IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 26 of 2010 Date of Decision: 6th September, 2010 __________________________________________________________ Donku Ram ….Petitioner. Versus State of H.P. & others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. ___________________________________________________________ For the Petitioner: Mr. Ashok Kumar Sood, Advocate. For Respondent Nos 1 & 2: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. For Respondent Nos. 4 to 8 & 13 to 21: Mr. N.K. Thakur, Advocate. For Respondent No. 12: Mr. Naresh Sharma, Advocate. For Respondent Nos. 3, 27 to 32: Mr. Trilok Chauhan, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner challenges the order of Permanent Lok Adalat Annexure P-5 to set aside the award dated 17th November, 2007 directing: “5. We have scrutinized the decree dated 25.9.2006 passed by the learned Civil Judge (Senior Division) Dalhousie. Since the parties have compromised this case after recording their 1 Whether Reporters of Local Papers may be allowed to see the judgment?Yes. 2 compromise Ext.C1 and its enclosure Aks Latha Ext.C2, we are satisfied that the parties have arrived at a lawful compromise. Accordingly, the decree dated 25.9.2006 passed by the learned Court below is hereby set aside and quashed and the consent decree is ordered to be passed in view of the compromise. Compromise Ext.C1 and its enclosure Aks Latha Ext.C2 and the statements of the parties shall form part of the decree. Decree sheet be drawn accordingly. The record of the learned Court below alongwith an attested copy of this order be returned forthwith. The file of this Court be consigned to records after due completion.” 2. I need not go any further into the facts of the petition as also the submissions made by learned counsel appearing for the petitioner as the point for determination is as to whether the order is one without jurisdiction. 3. The main contention urged on behalf of the petitioner is that the Permanent Lok Adalat has no jurisdiction to pass the order in terms of Chapter VIA of the Legal Services Authority Act, 1987. Learned counsel in particular refers to Section 22A of the Act, which reads: “22A Definitions-In this Chapter and for the purposes of section 22 and 23, unless the context otherwise requires- (a) “Permanent Lok Adalat” means a Permanent Lok Adalat established under sub-section (1) of section 22B. (b) “public utility service’ means any- (i) transport service for the carriage of passengers or goods by air, road or water; or (ii) postal, telegraph or telephone service; or (iii) supply of power, light or water to the public by any establishment; or 3 (iv) system of public conservancy or sanitation; or (v) service in hospital or dispensary; or (vi) insurance service and includes any service which the Central Government or the State Government, as the case may be, may, in the public interest, by notification, declare to be a public utility service for the purposes of this Chapter.” 4. The statement of objects and reasons for constitution of the Permanent Lok Adalat was: “The Legal Services Authorities Act, 1987 was enacted to constitute legal services authorities for providing free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice were not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalats to ensure that the operation of the legal system promoted justice on a basis of equal opportunity. The system of Lok Adalat, which is an innovative mechanism for alternate dispute resolution, has proved effective for resolving disputes in a spirit of conciliation outside the courts. 2. However, the major drawback in the existing scheme of organization of the Lok Adalats under Chapter VI of the said Act is that the system of Lok Adalats is mainly based on compromise or settlement between the parties. If the parties do not arrive at any compromise or settlement, the case is either returned to the court of law or the parties are advised to seek remedy in a court of law. This causes unnecessary delay in the dispensation of justice. If Lok Adalats are given power to decide the cases on merits in case parties fails to arrive at any compromise or settlement, this problem can be tackled to a great extent. Further, the cases which arise in relation to public utility services such as Mahanagar Telephone Nigam Limited, Delhi Vidyut Board, etc., need to be settled urgently so that people get justice without delay even at pre- litigation stage and thus most of the petty cases which ought not to go in the regular courts would be settled at the pre-litigation stage itself which would result in reducing the workload of the regular courts to a great extent. It is, therefore, proposed to amend the Legal Services Authorities Act, 1987 to set up Permanent Lok Adalats for providing compulsory pre-litigative mechanism for 4 conciliation and settlement of cases relating to public utility services. 3. The salient features of proposed legislation are as follows:- (i) to provide for the establishment of Permanent Lok Adalats which shall consist of a Chairman who is or has been a district judge or additional district judge or has held judicial office higher in rank than that of the district judge and two other persons having adequate experience in public utility services; (ii) the Permanent Lok Adalat shall exercise jurisdiction in respect of one or more public utility services such as transport services of passengers or goods by air, road and water, postal, telegraph or telephone services, supply of power, light or water to the public by any establishment, public conservancy or sanitation, services in hospitals or dispensaries; and insurance services; (iii) the pecuniary jurisdiction of the Permanent Lok Adalat shall be up to rupees ten lakhs. However, the Central Government may increase the said pecuniary jurisdiction from time to time. It shall have not jurisdiction in respect of any matter relating to an offence not compoundable under any law; (iv) it also provides that before the dispute is brought before any court, any party to the dispute may make an application to the Permanent Lok Adalat for settlement of the dispute; (v) where it appears to the Permanent Lok Adalat that there exist elements of a settlement, which may be acceptable to the parties, it shall formulate the terms of a possible settlement and submit them to the parties for their observations and in case the parties reach an agreement, the Permanent Lok Adalat shall pass an award in terms thereof. In case parties to the dispute fail to reach an agreement, the Permanent Lok Adalat shall decide the dispute on merits; and (vi) every award made by the Permanent Lok Adalat shall be final and binding on all the parties thereto and shall be by a majority of 5 the persons constituting the Permanent Lok Adalat. 4. The Bill seeks to achieve the above objects.” 5. Learned counsel appearing for the respondents submits that no writ petition is maintainable in view of the decision of the Supreme Court in P.T. Thomas vs. Thomas Job (2005) 6 SCC 478. The provisions of Section 22A did not come up for interpretation of the Supreme Court in this case. It is now well settled that the jurisdiction can neither create by consent or estoppels nor it can confer by adjudicatory body where the statute does not vest such jurisdiction in it. The defect of jurisdiction goes to the root of the matter and strikes at the authority of the court to pass a decree. Such a basic and fundamental defect cannot be cured by consent of parties and the judgment or order passed by the court, however precisely certain and technically correct, is null and void and the validity thereof can be challenged at any stage. A decree/order passed without jurisdiction is non est and can be challenged it at any stage. An order/decree passed by a Court without jurisdiction is a coram non judice. (see Patel Roadways vs. Prasad Trading Co., (1991) 4 SCC 270 and Chiranjilal vs. Jasjit Singh, (1993) 2 SCC 507, Vasudev Modi vs. R. Rehman, (1970) 1 SCC 670 (672-73), Chandrika vs. Bhaiyala, (1973) 2 SCC 474 (476) and also see Sushil Kumar vs. Gobind Ram (1990) 1 SCC 193(205) and Patel Roadways vs. Prasad Trading Co., (1991) 4 SCC 270.) 6. In view of these facts the order Annexure P5 is set aside only on the ground that the Permanent Lok Adalat has no jurisdiction to pass the order Annexure P5 as it was not covered by any of the situations contemplated therein. I refrain from making any observation on the other submissions made by the learned counsel. Consent cannot confer or 6 create jurisdiction when the adjudicatory body lacks inherent jurisdiction. The writ petition is allowed. There shall be no order as to costs. (Dev Darshan Sud) Judge September 6th, 2010(ms)