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1997 DIGILAW 234 (GAU)

Ongerluen; Nokchasashi; Nokchasashi v. Tongpangchiba

1997-11-12

W.A.SHISHAK

body1997
These 2 (two) revision petitions are directed against a common judgment and order passed by the learned ADC (J) Mokokchung in Civil Appeal No.3 of 1996. Similar grounds have been taken in both the petitions. Hence by a common judgment I propose to dispose of these 2 (two) petitions. 2.1 have heard Mr. CT Jamir, learned counsel for the petitioner as well as Mr. BN Sarma, learned counsel for the respondents at length. Learned counsel of both sides have taken me through relevant documents filed in the above petitions including the impugned orders passed by the learned ADC (J) Mokokchung. Further relevant Rules for the Administration of Justice and Police which are in vogue in the State of Nagaland have also been perused with the help of both the learned counsel appearing for the parties. 3. After giving thought to the various grounds that have been raised in the above petitions. I am of the view that I need not decide the merit of the case. Mr. CT Jamir submits that in the nature of the present case the provision of Order 21 Rule 37 CPC will not come into play inasmuch as the matter does not relate money suit. It has also been contended that the impugned orders having been passed without hearing necessary parties, the impugned orders should be rendered nullity. It has also been further urged on behalf of the petitioners that the Village Council of Khar village ought to have been impleaded when the aforesaid appeal was heard by the learned ADC (J) Mokokchung. Another point that has been urged before me on behalf of the petitioner is that whereas the learned ADC (J) saw it fit to examine witnesses while disposing of the above appeal, since the petitioner was not present at the time of hearing, he had no opportunity of cross-examining the witnesses who were examined in the present case. As such it is submitted that in the facts and circumstances of the present case, there is failure of justice. I would not like to discuss the objections reaised on behalf of the petitioner as I have stated above inasmuch as in my view in the present case I am called upon to decide a question as to whether the learned ADC (J) has the jurisdiction to entertain the aforesaid appeal. I would not like to discuss the objections reaised on behalf of the petitioner as I have stated above inasmuch as in my view in the present case I am called upon to decide a question as to whether the learned ADC (J) has the jurisdiction to entertain the aforesaid appeal. I say so because the main ground taken in the present petition is that under the relevant rules for the administration of justice, there is no provision for the learned ADC (J) to decide the present matter in an appeal. 4. Some provisions of the Rules for Administration of Justice and Police, 1971 have been amended. By section 20 of the Act of 1984 Rule 34 of the principal rules has been substituted and numbered as Rule 29. Section 18 of the Amendment Act states : "Rule 31 of the principal rule shall be deleted." In view of the section 18 as stated above, the petitioner submits that the • learned ADC (J) Mokokchung is not competent to hear appeal from any decision made by a Village Council inasmuch as there is no provision under the Rules authorising the learned ADC (J) to exercise appellate jurisdiction. In order to examine this submission Rule 31 of the principal rules is extracted : "31. An appeal shall lie from the decision of the mauzadar, gaonbura, chief, headman of a khel or other duly recognised village authorities (to the tribal Court whenever constituted or otherwise) to the Deputy Commissioner or his Assistant. A record shall be made of the matter in dispute and the decision of the village authorities. If necessary, the Court shall examine the parties, and, if the decision appears to be just, shall affirm and enforce it as one of its own. If the Court sees reason to doubt the justice of the decision, it will try the case denovo, or refer it to a Panchayat as above." 5. As regards the submission made by Mr. Jamir regarding Rule 31 of the principal rules, Mr. BN Sarma has referred me to three subsequent notifications issued by the State Govt. as regards the above Third Amendment. Notification dated 14th March. 1989 states : "No.LAW-166/83 : In exercise of the power conferred by sub-section (3) of section 1 of the Rules for Administration of Justice and Police in Nagaland (Third Amendment) Act, 1984 the State Govt. BN Sarma has referred me to three subsequent notifications issued by the State Govt. as regards the above Third Amendment. Notification dated 14th March. 1989 states : "No.LAW-166/83 : In exercise of the power conferred by sub-section (3) of section 1 of the Rules for Administration of Justice and Police in Nagaland (Third Amendment) Act, 1984 the State Govt. do hereby notify that rules as amended excepting the rules contained in Chapter IVA of the said amendment Act shall come into force with immediate effect. Sd/- Z. Obed, Chief Secretary" In the light of above it is submitted by Mr. Sarma that the operation of the Third Amendment did not affect Chapter IVA of the said amendment. The said Chapter IV A concerns constitution of Customary Courts. The second notification is dated 15th March. 1990 and it is to the following effect: "In the notification No. 166/83 dated Kohima, the 14th March, 1989, the following words, 'section 8 and 14' shall be deemed to have inserted after the words 'Chapter IV. Sd/- KN Tankha Secretary to the Govt. of Nagaland." Mr. Sarma submits that in view of the second notification as stated above, sections 8 and 14 remained outside the operation of the Third Amendment. The third notification was by way of corrigendum issued in February. 1991. it is to the following effect: "In the notification and corrigendum of even number dated 14.3.89 and 15.3.90 respectively the words 'section 9 and 18' shall be deemed to have inserted after the words 'Chapter IVA and 8 and 14.' Sd/- KN Tankha Secretary to the Govt. of Nagaland." By corrigendum as it is seen above, section 9 and 18 were also left out from the operation of the Third Amendment Act of 1984. In view of this Mr. Sarma submits that Rule 31 of the principal rules has been saved. If that is so, the jurisdiction of learned ADC (J). Mokokchung is unassailable in the matter of entertaining appeal from a decision rendered by a Village Council, as is clearly envisaged in the provision of Rule 31. At the end of the hearing of this case. Mr. CT Jamir also fairly concedes to the submissions made by Mr. Sarma that in view of the above notifications, the position of Rule 31 of the principal rules has not been affected and it remains in tact. 6. At the end of the hearing of this case. Mr. CT Jamir also fairly concedes to the submissions made by Mr. Sarma that in view of the above notifications, the position of Rule 31 of the principal rules has not been affected and it remains in tact. 6. After hearing learned counsel of both sides and in the light of the provisions of the rules that I have discussed above, it must be held that learned ADC (J) Mokokchung has the jurisdiction to entertain appeal from the decision of a village authority. 7. It is found that contempt notice has also been issued to the petitioner. It appears, in the facts and circumstances of the present case no such notice could have been issued by the learned ADC (J). Mokokchung. 8. As stated above the learned ADC (J) Mokokchung while disposing of the appeal also examined some witnesses. This would go to show that in order to examine the dispute the learned ADC (J) was of the view that the matter should be looked into further. The dispute between the parties relates to sharing of customary meat. In other words the dispute relates to the claim of entitlement of the share of customary meat in the Village Council. Since the issue relates to custom. 1 am of the view that the matter should be examined carefully and properly. In order to do so. in m)' view clear issues will have to be framed as regards the actual dispute and the circumstances leading to the dispute. Further in order to frame clear issues of dispute, pleadings will have to be filed by the rival parties to the dispute. On the basis of pleadings specific issues will have to be framed in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the dispute. In order to meet such eventuality a denovo trial is clearly envisaged under Rule 31. 9. In the result, in the light of the facts that 1 have stated in the foregoing paras, the impugned orders dated 28.10.96. 11.3.97 and 17.6.97 passed by the learned ADC (J). Mokokchung in Civil Appeal 3 of 1996 are set aside. This matter stands remanded to the learned ADC (J). Mokokchung who shall exercise power of denovo trial for the ends of justice. 11.3.97 and 17.6.97 passed by the learned ADC (J). Mokokchung in Civil Appeal 3 of 1996 are set aside. This matter stands remanded to the learned ADC (J). Mokokchung who shall exercise power of denovo trial for the ends of justice. The person/persons who claim the share of customary: meat shall file his claim/plaint before the learned ADC (J), Mokokchung within a period of one month from today. Thereafter the respondents shall file written statement within a period of two weeks. Thereafter the learned ADC (J) shall frame necessary issues for determination of the dispute between the parties. The parties shall then be called upon to adduce evidence in support of their respective contentions with reference to specific issues framed in the case. As the matter has been sufficiently delayed, the learned ADC (J). Mokokchung shall make every endeavour to finally dispose of this matter within a period of 6 (six) months from today. Consequently, decision of village authority is also set aside. No Costs