and Charitable Trust”, Tagore Law Lectures,
Fifth Edition, at page 404, referring to the concept of parens
patriae, has noted that in English law, the Crown as parens
patriae is the constitutional protector of all property subject to
charitable trusts, such trusts being essentially matters of public
concern. Thus the position is that according to Indian concept
parens patriae doctrine recognized King as the protector of all
citizens and as parent. In Budhkaran Chaukhani v. Thakur
Prosad Shah, [AIR 1942 Cal 331 : (1941-42) 46 CWN 425] the
position was explained by the Calcutta High Court at page 318
of the report. The same position was reiterated by the said High
Court in Banku Behary Mondal v. Banku Behary Hazra, [AIR
1943 Cal 203 : (1942-43) 47 CWN 89] at page 205 of the report.
The position was further elaborated and explained by the
Madras High Court in Medai Dalavoi T. Kumaraswami
Mudaliar v. Medai Dalavoi Rajammal, [AIR 1957 Mad 563 :
(1957) 2 Mad LJ 211] at page 567 of the report. This Court also
recognized the concept of parens patriae relying on the
observations of Dr. Mukherjea aforesaid in Ram Saroop v. S.P.
Sahi, [1959 Supp (2) SCR 583 : AIR 1959 SC 951] at pages 598
and 599. In the “Words and Phrases” Permanent Edition, Vol.
33 at page 99, it is stated that parens patriae is the inherent
power and authority of a legislature to provide protection to the
person and property of persons non sui juris, such as minor,
insane, and incompetent persons, but the words parens patriae
30
meaning thereby “the father of the country‟, were applied
originally to the King and are used to designate the State
referring to its sovereign power of guardinaship over persons
under disability. (emphasis supplied) Parens patriae
jurisdiction, it has been explained, is the right of the sovereign
and imposes a duty on sovereign, in public interest, to protect
persons under disability who have no rightful protector. The
connotation of the term parens patriae differs from country to
country, for instance, in England it is the King, in America it is
the people, etc. The Government is within its duty to protect
and to control persons under disability. Conceptually, the
parens patriae theory is the obligation of the State to protect
and takes into custody the rights and the privileges of its
citizens for discharging its obligations. Our Constitution makes
it imperative for the State to secure to all its citizens the rights
guaranteed by the Constitution and where the citizens are not
in a position to assert and secure their rights, the State must
come into picture and protect and fight for the rights of the
citizens. The Preamble to the Constitution, read with the
Directive Principles, Articles 38, 39 and 39-A enjoin the State to
take up these responsibilities. It is the protective measure to
which the social welfare state is committed. It is necessary for
the State to ensure the fundamental rights in conjunction with
the Directive Principles of State Policy to effectively discharge its
obligation and for this purpose, if necessary, to deprive some
rights and privileges of the individual victims or their heirs to
protect their rights better and secure these further. Reference
may be made to Alfred L. Snapp & Son, Inc. v. Puerto Rico, [73
L.Ed.2d 995 : 458 US 592 (1982) : 102 SCR 3260] in this
connection. There it was held by the Supreme Court of the
United States of America that Commonwealth of Puerto Rico
have standing to sue as parens patriae to enjoin apple growers'
discrimination against Puerto Rico migrant farm workers. This
case illustrates in some aspect the scope of parens patriae. The
Commonwealth of Puerto Rico sued in the United States District
Court for the Western District of Virginia, as parens patriae for
Puerto Rican migrant farmworkers, and against Virginia apple
growers, to enjoin discrimination against Puerto Ricans in
favour of Jamaican workers in violation of the Wagner-Peyser
Act, and the Immigration and Nationality Act. The District Court
dismissed the action on the ground that the Commonwealth
lacked standing to sue, but the Court of Appeal for the Fourth
Circuit reversed it. On certiorari, the United States Supreme
Court affirmed. In the opinion by White, J., joined by Burger,
31
C.J. and Brennan, Marshall, Blackmun, Rehnquist, Stevens,
and O'Connor, JJ., it was held that Puerto Rico had a claim to
represent its quasi-sovereign interests in federal court at least
which was as strong as that of any State, and that it had parens
patriae standing to sue to secure its residents from the harmful
effects of discrimination and to obtain full and equal
participation in the federal em ployment service scheme
established pursuant to the Wagner -Peyser Act and the
Immigration and Nationality Act of 1952. Justice White referred
to the meaning of the expression parens patriae. According to
Black's Law Dictionary, 5 edn. 1979, page 10003, it means
literally “parent of the country‟ and refers traditionally to the
role of the State as a sovereign and guardian of persons under
legal disability. Justice White at page 1003 of the report
emphasised that the parens patriae action had its roots in the
common law concept of the “royal prerogative”. The royal
prerogative included the right or responsibility to take care of
persons who were legally unable, on account of mental
incapacity, whether it proceeds from nonage, idiocy or lunacy to
take proper care of themselves and their property. This
prerogative of parens patriae is inherent in the supreme power
of every state, whether that power is lodged in a royal person or
in the legislature and is a most beneficent function. After
discussing several cases Justice White observed at page 1007 of
the report that in order to maintain an action, in parens patriae,
the State must articulate an interest apart from the interests of
particular parties, i.e. the State must be more than a nominal
party. The State must express a quasi-sovereign interest. Again
an instructive insight can be obtained from the observations of
Justice Holmes of the American Supreme Court in the case of
State of Georgia v. Tennessee Copper Co., [51 L.Ed. 1038 : 206
US 230 (1906) : 27 SCR 618], which was a case involving air
pollution in Georgia caused by the discharge of noxious gases
from the defendant's plant in Tennesee. Justice Holmes at page
1044 of the report described the State's interest as follows: “This
is a suit by a State for an injury to it in its capacity of quasi-
sovereign. In that capacity the State has an interest
independent of and behind the titles of its citizens, in all the
earth and air within its domain. It has the last word as to
whether its mountains shall be stripped of their forests and its
inhabitants shall breathe pure air. It might have to pay
individuals before it could utter that word, but with it remains
the final power…. … When the States by their union made the
forcible abatement of outside nuisances impossible to each,
32
they did not thereby agree to submit to whatever might be done.
They did not renounce the possibility of making reasonable
demands on the ground of their still remaining quasi-sovereign
interests…”
63. Now it is apt to refer Section 19 of the Act, 1987 which provides for
organization of Lok Adalat and reads as under:
Section 19 in The Legal Services Authorities Act, 1987
19. Organisation of Lok Adalats.—
(1) Every State Authority or District Authority or the Supreme Court Legal
Services Committee or every High Court Legal Services Committee or, as the
case may be, Taluk Legal Services Committee may organise Lok Adalats at
such intervals and places and for exercising such jurisdiction and for such
areas as it thinks fit.
(1) Every State Authority or District Authority or the Supreme Court Legal
Services Committee or every High Court Legal Services Committee or, as the
case may be, Taluk Legal Services Committee may organise Lok Adalats at
such intervals and places and for exercising such jurisdiction and for such
areas as it thinks fit."
(2) Every Lok Adalat organised for an area shall consist of such number of—
(a) serving or retired judicial officers; and
(b) other persons, of the area as may be specified by the State Authority or
the District Authority or the Supreme Court Legal Services Committee or the
High Court Legal Services Committee, or as the case may be, the Taluk
Legal Services Committee, organising such Lok Adalat.
(3) The experience and qualifications of other persons referred to in clause
(b) of sub-section (2) for Lok Adalats organised by the Supreme Court Legal
Services Committee shall be such as may be prescribed by the Central
Government in consultation with the Chief Justice of India.
(4) The experience and qualifications of other persons referred to in clause
(b) of sub-section (2) for Lok Adalats other than referred to in sub-section (3)
shall be such as may be prescribed by the State Government in consultation
with the Chief Justice of the High Court.
(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 organized
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.”
64. Section 19(5) of the Act, 1987 clearly provides for the jurisdiction
of the Lok Adalat in respect of any case pending before any Court for
which the Lok Adalat is organized and also with respect to any matter
33
which is falling within the jurisdiction of and is not brought before any
court for which the Lok Adalat is organized. The dispute in respect of
second kind of cases before the Lok Adalat is the pre-litigation case.
However, there is no jurisdiction in Lok Adalat in respect of any case or
matter relating to an offence not compoundable under any law.
65. In Karuturi Satyanarayana (supra), this court, held that Section
19(5)(ii) requires a pre-litigation case to be heard by Lok Adalat
organized for the court which had jurisdiction to hear the matter had it
been instituted. The reference of a case which is yet to be brought before
the Court can only be to a Lok Adalat which is organized for such Court.
In Karuturi Satyanarayana (supra), the subject matter of the complaint
before the Lok Adalat was with regard to the declaration of a guardian for
the children. This Court held that such declaratory relief did not fall
within the realm of the Lok Adalat. However, it was further observed
that even if the matter was entertained by Lok Adalat it ought to have
been referred to the Lok Adalat constituted for a District Court and as
the Lok Adalat passing the award was not organized for a District Court,
but was presided over by the IV Additional Junior Civil Judge, the award
was held to be non est in the eye of law, null and void for want of
jurisdiction.
66. It is apt to refer para Nos.38 and 39 of Karuturi Satyanarayana
(supra) as under:
“38.In the present case also, the subject matter of the complaint
before the Lok Adalat was with regard to the declaration of a
guardian for the children. Such a declaratory relief did not fall
within the realm of the Lok Adalat and at that, upon a petition
filed by the paternal grandparents portraying themselves as the
guardians of the children against their natural guardian. This
aspect was completely overlooked by the Lok Adalat.
39. Even if entertained, the case ought to have been referred to
the Lok Adalat constituted for a District Court. Though such a
Lok Adalat was constituted and heard MVOPs the present case
was referred to the other Bench which was not organized for a
District Court, Ergo, the Lok Adalat presided over by the IV
34
Additional Junior Civil Judge, Rajahmundry, had not jurisdiction
as per Section 19(5)(ii) of the Act of 1987 and the Award passed
by the said Lok Adalat is non est in the ye of law. It is null and
void for want of jurisdiction.”
67. In the present case there was no application for appointment of the
guardian. The application was only for maintenance. In view of Sections
7 and 8 of the Act, 1890, no order for appointment of a guardian can be
passed without an application by t he proposed guardian which
application must comply with the conditions of Section 10. Infact, the
matter for appointment of guardian was not the subject matter before the
Lok Adalat. The Lok Adalat was not presided over by the District
Judge/Additional District Judge. No award could be passed on the basis
of the settlement or compromise between the parties for appointment of
guardian.
68. The submission of the learned counsel for the petitioner that the
compromise/settlement was not signed voluntarily but was under threat
and compulsion, deserves rejection. The signing of the settlement is
admitted to the petitioner. Whether there was threat or compulsion is a
disputed question of fact which cannot be gone into in the writ
proceedings. The settlement is signed by the petitioner, the other parties,
the petitioner‟s superior officers and the respective counsel of the parties.
The award is not open to challenge on this ground.
69. Learned counsel for respondents submitted that the petitioner by
signing the award before the Lok Adalat without raising any objection to
its jurisdiction, consented to the jurisdiction of the Lok Adalat and now
he cannot challenge the award as without jurisdiction. This submission
deserves rejection. It is well settled that consen t cannot confer
jurisdiction when there is lack of inherent jurisdiction. In Sushil Kumar
Metha vs. Gobind Ram Bohra
24, the Hon‟ble Apex Court held that if the
court inherently lacks jurisdiction consent cannot confer jurisdiction.
24
1990(1) SCC 193
35
Further, reference is to the case of Sarup Singh and others vs. Union of
India (UOI) and others
25
, wherein the Hon‟ble Apex Court held in para
No.20, as under:
“20. The aforesaid position is well-settled and not open for any
dispute as the defect of jurisdiction strikes at the very root
and authority of the court to pass decree which cannot be
cured by consent or waiver of the parties. This court in several
decisions has specifically laid down that validity of any such
decree or order could be challenged at any stage. In Union of
India v. Subbe Ram and ors., reported in MANU/SC/1433/1997:
(1997) 9SCC 69 this Court held thus:
5. (…) here is the case of entertaining the application itself; in
other words, the question of jurisdiction of the court. Since the
appellate court has no power to amend the decree and grant the
enhanced compensation by way of solatium and interest under
Section 23(2) and proviso to Section 28 of the Act, as amended by
Act 68 of 1984, it is a question of jurisdiction of the court. Since
courts have no jurisdiction, it is the settled legal position that it
is a nullity and it can be raised at any stage.”
70. In Balla Veera Venkata Satyanarayana @ Sathi Babu vs. State
of Andhra Pradesh (DB)
26
, upon which learned counsel for the
respondents placed reliance is of no help to them as in that case, this
Court found that the award was perfectly valid under law and was
passed by Lok Adalat having jurisdiction. Whereas, in the present case,
we find that the Lok Adalat has passed the award without jurisdiction
with respect to appointment of the guardian of the minor.
71. Kataru Anjamma (supra), upon which reliance is placed by the
respondents‟ counsel is also not a case of the Award having been passed
by Lok Adalat without jurisdiction and is of no help to the respondents.
72. We, therefore, hold as under:
1) The award of the Lok Adalat can be challenged only by
way of writ petition under Article 226/227 of the Constitution
of India on limited grounds.
25
AIR 2011 SC 514
26
2020(1) Andh LD 527
36
2) When such a challenge is made, it is for the High Court
to determine if a particular ground of challenge falls within
the limited grounds or not and if on such a ground, the
discretionary writ jurisdiction should or should not be
invoked, on consideration of various factors also keeping in
view that the Lok Adalat award is final and binding between
the parties, at par the consent decree and is executable as a
decree of the Court against which the legislature did not
provide for any statutory remedy.
3. The exercise of writ jurisdiction of the High Court under
Article 226/227 of the Constitution of India cannot be
restricted to a particular ground only. The award of the Lok
Adalat can be challenged by way of writ petition, also on a
ground, other than violation of the procedural provisions
under Section 20 of the Legal Services Authorities Act, 1987
and then it is for the High Court to determine if such a ground
is one of the limited grounds or not.
4. Regulation 12(3) of the Regulations, 2009 is to be
considered in the above manner , as no limitation can be
placed on the power of the High court in exercise of its writ
jurisdiction by regulations.
5. The inherent lack of jurisdiction in the Lok Adalat to pass
the award is one of the limited grounds of challenge.
6. The Lok Adalat has no jurisdiction in the matters of
appointment of guardian of a minor as it involves the
determination of the welfare of the minor with the proposed
guardian, keeping in view various factors, including those in
Section 17 of the Guardians and Wards Act, 1890, and as the
Lok Adalats do not have adjudicatory power to determine such
an issue on merits.
7. In the matter of appointment of guardian of a minor, the
court exercises its parens patriae jurisdiction which cannot be
left in the hands of the litigating parties to settle or
compromise. Even if there is an agreement between parties
such an agreement would require adjudication by the court to
satisfy if the welfare of the minor is secured by such
37
agreement on the ambit of Section 17 of the Act, 1890 and
other settled principles.
73. The award of the Lok Adalat to the extent of appointment of
guardianship of the minors in favour of the 2
nd
respondent and after her
in favour of R. Venkateswara Rao is without jurisdiction and is also not
as per the provision of law under the Act, 1890. It is a nullity and not
binding on the petitioner to that extent. The impugned award of the Lok
Adalat only to the extent of appointment of guardian of respondents 4
and 5 is hereby quashed.
74. The petitioner is the natural guardian being father of the minor
respondents 4 and 5. However, the parties are at liberty, if so require, to
seek the remedy for appointment of guardianship of the minors, or for
their custody, before competent court of law, in accordance with law.
75. Writ petition is allowed in part. No order as to costs.
Consequently, Miscellaneous Petitions, if any pending shall stand
closed.
________________________
C. PRAVEEN KUMAR ,J
________________________
RAVI NATH TILHARI ,J
Date:24.03.2022.
Note:
L.R copy to be marked.
B/o.
Gk
38
HON’BLE SRI JUSTICE C. PRAVEEN KUMAR
&
HON’BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.20458 OF 2019
Date:24.03.2022.
Gk.
Legal Notes
Add a Note....