Reportable  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8181 OF 2010 [ARISING OUT OF SLP(C) NO.21509 OF 2010]

SHYAMALIKA DAS ….APPELLANT

VS.

GENERAL MANAGER, GRIDCO & ANR.      …..RESPONDENTS  

O R D E R

R. V. RAVEENDRAN J.,  

Leave granted. Heard.  

2. The  appellant  claims  to  be  the  owner  of  a  residential  plot  

measuring 10 cents.  The respondents (earlier GRIDCO, now Orissa Power  

Transmission  Corporation  Ltd.)  while  laying  and  erecting  Budhipadar  –  

Bolangir 220 KV Line, has erected Tower No.54D for drawing high tension  

transmission lines in the appellant’s property. The appellant objected to the  

erection on the ground that the entire homestead land would be rendered  

useless. According to the respondents, only one of the four legs of the tower  

is fixed in one extremity end of the plaintiff’s property and they are willing

to compensate the appellant in this behalf. Respondents deny that appellant’s  

land is a residential plot.  

3. The appellant filed a suit for a permanent injunction in the year 2002  

to restrain the respondents from interfering with her possession and the said  

suit was decreed on 25.2.2004 restraining the respondents from interfering  

with  appellant’s  possession of  the  suit  property.  The  appeal  filed  by  the  

respondents was dismissed on 23.12.2005. The second appeal filed by the  

respondents  was  allowed  by  the  High  Court  in  part,  by  the  impugned  

judgment dated 5.2.2010. The High Court permitted the respondents to draw  

the electricity transmission line over the appellant’s land as per its project  

scheme and declared that the appellant will be entitled to Rs.1,75,000/- as  

compensation, for raising the high tension tower over the appellant’s land.  

The High Court has further directed that respondents will not acquire any  

title  over  the  appellant’s  land except  to  maintain  the  tower  and the area  

below the tower. Aggrieved by the said decision, the applicant has filed this  

appeal by special leave inter alia contending that the High Court has acted  

beyond its jurisdiction under section 100 of the Code of Civil Procedure (for  

short ‘the Code’) by erroneously purporting to exercise power under sections  

89 and 151 of the Code.  

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4. The High Court rendered a rather peculiar judgment, which is neither  

on merits of the matter, nor based on any settlement reached by the parties.  

Nor did it  assign any reasons for interfering with the concurrent findings  

arrived at by the trial court and first appellate court. After referring to the  

facts and the provisions of section 89 of the Code, the High Court held :  

“In  the  facts  of  this  case,  where  the  court  is  required  to  weigh  the  individual interest of the plaintiff vis-à-vis the general public interest for  getting electricity supply, the learned court below should have come to the  finding that the balance of convenience weigh in favour of the appellant-  defendant in drawing the transmission line for supply of electricity from  Budhipadar to Bolangir and the loss to be sustained by the plaintiff can be  compensated in money value which is the cardinal  principle prescribed  under  section  38  of  the  Specific  Relief  Act  under  which  the  suit  for  permanent injunction was filed. ….

Keeping the above aspects of the case in view, it would have been apt for  the  court  to  find  ways and  means  to  see  that  public  inconvenience  is  avoided while protecting the interest of the plaintiff. For the above, aid  may be drawn from section 89 of the Code of Civil Procedure.  

It would be apt to state here that it is by now well settled that no legislative  enactment  dealing  with  procedure  can  provide  for  all  cases  that  may  possibly  arise.  The  courts,  therefore,  have  inherent  powers  apart  from  express provisions of law, which are necessary for proper discharge of  functions and duties imposed upon them by law. ….

Thus, applying the inherent power under section 151 CPC along with the  provisions of section 89 CPC in consideration of the nature of dispute  involved in this appeal, without referring the matter for a settlement out of  court, this Court takes up the matter to find out a via media for deciding  the  case  finally  and  orders  that  on  the  appellant  paying  a  sum  of  Rs.1,75,000/- as compensation for raising High Tension Tower over the  land of the respondent, to the respondent, they shall be permitted to draw  the transmission line of 220 KV over the land of the respondent as per the  scheme. …”

5. The learned Single Judge misconstrued the scope of section 89 of the  

Code and the nature of the powers of a court under     sections 89 and 151 of  

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the Code. Section 89 merely enables the court to refer the subject matter of  

the suit to either of the following alternative dispute resolution processes :  

(a) arbitration; (b) conciliation; (c) judicial settlement; (d) lok adalat; and (e)  

mediation. Arbitration is an adjudicatory process. The four other processes  

are  non-adjudicatory  dispute  resolution  processes.  In  a  non-adjudicatory  

process (conciliation or mediation or lok adalat or judicial settlement), there  

is no ‘decision’ but there can only be a settlement by mutual consent of the  

parties.   Where  there  are  no negotiations  for  a  settlement and where the  

parties do not arrive at a settlement, there cannot obviously be an order by  

the court rendering a decision in exercise of power under section 89 of the  

Code.  [See  :  generally  Afcons  Infrastructure  Ltd  vs.  Cherian  Varkey  

Construction Company Pvt Ltd – 2010 (7) SCALE 293).  

6. We may usefully  refer  to  the  following observations  made by this  

Court in  State of Punjab vs. Jalour Singh – (2008) 2 SCC 660 made with  

reference to lok adalat which will equally apply to the other forms of non-

adjudicatory dispute resolution process :  

“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  

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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.”  

7. In this case, the decision of the High Court is neither in the exercise of  

its judicial  power to decide the lis before it,  nor as a consequence of the  

learned  Single  Judge  acting  as  a  facilitator  (that  is  as  a  Conciliator  or  

Mediator or Lok Adalat) enabling the parties to arrive at a settlement. Nor  

was  any  ‘judicial  settlement’  attempted  or  arrived  at.  There  were  no  

negotiations  between  the  parties  and  no  settlement  between  the  parties.  

What  the  court  has  assumed  is  a  jurisdiction,  which  is  an  extraordinary  

amalgamation of imagined judicial and conciliatory power, unknown to the  

system of law which is followed in Indian Courts. The High Court has heard  

the parties and rendered a judgment where the decision is not based either on  

any judicial reasoning or any settlement between the parties but based on  

what the learned Judge considered as a just and expeditious solution to the  

dispute  under  section  89  read  with  section  151  of  the  Code.   Neither  

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section 89 or section 151 of the Code authorizes or enables the court to pass  

such an order.  

8. As noticed above, the suit was for a permanent injunction. In such a  

suit, the court cannot issue a direction permitting the respondents to erect the  

tower and direct respondents to pay compensation of Rs.1,75,000/-, without  

such questions being in issue and without any material being placed before it  

by either parties. The enthusiasm of the learned Single Judge to render quick  

justice has persuaded him to overlook the provisions of law and assume non-

existing powers under sections 89 and 151 of the Code.  

9. In view of the above, we allow this appeal, set aside the order of the  

High Court and remand the matter back to the High Court for disposal of the  

Second Appeal in accordance with law, with reference to section 100 of the  

Code. On the facts and circumstances, we request the High Court to dispose  

of the matter expeditiously.  

……………….…………..J (R. V. RAVEENDRAN)

……………….…………..J (H.L. GOKHALE)

New Delhi;  September 20, 2010.  

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