Munirabanu Aminullakhan Malek vs State Of Gujarat
2022 Latest Caselaw 4319 Guj

     R/SCR.A/4677/2019                               JUDGMENT DATED: 22/04/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 4677 of 2019


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1      Whether Reporters of Local Papers may be allowed No
       to see the judgment ?

2      To be referred to the Reporter or not ?                    No

3      Whether their Lordships wish to see the fair copy No
       of the judgment ?

4      Whether this case involves a substantial question No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                         MUNIRABANU AMINULLAKHAN MALEK
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR JA ADESHRA(107) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 3
MS M D MEHTA, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 22/04/2022
                                ORAL JUDGMENT

1. Heard learned Advocate Mr. J.A. Adeshra for the petitioners and learned APP Ms. M.D. Mehta for the respondent-State.

2. Though served, no one appears on behalf of the respondent No.2.

3. By way of this petition, the petitioners have prayed for quashing and

R/SCR.A/4677/2019 JUDGMENT DATED: 22/04/2022

setting aside the five orders dated 22.07.2018 passed by the learned Judicial Magistrate First Class, Ranpur, District Ahmedabad, disposing of five applications being (1) Criminal Misc. Application No. 7/2016 (Old No. 209/2013), (2) Criminal Misc. Application No. 8 of 2016 (Old No. 4/2011), (3) Criminal Misc. Application No. 9 of 2016 (Old No. 7/2012), (4) Criminal Misc. Application No. 10 of 2016 (Old No. 88/2013) and (5) Criminal Misc. Application No. 15 of 2016 (Old No. 232/2014) preferred by the present petitioners herein under Sections 125(3) and 127 of the Code of Criminal Procedure. The petitioners have further prayed to restore all the above mentioned Criminal Misc. Applications to its file and direct the Judicial Magistrate First Class, Ranpur to adjudicate the same on merits expeditiously after affording adequate opportunity to the parties.

4. It appears that all these applications were pending before the learned Magistrate, more particularly for claiming enhanced maintenance and other ancillary reliefs and whereas it further appears that in a Lok Adalat held on 22.07.2018, the learned Advocate on behalf of the applicants-petitioners herein had submitted applications (withdrawal pursis) in the Lok Adalat, whereby it was stated that since the applicants do not have any dispute with regard to any amount, therefore the applications may be disposed of as having been settled. It appears that the learned Judicial Magistrate First Class, Ranpur, had upon the applications (withdrawal pursis) preferred by the learned Advocate for the applicants-petitioners herein, disposed of the said five applications vide orders dated 22.07.2018.

5. It is the case of the present petitioners that neither the cases had been settled nor the petitioners at the relevant point of time had given any instructions to the learned Advocate appearing on behalf of the petitioners, to state that there is no dispute with regard to any amount and the cases may be disposed of on the basis of settlement.

6. It appears that pursuant to an order dated 03.09.2021, the Member

R/SCR.A/4677/2019 JUDGMENT DATED: 22/04/2022

Secretary, Gujarat State Legal Services Authority, had been asked to assist this Court and submit a report with regard to the allegations made in the present petition. The Member Secretary, vide report dated 14.09.2021 has inter alia submitted that since there was no settlement between the parties, the learned Judge had not recorded the terms and conditions of the settlement as is required under Section 17(2) of the National Legal Services Authority (Lok Adalats) Regulations, 2009 (for short "Regulations, 2009"). The learned Member Secretary has also observed that there was no settlement between the parties concerned.

7. This Court has perused the Regulations, 2009, and whereas Regulation 13 of the Regulations, 2009, with regard to procedure in Lok Adalats, more particularly Sub-regulation 6 reads as under :

"13(6) The Lok Adalat shall not determine a reference, at its own instance, but shall determine only on the basis of a compromise or settlement between the parties by making an award in terms of the compromise or settlement arrived at:

Provided that no Lok Adalat has the power to hear the parties to adjudicate their dispute as a regular court:

Provided further that the award of the Lok Adalat is neither a verdict nor an opinion arrived at by any decision making process."

8. In the considered opinion of this Court for the present purpose while the later part of the Sub-regulations 6 may not be relevant, but the former part where it is clearly mentioned that the Lok Adalat shall determine a reference only on the basis of a compromise or settlement between the parties, is not fulfilled in the instant case. In the instant case, it appears that the Advocate for the present petitioners had submitted applications (withdrawal prusis) to the Court concerned, more particularly stating that there is no monitory dispute pending and the cases could be disposed of as settled. No reason is coming forth as to why the said learned Advocate had

R/SCR.A/4677/2019 JUDGMENT DATED: 22/04/2022

submitted such pursis more so, in view of the submissions made by learned Advocate Mr. Adeshra that while the applications are praying for maintenance and enhance maintenance, the petitioners have not received any amount, which could be treated as settling the dispute between the parties. As a matter of fact, according to the learned Advocate Mr. Adeshra, the cause raised in each of the applications is very much alive and whereas the petitioners would be agitating the same as soon as the matters are restored. This Court has also noticed the Regulation 17(2) of the Regulation, 2009. The said Regulation inter alia requires that both parties should sign or affix their thumb impression and the members of the Lok Adalat shall countersign it and only thereafter it becomes an award. It appears that in the instant case, there is no signing by both the parties. As a matter of fact only upon applications/pursis given by learned Advocate for the applicants- petitioners herein, the proceedings appear to have been disposed of.

9. Having regard to the same, in the considered opinion of this Court, the petitioners have made out a case for interference by this Court. Having regard to the same, the following directions are passed :

(1) The impugned orders dated 22.07.2018 passed by the learned Judicial Magistrate First Class, Ranpur, District Ahmedabad, in the applications being (1) Criminal Misc. Application No. 7/2016 (Old No. 209/2013), (2) Criminal Misc. Application No. 8 of 2016 (Old No. 4/2011), (3) Criminal Misc. Application No. 9 of 2016 (Old No. 7/2012), (4) Criminal Misc. Application No. 10 of 2016 (Old No. 88/2013) and (5) Criminal Misc. Application No. 15 of 2016 (Old No. 232/2014,) are hereby quashed and set aside.

(2) Each of the proceedings being (1) Criminal Misc. Application No. 7/2016 (Old No. 209/2013), (2) Criminal Misc. Application No. 8 of 2016 (Old No. 4/2011), (3) Criminal Misc. Application No. 9 of 2016 (Old No. 7/2012), (4) Criminal Misc. Application No. 10 of

R/SCR.A/4677/2019 JUDGMENT DATED: 22/04/2022

2016 (Old No. 88/2013) and (5) Criminal Misc. Application No. 15 of 2016 (Old No. 232/2014,) are directed to be restored on its files.

(3) Each of the aforesaid applications shall be placed before the concerned Magistrate at the earliest and the learned Magistrate concerned shall consider and decide the applications, within such reasonable times as cases of such year are being taken up.

(4) Insofar as the fact that the learned Advocate appearing to have filed applications/pursis, without any express consent of the petitioners, more particularly where proceedings are disposed of, on basis of such applications/puris given by the learned Advocate, all the cases are directed to be referred to the Bar Council of Gujarat, who shall examine the issue and shall take appropriate steps against the Advocate concerned, if any misconduct is found. Needless to say that before taking any action, appropriate notice and opportunity of hearing shall be extended to the Advocate by the Bar Council of Gujarat.

(5) The concerned learned Magistrate is also directed to be more careful in future whereas while one may not have found fault with if the learned Magistrate is disposed of the proceedings in normal course upon an application/pursis file by learned Advocate for the petitioners, but at the same time since disposing of cases, in the course of Lok Adalat, as per the National Legal Services Authority (Lok Adalats) Regulations, 2009, some further formalities are required to be completed, merely on basis of the pursis, the cases ought not to have disposed of by the learned Magistrate.

It is clarified that such an observation may not be treated as any adverse observation against the learned Magistrate and whereas the observation is advisory in nature.

R/SCR.A/4677/2019 JUDGMENT DATED: 22/04/2022

10. With the above observations and directions, the present application stands disposed of as allowed.

(NIKHIL S. KARIEL,J) BDSONGARA