In India, prior to implementation of the scheme for Lok Adalat, parties used to compromise their matter as per provisions contemplated under Order 23 Rule 3 of the Civil Procedure Code, 1908 or by any other available Traditional ways. Then, the Lok Adalat mechanisms were introduced, consequently, amended provisions of Civil Procedure Code, 1908, and the Legal Services Authority Act,1987, provided more provisions.
Lok Adalat is an improved mechanism for Indian Citizens because it is based on the principles of Father of Nation Mahatma Gandhi. The entire process of Lok Adalat reflects that India is a democratic Country. The credit of originating this system for speedy justice to common man goes to Hon’ble Mr Justice P. N. Bhagwati, the former Chief Justice of the Supreme Court of India who started Lok Adalats. Then , after the passing of the Legal Service Authority Act in 1987, the decisions of Lok Adalats got statutory validity and now the concept of Lok Adalats have become a powerful legal instrument. Thus Lok Adalat system is to solve the problems, it is not for a declaration of winner or loser.
Hon’ble Shri. Justice Mohit S.Shah, Chief Justice of the Bombay High Court at the inauguration of the conference of the Judicial officer on “Enhancing Quality of Adjudication” at Judicial Academy Uttan, Thane, address that, New Methods and New Roles are necessary for the Justice Delivery System. Also comparing Traditional Method, Provisions for Compromise cases as per Civil Procedure Code, 1908 and Present Lok Adalat system it is necessary that there is need of an effective mechanism to have expert determination in land encroachment certain cases which are to be referred before Lok Adalat. The main objective of the research was to find out a new method, New roles in the Justice Delivery System.
This is a study paper for the need of expert determination, before referring the case for land encroachment to the Lok Adalat wherein few suggested methods are mentioned[1]. It is a method wherein I made a combination of the process of Expert determination and conciliation for Lok Adalat and its management. In this paper , various suggestions and references were made to underline the need for expert determination in Lok Adalat system by referring few case studies as mentioned by various experts. The case study shows that the Lok Adalat system from ADR mechanisms is a very important system for Indian Citizens. The process of settlement by the parties shows that, it is nothing but a settlement by a number of the person and that, it is so probable that a prudent man ought, under the circumstances of the particular case, to act , upon the supposition that it exists. The advantages for Lok Adalat /ADR Systems are discussed in various papers, hence such literature portion is avoided. The effect of the suggested method shows that, after the expert determination, the panel members of Lok Adalat and parties get ample opportunity to find out ways to settle the dispute. In certain cases , suggested a method in Lok Adalat would be more inexpensive, efficacious and speedy justice accessible to the public.
Background:
Agriculture is the main profession of most of the Indian. Nowadays, due to increase in population & Industrial Development , residential areas are increasing by converting agricultural land into Non-agricultural purpose, therefore, the transaction to sale /purchase of land/ plot, is also inevitably increasing. In a sale-purchase transaction, the title of land should be clear. If such title is defective then it gives cause to the lawsuits. These civil suits are based on a land survey map wherein it is observed that the defendant merely denies the title of the plaintiff without specific pleading. Such a dispute is under the following title :
- Suit for removal of an encroachment,
- Suit for Injunction,
- Suit for possession.
In most the certain cases, it is noticed that the parties were ready to satisfy their claims if the land is measured / located properly. This is one of the probability to overcome from the allegations of making an encroachment over the land. Then in such circumstances, the only question remains.
Under section 110 of the Indian Evidence Act,1872 , Burden of Proof as to ownership. Such possession should be over the exact position of the land , that was drawn from the title. Therefore I also studied Land surveying to find out the position of the land. To prove encroachment over land, the map is a material document. Under Order VII Rule 3 of Code of Civil Procedure 1908, in case of a boundary dispute or where there is any possible doubt about the identity of the land in dispute, it is essential that a good plan of the land should be put in. As per the Bombay amendment dated 1 November 1966, in cases of encroachment an accurate plan shall also file along with the plaint. As per Bombay amendment dated 1-10-1983, In case of encroachment, the sketch showing as approximately as possible the location and extent of the encroachment shall also be filed along with the plaint. Section 83 of the Evidence Act,1872, lays down that the court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made and are accurate. However, maps or plans made for the purpose of any cause must be proved accurate. Thus the onus proving that such a map inaccurate lies on the party who produces it.
In fact, the basic concept of such Lok Adalats is not new for Indian Citizens. In India, there was a traditional well known Panch Committee system. However, in such a Panch committee, there was less probability to compromise the matter in the legal form. Then the Lok Adalat mechanisms were introduced . In amended Civil Procedure Code, 1908 and Legal Services Authority Act, 1987 , material provisions are provided.
Lok Adalat may take cognizance of cases, as per Section 20 of the Legal Services Authority Act where:
(I) (a) the parties thereof agree; or (b) one of the parties thereof makes an application to the court for referring the case to the Lok Adalat for settlement and if such court is Prima Facie satisfied that there are chances of such settlement;
(II) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat, provided that no case shall be referred to the Lok Adalat by such court except after giving a reasonable opportunity of being heard to the parties.
The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman/ Panel Judge, two other members/ Panel Members, usually a lawyer and a social worker.It involves people who are directly or indirectly affected by dispute resolution. The parties to the disputes though represented by their advocate , parties can interact with the Lok Adalat Panel, directly and explain their stand in the dispute and the reasons, therefore, which is not possible in a regular court of law. Thus, the salient features of this form of dispute resolution are participation, accommodation, fairness, expectation, voluntariness, neighbour lines, transparency, efficiency and lack of animosity.
The section 22 speaks that, the procedure to be followed at a Lok Adalat is very simple. Section 20 (4) shows that Every Lok Adalat shall, while determining any reference before it under this Act, act with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity, fair play and other legal principles. The Lok Adalat does not strictly follow the procedural laws, and the Evidence Act , 1872 ,while assessing the merits of the claim. Parties compromise their matter which is always a bilateral and means mutual adjustment. If no compromise or settlement is or could be arrived at, no order/Award can be passed by the Lok Adalat. If both parties agree for settlement then Award has to be a pass. Such Award shall be deemed to be a decree of a civil court and shall be final and binding on the parties to the dispute. No appeal lies against the order of the Lok Adalat. As per Section 22 of the Legal Services Authority Act the Powers of Lok Adalats are same powers as vested to Civil Court under Civil Procedure Code, 1908 as ,(a) The summoning and enforcing the attendance of any witness and examining him on oath; (b) The discovery and production of any document; c )The reception of evidence on affidavits; (d) The requisitioning of any public record or document or copy of such record or document from any court or office; and (e) Such other matters as may be prescribed. (2) Without prejudice to the generality of the powers contained in sub-section (1), every Lok Adalat shall have the requisite powers to specify its own procedure for the determination of any dispute coming before it. Thus, it is a dispute resolution mechanism that focuses on the root cause of the dispute.
Material Case Law
State of Punjab and Anr. Vs. Jalour Singh and Ors. AIR 2008 SC 1209
The Hon’ble Apex court pleased to discuss (Quoted are the points from judgment)
”8. 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.
9. But we find that many sitting or retired Judges, while participating in Lok Adalats as members, tend to conduct Lok Adalats like courts, by hearing parties, and imposing their views as to what is just and equitable, on the parties. Sometimes they get carried away and proceed to pass orders on merits, as in this case, even though there is no consensus or settlement. Such acts, instead of fostering alternative dispute resolution through Lok Adalats, will drive the litigants away from Lok Adalats. Lok Adalats should resist their temptation to play the part of Judges and constantly strive to function as conciliators. The endeavour and effort of the Lok Adalats should be to guide and persuade the parties, with reference to principles of justice, equity and fair play to compromise and settle the dispute by explaining the pros and cons, strength and weaknesses, advantages and disadvantages of their respective claims.”
Major Problem:
A major cause of the dispute was for land encroachment, boundary disputes . Some disputes were not really for land encroachment , but those disputes were filed in that fashion. In such suits, there were defects in the description of title or at the private map/ agreed map. In certain cases , opposite party pleads various defences. But they did not seriously contest it. Both parties desire to know the exact position of their lands. In such circumstances, the only question remains: Whether encroachment is really committed ? Whether the Land encroachment suit can be referred before Lok Adalat, without Expert determination ?
LokAdalat Pre-process And Expert Determination:
Ordinarily, the Land measurer measures lands as per the portion in the possession of the parties. The party shows his possession and measurer measures it. It is often found that Indian citizen only believed and blindly trusts upon the land measurer who draws a map in his favour. He does not accept that, there might be any other position on the land. Even , he does not trust to joint measurement map of lands, if it goes against him. Alternative Dispute Resolution is a process of resolving disputes by arbitration, mediation, conciliation, expert determination and early neutral evaluation by a third person. Mediation and Conciliation require an independent third party .the subject is technical then, the expert determination requires independent experts in the subject of disagreement of the parties to decide the case. Such an expert is chosen jointly by the parties and the decision is binding. It may be called a fact-finding process.
Expert determination is a process in which the parties to a dispute appoint a neutral and independent expert in Land Measurement/surveying, to make a final and binding determination on a dispute. In such determination, the parties must be agreed in advance that they are bound by the opinion of the expert measurer if he really carried out measurement as per the Law and Rules. Therefore, in the Expert determination process before Lok Adalat, the joint measurement of Land is required to be carried out with the consent of parties . It should be carried out, from the suggested expert land measurer or expert from Government Survey department . During the joint measurement of land, both parties should give an opportunity to bring their own measurer to watch measurement method I.e. whether the expert measurer is measuring lands correctly or not. The counsels for parties are also required to remain present at the time of such measurement. An expert measurer should explain each stage , its distance as per the survey map and measured distance and then record such entries in his map, in presence of both parties, watching measurer and counsel. Expert measurer has to apply more advanced method so that the joint land measurement map should be drawn at the spot. Then to send said drawn map along with its report to the referring court. The quality of assessment of disputes to refer before Lok Adalat is an important factor. It is necessary to make a proper assessment of the case, the location of land, litigants position to avoid the cultural barriers. A lack of access to information may also create a barrier to the use of LokAdalat. It is necessary to know litigants the type of process, how it differs from the regular court process. The following steps are necessary considering the present scenario.
Steps for suggested method
Step 1: At the Quarterly period , Court owes a duty to examine all cases to find out whether they are fit cases for reference to Lok Adalat and there is a need for constant efforts on the part of the Bar.
Step 2: The referring court has to refer the matter to an expert determination by the consent of the parties . The parties may suggest the name of land measurer or may intimate to appoint surveyor from the Government Department. The court has to call consent from appointed/intimated measurer. In said consent, the measurer to mention fees for land measurement and what will the procedure or instrument to measure the land. Then both parties have to deposit an equal amount for fees in the court. Parties to file xerox copies of documents for their claim/defence in order to send to measurer. Then send the writ to measurer wherein it is necessary to mention next date to file map & report.
Step 3: On receipt of Writ , the measurer to fix its schedule for the measurement of the land . He should send notices to parties by speed post or by hand . In the said notice it is necessary to mention that, the parties may come at the fixed date with their counsel , family members, relatives , friends and own measurer (to watch the process of expert determination). It is also necessary to inform to parties to come with their documents, record for the land in dispute. Measurer to issue notices to adjoining landholders, the village head, revenue officer of said area. In all these notices, the measurer has to mention as to what method,the instrument will be used in the land measurement.
Step 4: Measurer has to take the signature of persons to whom notices were given. Then he has to carry out the measurement of land.
Step 5: The land should be measured as per the Survey map carried out by the Government Department. Measurer to find / trace out the original survey mark , that may be at any distance. By applying two points theory or any other method, then to find out / or confirm another survey mark. From the confirmed two survey mark, then reach up to the disputed lands . By this way to find out / restore, lost survey mark of the lands in dispute. May apply different tests , methods to measure land and correct mathematical formula, calculations for coming opinion.
Step 6: Draw map at the spot . Take signature of all person to whom notice was given and signed by both sides, counsels, revenue officer, etc all related persons over the drawn map.( Video recording for the stages from 3 to 5 , that may help, if any controversy arises at any stage )
Step 7: Prepare a report of the entire process and map and send to the court.
Step 8: Then referring court to refer the matter to Lok Adalat as per the provisions of the Civil Procedure Code, 1908.
Step 9: Make provision for Video Conference, if the parties desire to participate its any relative , friend at the actual process before Lok Adalat Panel.
Step 10: At Lok Adalat, if the matter is settled, send a report to the referring court. Lok Adalat panel to send a short report to District Legal Aid office, stating success , its mode and feedback any given by parties.
Step 11: District Legal Aid to carry study for adopted new logic by Lok Adalat panel to settle the dispute. Such new logic may be helpful for future Lok Adalat. It is important to remember that geographical condition of land and interest of the parties are different. Therefore it is expected that, if such suggested method is adopted by applying relevant laws then it should meet the specific needs of the said area. Such a method can be expanded upon some ideas. And there is no “right way” to design a fixed program.
Case Studies:
Case Studies ( for suggested method): (Note :It is a brief discussion for logic applied to each cause)
A case for a non-sanctioned layout that affected the sanctioned layout
Facts:- In a big layout wherein near about 90% plot holders constructed their houses. When complainant measured his own plot, he found that, towards the Eastern side, the encroachment was committed by the opposite side party.
Expert Determination:- When the entire layout was measured it revealed that, there was another layout towards Eastern Side . It was not sanctioned layout. The holders of non sanctioned layout moved towards their Western Side for 10 feet and constructed their houses as per their non-sanction layout map. Therefore holders of non sanctioned layout moved towards the Western Side portion of the layout of the plaintiff. Said cause may create many civil suits.
Settlement:– In this case , there was no role of the defendant to make an encroachment but due to the above mistake the litigation was filed. The opposite side (Western Side ) holder shown his willingness to purchase the remaining plot of the complainant and the dispute was settled. (Like this ,by way of pre-litigation the other holders have also settled their claims).
A case for small layout in a city
Facts:- In a city, a complainant purchased a plot from the newly sanctioned layout. After one year, he desired to construct his house. When he measured his plot, he found that, towards Northern Side, the defendant encroached over 1 foot by 40 feet land strip. Before constructing house the defendant also measured his own plot.
Determination:- When all plots in the said row were measured then it revealed that the survey stone fixed at the Northern side was moved or disturbed by one foot towards Southern side and therefore all plot holders measured their plots from the said Northern side stone thereby all of them committed an encroachment over the plot of each other.
Settlement:-In the settlement, both parties realized the actual fact. The complainant had given up his rights over encroached portion 1 foot by 40 feet to the defendant . The defendant agreed to construct the common compound wall at the Northern side and bear the expenses for it.
The case of purchasing land without making enquirers
Facts:- A businessman/complainant purchased a field 2 Acres 2 Gunthas from his debtor (Vendor/Seller) on the basis of 7/12 (revenue record) extract. The seller mentioned the boundaries of the field. Actually, since long seller never cultivated his land. So he was not aware of actual boundaries. Complainant filed suit against defendant for encroachment of land area 1 Acre 2 Gunthas and also made a party to his vendor.
Expert Determination:– Measurer visited to spot. He collected information from Sub-Registrar of sale deed. The seller/vendor had already sold most of the area from his land to adjoining landholders. Measurer measured entire land as per sale deeds. It revealed that, at the time of sale deed in favour of the plaintiff, the only one-acre land was owned by the seller /vendor. In fact, before three months ago from the sale deed of the complainant, the vendor sold 5-acre land but said entry was not recorded in the revenue record . Therefore the Sub-Registrar office might have registered the sale deed of the businessman/complainant , otherwise due to fragment, the sale deed could not register. Only one-acre area land was owned by the seller. He sold it to the complainant. Said one-acre land being fellow land was in use of adjoining landholder/defendant for keeping cattle’s , bullock cart, Tractor etc. as a temporary use.
Settlement:- In the settlement, it was decided to purchase 01-acre land by the defendant as per market rate.(The complainant could take action against the vendor/ seller for cheating him, but he counted his own time, required money for the said action.).
Evaluation for the suggested method
Indian citizen has a habit to live and accept the opinion of his own society . He does not dare to take some decisions independently when the matter is a concern with his business or family occupation. Lok Adalat Panel (three persons) applied their mind to find out a solution. The expert determination also played a role to bring the actual situation of land . Two parties applied their mind. The parties were free to take the opinion of their counsel, relative, friends who were called by them. The case studies as discuss shows that, no two disputes are alike and no same formula /logic to settle such matter can be applied. The Revenue Record , survey map and map for the cause of action should be understood. Such expert determination depends upon the facts and circumstances of each case. It is a limited procedure. It helps to the Lok Adalat panel to identify the goals and interest of each party before they become deeply entrenched in their positions and litigation commences. Such joint measurement map helps the parties to evaluate the soundness of their position. It gives confidence to them to find out reasonable settlement offer. Thus, the Expert determination process provides information that due to the correct measurement of land, the most of conflict can be settled. In such process, neither party has a burden of proof to establish the technical fact. The Lok Adalat Panel members did not determine any fault. They always tried to identify the issues, explore settlement solutions. They focus on the issues and interests and not the personalities of parties in dispute. They try to find out possible solutions. The parties had power and authority to explore options to resolve an issue in dispute. The parties will have to implement and live with any agreement reached. The expert determination may help for non giving birth to any such cause of action from the basis of incorrect revenue record or incorrect map if matters are referred at Pre-litigation stage. Thus that Pre-litigation would be nothing but, “Prevention is better than a cure”.
Conclusion
To give more effect to this new system, it is necessary to set the team to measure land. The Revenue Authority to decide the disputes for the incorrect area shown in Revenue Records and survey record maintained by the survey department. It is necessary to make this new system more effective so that it , diagnosis, designs and implements the program, evaluates the program, monitor and suggest improvement. It is necessary to develop software for the effective implementation of the system.
In the Lok Adalat process, many people involved.The acts, observes the fact and laws. All those minds worked to comes to the conclusion for settlement. It clearly shows that they are of one mind means they agreed . Their act to agree to shows that, such settlement is nothing but, so probable that a prudent man ought, under the circumstances of the particular case, to act , upon the supposition that it exists. In the language of management, it can be called as a bottom-up system. Such a mechanism of Lok Adalat is beneficial for the public at large. It is a dream of Father of Nation and the main object of the system by Hon’ble Mr Justice P. N. Bhagwati, the former Chief Justice of the Supreme Court of India. Judiciary is the most trusted government body in the country. But it appears that f the cause of land encroachment, people are reluctant to adopt Lok Adalat. Therefore, it is necessary to focus on opening and maintaining clear channels of communication with them so they understand what is coming and what it means to them. For that purpose effective change management is necessary.
Edited by – Sakshi Agarwal
Quality Check – Ankita Jha
Approved & Published by – Sakshi Raje
Reference:-
[1] Sanjay RambhauSalkute, Labour Court Aurangabad Maharashtra ( India),Expert Determination in ADR in Civil Suits, International Journal of Scientific and Research Publications, Volume 3, Issue 11, November 2013 1 ISSN 2250-3153.
