Jammu & Kashmir High Court - Srinagar Bench

Chief Engineer Pwd Kashmir vs Fahmeeda Begum on 16 October, 2023

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR

                                                OWP 384/2018

                                            Reserved on: 09.10.2023
                                            Pronounced on: 16.10.2023

  1. Chief Engineer PWD Kashmir
  2. Superintending Engineer PWD R&B Baramulla.
  3. Executive Engineer R&B Special Division Uri.
  4. Asstt. Executive Engineer Special Sub Division Uri.


                                                     ...Petitioner(s)
           Through: Mr. Ilyas Laway, GA.

                               V/s

  1. Fahmeeda Begum W/o Lt. Mohammad Naseem Khan R/o Pahlipora
     Boniyar.
  2. Raja Waseem Khan S/o Lt. Mohammad Naseem Khan R/o Pahlipora
     Boniyar
  3. Amara Khan D/o Lt. Mohammad Naseem Khan R/o Pahlipora Boniyar.


                                                     ...Respondent(s)

           Through: Ms. Toyiba Gulzar, Advocate vice
                  Mr. Syed Faisal Qadri, Sr.Advocate.
Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE

                                 JUDGMENT

Brief Facts:-

1. Through the medium of the instant Writ Petition filed under Section

103/104 of the erstwhile Constitution of Jammu and Kashmir,

petitioners have thrown challenge to the order dated 09.05.2015

passed by Lok Adalat held at Baramulla, whereby the respondents

therein were under command to release the outstanding payment of

Rs.3.00 lacs to the petitioner therein (Mohammad Naseem) within a P a g e |2

period of three months on the basis of alleged admission made by

the then Executive Engineer, Uri. Also, challenge is thrown to the

order dated 17.11.2017 passed by District & Sessions Judge,

Baramulla, in an Execution Petition, filed for implementation of the

order dated 09.05.2015 passed by Lok Adalat, whereby the Account

No. CG-72 of Executive Engineer Special Sub Division Uri, was

attached.

2. Before proceeding further in the matter and in order to appreciate

the controversy involved in the instant petition, it would be

appropriate to give factual matrix of the case:

3. An application came to be filed before the Chairman, Legal Services

Authority, Baramulla, by one Mohammad Naseem Khan (father of

the respondents herein and a Contractor by profession), seeking

recovery of an amount of Rs.3.00 lacs outstanding towards the

petitioners herein on account of having executed construction work

of the road from Zehampora to Pahlipora via Naganari, in the year

2008, and the said application was filed for settlement of the case at

pre-litigation stage.

4. It is the specific case of the petitioners herein that the J&K Legal

Services Authority (for short 'Authority') was required to afford

opportunity of being heard to them in terms of the proviso to Section

19(1) of the J&K Legal Services Authority Act, 1997, before referring

the matter to the Lok Adalat, but without putting the petitioners

herein to notice, the Authority made the reference to the Lok Adalat, P a g e |3

which according to the petitioners is against the letter and spirit of

the Legal Services Authorities Act. It is pleaded that the aim and

object of the Legal Services Act is to constitute/organize Lok Adalat.

The power of jurisdiction of Lok Adalat is contained in Chapter-5 from

Section 18 to 20.

5. In terms of Section 18(4), the Lok Adalats' shall have jurisdiction to

determine and to arrive at a compromise between the parties to a

dispute. It has no jurisdiction to determine the issues except by way

of compromise or settlement. Section 18(4) is reproduced as under:-

"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."

6. Further case of the petitioners is that the Chairman Legal Services

Authority, instead of restricting himself not to determine the issue

but to seek compromise or settlement, proceeded to determine the

issue on the basis of the documents allegedly indicating that the

payment is due to the applicant therein. It is further pleaded that

neither any settlement has been arrived at between the parties nor

the parties have made any compromise, yet the Lok Adalat has

directed the petitioners herein to release the amount of Rs.3.00 lacs

in favour of Mohammad Naseem Khan (petitioner before the Lok

Adalat).

P a g e |4

7. According to the petitioners herein, both the impugned orders i.e.,

order dated 09.05.2015 passed by Lok Adalat and order dated

17.11.2017 passed by Sessions Judge, Baramulla, are beyond the

scope of their jurisdiction and cannot sustain the test of law.

8. In response to the instant writ petition, respondents have filed

objections, stating therein that the instant writ petition is not

maintainable, as the same does not fall within the purview of Section

103/104 of the erstwhile Constitution of J&K, as the petitioners are

themselves not clear as to whether the petition has been filed under

Section 103 or under Section 104 of the erstwhile Constitution of

J&K.

9. It is further contended that none of the fundamental rights of the

petitioners have been infringed, therefore, the petition could not be

maintained under Section 103 of the erstwhile Constitution of J&K,

and so far as invoking the provisions of Section 104 of the erstwhile

Constitution of J&K, it has been observed in various judgments of

Hon'ble Supreme Court that by entertaining petitions under Article

227 of the Constitution of India, which is pari materia to Section 104

of the erstwhile Constitution of J&K, the justification for maintaining

the petition in view of the amendment to Section 115 of CPC has to

be curtailed and deprecated.

10. Further contention of respondents is that the petitioners herein

have not chosen to release the balance amount of Rs.3.00 lacs in

favour of the deceased Mohammad Naseem Khan, so the said P a g e |5

deceased have preferred pre-litigation petition before the Legal

Services Authority, seeking release of the said balance amount along-

with interest towards the delayed payment. Pursuant to the notice

issued to the respondents therein by the Legal Services Authority,

claim of the petitioner therein was admitted and the respondents

therein were directed to release the admitted amount within three

months with liberty to the petitioner therein to file an execution

petition in case of non-payment. Further, case of the respondents is

that after the elapse of three months, petitioners herein have failed

to release the admitted amount and the petitioners therein were left

with no other option but to prefer an execution petition claiming

release of the admitted amount along-with 18% interest from the

year 2003 till 2016 amounting to Rs.10,20,000/-.

11. It is further stated in the objections that during the pendency of the

execution petition, the petitioner therein namely Mohammad

Naseen Khan expired on 14.05.2017, and accordingly application

came to be filed on behalf of his legal heirs for bringing them on

record as his legal representatives, which application was allowed.

Thereafter, respondents therein did not chose to appear before the

appellate court, constraining the said court to issue show cause as to

why the Account Head belonging to the respondents therein should

not be attached in order to meet the execution, and, accordingly, by

virtue of order dated 12.12.2017, the appellate court attached the

Account No. CG-72, belonging to the respondents therein.

P a g e |6

12. Learned counsel appearing for the petitioners, reiterating the

grounds taken in the writ petition, vehemently argued that

Mohammad Naseem Khan, who was shown as petitioner in the

execution petition, was dead at the time of filing of the execution

petition, even no attempt was taken for bringing on record the legal

heirs of the deceased Mohammad Naseem Khan. He further argued

that during the execution proceedings, the order dated 17.11.2017

came to be passed by the executing court, whereby the direction was

issued to the extent that the Account No. CG-72, operating by

judgment-debtor i.e. Executive Engineer Special Sub Division R&B,

Uri, shall be attached.

13. Per contra, Mr. Faisal Qadri, Sr. Advocate, appearing for respondents

herein contended that during the pendency of execution petition,

Mohammad Naseem Khan expired on 14.05.2017, and, accordingly,

application was filed on behalf of his legal heirs for bringing them on

record as legal representatives of the said deceased Mohammad

Naseem Khan, which application was allowed by the executing court

on 03.08.2017, copy of the application as well as copy of the said

order dated 03.08.2017 has been annexed with the objections filed

by the respondents.

14. Further argument of learned counsel for the respondents is that the

power under Section 103/104 of the erstwhile Constitution of J&K,

cannot be taken as a matter of right to prefer an appeal by an

aggrieved party, nor this power can be invoked to point out an error P a g e |7

of law or fact in the order or judgment/decision of a subordinate

court, as has been averred by the petitioners herein in the instant

case. His further argument is that when the statutory appeal is either

available or is expressly barred, maintaining of the instant writ

petition by invoking powers under Section 103/104 of the erstwhile

Constitution of J&K, is not permissible and is liable to be dismissed.

15. Heard learned counsel for the parties at length and perused the record.

Petition is admitted to hearing.

16. With the consent of learned counsel for the parties, the instant

petition is taken up for final disposal.

Legal Analysis:-

17. I have gone through the order passed by Lok Adalat dated

09.05.2015, which amounts to compromise decree, whereby in

pursuant to admission of the claim of the petitioners by the Executing

Engineer, Uri, Shri Nazir Ahmad Banday who was present in person,

has specifically stated that since he has already brought the matter

before the Chief Engineer, which was in pipe-line at that time and has

assured that on receiving the sanction for its payment, same shall be

released in favour of the petitioner therein.

18. Before the Lok Adalat, the petitioner Mohammad Naseem Khan, who

has since expired, has submitted that he does not want to charge any

interest on the balance amount provided the same is released

expeditiously.

19. In the aforesaid backdrop, respondents therein were directed to

release the outstanding payment within the period of three months P a g e |8

from the date of passing of the said order by Lok Adalat, and,

accordingly, copy of the said order was endorsed to Chief Engineer

PWD Kashmir for compliance within the stipulated period, failing

which the petitioner therein was granted liberty to file execution

petition. Pursuant thereto, execution petition was filed before the

competent court in which the executing court has enlarged the scope

of the basis order / decree passed by the Lok Adalat by entertaining

the execution petition for recovery of Rs.10.00 lacs from the

judgment-debtor instead of the balance amount of Rs.3.00 lacs which

was recoverable and payable to the petitioner therein.

20. The Executing court, by virtue of the order dated 12.12.2017, has

been pleased to pass the following order:-

"..On 17.11.2017 the above mentioned order along with the notice was duly served upon the judgment debtors. Despite the service of the order the judgment debtors have not filed the objections, nor they have deposited the money in this Court till date. Thus, it can be presumed that judgment debtors have nothing to say in their defence. In these circumstances, the Account No. CG-72 operated by judgment debtor No.2 ( Executive Engineer, Special Sub Division Road and Buildings Uri) in Jammu and Kashmir Bank Branch Uri is herby attached with the direction to the Manager J&K Bank Ltd. Branch office Uri not to honour any of the bills of the office of judgment debtor No.2 (Executive Engineer, Special Sub Division Road and Buildings' Uri)."

21. From the perusal of the order passed by the executing court, it is

manifestly clear that the executing court has gone beyond what was

recorded by the Lok Adalat in the compromise-decree, whereby the

petitioner, in unambiguous terms, has declined to charge any interest

on the balance amount and as per the order passed by the Lok Adalat,

which is impugned in the instant petition, the amount of Rs.3.00 lacs, P a g e |9

was payable to the petitioner therein and the said balance amount was

admitted by the concerned Executing Engineer and in the aforesaid

backdrop, the direction was issued to the respondents to release

outstanding amount within three months but the executing court, vide

order impugned dated 12.12.2017, has enlarged the scope of basic

order by entertaining the execution petition for the recovery of

Rs.10.00 lacs, which includes interest.

22. Reliance is placed on a judgment titled Sanwarlal Agrawal & Ors.

Vs. Ashok Kumar Kothari & Ors reported as (2023) 7 SCC 307,

in which the Hon'ble Supreme Court has held that:-

"Even if there is any ambiguity, it is for the executing court to construe the decree if necessary after referring to the judgment. If sufficient guidance is not available even from the judgment, the court is even free to refer to the pleadings so as to construe the true import of the decree. No doubt, the court cannot go behind the decree or beyond the decree. But while executing a decree, in case of any ambiguity, has necessarily to construe the decree so as to give effect to the intention of the parties. It is undeniable that an executing court can construe a decree if it is ambiguous But not otherwise."

23. In Topanmal Chhotamal Vs. Kundomal Gangaram, reported as

AIR 1960 SC 388, Hon'ble Apex Court has been pleased to observe

as under :-

"It is a well-settled principle that a Court executing a decree cannot go behind the decree: it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit".

24. The executing court by no stretch of imagination could have

entertained the said execution petition in the light of the specific

statement by the petitioner, whereby, the deceased has declined to

charge any interest on the amount and thus, the order passed by the P a g e | 10

executing court was beyond what has already been ordered by way of

compromise decree by both the parties.

25. It goes without saying that the order passed by Lok Adalat on

09.05.2015 amounts to compromise decree, which by no stretch of

imagination could be challenged by the petitioner herein by way of

preferring appeal.

26. The power under Section 103/104 of the Constitution of erstwhile

State of J&K which is pari materia to Article 227 of the Constitution

of India cannot be taken as a matter of right to prefer an appeal by an

aggrieved party, not this power can be invoked to point out an error of

law of fact in the order of judgment/decision of subordinate court, as

has been alleged by the petitioner in the instant writ petition.

27. The law is well settled that when the statutory appeal is either

available or is expressly barred, maintaining of the instant writ

petition by invoking powers under Section 103/104 of the Constitution

of erstwhile State of J&K, which is pari materia to Article 227 of the

Constitution of India, is not permissible. Since none of the

fundamental rights of the petitioners have been infringed in the instant

case, therefore, the petition could not be maintained under Section 103

of the Constitution of erstwhile State of J&K. As far as invoking of

provision under Section 104 of the Constitution of erstwhile State of

J&K, which has been set at naught by the Hon'ble Supreme Court in

various authoritative pronouncements that by entertaining petition

under Article 227 of the Constitution of India which is pari materia to

Section 104 of the Constitution of erstwhile J&K, the justification for P a g e | 11

maintaining a petition, in view of the amendment of Section 115 of

the CPC, has to be curtailed and deprecated.

28. Every award of Lok Adalat is deemed to be a decree of the civil Court

as provided under Section 21 of the Legal Services Authority Act,

1987. In this regard, it may be apposite to refer to Section 21 of the

Legal Services Authorities Act, 1987, which is extracted as under:

"21. Award of Lok Adalat.--

(1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the court-fee paid in such case shall be refunded in the manner provided under the Court-fees Act, 1870 (7 of 1870).

(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award."

29. Section 21 of the Legal Services Authorities Act, 1987 equates an

award of the Lok Adalat, to a decree of a Civil Court and imputes an

element of finality to an award of compromise passed by the Lok

Adalat. When the Lok Adalat disposes cases in terms of a compromise

arrived at between the parties to a suit, after following principles of

equity and natural justice, every such award of the Lok Adalat shall be

deemed to be a decree of a Civil Court and such decree shall be final

and binding upon the parties. Given the element of finality attached to

an award of the Lok Adalat, it also follows that no appeal would lie,

under Section 96 of the CPC against such award, as has been held by

Hon'ble Apex Court in case titled as P.T. Thomas vs. Thomas Job

reported as [(2005) 6 SCC 478].

P a g e | 12

30.This Court is of the view that a writ petition would be maintainable

against an award of the Lok Adalat, especially when such writ petition

has been filed alleging fraud in the manner of obtaining the award of

compromise, the writ court cannot, in a casual manner, de hors any

reasoning, set aside the order of the Lok Adalat. The award of a Lok

Adalat cannot be reversed or set aside without setting aside the facts

recorded in such award as being fraudulent arrived at.

31. The Latin maxim "cessante ratione legis cessat ipsa lex" meaning

"reason is the soul of the law, and when the reason of any particular

law ceases, so does the law itself" vide H H Sri Swamiji of Sri

Admar Mutt vs. the Commissioner, Hindu Religious and

Charitable Endowments Dept.- [(1979) 4 SCC 642], is also

apposite.

32. In the instant case, no such allegation of fraud has been pleaded and

on the other hand, a categoric statement has been made by the

deceased that he will not charge any interest and, thus, the respondents

in the instant petition are bound by the said statement and the

appellants, as such, are under a legal obligation to pay the admitted

liability to the tune of Rs. 3.00 lacs.

33. Since, the petitioner no.3 has admitted the claim of the respondents

and has agreed for the settlement before the Lok Adalat and has never

objected to release of the balance amount of Rs.3.00 lacs and thus, the

order passed by the Lok Adalat, which is impugned in the present

petition dated 09.05.2015, being award and decree, deserves to be

executed, and thus, the petitioners are estopped in law to challenge the

same by filing the instant petition by invoking the powers under P a g e | 13

Section 103/104 of the Constitution of erstwhile J&K which is pari

materia to Article 227 of the Constitution of India.

34. In Pushpa Devi Bhagat (dead) through LR. Sadhan Rai Vs.

Rainder Singh & Ors. reported as (2006) 5 SCC 566, the Apex

Court has held that:-

"...Since no appeal would lie against a compromise decree, the only option available to a party seeking to avoid such a decree would be to challenge the consent decree before the Court that passed the same and to prove that the agreement forming the basis for the decree was invalid. It is therefore, imperative that a party seeking to avoid the terms of a consent decree has to establish, before the court that passed the same, that the agreement on which the consent decree is based is invalid or illegal."

35. In another judgment titled Ruby Sales and Services Pvt. Ltd. Vs.

State of Maharashtra reported as (1994) 1 SCC 531, the Apex

Court has observed that :-

"... that a consent decree is a creature of an agreement and is liable to be set aside on any of the grounds which will invalidate an agreement. Therefore, it would follow that the level of circumspection, which a court of law ought to exercise while setting aside a consent decree or a decree based on a memo of compromise, would be atleast of the same degree, which is to be observed while declaring an agreement s invalid."

Conclusion:-

36.Thus, this Court holds that the instant writ petition, being devoid of

any merit, is not maintainable and liable to be dismissed as the

challenge thrown to the order passed by Lok Adalat dated 09.05.2015,

is ill-founded. Accordingly, the instant petition, is, dismissed. Order

passed by Lok Adalat, whereby the deceased has given his consent not

to charge any interest is upheld and the legal heirs (Respondents) are P a g e | 14

bound by the said statement. Petitioners are directed to release the

outstanding payment of Rupees Three Lacs in favour of the

Respondents.

37. The Executing court, in the instant case, has enlarged the scope of the

basic order/decree passed by the Lok Adalat contrary to the stand