The General Manager, Telephones O/O PGMt, BSNL, Kottayam & The Chief General Manager (Telephones), BSNL, Kerala Circle v. Sudharsanakumar M.R.

WP(C) NO. 12206 OF 2012 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944** **WP(C) NO. 12206 OF 2012** ## **PETITIONER/S:** 1 THE GENERAL MANGER, TELEPHONES O/O.PGMT,BSNL, KOTTAYAM-686001 2 THE CHIEF GENERAL MANGER (TELEPHONES)BSNL, KERALA CIRCLE, TRIANVADRUM-695033 BY ADV SRI.P.J.PHILIP ## **RESPONDENT/S:** SUDHARSANAKUMAR M.R. KALARICKAL HOUSE, NJEEZHOOR P.O.,KOTTAYAM-686612 BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 12206 OF 2012 2 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C) No.12206 of 2012 --------------------------------------** ## **Dated this the 16[th] day of January, 2023** ## **JUDGMENT** The above writ petition is filed with following prayers : “(a) Call for the entire records leading to Ext.P1 the impugned order and peruse the same. (b) Issue a Writ, order or direction in the nature of certiorari quashing Exhibit P1 order dated 9.2.2012 in OP No. 86/2011 of the Permanent Lok Adalat at Ernakulam and also dismiss Ext.P2 OP No. 86/11 of the 2011 of the Permanent Lok Adalath At Ernakulam in the interest of justice. (c) Declare that the power of the Permanent Lok Adalat to decide under Section 22C[8] of LSA Act, 1987,as amended in 2002, is subject to consent in writing been given by the parties to the dispute. (d) To award the cost of the litigation.” [SIC] 2. The writ petition is filed challenging Ext.P1 order dated 9.2.2012 passed by the Permanent Lok Adalath, Ernakulam in OP No. 86/11 instituted by the respondent. The respondent who took the telephone bearing No.04829-264242 WP(C) NO. 12206 OF 2012 3 on lease from BSNL filed Ext.P1 complaint claiming compensation of Rs.2,00,000/- for the alleged inconvenience suffered by him contending that his telephone was disrupted from 25.2.2011 to 27.4.2011. He contended that the phone went out of order again on 7.6.2011 and it was restored on 30.06.2011. 3. The respondent again sent a complaint to 2[nd] petitioner on 20.07.2011 which was not responded properly, is the submission. It is the case of the petitioner that respondent is bound both by the provisions of the Telegraph Act, 1885 and the the Indian Telegraph Rules, 1951. The BNL represented by the petitioners have complied with the above Rule and granted rebate to the respondent for the period that the telephone leased out to him remained unworkable due to the cable fault, is the contention. According to the petitioner, PLA without following the provisions of the Legal Service Authorities Act passed the impugned award and the same is unsustainable is the contention. 4. Heard the learned counsel for the petitioner and WP(C) NO. 12206 OF 2012 4 the learned counsel for the 1[st] respondent. 5. The counsel for the petitioner submitted that the PLA has not followed the provisions of the Legal Service Authorities Act and hence, the impugned award is unsustainable. 6. This Court in **Kerala State Electricity Board v. Consumer Vigilance Centre** [2022 (2) KLT 476] considered the powers of the Legal Service Authorities in detail. It will be better to extract paragraph 7 to 11 of the above judgment. _7._ “In other words the Permanent Lok Adalat can decide the dispute only after reaching the following stages mentioned in Section 22C of the Act 1987. - (a) Permanent Lok Adalat is of the opinion that there exist elements of the settlement. (b) If the Permanent Lok Adalat found that there are elements of settlement in such proceedings which may be acceptable to the parties, the Permanent Lok Adalat shall formulate the terms of a possible settlement of the dispute. - (c) Thereafter the Permanent Lok Adalat shall give the terms of the possible settlement formulated by it to the parties concerned for their observations. \(d) If the parties fail to reach an agreement under sub-section - (7) of Section 22C, then only the Permanent Lok Adalat can decide the dispute and that also if the dispute does not relate to any offence. WP(C) NO. 12206 OF 2012 5 8. So it is clear that the Permanent Lok Adalat can decide the dispute only after the above four stages. The Heading of Chapter VIA of the Act 1987 itself says that "PRE-LITIGATION CONCILIATION AND SETTLEMENT". Therefore the enthusiasm of the Permanent Lok Adalat should be to settle the matter through conciliation and not to decide the dispute on merit. For deciding a dispute on merit, first of all, the Permanent Lok Adalat should conduct conciliation as provided in Section 22C (4) and (5) and thereafter if the PLA is of the opinion from the aforesaid conciliation that, there is an element of settlement, such settlement is to be formulated and to be served to the parties and if the parties fail to reach at an agreement under sub-section (7) of 22C, then only the Permanent Lok Adalat can decide the dispute. Simply because an application is submitted before the Permanent Lok Adalat and a conciliation conducted is failed, the Permanent Lok Adalat can not decide the dispute. Only if the Permanent Lok Adalat is of the opinion that there exists an element of settlement, and the parties failed to reach an agreement, the question of dispute resolution on merit by the Permanent Lok Adalat will arise. The statement of objects and reasons of the Legal Services Authorities(Amendment)Act 2002 by which Chapter VIA was inserted in the Act 1987 also will strengthen this view. The statement of object and reason of the 2002 Amendment Act, reads as under: ''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 WP(C) NO. 12206 OF 2012 6 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 Court. 2. However, the major drawback in the existing scheme of organisation 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 prelitigation 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 Service Authorities Act, 1987 to set up Permanent Lok Adalats for providing compulsory pre -litigative mechanism for 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 consists (sic) 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 jurisdiction in respect of one or more public utility services such as transport services of passengers of 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 WP(C) NO. 12206 OF 2012 7 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 no 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 the persons constituting the Permanent Lok Adalat.' (Underline supplied) 9. The Apex Court in Bar Council of India v. Union of India[2012 KHC 4412] observed that the dispute resolution by Permanent Lok Adalat will arise only if conciliation and settlement fail. The relevant portion of the above judgment is extracted hereunder: “24. It is necessary to bear in mind that the disputes relating to public utility services have been entrusted to Permanent Lok Adalats only if the process of conciliation and settlement fails. The emphasis is on settlement in respect of disputes concerning public utility services through the medium of Permanent Lok Adalat. It is for this reason that sub-section (1) of S.22C states in no unambiguous terms that any party to a dispute may before the dispute is brought before any Court make an application to the Permanent Lok Adalat for settlement of dispute. Thus, settlement WP(C) NO. 12206 OF 2012 8 of dispute between the parties in matters of public utility services is the main theme. However, where despite the endeavours and efforts of the Permanent Lok Adalat the settlement between the parties is not through and the parties are required to have their dispute determined and adjudicated, to avoid delay in adjudication of disputes relating to public utility services, the Parliament has intervened and conferred power of adjudication upon the Permanent Lok Adalat. Can the power conferred on Permanent Lok Adalats to adjudicate the disputes between the parties concerning public utility service upto a specific pecuniary limit, if they do not relate to any offence, as provided under S.22C(8), be said to be unconstitutional and irrational? We think not. It is settled law that an authority empowered to adjudicate the disputes between the parties and act as a tribunal may not necessarily have all the trappings of the Court. What is essential is that it must be a creature of statute and should adjudicate the dispute between the parties before it after giving reasonable opportunity to them consistent with the principles of fair play and natural justice. It is not a constitutional right of any person to have the dispute adjudicated by means of a Court only. Chapter VI-A has been enacted to provide for an institutional mechanism, through the establishment of Permanent Lok Adalats for settlement of disputes concerning public utility service before the matter is brought to the Court and in the event of failure to reach any settlement, empowering the Permanent Lok Adalat to adjudicate such dispute if it does not relate to any offence.” 10. Moreover this court also in New India Assurance Company Ltd. V Jebby M Aliyar and others(2018(4)KHC 199) observed that PLA can decide a dispute only when there is an element of settlement referable to the pre-existing rights and obligations. So it is clear that PLA can decide a dispute only if it thinks that there is an element of settlement in the dispute and the PLA reached the stage of Section 22C(7) of the Act 1987 and further the parties failed to reach at an agreement. WP(C) NO. 12206 OF 2012 9 In the light of the above discussion, the facts of the present case are to be considered. I perused Ext.P6 award. Paragraph No.5 of Ext.P6 award deals with the attempt taken by the Permanent Lok Adalat for conciliation, and the same is extracted hereunder: “5) Conciliation proceedings were arranged and initially the respondents expressed willingness to settle the dispute. But later they have withdrawn from participating in the conciliation. So the dispute could not be settled. Thereupon the Permanent Lok Adalat has proceeded to decide the dispute on merits guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice u/s 22C(8) r/w 22D of the Legal Services Authorities Act, 1987.” 11. A reading of the above finding in Ext.P6 award will show that the Permanent Lok Adalat has not followed the procedure in Section 22C of the Act, 1987. By observing that the respondents expressed their willingness to settle the dispute in the beginning, but later withdrew from participating in the conciliation, the Permanent Lok Adalat can not go to the stage of deciding the dispute as per Section 22C(8) of the Act, 1987. The learned counsel for the petitioners submitted that the above obnd thereafter 22C(6) and then Section 22C(7). After that, if the parties fail to reach an agreement under Section 22C(7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute. Here is a case where the procedure adopted by the Permanent Lok Adalat is not correct and is against the provisions of the Act, 1987. servation of PLA is factually not correct. I need not decide the correctness of the above statement in this judgment. But, according to me, there are several stages to reach Section 22C(8) of the Act, 1987. First Section 22C(4) and then 22C(5) WP(C) NO. 12206 OF 2012 10 and thereafter 22C(6) and then Section 22C(7). After that, if the parties fail to reach an agreement under Section 22C(7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute. Here is a case where the procedure adopted by the Permanent Lok Adalat is not correct and is against the provisions of the Act, 1987.” 7. On perusal of the impugned award, it is clear that PLA has not followed the provisions of the Legal Services Authorities Act properly. If that is the case, the impugned order has to be set aside and the matter has to be remanded to the PLA for fresh consideration, in accordance to the principle laid down by this Court in the above decision. Therefore, this writ petition is allowed in the following manner. - 1.Ext.P1 is set aside and OP No. 86/2011 is restored. - 2.PLA, Ernakulam is directed to dispose OP No.86/2011, after giving an opportunity of hearing to the petitioner and the respondent in the light of the principle laid down by this Court in **Kerala State Electricity Board v. Consumer Vigilance Centre** . [2022 (2) KLT 476]. **SD/P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 12206 OF 2012 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 TRUE COPY OF ORDER IN OP NO. 86 OF 2011 PERMANENT LOK ADALATH, ERNAKULAM EXT.P2 TRUE COPY OF OP NO. 86 OF 2011 FILED BY THE RESPONDENT IN PERMANENT LOK ADALATH, ERNAKULAM** **EXT.P3 TRUE COPY OF ADDITIONAL STATEMENT BY RESPONDENT IN PERMANENT LOK ADALATH, ERNAKULAM** ## **EXT.P4 TRUE COPY OF THE WRITTEN STATEMENT BY THE PETITIONERS HEREIN IN PERMANENT LOK ADALATH, ERNAKULAM** **EXT.P5 TRUE COPY OF THE REPLY STATEMENT BY THE RESPONDENT HEREIN IN PERMANENT LOK ADALATH, ERNAKULAM** **EXT.P6 TRUE COPY OF ORDER DATED 31.1.2012 IN SLP (CIVIL) NO. 15522 OF 2011 OF THE HONOURABLE SUPREME COURT OF INDIA** ## **RESPONDENT'S EXHIBITS** **:NIL**