Case: Shyamalika Das Vs. General Manager, Gridco &amp; Another

to be sustained by the plaintiff can be compensated in money value which is the cardinal principle prescribed under section 38 of the Specific Relief Act under which the suit for permanent injunction was filed. .... Keeping the above aspects of the case in view, it would have been apt for the court to find ways and means to see that public inconvenience is avoided while protecting the interest of the plaintiff. For the above, aid may be drawn from section 89 of the Code of Civil Procedure. It would be apt to state here that it is by now well settled that no legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law, which are necessary for proper discharge of functions and duties imposed upon them by law. .... Thus, applying the inherent power under section 151 CPC along with the provisions of section 89 CPC in consideration of the nature of dispute involved in this appeal, without referring the matter for a settlement out of court, this Court takes up the matter to find out a via media for deciding the case finally and orders that on the appellant paying a sum of Rs.1,75,000/- as compensation for raising High Tension Tower over the land of the respondent, to the respondent, they shall be permitted to draw the transmission line of 220 KV over the land of the respondent as per the scheme. ..." 5. The learned Single Judge misconstrued the scope of section 89 of the Code and the nature of the powers of a court under sections 89 and 151 of the Code. Section 89 merely enables the court to refer the subject matter of the suit to either of the following alternative dispute resolution processes : (a) arbitration; (b) conciliation; (c) judicial settlement; (d) lok adalat; and (e) mediation. Arbitration is an adjudicatory process. The four other processes are non-adjudicatory dispute resolution processes. In a non-adjudicatory process (conciliation or mediation or lok adalat or judicial settlement), there is no `decision but there can only be a settlement by mutual consent of the parties. Where there are no negotiations for a settlement and where the parties do not arrive at a settlement, there cannot obviously be an order by the court rendering a decision in exercise of power under section 89 of the Code. [See : generally Afcons Infrastructure Ltd vs. Cherian Varkey Construction Company Pvt Ltd - 2010 (7) SCALE 293 ). 6. We may usefully refer to the following observations made by this Court in State of Punjab vs. Jalour Singh - (2008) 2 SCC 660 made with reference to lok adalat which will equally apply to the other forms of non- adjudicatory dispute resolution process : "It is evident from the said provisions that Lok Adalats have no adjudicatory or judicial functions. Their functions relate purely to conciliation. A Lok Adalat determines a reference on the basis of a compromise or settlement between the parties at its instance, and put its seal of confirmation by making an award in terms of the compromise or settlement. When the Lok Adalat is not able to arrive at a settlement or compromise, no award is made and the case record is returned to the court from which the reference was received, for disposal in accordance with law. No Lok Adalat has the power to "hear" parties to adjudicate cases as a court does. It discusses the subject matter with the parties and persuades them to arrive at a just settlement. In their conciliatory role, the Lok Adalats are guided by principles of justice, equity, fair play. When the LSA Act refers to determination by the Lok Adalat and award by the Lok Adalat, the said Act does not contemplate nor require an adjudicatory judicial determination, but a non-adjudicatory determination based on a compromise or settlement, arrived at by the parties, with guidance and assistance from the Lok Adalat. The award of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat." 7. In this case, the decision of the High Court is neither in the exercise of its judicial power to decide the lis before it, nor as a consequence of the learned Single Judge acting as a facilitator (that is as a Conciliator or Mediator or Lok Adalat) enabling the parties to arrive at a settlement. Nor was any `judicial settlement attempted or arrived at. There were no negotiations between the parties and no settlement between the parties. What the court has assumed is a jurisdiction, which is an extraordinary amalgamation of imagined judicial and conciliatory power, unknown to the system of law which is followed in Indian Courts. The High Court has heard the parties and rendered a judgment where the decision is not based either on any judicial reasoning or any settlement between the parties but based on what the learned Judge considered as a just and expeditious solution to the dispute under section 89 read with section 151 of the Code. Neither section 89 or section 151 of the Code authorizes or enables the court to pass such an order. 8. As noticed above, the suit was for a permanent injunction. In such a suit, the court cannot issue a direction permitting the respondents to erect the tower and direct respondents to pay compensation of Rs.1,75,000/-, without such questions being in issue and without any material being placed before it by either parties. The enthusiasm of the learned Single Judge to render quick justice has persuaded him to overlook the provisions of law and assume non-existing powers under sections 89 and 151 of the Code.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. In this case, the decision of the High Court is neither in the exercise of its judicial power to decide the lis before it, nor as a consequence of the learned Single Judge acting as a facilitator (that is as a Conciliator or Mediator or Lok Adalat) enabling the parties to arrive at a settlement. Nor was any `judicial settlement attempted or arrived at. There were no negotiations between the parties and no settlement between the parties. What the court has assumed is a jurisdiction, which is an extraordinary amalgamation of imagined judicial and conciliatory power, unknown to the system of law which is followed in Indian Courts. The High Court has heard the parties and rendered a judgment where the decision is not based either on any judicial reasoning or any settlement between the parties but based on what the learned Judge considered as a just and expeditious solution to the dispute under section 89 read with section 151 of the Code. Neither section 89 or section 151 of the Code authorizes or enables the court to pass such an order.As noticed above, the suit was for a permanent injunction. In such a suit, the court cannot issue a direction permitting the respondents to erect the tower and direct respondents to pay compensation ofwithout such questions being in issue and without any material being placed before it by either parties. The enthusiasm of the learned Single Judge to render quick justice has persuaded him to overlook the provisions of law and assumepowers under sections 89 and 151 of the Code.