@JUDGMENTTAG-ORDER
K.C. Bhanu, J.@mdashWrit Petition No. 28057 of 2012 is filed seeking to issue a writ of certiorari calling for the records relating to the Award dated 29.09.2011 passed by the first respondent in Case No. 1890 of 2011 and quash the same and consequently restore Appeal Suit No. 128 of 2007 to the file of the VII Additional District Judge, Krishna at Vijayawada.
2. The brief facts may be stated as follows.
Third respondent is a society registered in accordance with the provisions of the Societies Registration Act, 1860, with objectives inter alia to establish and run educational institutions. It established several educational institutions in and around Vijayawada, and one such educational institution is Sathavahana College established in 1971. The society entered into an agreement of sale dated 11.12.1974 for purchase of property admeasuring Ac. 2.94 cents in NTS 13, Moghalrajapuram, Vijayawada for establishment of Sathavahana College. The agreement contains a recital that second respondent has to obtain necessary permission from the Government for executing sale deed in favour of the third respondent. Mean while, the Special Officer and Competent Authority, Urban Land Ceiling, Vijayawada issued an order dated 25.01.1982 holding that as the said land covered under the agreement has not been registered in favour of the society, it would be computed to the holding of the second respondent, and the said order was confirmed by the appellate authority. Under the repealed Act 33 of 1976, declaration has to be filed in respect of urban property in possession any individual, the third respondent filed a declaration showing that the property is held by it. The Special Officer, vide proceedings dated 30.06.1990 directed to approach the Government under Section 20(1) of the Act. Challenging the order dated 30.06.1990, wife of the second respondent filed Writ Petition No. 20623 of 2001 before this Court and the same was dismissed and the said order was confirmed in Writ Appeal No. 1231 of 2003. The Special Officer, basing on the statement filed by the second respondent, passed proceedings dated 12.09.2005 rejecting contention of the second respondent for retention of the property for construction of child and maternity hospital on the ground that he stated in his earlier deposition that the property was sold on 11.12.1974 to the third respondent to establish Sathavahana College, but in the present deposition, it is stated that it is an ancestral property and some litigation is pending before the Civil Court in O.S. No. 253 of 1998.
While the matter stood thus, the third respondent, represented by one G. Prajapathi Rao, the then Secretary, filed Original Suit No. 109 of 2001 on the file of the I Additional Senior Civil Judge, Vijayawada for specific performance of agreement of sale dated 11.12.1974 and the said suit was dismissed vide judgment dated 05.04.2007. Aggrieved by the said judgment and decree, the third respondent society, represented by the same person, filed Appeal Suit No. 128 of 2007 before the VII Additional District Judge, Vijayawada. During pendency of the appeal, the petitioner was nominated as Secretary of the third respondent society on 24.02.2009 and he was prosecuting the case. On 10.07.2009, the said appeal was dismissed for default. Thereafter, I.A. Nos. 8 of 2011 and 9 of 2011 were filed in the appeal seeking to condone delay in filing petition to set aside default order and to set aside the default order. On 25.07.2011, the petitioner resigned to the post of Secretary by withdrawing his hereditary rights as patron member. Thereafter, one Alapati Rajendra Prasad was given patron membership of third respondent society and was unanimously elected as Secretary of the society. The Commissioner of Collegiate Education, vide order dated 26.09.2011, approved the change of correspondent-ship of the college after asserting his resignation. Accordingly, he assumed charge as Secretary of the society and thereby Correspondent of Sathavahana College.
But, the petitioner was surprised to notice that the first respondent passed the impugned Award with the terms and conditions mentioned therein. The petitioner had not appeared before the Lok Adalat and not signed in the Award and his signature was forged. In this regard, he also lodged a complaint before the Station House Officer, Suryaraopet police station and a case in crime No. 351 of 2011 was also registered. He also filed Interlocutory Application before the appellate court seeking to set aside the Award which was obtained by fraud and misrepresentation, but it was returned as not maintainable. Hence, the Writ Petition.
3. The Chairman, Mandal Legal Services Committee, Vijayawada filed counter affidavit on behalf of the first respondent stating that as per record, Appeal Suit No. 128 of 2007 was referred to Lok Adalat on 29.09.2011. In the said appeal, the third respondent society represented by its Secretary Sri Kameswara Rao was the appellant and and Boyapati Srinivasa Apparao was the respondent. On the same day, parties filed terms of compromise dated 29.9.2011 before the Lok Adalat. The appellant and the respondent in the appeal along with their respective counsels were present and on verification of record and after reading over the contents of the said terms of compromise to both the parties and also on identification of the parties by their respective counsels, the Lok Adalat passed the impugned Award, and later, concerned record was sent back to the concerned court. The writ petitioner, who represented society as Secretary, appeared before the Lok Adalat and was identified by the counsel and signed on the Award before the Lok Adalat, and that there is no irregularity or illegality in passing the Award. Hence, the Writ Petition is liable to be dismissed.
4. The second respondent himself and his General Power of Attorney holder filed separate counter affidavits, with similar averments denying the averments in the writ affidavit. The averments of the counter affidavits, inter alia, are that there is no explanation as to why present Writ Petition is filed after a period of one year after passing of the impugned Award if he was not really present before the Lok Adalat and not signed in the Award. Mere filing of police complaint does not absolve the writ petitioner from taking appropriate action. As the connected appeal A.S. No. 164 of 2006 and Second Appeal No. 221 of 2009 were dismissed, the writ petitioner, being Secretary of the third respondent society, did not evince much interest and so A.S. No. 128 of 2007 was decided on merits on 10.07.2009. Still, the petitioner filed I.A. Nos. 8 of 2011 and 9 of 2011 to set aside the order with a delay of 536 days. The averment that the writ petitioner submitted resignation on 25.7.2011 to the post of Secretary of society and one A. Rajendra Prasad was provided patron membership of the society and was unanimously elected as Secretary in the Executive Council meeting on 26.7.2011, are false. The writ petitioner and said A. Rajendra Prasad are collusively trying to attack the Award. The alleged approval of change of correspondent by the Commissioner of Collegiate Education does not empower the said A. Rajendra Prasad to question the Award and the said approval is only for a limited purpose. The writ petitioner was very much present before the Lok Adalat and signed in the Award at 4.30 PM on 29.09.2011. Even in police complaint, it is stated that on 06.09.2011, an issue was brought to the notice of the writ petitioner that an award was passed in the Lok Adalat on 29.9.2011, and therefore, it is clear that even before settlement in Lok Adalat, he was preparing the ground to attack the Award on one pretext or the other. Entire Writ Petition is silent as to when the new Secretary assumed charge. The third respondent settled the matter by receiving huge amount and prepared a ground even before settlement for attacking the award. There is no fraud or misrepresentation played on the writ petitioner or the third respondent or the Court. The writ petitioner is playing fraud by misrepresenting the facts. The fact that no allegation is made against the counsel for the writ petitioner in the lower court, who signed the joint memo, itself shows that the counsel for the writ petitioner in the lower court signed on the joint memo only on the instructions of the party. The entire property is an extent of Ac. 5.10 cents and it belongs to the second respondent and his wife, and though the schedule property covered in Original Suit No. 109 of 2001 is Ac. 2.94 cents, the compromise was entered into for Ac. 5.10 cents as the third respondent society was claiming the other extent also by filing another suit O.S. No. 110 of 2001 which was lost by it up to Second Appeal level, and so, in order to have a complete settlement, compromise was effected for the total extent of Ac. 5.10 cents in NTS No. 13 of Vijayawada and there is no prohibition or illegality for such compromise. Having received a Demand Draft for Rs. 9.00 lakhs, not crediting the same to the account by the third respondent also shows the intention of the writ petitioner and the third respondent. Hence, it is prayed to dismiss the Writ Petition.
5. The third respondent filed its counter affidavit sailing with the writ petitioner.
6. Learned counsel for the petitioner contended that by the date of passing of the Award by the Lok Adalat, the petitioner was not the Secretary and Correspondent of the third respondent society and one Alapati Rajendra Prasad was the Secretary; that the Award was obtained in the Lok Adalat by playing fraud and that after coming to know that the signatures were forged, the petitioner lodged a complaint before police; that the impugned Award passed by the first respondent is not an Award in the eye of law; that the third respondent is contemplating to take legal action against the petitioner and so he was constrained to file the present Writ Petition and that the impugned Award is not binding on the third respondent society as he was no longer Secretary of the Society by the date of passing of the Award and hence, he prayed to set aside the impugned Award.
7. On the other hand, learned counsel appearing for the first respondent contended that since both the parties entered into compromise, the matter was compromised and that all the parties to the appeal and their respective counsel signed the Award having accepted the terms of the compromise and in pursuance of the terms of compromise, the Award was passed, and therefore it has become final and cannot be set aside.
8. On the other hand, learned counsel for the second respondent contended that when the appeal was dismissed for default, the writ petitioner filed two applications viz. one to condone delay in filing set aside petition and the other to set aside the default dismissal order; that the third respondent, having realized that the suit filed against wife of the second respondent was already dismissed, entered into compromise with the second respondent after passing a resolution; that as the second respondent was sick at that point of time, he gave General Power of Attorney to his son who participated in the compromise proceedings and signed on behalf of the second respondent; that on earlier occasion, the self-styled Secretary of the third respondent filed a Writ Petition before this Court and this Court gave a categorical finding that the present petitioner is the Secretary at the relevant point of time of passing of the Award and dismissed the Writ Petition filed by the society represented by Secretary A. Rajendra Prasad, and that a Special Leave Petition was filed before the Hon''ble Supreme Court of India and when the Hon''ble Court was not inclined to grant leave, he withdrew the Writ Petition itself; that the petitioner has no locus standi to file the present Writ Petition; that in the earlier round of Writ Petition, a Division Bench of this Court held that the writ petitioner himself was acting for third respondent society and that the writ petition is only a proxy litigation initiated by the third respondent society and that fraud and misrepresentation cannot be agitated before this Court and hence, he prayed to dismiss the Writ Petition.
9. On the other hand, learned counsel for the third respondent contended that one V. Kameswara Rao (the petitioner herein), who claims to be Secretary of the third respondent society, is not authorized to compromise or settle the matter with the parties; that the settlement is not binding as there is no authorization given to him; that one Alapati Rajendra Prasad was elected as Secretary on 26.07.2011 and the same was recognized by the Commissioner of Collegiate Education, Andhra Pradesh, Hyderabad as required under law and therefore the petitioner was no longer holding the post of Secretary of the society as on 28.09.2011 or 29.09.2011 and there was no authorization to him to represent the society and the society has not passed any resolution authorizing the petitioner to compromise the matter; that the so-called Award was not implemented for the reason that the third respondent society was not a party to the same and that the amount which has been settled with regard to payment of Rs. 9.00 lakhs has not been credited to the account of the society, and hence, he prays to allow the Writ Petition.
10. One G. Prajapathi Rao filed Writ Petition (sr) No. 138912 of 2014, with a petition seeking leave, challenging the same Award on the grounds raised in the Writ Petition. The counsel appearing for the petitioner in the said petition contended that the petitioner is the founder member of the third respondent society for propagation of education and the Award was passed mechanically without looking at the essence of the dispute; that the very property of the dispute is prohibited to be transferred and it is contrary to the Andhra Pradesh Education Act, 1982; that the subject matter of the plaint is not the subject matter of the Award and therefore, he prays to set aside the impugned Award.
11. The third respondent society was registered under the provisions of the Societies Registration Act, 1860 vide Registration No. 105 of 1969. Two years thereafter, Satavahana Junior and Degree College was established by the society. The society purchased an extent of Ac. 2.94 cents in NTS No. 13, Moghalrajapuram, Vijayawada from the second respondent under an agreement of sale dated 11.12.1974. The society filed Original Suit No. 109 of 2001 on the file of the I Additional Senior Civil Judge, Vijayawada against the second respondent and his son for specific performance of contract of sale dated 11.12.1974. The schedule of the property is Ac. 2.94 cents in NTS No. 13, Moghalrajapuram, Vijayawada. The said suit was dismissed on 05.04.2007. Challenging the same, the society filed Appeal Suit No. 128 of 2007 on the file of the VII Additional District Judge, Vijayawada. On 10.07.2009, the said appeal was dismissed for default. On 20.12.2010, the third respondent society represented by its Secretary V. Kameswara Rao, filed I.A. No. 8 of 2011 to condone delay of 524 days in filing the set aside default dismissal order and I.A. No. 9 of 2011 for restoration of the appeal. The said applications were posted to 03.10.2011. Son of the second respondent filed I.A. No. 543 of 2011 to permit him to represent the second respondent whereas I.A. No. 544 of 201 was filed to advance I.A. Nos. 8 of 2011 and 9 of 2011 from 03.10.2011. The appellate Court advanced the same to 28.09.2011 and referred the matter to the Lok Adalat. Thereafter, the impugned Award was passed on 29.09.2011.
12. There cannot be any dispute that the societies registered under the Act, can validly be represented by its office bearers and hence such society can sue and be sued in the name of President, Secretary or authorized officer of the society. It is not in dispute before this Court that one Alapati Rajendra Prasad claiming to be Secretary of the third respondent society, filed Writ Petition No. 27867 of 2011 before this Court. By an order dated 17.02.2012, this Court held that the compromise entered into the petitioner and the third respondent society represented by the petitioner is valid and that the said Alapati Rajendra Prasad never took any steps before the Court to get name of the Secretary and Correspondent substituted and that the decree passed by the Lok Adalat shall become final unless such a settlement or compromise is vitiated by fraud or misrepresentation, and accordingly, dismissed the Writ Petition. Challenging the same, a Special Leave to Appeal (Civil) No. 7825 of 2012 was filed before the Hon''ble Supreme Court of India by the said Alapati Rajendra Prasad. By order dated 19.03.2012, the Hon''ble Supreme Court passed the following order:
"After arguing the case for some time, learned senior counsel for the petitioner made a request that his client may be permitted to withdraw the writ petition filed before the High Court with liberty to avail other appropriate remedies.
Though unusual, we accept the request of the learned senior counsel and grant leave to the petitioner to withdraw Writ Petition No. 27867 of 2011 with liberty in terms of the prayer made.
Consequently, the special leave petition is dismissed."
13. The learned counsel for the second respondent, to some extent, relied upon the observations made by this Court in the aforesaid Writ Petition and contended that they have binding force in the present Writ Petition. But, we are unable to accept the contention for the simple reason that the earlier Writ Petition was permitted by the Hon''ble Supreme Court to be withdrawn. So, the observations cannot be taken as a finding or a ratio laid down by this Court.
14. It is contended by the learned counsel for the petitioner as well as the learned counsel for the third respondent that by playing fraud on the Lok Adalat and by impersonation, the Award was passed and therefore it is liable to be set aside. On this aspect, learned counsel for the petitioner placed strong reliance on a decision in
"We are further of the view that the State Government, in the facts and circumstances of the case, was right in exercising revisional jurisdiction under Section 34 of the Act. Mr. Venugopal is indeed right in submitting that even though no period of limitation is prescribed for exercise of revisional jurisdiction by the State Government suo motu, such power must be exercised within a reasonable time [vide State of Gujarat v. Patel Raghav Natha]. But taking into account the facts and circumstances in their entirety and in particular, a letter of Chief Engineer, Visakhapatnam Port Trust of December 19, 1985, it cannot be said that the power had not been exercised within a reasonable period. It is also pertinent to note that the subsequent development shows as to how some of the Officers of the Port Trust were parties to fraud said to have been committed by land-owners. In this connection, the respondents are right in inviting our attention to a letter dated August 21, 1989 by the Port Trust Authorities to the Commissioner of Land Reforms stating therein that the Government intended to exercise suo motu power under Section 34 of the Act but there was no necessity to reopen proceedings and suitable directions were required to be issued to District Collector, Visakhapatnam to pass an award in respect of land sought to be acquired under the Land Acquisition Act. In view of these developments, in our opinion, the High Court was fully justified in recalling the earlier order.
...
It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court--has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.
He also relied on a decision in
"Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."
There is no dispute about the ratio laid down in the above decisions.
15. Before recalling or setting aside a decree or Award on the ground of fraud or misrepresentation, there must be factual foundation which must be substantiated with material on record. In other words, there must be a pleading and evidence to prove the same. Though a specific pleading has been taken in the Writ Petition, there is no material to show or infer that fraud or misrepresentation has been played by the second respondent, and the same cannot be proved before this Court merely basing on the pleadings. Therefore, it has to be pleaded and established before the competent forum. So, on the ground of fraud or misrepresentation, the impugned Award passed by the Lok Adalat cannot be set aside by this Court.
16. Now, it has to be seen whether the impugned Award passed by the Lok Adalat is an ''Award'' within the meaning of Section 21 of the Legal Services Authorities Act, 1987?
17. The Legal Services Authorities Act, 1987 (for short, ''the Act, 1987'') was enacted to organize Lok Adalats to ensure that the operation of the legal system promotes 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 the disputes in a spirit of conciliation outside the courts. Section 19 of the Act, 1987 provides for organization of Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit. Sub-section (5) of Section 19 provides that a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of any case pending before, or any matter which is falling within the jurisdiction of and is not brought before, any Court for which the Lok Adalat is organized.
18. Section 20 of the Act, 1987 provides for taking cognizance of cases by Lok Adalats and also the procedure for referring the matter where the parties agree, or one of the parties makes an application to the Court, for referring the case to Lok Adalat. Under this Section, if the Court is prima facie satisfied that there are chances of such settlement or that the matter is an appropriate one to be taken cognizance by the Lok Adalat, it shall refer the case to the Lok Adalat. Under proviso to the said Section, the case shall not be referred unless a reasonable opportunity was given to the other party. Under sub-section (3) of Section 20, where any case is referred to a Lok Adalat under sub-section (1) or where a reference has been made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. Sub-section (4) provides 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.
19. Section 21 of the Act, 1987 reads thus:
"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 Sec. 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."
Under this Section, every Award of Lok Adalat shall be deemed to be a decree of Civil Court or as the case may be, an order of any other Court, and when a compromise or settlement has been arrived at, by the Lok Adalat in a case referred to it under sub-section (1), court fee paid in such case shall be refunded. Further, under sub-section (2), every Award passed by the Lok Adalat shall be final and binding on all the parties to the dispute and no appeal shall lie to any Court against such Award. Once an Award is passed by the Lok Adalat, it shall be final and no appeal is provided against it. However, Lok Adalat has to ensure that the parties to the dispute should be present before the Bench and accept the compromise or settlement arrived at, between them.
20. In exercise of the powers conferred under the provisions of Section 29A of the Act, 1987 and in consultation with the Hon''ble the Chief Justice of Andhra Pradesh, wherever necessary, the State Legal Services Authority made Regulations, known as ''the Andhra Pradesh State Legal Services Authority Regulations, 1996'' (for short, ''the Regulations, 1996''). Regulation No. 31 of the Regulations, 1996 reads as follows:
"Notice to the parties concerned: The Secretary of the High Court Committee or the District Authority or the Chairman of the Taluk Committee, as the case may be, convening and organizing the Lok Adalat shall inform every litigant whose case is referred to the Lok Adalat, well in time, so as to afford him an opportunity to prepare himself for the Lok Adalat."
Regulation No. 38 deals with the procedure for effecting compromise or settlement at Lok Adalat. Under clause (1) of the Regulation, every Award of the Lok Adalat shall be signed by the panel constituting the Lok Adalat. Clause (2) of Regulation No. 39 provides that the parties to the dispute shall be required to affix their signatures or, as the case may be, thumb impression on the Award of the Lok Adalat.
21. In all the provisions referred to, above, the language employed is ''parties to the suit''. The above provisions have a mandatory effect or meaning implying the direction to act. The expression ''parties to the suit'' means the parties who have been properly made as parties in accordance with the provisions of the Code of Civil Procedure, 1908 (for short, ''CPC''). In other words, it must mean as parties to each other. Order I CPC deals with parties to the suit. Order I Rule 1 CPC deals with ''joinder of plaintiffs'' whereas Rule 3 of Order I deals with ''joinder of defendants''. There are 4 essentials of a suit viz. (i) opposing parties; (ii) subject matter in dispute; (iii) cause of action; and (iv) relief claimed. We are concerned with the ''opposing parties''. Order XXIX CPC provides for suits by or against Corporations. Under Rule 1 thereof, in suits by or against a Corporation, pleading may be signed and verified on behalf of the corporation by the Secretary or by any Director or other Principal Officer of the Corporation who is able to depose to the facts of the case. This Rule merely defines the persons who are authorized to sign and verify pleadings. It, however, does not empower the persons mentioned therein to institute or conduct or compromise the suit on behalf of the corporation. Further more, bye-laws of the Society are important to decide whether an officer of the society is empowered to defend or prosecute or effect settlement or compromise in a matter before Lok Adalat on behalf of the society.
22. The third respondent society is registered under the provisions of the Societies Registration Act, 1860. The Andhra Pradesh Societies Registration Act, 2001 (for short, ''the Act, 2001'') was enacted and came into force on 10.10.2011. Sub-section (1) of Section 32 of the Act, 2001 provides that the Societies Registration Act, 1860, in its application to the Andhra area of the State of Andhra Pradesh, and the Andhra Pradesh (Telangana Area) Public Societies Registration Act, 1350F are hereby repealed. Sub-section (2) provides for savings of the act done or action taken in pursuance of the Societies Registration Act, 1860. Section 3 of the Act, 2001 provides as to how a society can be registered. Section 4 deals with Memorandum of Association of the society and Bye-laws to be filed with Registrar. Section 8 deals with amendment of Memorandum and Bye-laws. Section 14 deals with Committee of the society; Section 18 provides that society is to be a body corporate, which reads as follows:
"The registration of society shall render it a body corporate by the name under which it is registered having perpetual succession and a common seal. The society shall be entitled to acquire, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all other things necessary for the furtherance of the aim for which it was constituted."
Section 19 of the Act, 2001 reads as follows:
"Legal Proceedings:-
(1) The Committee or any officer of the society authorized in this behalf by its bye-laws, may bring or defend any action or other legal proceedings touching or concerning any property or any right or claim of the society and may sue and be sued in its name.
(2) Any action or legal proceeding shall not abate or be discontinued by the death; resignation or removal from office of any member of the society after the commencement of the proceeding."
From the above provision, it is clear that a committee or any officer of the society authorized in that behalf by the bye-laws may sue or be sued in its name. ''Authorization'' means to give right or authority to a particular person to act on behalf of the society to sue or be sued. ''To sue'' means initiating or defending any legal proceedings in accordance with the provisions of the CPC.
23. Original Suit No. 109 of 2001 on the file of the I Additional Senior Civil Judge, Vijayawada was filed by the third respondent society represented by one G. Prajapathi Rao, the then Secretary, against the second respondent herein. The said suit was dismissed. Aggrieved by the same, Appeal Suit No. 128 of 2007 was filed before the VII Additional District Judge, Vijayawada by the same person on behalf of the third respondent society. When the appeal was pending one V. Kameswara Rao was nominated to the post of Secretary of the society on 24.02.2009. Therefore, he was prosecuting the appeal. It is not in dispute that the appeal was dismissed for default on 10.07.2009. Therefore, the said V. Kameswara Rao filed I.A. Nos. 8 of 2011 and 9 of 2011 on behalf of the society seeking to condone delay in filing petition to set aside default order and to set aside the default order. When the said applications were pending, according to said V. Kameswara Rao, he resigned the post on 25.07.2011, and thereafter, as per the resolution passed by the society, one Alapati Rajendra Prasad was elected as Secretary of the society in the Executive Council meeting held on 26.07.2011 and the Commissioner of Collegiate Education, by proceedings dated 26.09.2011, approved the change of correspondent-ship of the college in his favour after ascertaining his resignation.
24. It is the case of petitioner that as his son and other family members died in a road accident and as he was not in a position to take active part in the activities of the society, he submitted resignation to the post of Secretary on 25.07.2011. The resignation was accepted by the Executive Council which met on 26.07.2011. On the same day, another resolution was passed by the Council accepting patron membership of one Alapati Rajendra Prasad, and thereafter, by resolution dated 26.07.2011, accepted membership of Alapati Rajendra Prasad and he was declared unanimously elected as Secretary. By a resolution dated 01.08.2011, authorization was given to the Secretary to operate all Bank accounts and perform financial transactions. On coming to know about the passing of the Lok Adalat Award, the petitioner lodged a complaint with police stating that he handed over the charge of Secretary of the third respondent society to Alapati Rajendra Prasad on 15.09.2011 and that on 27.09.2011, he handed over the charge of Correspondent-ship to the said Alapati Rajendra Prasad and later he came to know about the passing of the Award. Basing on the said complaint, Suryaraopet police, Vijayawada registered a case in crime No. 351 of 2011 for the offences under Sections 420, 468 and 471 of the Indian Penal Code, 1860.
25. Rules and Regulations of the third respondent Society provide for powers of the management as well as the powers of the Secretary. The Bye-laws of the society are not denied or disputed. Bye-law No. 5 provides powers of management inter alia to acquire, purchase, lease or sell any or all movable or immovable properties, to acquire by purchase or otherwise any rights or privileges including rights in immovable properties of society or the institutions managed by the society. As seen from this Bye-law, no specific power has been conferred on the management to enter into compromise with the parties, and so, the management itself has no power to enter into compromise with third parties. Rules and Regulations of the third respondent society are silent with regard to settlement or compromise in Lok Adalat or any other forum, in case of disputes with the parties. Hence, amendment to Rules and Regulations or Bye-laws is imperative to enable the Officer of the Society to enter into compromise or settlement with any person on behalf of the society. Under Section 8 of the Andhra Pradesh Societies Registration Act, 2001, a special resolution is necessary to alter the Rules and Regulations or Bye-laws of the society and such alteration has to be registered under the provisions of that Act. Admittedly, no Special Resolution or an Ordinary Resolution authorizing any person much less the writ petitioner to effect, settlement or compromise on behalf of the third respondent society is produced.
26. Coming to the powers of the Secretary, under Bye-law No. 8(1), the powers inter alia include executing the decisions of the Executive Council and General Body and he is liable to sue and be sued in the name of the society, etc. So, this Bye-law clearly mandates that the Secretary shall be liable to sue or be sued in the name of the society. However, he has no right or power to acquire or transfer movable or immovable properties. Similarly, no right of whatsoever is conferred on the Secretary to enter into compromise or settlement when a litigation is pending before competent court of law. Therefore, he is not competent person to enter into compromise the case with the defendant in the suit.
27. From the material on record, it is clear that the petitioner was not the Secretary of the third respondent society as on the date of settlement in the Lok Adalat i.e. on 29.09.2011. The reason for his giving resignation has been clearly stated by him and the resolution of the Society has been accepted by the Commissioner of Collegiate Education, Andhra Pradesh, Hyderabad. Except disputing about the documents and the resolutions passed by the society, nothing has been brought to our notice that the resolutions passed by the society and the proceedings issued by the Commissioner of Collegiate Education are brought into existence for the purpose of this case.
28. Section 24 of the Andhra Pradesh Education Act, 1982 deals with appointment and removal of manager of private institution. Sub-section (1) of Section 24 of the Act, 1982 provides that the management of every private institution shall be constituted in such manner and shall consist of such number of members as may be prescribed. It is not in dispute that the third respondent is running educational institutions. Sub-section (2) of Section 24 provides that the management shall, for the purposes of this Act, nominate a person to manage the affairs of the institution, whether called by the name of secretary, correspondent or by any other name, and intimate such nomination within 30 days thereof to the competent authority. As defined under Section 2(12) of the Act, 1982, ''competent authority'' means any person, officer or authority authorized by the Government by notification to perform the functions of the competent authority under this Act for such area or for such purposes as may be specified in the Notification.
29. Relevant portion of order of the Commissioner of Collegiate Education, Andhra Pradesh, Hyderabad in Re. No. 1101/Admn.I-1/2011, dated 26.09.2011, reads as follows:
"In the circumstances stated in the letters first and second read above and under Section 24(2) of the A.P. Education Act, 1982 and under Rule 7 of the A.P. Grant-in-aid code, the Commissioner of Collegiate Education, A.P., Hyderabad is pleased to approve the Change of Correspondent-ship of Satavahana College, Vijayawada, Krishna District in favour of Sri Alapati Rajendra Prasad."
A perusal of the above proceedings would go to show that by 26.09.2011, the competent authority approved the change of correspondent-ship of Satavahana College, Vijayawada in favour of Sri Alapati Rajendra Prasad. Though this document is seriously disputed, at the same time, it was issued by the competent authority in discharge of its official functions. Under Section 114(e) of the Indian Evidence Act, 1872, the Court may presume that judicial and official acts have been regularly performed, unless contrary is proved. When the party proved the fact that judicial or official act has been, in effect, done or performed, then the presumption would come to the aid of the party to the effect that the said act was performed in accordance with law. As seen from the counter affidavit filed by the respondents, there is no specific denial with regard to this document by raising a ground that it was fake or fabricated document. Therefore, the said document can be acted upon.
30. Even assuming for a moment that the petitioner was the secretary of the third respondent society at the relevant point of time of passing the impugned Award, still he cannot enter into compromise with third parties on behalf of the society, unless the Bye-laws specifically provide or empower the Secretary to enter into the settlement or compromise. Bye-laws are the Rules or administrative provisions which are adopted by an association or a corporation or society for its internal governance. Settlement is an act of deciding the dispute between the parties to the suit. An agreement is an arrangement or understanding between two or more persons, to avoid the law suit, amicably settle their differences on such terms as they can agree upon. In other words, it is an adjustment between the parties to a dispute ending in a settlement. There is no source of legal power in writing given to the Secretary of the third respondent society to do an act or to enter into settlement or compromise. Even assuming for a moment that the petitioner signed the Memo to advance the appeal and that he signed in the compromise, he is not competent or fit person to enter into compromise with the son of the second respondent on behalf of the third respondent society. There is no Special Resolution or Ordinary Resolution passed by the Executive Council or General Body of the third respondent society in favour of the petitioner to enter into compromise or settlement with the son of the plaintiff. Therefore, any act done by such person cannot be said to be legal or proper and would not bind on the society. The society of third respondent is governed by the Rules and Regulations and they have to be acted upon. Any deviation in this regard would not have any effect on the rights and liabilities of the society.
31. Coming to the second party to the compromise viz. B.S.S. Krishna, admittedly, he is not a party to the suit or appeal. For the first time, he filed an application in I.A. No. 543 of 2011 seeking permission of the Court to represent the second respondent in terms of the General Power of Attorney. He also filed application in I.A. No. 544 of 2011 to permit him to defend the suit. Admittedly, the interlocutory applications and the appeal were posted to 03.10.2011. But, the application to advance the appeal was filed by the General Power of Attorney holder on 28.09.2011. As on that date, he had no locus standi to file a petition to advance. However, the appeal was advanced to 29.09.2011. Copy of the General Power of Attorney said to have been executed by the respondent in the appeal is not filed into the Court and it is not a part of the record in A.S. No. 128 of 2007, Copy of the said General Power of Attorney is not filed by any one of the parties herein. In the absence of filing of the General Power of Attorney, it cannot be presumed that the respondent in the appeal has given authorization to his son to enter into compromise. Though it is stated that copy of the General Power of Attorney is filed into the Court, it is not available in the record.
32. Members of the Lok Adalat Bench have a solemn duty to know the identity of the persons present in the Lok Adalat and whether they are properly representing the appellant and the respondent in the appeal. That solemn duty has not been discharged by the members of the Lok Adalat. Admittedly, the petitioner who signed in the Lok Adalat Award is not properly authorized person. The other party who signed the Award is not proper or competent person to sign in the absence of production of the General Power of Attorney. Further, the petitioner has not signed the Award on behalf of the society or representing the society by due authorization. As seen from the Award, it is clear that he signed in his individual capacity.
33. The petition to permit him to represent the respondent in the appeal was filed on 28.09.2011. As seen from the copy of this petition, it is clear that it was returned on 28.09.2011 with some objections. Again, it was represented on 29.09.2011. When a document is returned with objections, necessarily it has to be taken from the office of the Court and has to be represented again after complying with the objections in the office. But, how this petition was taken up on 29.09.2011 when it was represented in the office, is not known. It would not have been placed before the Court. Even assuming for a moment that it was called for, by the Presiding Officer, the permission to represent as General Power of Attorney holder is given on 29.09.2011. But, the General Power of Attorney holder may be son of the respondent, but the Lok Adalat Members have to verify whether the General Power of Attorney contains any clause enabling the holder to enter into compromise. These aspects are silent in the Award passed by the Lok Adalat.
34. There was no urgent need to file a petition by the General Power of Attorney to advance the appeal. Further, none of the parties to the appeal signed in the joint memo dated 28.09.2011. I.A. No. 543 of 2011 filed by the General Power of Attorney holder, to advance the appeal ought not to have been allowed by the learned Judge on 28.09.2011 because his application to permit him to represent his father through the General Power of Attorney was pending as on that date. So, advancing the appeal in such a hurried manner, that too at the instance of a person, who is not authorized, speaks volumes. It was signed by the advocate appearing on behalf of the parties.
35. Further more, the Lok Adalat constituted in the District Level is not in accordance with Regulation No. 32(2) of the Regulations, 1996, which reads as follows:
"Composition of the Lok Adalat:-
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(2) At District Level:- The Secretary of the District Authority organizing the Lok Adalat shall constitute Benches of the Lok Adalats, each Bench comprising two or three of the following:-
(i) a sitting or retired Judicial Officer;
(ii) a senior member of the Local Bar; and
(iii) a (Local) social worker of repute who is engaged in the upliftment of the weaker sections of the people, including Scheduled Castes, Scheduled Tribes, Women, Children, Rural and Urban Labour and interested in the implementation of the Legal Services Schemes and Programmes."
Regulation No. 38(1) provides that every Award of the Lok Adalat shall be signed by the panel constituting the Lok Adalat, and under Regulation No. 38(2), the original Award shall form part of the judicial records and a copy of the Award shall be given to each of the parties duly certifying them to be true by the Secretary of the High Court Legal Services Committee or the District Legal Services Authority or the Chairman of Mandal Legal Services Committees, as the case may be, who are authorized to sign the true copies of the Award.
36. In the case on hand, original Lok Adalat records have been called for by this Court. The Lok Adalat consisted of Presiding Judge of the XII Additional District Court, Vijayawada and Smt. K. Jayaprabha and Smt. M. Sri Lakshmi, Advocate Members, Vijayawada. But, the Award is not signed by all the members of the Lok Adalat Bench. A perusal of the original record would go to show that the two members of the panel or Lok Adalat have not signed in the Award.
37. When a statute, rule or regulation provides that an authority is conferred with certain liabilities or duties cast on him, they should be performed in accordance with the provisions of the statute, rule or regulation. It means a decision according to the principles of law applicable. When a statutory duty is conferred on the Lok Adalat, it has to exercise that duty in accordance with law especially when the Award passed by the Lok Adalat shall be come final and no appeal shall lie to any Court against the Award. Therefore, requisite care should have been taken by the Lok Adalat while passing the Award. Any infraction of the Rules or Regulations or the provisions of the statute, debars a party in filing the appeal or recalling such Award except by filing Writ Petition invoking jurisdiction of this Court under Article 226 of the Constitution of India only in case of obtaining the Award by playing fraud or misrepresentation, and finally binding on the parties to the suit or appeal and becomes executable as if it is a decree of Civil Court. The impugned Award is not signed by the parties to the appeal and therefore it is not binding on any one of the parties to the appeal.
38. With regard to locus standi of the petitioner, he categorically stated that his signature was found in the Award and therefore the third respondent society is contemplating to take legal action against the petitioner as if the petitioner consented for settlement after submitting resignation for obvious reasons. So, to dispel the cloud of legal action against him, he can file the Writ Petition in his individual capacity so as to challenge the Award especially when the Award does not contain that the settlement was arrived at for and on behalf of the society. Therefore, the petitioner is an aggrieved party and he can challenge the Award.
39. For the foregoing reasons, the impugned Award is liable to be set aside as it is not an ''Award'' within the meaning of Section 21 of the Act, 1987 and the Regulations made thereunder. Accordingly, the Writ Petition No. 28057 of 2012 is allowed setting aside the impugned Award.
40. Writ Petition (SR) No. 138912 of 2014 is filed to set aside the self-sale award. In view of the order passed in the Writ Petition No. 28057 of 2012, no orders are required to be passed in the Writ Petition (SR) No. 138912 of 2014 and accordingly it is closed.
41. Miscellaneous petitions pending, if any, in the Writ Petitions shall stand closed.
