Mahadev Travels vs Jodhpur City Transport Service ...
2021 Latest Caselaw 19052 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13739/2017

Mahadev Travels, Through Its Partner, Ramjeevan Choudhary, Son Of Shri Badri Ram Jakhar, Resident Of E-219-220, Kalptaru Shopping Complex, Jodhpur.

----Petitioner Versus

1. Jodhpur City Transport Service Ltd., Through Its Executive Director, District Collector Office, Jodhpur.

2. The State Of Rajasthan, Through The District Collector, Jodhpur.

3. Municipal Corporation, Jodhpur Through Its Commissioner, Residency Road, Jodhpur.

4. Permanent Lok Adalat, Jodhpur.

                                                                             ----Respondents


      For Petitioner(s)               :     Mr. Anil Bhandari
      For Respondent(s)               :     Mr. Suniel Purohit

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

Reportable 15/12/2021

1. The petitioner has preferred this writ petition claiming

the following reliefs:

"1. The impugned order dated 10.07.2017 (Annex.4) may kindly be quashed and set aside.

2. The application under Section 8 of the Arbitration and Conciliation Act filed by the respondent no.3 may kindly be rejected.

3. The claim petition filed by the petitioner may kindly be allowed in toto with costs."

4. In the alternate, the matter may kindly be remanded back to the learned Permanent Lok Adalat, Jodhpur, directing it to decide the matter on merit expeditiously, preferably within six months."

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2. Brief facts of the case as noticed by this Court are, that

a claim petition was preferred by the petitioner under Section 22B

under the Public Utility Service of Legal Services Authorities Act,

1987 (hereinafter 'the Act of 1987') before the respondent No.4 to

release its pending claim amount of Rs.67,79,355/- along with the

interest and compensation.

Section 22B of the Act of 1987 reads as follows: -

"Section 22B. Establishment of Permanent Lok Adalats.- (1) Notwithstanding anything contained in section 19, the Central Authority or, as the case may be, every State Authority shall, be notification, establish Permanent LokAdalat at such places and for exercising such jurisdiction in respect of one or more public utility services and for such areas as may be specified in the notification. (2) Every Permanent LokAdalat established for an area notified under sub-section (1) shall consist of-

(a) A person who is, or has been, a district judge or additional district judge or has held judicial office higher in rank than that of a district judge, shall be the Chairman of the Permanent LokAdalat and

(b) Two other persons having adequate experience in public utility services to be nominated by the Central Government or, as the case may be, the State Government on the recommendation of the Central Authority or, as the case may, the State Authority, establishing such Permanent LokAdalat and the other terms and conditions of the appointment of the Chairman and other persons referred to in clause (b) shall be prescribed by the Central Government."

3. The permanent Lok Adalat dismissed the claim, while

granting liberty to the petitioner to appear before the Arbitrator.

4. Learned counsel for the petitioner has drawn the

attention of this Court to Section 25 of the Act of 1987, which, he

states has an overriding effect, the same of which has to be

maintained against any other law, which for the time being, in

force. Section 25 of the Act of 1987, is reproduced here under:-

"25. Act to have overriding effect.-- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith

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contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."

5. That since the Act of 1987 is having an overriding

effect upon the Arbitration and Conciliation Act, 1996 and that the

Permanent Lok Adalat ought to have considered the petition on

merits.

Learned counsel for the petitioner cited the following judgments at

the bar; the relevant portions of which are as under -

6. The Hon'ble Apex Court in Bar Council of India Vs.

Union of India 2012 reported in AIR SCW 4430, observed the

following:

"21. The Permanent Lok Adalats under the 1987 Act (as amended by 2002 Amendment Act) are in addition to and not in derogation of Fora provided under various statutes. This position is accepted by the Central Government in their counter affidavit."

7. Learned counsel for the petitioner has further relied

upon the judgment rendered by the Hon'ble Punjab & Haryana

High Court in M/s BPS Developers (P) Ltd. Vs. Permanent

Lok Adalat, Palwal and Ors. (CWP No. 8244 of 2016) decided

on 28.11.2019. Relevant portion of the said judgment reads as

follows:

"2. The builder who is the present petitioner filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 before the Permanent Lok Adalat contending that there was an 1 of 5 arbitration Clause and the dispute can only be resolved through arbitrator and not by the Court.

7. In the present case, there is arbitration clause in the builder- buyer contract, and therefore, Permanent Lok Adalat shall have jurisdiction to entertain and decide the dispute both by mediation proceedings and in case of failure of mediation, then on merits. Accordingly, admitting this case would bring more misery to the

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respondent than the petitioner can imagine or the respondent had visualized. Thus, the dispute deserves to be settled on merits by the competent forum being Permanent Lok Adalat (Public Utility Services), Faridabad which jurisdiction has been admitted by the learned counsel for the petitioner very fairly.

8. In view of these facts and circumstances, in exercise of power to transfer, the disposed of file of the case is ordered to be transferred from the record of the Permanent Lok Adalat (Public Utility Services), Palwal to the Permanent Lok Adalat (Public Utility Services), Faridabad. The Presiding Officer/Chairman of Permanent Lok Adalat (Public Utility Services), Palwal is requested to send the 4 of 5 file to the Permanent Lok Adalat (Public Utility Services), Faridabad. He would also assess the expenses to be incurred while sending the file which will be borne by the petitioner. The Permanent Lok Adalat (Public Utility Services), Faridabad is directed to take up the case and decide the same, preferrably within six months from the date when the file comes on its board and when the Forum is seized of the file. The parties to appear before the Permanent Lok Adalat (Public Utility Services), Faridabad on 29.1.2019 for further proceedings."

8. Learned counsel for the petitioner has also relied upon

the precedent law laid down by the Hon'ble Apex Court in

Secretary, Thirumurugan Cooperative Agricultural Credit

Society Vs. M. Lalitha (Dead) Through L.Rs. & Ors. reported

in I (2004) CPJ 1 (SC), relevant portion of the said judgment

reads as under:

"11. As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar.

19. Thus, having regard to all aspects we are of the view that the National Commission was right in holding that the view taken by the

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State Commission that the provisions under the Act relating to reference of disputes to arbitration shall prevail over the provisions of the 1986 Act is incorrect and untenable. The National Commission, however, did not take note of the fact that the State Commission had not decided the other contentions raised in the appeals on merits. We are inclined to accept the alternative submission made on behalf of the appellant for remanding the case to the State Commission for deciding the other issues on merits while affirming that the complaints before the district forum made by the respondents were maintainable and the district forum had jurisdiction to deal with the disputes. In this view, while affirming the order of the National Commission as to the maintainability of the disputes before the forum under the Act, we remand the appeals to the State Commission for their adjudication on other issues on merits without going to the question of maintainability of the disputes before the forum under the 1986 Act."

9. Learned counsel for the petitioner further submits that

the Permanent Lok Adalat was duty bound to pass orders on

merits.

10. Per contra, learned counsel for the respondents submits

that the Section 25 of the Act of 1987 would not have any

overriding effect over the arbitration clause and has relied upon

the judgment rendered by the Hon'ble Punjab and Haryana High

Court in M/s HDB Financial Services Ltd. Vs. Arun Mittal &

Anr. (CR No.4979 of 2015) decided on 31.03.2016, relevant

portion of which, reads as follows:-

"I have heard learned counsel for the parties and appraised the paper book and of the view that it is conceded position on record that petitioner had advanced the loan of `25,00,000/- to the respondent and respondent has to pay sum in particular time frame. Such agreement involves resolution of dispute through arbitration. In case respondent had any grievance, he should have sent notice to the Arbitrator but could not have invoked the provision of Legal Services Authority Act, 1987 for filing application under Section 22

(c) of the Act. The seat of the Arbitrator as per the agreement is either at Bombay or Chennai and it would be very onerous on the part of loanee to appear before the Arbitrator at Chennai or Bombay in case Arbitrator of that particular area is appointed and initiate proceedings. At this stage both the parties are ad idem that instead of Bombay and Chennai, arbitration proceedings shall be held at

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Chandigarh i.e. Arbitration and Conciliation Centre, Sector-17, Chandigarh.

With the consent of the parties, I hereby appoint Ms. Navita Singh, Hon'ble Retired Judge of this Court as Arbitrator. Registry is directed to sent the intimation to Ms. Navita Singh, Hon'ble Retired Judge of this Court for taking the consent. On receipt of the consent, she shall entered into reference by calling upon the parties to adjudicate as per the provision of New Act, 2015.

Even otherwise, order of the Lok Adalat is executable like the Civil Court decree, therefore provision of Section 8 apply.

Accordingly, impugned order is hereby set aside. Parties shall be at liberty to file their respective claim before the Arbitrator.

Petition stands disposed of."

11. Learned counsel for the petitioner, in his rejoinder

arguments, further submits that the Section 22A (b) (i) of the Act

of 1987 defines that the public utility service means 'transport

service for the carriage of passengers or goods by air, road or

water, and thus, since the petitioner is providing transport to the

State organs or carriage of passengers, he shall fall within the

domain of public utility service.

12. Section 22A of the Act of 1987, reads as under:-

"Section 22A. Definitions.- In this chapter and for the purposes the Section 22 and 23, unless the context other requires.

(a) "Permanent LokAdalat" means a Permanent LokAdalat established under sub-section (1) of Section 22 B.

(b) "public utility service" means any -

(i) Transport services for the carriage of passengers or goods by air, road or water or

(ii) Postal telegraph or telegraph or telephone service or

(iii) Supply of power, light or water to the public by any establishment or

(iv) Postal telegraph or telegraph or telephone service or

(v) Service in hospital or dispensary or

(vi) Insurance service,

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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."

13. Learned counsel for the respondents submits that a

public utility service is; when in a transport service for the

carriage of passengers or goods by air, road or water, if a person is

so aggrieved by the deficiency in service, and it does not however,

mean that some person, who has provided vehicles for the plying

of goods, or for the transport of persons, but that in fact the

petitioner, is like a business partner, in providing vehicles, on a

contractual basis to organs of a state, to provide a transportation

service, and would therefore, not fall within the definition of public

utility service.

14. After hearing learned counsel for the parties as well as

perusing the record of the case alongwith the precedent law cited

at the Bar, this Court makes the following observations -

15. In the present case, the Permanent Lok Adalat has

refused to make any interference on merits, while providing the

liberty to the petitioner to go under the arbitration clause before

the Arbitrator. The definition of a public utility service is also the

bone of contention.

16. This Court holds that Section 25 prescribes that the Act

of 1987 by virtue of the precedent law cited at the bar, by the

learned counsel for the petitioner, this Act shall have an overriding

effect over all the other laws for the time being in force for the

purpose of public utility service, and thus, the Permanent Lok

Adalat has to give effect to the Act of 1987 over and above all the

prevailing laws.

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17. However, while holding the above, this Court is unable

to convince itself that a contractual transport service for carriage

of passengers by road being organized by the State; and the

vehicles for plying the same being provided by the petitioner, is

like being in the capacity of a business partner to the State, would

fall within the domain of public utility service as it will not result in

a relationship between a service provider and a service consumer,

but rather, is an independent contractual agreement entered into

for conducting business.

18. In the opinion of this Court, that with respect to the

present facts and circumstances, the activity and dealings of the

present petitioner do not fall within the domain of public utility

service, as provided in the Act of 1987. The public utility service is

one which is provided to a passenger, whereas in the present

case, the two parties are business partners; one being an organ of

the State and the other being the petitioner, were jointly

attempting to provide the transport service to passengers, and

thus, they both cannot be permitted to claim adjudication before

the learned Permanent Lok Adalat, under the guise of the

transport service being a public utility service.

19. In light of the aforesaid observations, the present writ

petition no more survives and the same is accordingly dismissed.

However, the petitioner shall be at liberty to go before the

Arbitrator and agitate his claim. Further, the delay caused to

approach before the Arbitrator shall be condoned, if he so

approaches the Arbitrator within a period of one months from the

production of a certified copy of this order. The arbitrator shall

make all necessary endeavours to expeditiously decide the

arbitration proceedings, and the relevant limitations with respect

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to time limits, as prescribed under in the Arbitration Act shall be

followed.

Stay petition as well as all pending applications also

stand dismissed accordingly.

(DR.PUSHPENDRA SINGH BHATI),J.

196-Zeeshan

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