Report No. 114
6.6. Seat of hearing.-
The time-honoured tradition is that a Court holds its sitting at a pre-determined place. Anyone in search of justice has to appear at the seat of Court and move it in the manner prescribed by the law governing the procedure. This runs counter to the concept of justice on the door step of the seekers. In this traditional approach, generally the Judge does not visit either the site of dispute or the place where the dispute has arisen which he has to resolve. Whenever the court desires to acquaint itself with the local situation, the common practice is to appoint a Commissioner either a Court Officer or a practising lawyer or occasionally a technically qualified person-who visits the site after notice to the parties and then draws up a sketch with explanatory notes attached to it.
But this time-honoured approach has always resulted in perpetuation of the disputes distracting the attempt of resolving the main dispute between the parties. As soon as the Commissioner files his report, both the parties are invited to file their objections and one or the other party is bound to object both to the report, the sketch and the explanatory notes. The objections are set down for regular hearing and end in an order of the Court.
Thereafter, the cases are not unknown when the party challenging the court's order approaches the High Court by way of revision petition under section 115 of the Code of Civil Procedure. On rare occasions, the jurisdiction of Supreme Court is also involved in this behalf. A number of civil disputes gets side railed by the controversy as to in what manner the court should have access to the first-hand and direct knowledge of the site of the dispute. If the Judge visits the site of the dispute, and this comes to the notice of the superior courts, the judge would be accused of bias and it is believed that instead of remaining an impartial and unbiased judge, he has become partisan in his attitude.
It cannot be gainsaid that in a number of simple trivial disputes, a visit to the site offers a solution. In a number of cases emanating from rural areas and reaching the courts, the dispute centres round a road or passage to the house or field and to be used by men, cart and cattle. These disputes are embroiled in technical rules, and complex legal formulations involving foreign decisions which have modulated the law. Ascertainment of easement by prescription, easement of necessity, presumed lost grant and all these technical rules thwart the resolution of such a simple dispute. If the presiding judge instead of getting embroiled in this exercise visits the site in presence of the parties, the solution would appear on the spot. Same is true of disputes as to water channels, traditional as well as State prescribed.
It is equally true of the disputes as to disturbance of passage of air and light. Now if the orchestrated atmosphere of the court is substituted by the assembling of the court at the site in the presence of local people, there is greater chance of the truth emerging because one shudders at the idea of uttering untruth in the presence of or in the vicinity of ones own kith and kin and village community of which he is a member. Accordingly, in the Working Paper, a suggestion was put forward for consideration whether the Gram Nyayalaya should hold sitting whenever convenient and conducive to the resolution of dispute, by keeping in view the nature of the dispute, at the site of the dispute or in the vicinity of the subject-matter of the dispute.
One feature of the debate in various centres really struck our face. In every centre when a departure from the present state court system was voiced, three discernible views surfaced in the debate. The first, and what can be described without any disparaging tone, is what should be styled as conservative, traditional or status-quoist. In the present context, the suggestion was that the court has already been devalued and if it goes on moving from place to place or village to village like a mobile dispensary, its dignity and credibility would be further eroded. The second view which can be appropriately styled as the centrist view was that while the court ordinarily should continue to sit at its predetermined seat, where the situation, the site and the environment of the subject-matter of the dispute warrants that it would be conducive to the disposal of the dispute, the court should not hesitate to visit the place after notice to and in the presence of the parties.
The third view which can be labelled as left of the centre, was that it is time to translate the constitutional mandate of taking justice to the door steps of the people. Expanding the last mentioned view, it was said that for benefit of the consumers of justice, the mechanism for rendering justice on the analogy of making commodity available at the doorstep, should be made available also. As purchasers of commodity have not to roam in search of commodity, so also the consumers of justice must be spared the same. Its service must be available at the door steps. Approaching the matter from the constitutional angle, it was pointed out that Article 39A mandates that the State must "ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities." It is, therefore, said that if the justice is taken to the door steps of the people, it would result to some extent in the fulfilment of the objects underlying Article 39A.
Now when a new forum is to be established, it must have an office. It should be called "Gram Nyayalaya Karyalaya". It must be set up at the headquarters of Taluka/Tehsil. Ordinary requirements of staff, office, books, stationery etc. must be provided at the office. The Presiding Judge must be available at this office. The office will provide the nucleus for the activities of the Gram Nyayalaya. It must be a self-sustaining unit, not dependent for any of its requirements on the allied offices at taluka/tehsil level. Adequate funds must be provided for its effective functioning.
Any one having a dispute under any of the heads prescribed under the jurisdiction of Gram Nyayalaya has to approach in the first instance, the office of the Gram Nyayalaya at taluka/tehsil headquarters. On receipt of the complaint to be noted in the manner to be prescribed, the Presiding Judge, after perusal of the complaint or the statement of dispute should apply his mind to the question whether the Nyayalaya should assemble at the situs of the dispute. Thereafter, he can issue notice to be served by his own staff without the slightest default, requesting both the parties and their witnesses to appear at the time and on the date fixed by the Presiding Judge of Gram Nyayalaya at the situs. Most disputes coming before the Gram Nyayalaya can be more satisfactorily disposed of at or near the subject-matter of dispute or in the village where the dispute has arisen.
It is not envisaged that every village most provide some office for the holding of its sitting by Gram Nyayalaya. A Government building including the Panchayat house, can be requisitioned for this purpose without any obligation to make any payment for its use. Even in the matter of Family disputes, if the sitting is held in the village either of the husband or the wife, or the father or the son and if both the parties are in the same village, in that particular village, experience shows that the resolution of the dispute would be easy, expeditious and more satisfactory. In cases where the presence at the subject-matter of the dispute is not considered relevant, Gram Nyayalaya must hold its sitting at the office of its headquarters.