9911796707
TMI Blog2000 (5) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... building called Melody Cooperative Housing Society of which the flat in question is a part. The appellant had applied to MHADA for regularisation of allotment of the flat in his name. In December 1992 on a routine inspection of the premises the Estate Manager of MHADA reported that the property was in occupation of the appellant and his family members including respondent No. 3, though it stood in the name of N.H. Krishnan, and therefore, they were unauthorised occupants of the flat. On receipt of the report a proceeding was initiated under section 66(1) of the Maharashtra Housing and Development Act, 1966 (for short 'the Act'). In pursuance of the order dated 23.4.1997 MHADA evicted all the unauthorised occupants from the flat and sealed the same. In the said order leave was given to the present appellant to establish his claim in respect of the property in light of the deed of transfer dated 21.11.1989 and other documents executed by the allottee in his favour. Subsequently, after examining the relevant documents MHADA regularised the allotment of the flat in favour of the appellant by an order under the Act. On 19.9.1998 respondent no. 3 filed Writ Petition No. 5072/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... har, Mumbai - 400 052 including the issue of title, regularisation/possession and compensation, if any. The parties agree and undertake to this Court that the decision of the Conciliator will be final and binding on both the parties. Court Receiver, High Court, Bombay is hereby appointed as Receiver of aforesaid Flat No. 16/199, with a further direction to take formal possession of the said flat from Respondent No. 7, and appoint Respondent No. 7 as his agent, on monthly royalty of ₹ 1,000 to be deposited with the Conciliator, subject to the final award. The Receiver shall not insist tor security and shall not display his board at the suit flat. The learned Conciliator is requested to submit his report/award, and preferably within six months. In pursuance of the said order Justice H. Suresh (Retired) held meetings on 20.4.99, 5.7.99, 25.7.99, 8.8.99 and on 24.8.99 in presence of the counsel for the parties. In the minutes of the Meeting held on 8.8.99 it was recorded : After hearing both the parties, the Conciliator suggested that the matter could be settled on the petitioner paying an amount as may be fixed by the Conciliator, to the Respondent, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flat no. 18/224. The other stipulations of the settlement set out in the report are not very material for the purpose of the present case. It is relevant to state here that the so called 'proposal' by the Conciliator was not signed by the parties, nor were its terms disclosed to the parties by the Conciliator. As submitted by Sri Tulsi learned Sr. counsel appearing for the appellant the report was sent by the Conciliator in a sealed cover to the High Court directly. The appellant filed an objection against the report of the Conciliator setting out various grounds of challenge. A Division Bench of the High Court summarily rejected the objections raised against the Conciliator's report. Referring to the statement in the previous order dated 6.3.1999 that the parties agreed to undertake to the Court that the decision of the Conciliator would be final and binding on both the parties the Division Bench was of the opinion that when the Conciliator has been appointed for taking a decision, with the consent of the parties no amount of objections raised in the form of application can be entertained at all. (emphasis is mine). Division Bench observed in the order but in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute including any previous business practices between the parties. In sub-section (4) of section 67 it is laid down that the conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefor. Section 69 contains the provision regarding communication between conciliator and parties whether orally or in writing and about the place of meetings etc. in section 70 provision is made regarding disclosure of information. Therein it is provided, inter alia, that when the conciliator receives factual information concerning the dispute from a party, he shall disclose the substance of that information to the other party in order that the other party may have the opportunity to present any explanation which he considers appropriate. In the provision to the section it is stated that when a party gives any information to the conciliator subject to a specific condition that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciliation are no longer justified, on the date of the declaration; or (c) by a written declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated, on the date of the declaration; or (d) by a written declaration of a party to the other party and the conciliator, if appointed, to the effect that the conciliation proceedings are terminated, on the date of the declaration. Section 77 contains the provision that the parties shall not initiate, during the conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject-matter of the conciliation proceedings except that a party may initiate arbitral or judicial proceedings where, in his opinion, such proceedings are necessary for preserving his rights. At this stage it will be convenient to refer to section 30, which is a provision in Chapter VI dealing with making of arbitration award and termination of proceedings. Section 30 reads as follows: 30. Settlement: (1) It is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute and, with the agreement of the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meetings with the parties in which there was discussion and thereafter drew up the so called settlement agreement by himself in secrecy and sent the same to the court in a sealed cover. Naturally the so called settlement agreement drawn up by the conciliator does not bear the signatures of the parties. As the impugned order shows the said settlement has been given a status higher than an arbitral award in as much as the court has refused to even entertain any objection against the said settlement agreement reiterating the position that the settlement arrived at by the conciliator will be binding on the parties. The conciliator who is a former judge of the High Court and the learned Judge who passed the impugned order failed to take note of the provisions of the Act and the clear distinction between an arbitration proceeding and a conciliation proceeding. The learned judge in passing the impugned order failed to notice the apparent illegalities committed by the conciliator in drawing up the so called settlement agreement, keeping it secret from the parties and sending it to the Court without obtaining their signature on the same. The position is well settled that if the statute pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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