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1971 DIGILAW 26 (GAU)

RANGALANG G. S. v. DEBARDAO LANGTHASA

1971-04-27

M.C.PATHAK, P.K.GOSWAMI

body1971
JUDGMENT Goswami, C.J. :- On 1-2-1971 Debardao Langthasa G.B. representing the villagers of Yah village made a complaint against Rangalang and 11 others as well as some others whose names were not known to him residing in Chotonienglo village, alleging that there was apprehension of breach of peace on account of the latter's trespassing into their village disregarding the recognised boundaries between the two villages. Paragraph 2 of this petition discloses the following fact; "That there is distinct boundary between your petitioner's village and that of the accused persons as fixed in the year 1948 by the order of the S.D.O. N.C. Hills and since then agreed upon peacefully between both (sic) the villages." On receipt of this application, the District Magistrate, North Cachar Hills, directed the police to enquire into the matter under Section 145 Criminal Procedure Code for the purpose of drawing up proceedings under that section. On receipt of the police report on 2-3-71, the District Magistrate drew up a preliminary order under Section 145 Criminal Procedure Code and asked the parties to submit written statements and documents with regard to their possession of the disputed land. The Second party submitted written statement through Rangalang G.B. and Langdibuing on 24-3-71. In paragraph 1 of their statement the following facts are disclosed :- "That, your humble aggrieved complainants are bona fide cultivators of Choto-Nianglao and made jhums situated within the lawful boundary of Ch. Nianaloa allotted by the then S.D.O. of North Cachar Hills during the time of British regime and it was recognised by N.C. Hills, District Council. Haflong vide Memo No. Rev/B/2/71/2 dated 21-7-70." They also submitted a sketch map where a boundary line is described between the two villages. The learned Magistrate examined two witnesses from each village and recorded their statements on 23rd and 24th April, 1971 by visiting the area in dispute. After recording the statements he also made another "spot enquiry" on the 25th of April, 1971 in order to appreciate the evidence which was recorded by him on the previous two days. After carefully examining the evidence, the learned District Magistrate came to the conclusion that he must give effect to the boundary of 1948 which tallied with the evidence given by the First party before him and which also substantially corresponded with what he actually found on the spot. After carefully examining the evidence, the learned District Magistrate came to the conclusion that he must give effect to the boundary of 1948 which tallied with the evidence given by the First party before him and which also substantially corresponded with what he actually found on the spot. In that view of the matter, he declared the disputed area which is abutting the boundary between the two village to be in possession of the Yah Villagers by his order dated 27-4-1971. This order is impugned before us in Criminal Revision 95 of 1971 as also in Criminal Revision No. 64 of 1972. 2. Mr. B. K. Das, the learned counsel for the petitioners, argued the case in both the matters. A preliminary objection was taken by Mr. J. P. Bhattacharjee the learned counsel for the opposite parties, with regard to the maintainability of the first application which was one under Rule 15 of the Administration of Justice Rules North Cachar Hills District and later on allowed to be also under Section 439/561-A of the Code of Criminal Procedure and clause 4 of the Assam High Court Order, 1948. One of the 2nd party. Rangalang Jame who is common in both the cases, filed later on an application under Article 227 of the Constitution of India and under Section 439/561-A of the Code of Criminal Procedure and clause 4 of the Assam High Court Order, 1948 which was registered as Criminal Revision No. 64 of 1972. As a mater of fact, this preliminary point was earlier taken before the learned Single Judge who heard the case. It appears that reference was made at the Bar to several decision of this Court, mostly of Single Bench and one of Division Bench wherein it was pointed out that there was some conflict of views. It was because of this reason that the learned Single Judge thought it fit to place the matter before the Chief Justice for necessary orders and that is how it has come before this Division Bench. 3. After hearing the learned Counsel for both sides, it is now common ground that there is no conflict of views in the decisions referred to in the referring order. 3. After hearing the learned Counsel for both sides, it is now common ground that there is no conflict of views in the decisions referred to in the referring order. As a matter of fact, there is no authoritative decision of this Court with regard to the maintainability of an application under Section 439 Criminal Procedure Code out of a proceeding under Section 145 Criminal Procedure Code arising in the Hill areas where the Administration of Justice Rules 1937 and other laws obtain. Since it is possible that this point may crop up again and again before this Court we gave an opportunity to the learned Counsel appearing on both sides to address us so that we may give a decision on the point. 4. It is common ground that Criminal Procedure Code does not in terms apply to the area with which we are concerned, namely North Cachar Hills. The Rules for the Administration of justice in the North Cachar Hills Sub-Division, 1937 have been, however, kept alive for Administration of Criminal Justice inter alia. When the District Council was formed under the provisions of the Sixth Schedule to the Constitution of India, the North Cachar hills Autonomous District (Administration of Justice) Rules, 1955 were promulgated in exercise of the powers conferred under sub-paragraph (4) of paragraph 4 of the Sixth Schedule to the Constitution. It is now common ground that there are District Council Courts as well as existing Court. Under Rule 23 of these later Rules the Subordinate District Council Court is not competent to try certain suits and case specified therein unless specifically empowered by the Governor by notification in the Gazette. It is also common ground that there is non-notification of the Governor under Rule 23(2). That being the position. Rule 24 immediately comes into play. By that Rule, suits and cases referred to in Rule 23 shall continue to be tried and dealt with by the existing Courts until such time as the Governor deems fit to invest the Subordinate District Council with such powers by notification in the Gazette. Under Sub-Rule (2) thereof the existing Court mean the Courts of the Deputy Commissioner and his Assistants. Under Rule 23(2)(f) disputes as to immovable property of the nature similar to that contemplated under Section 145, of the same Code are mentioned. Under Sub-Rule (2) thereof the existing Court mean the Courts of the Deputy Commissioner and his Assistants. Under Rule 23(2)(f) disputes as to immovable property of the nature similar to that contemplated under Section 145, of the same Code are mentioned. In view of these provisions, it is now common ground that the Deputy Commissioner, who is also the District Magistrate is competent to entertain disputes of the nature similar to that contemplated under Section 145 Criminal Procedure Code although the Code is not in force in the area. Mr. Das, therefore does not challenge the competence of the District Magistrate to initiate proceedings under Section 145 Criminal Procedure Code in view of the above position in law. 5. Next point will arise whether when a person is aggrieved by a decision made in a proceeding of that nature, he has a right to approach this Court under Section 439 of the Code of Criminal Procedure against the orders of the District Magistrate. Mr. Bhattacharjee submits that it is not open to this Court to entertain an application in revision under Section 439 Criminal Procedure Code whereas Mr. Das, submits to the contrary. It is common ground that the Rules for the Administration of Justice, 1937 are in force in the area and the District Magistrate deals with Criminal Justice in accordance with those provisions. By rule 15 of those Rules, the High Court or Deputy Commissioner may call for the proceedings of any officer subordinate to him and reduce enhance or cancel any sentence passed, or remand the case for retrial; but no offence shall be punishable by a sentence exceeding that awardable under the Indian Penal Code Rule 15 gives power to the High Court or the Deputy Commissioner the revisional powers to interfere with sentences in trials. But a Division Bench of this Court in ILR (1952) 4 ASSAM 28 = (1952 Cri.L.J. 97) (Pradip Chandra Barua v. The Dy. Commr. of Naga Hills) took the view that power under Rule 15 is not a narrow power of this Court. But a Division Bench of this Court in ILR (1952) 4 ASSAM 28 = (1952 Cri.L.J. 97) (Pradip Chandra Barua v. The Dy. Commr. of Naga Hills) took the view that power under Rule 15 is not a narrow power of this Court. Although this Court in that decision did not expressly hold that Rule 15 enables the High Court to entertain applications in revision against any orders passed in proceedings under Section 145 Criminal Procedure Code, yet in that decision the High Court held that under Clause 4 of the Assam High Court order it is competent to quash a complaint which discloses no offence. In that case, the Court observed that by virtue of power vested under Clause 4 of the Assam High Court Order it was in a position to quash the complaint. After having perused the entire decision we are not in a position to say that this particular observation regarding Clause 4 was necessary to be arrived at in Pradip Chandra Barua's case (supra). The obsertion may therefore, be said to be an obiter. Consequently, if we hold that Rule 15 is not attracted to a case other than one for trial for an offence under the Code, there will be no conflict of views in that decision. AS a matter of fact, one of us had to deal with this point in the case reported in Assam LR (1971) Assam 115 = (1971 Cri.L.J. 1482) (Rongseng Sangma v. The State of Assam) from Garo Hills. It was held in that decision that Rule 22 of the Rules for the Administration of Justice and Police in the Garo Hills District, which is similar to Rule 15 of the North Cachar Hills Rules is not attracted when the order is not one of sentence passed in a criminal case. It was held in that decision that Rule 22 of the Rules for the Administration of Justice and Police in the Garo Hills District, which is similar to Rule 15 of the North Cachar Hills Rules is not attracted when the order is not one of sentence passed in a criminal case. My learned brother, who delivered the judgment in that case observed as follows :- "As it is not an order of sentence, the provisions of Rule 22(2) are not attracted and as such the learned Deputy Commissioner purporting to exercise his jurisdiction under Rule 22(2) in setting aside the order of discharge and remanding the case is without jurisdiction." After considering the matter once again, we are clearly of opinion that Rule 15 as also Rule 22 mentioned above do not enable the High Court to call for the proceedings under those Rules in a case of the nature of a proceeding under Section 145, Criminal Procedure Code. That being the position. Section 439 of the Code of Criminal Procedure is out of the way and we hold accordingly. 6. That, however, does not conclude the matter. There is still an application under Article 227 of the Constitution where the High Court has got the power of superintendence to intervene in a case where gross illegalities and manifest injustice take place. Mr. Das was therefore, given an opportunity to address us on the merits of the case and he took us through the entire records of the Misc. Case No. 2 of 1971, in the Court below. The sheet-anchor of the argument of Mr. Das is that there is absolute vagueness about the property in dispute. He is conscious that Section 145 Criminal Procedure Code can be initiated with regard to boundary disputes of immovable property. He however, submits that there is no definite material to come to a conclusion that any particular specified plot of land is in the view of the Court with regard to which it made an order adverse to his clients. After, however, perusing the entire records, the evidence recorded in the case the statements of the parties and the impugned order, we are clearly of opinion that there is no such vagueness with regard to the boundary which can be said to exist as to introduce a legal infirmity in the order passed by the District Magistrate. After, however, perusing the entire records, the evidence recorded in the case the statements of the parties and the impugned order, we are clearly of opinion that there is no such vagueness with regard to the boundary which can be said to exist as to introduce a legal infirmity in the order passed by the District Magistrate. The parties were well aware of the dispute with regard to the boundaries between the two villages. The boundaries were fixed in the year 1948 in presence of both sides. That boundary has been respected. The second party even admit in their petition to that effect. There might have been a recent order which may have confused the second party and also encouraged them to trespass or to get back certain land. There is, however, clear admission that the Yah villagers were in possession of the land in dispute. That being the position, we cannot hold that the order of the District Magistrate suffers from any legal infirmity or even has caused injustice to the petitioners. If the petitioners have any rightful claim to the land with regard to their title, it is open to them to take recourse to appropriate measures provided for under the law. The object of the proceedings initiated in the Court below was to preserve the peace and that has been achieved by putting the Yah villagers in possession of the land subject always to a decision of the Civil Court if the second party chooses to take the matter there. 7. In the result, the applications fail and are accordingly dismissed, the first one, namely Criminal Revision No. 95 of 1971 as being incompetent and the second one, namely Criminal Revision No. 64 of 1972, on the merits. The stay order of this Court stands vacated and the sale proceeds of the crops will be paid to the first party in the Court below. M. C. PATHAK, J. :- 8. I agree. Petitions dismissed.