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2002 DIGILAW 290 (GAU)

Ghokishe Chophi v. Yeluhe Chophi

2002-07-04

B.LAMARE

body2002
B. LAMARE, J.— Heard Mr. N.K. Luikham, learned counsel for the petitioner and Mr. A. Zhimomi, learned counsel for the respondent. 2. Briefly stated the case is that, the petitioner and the respondent belongs to the Naga tribe and govern by the customary laws and usages of Sema Naga, especially regarding the immoveable landed property. The petitioner and the respondent are also closely related and descending from the same great great Grand father and great great Grand mother. 3. In 1978, the respondent had sold a portion of land to one Shri Yehekhe without the knowledge of the petitioner. He has sold the land as he wants to buy Rice Mill Machine. When the petitioner approached the respondent and raised objection the respondent promised to give another land in-lieu of the petitioner's land. The said promise was not carried out by the respondent, and having no alternative, the petitioner brought the matter to the notice of the Village council, and the Village Court, by order dated 15.9.99 pronounced that the land sold by Yeluhe (respondent) belongs to great grand father of the petitioner which is not a common or joint property of the clan. Against the said order of the village Court/Council, the respondent herein preferred an appeal before the D.Bs Court and the D.Bs. Court by Settlement order No. Jud.6/98/99, case No. 6 dated 24.11.99 decided that, since the parties belongs to the same great grand father they should live as one family in between themselves as per the wishes of all the parties and settlement directed to live, own and enjoy jointly as before. 4. Against the said settlement order of the D.Bs Court, an appeal was preferred before the P.A. to Deputy Commissioner, Zunheboto by the petitioner herein. The Political Assistant to Deputy Commissioner by his order dated 29.2.2000 in case No. Jud-1/2000 had decided that the matter shall be settled in presence of both the parties. Being aggrieved by the said order dated 29.2.2000 passed by the Political Assistant to Deputy Commissioner, Zunheboto, the respondent herein preferred an appeal before the Addl. Deputy Commissioner which was registered as No.L/D Appeal-1/2000. By order dated 21st July, 2000, the Addl. Deputy Commissioner set aside the Settlement order passed by the Political Assistant to Deputy Commissioner in Case No. Jud-1/2000 and upheld the order dated 24.11.99 passed by the D.Bs Court. Against the said order of the Addl. Deputy Commissioner which was registered as No.L/D Appeal-1/2000. By order dated 21st July, 2000, the Addl. Deputy Commissioner set aside the Settlement order passed by the Political Assistant to Deputy Commissioner in Case No. Jud-1/2000 and upheld the order dated 24.11.99 passed by the D.Bs Court. Against the said order of the Addl. Deputy Commissioner, Zunheboto, the present petitioner has preferred this Revision petition. 5. From the order passed on 15.9.99 by the so called Village Court/Council, it is noticed that the order was passed by a joint Council Old/New of Naghutomi village purported to be under Section 14(1) of the Nagaland Village and Area Council Act, 1978 in accordance with the - customery practices and usages in the Village. This Village Council also functions as Village Court as per Rule 14 of the said Act. Rule 14(2) of the Act provides that, in case of any dispute between the villages, two or more Village Council may settle the dispute in a joint session or refer it to the appropriate authority. In the instant case, the dispute is between individual parties and not between villages as provided under Rule 14(2). Therefore, apparently, the order dated 15.9.99 passed by a joint Village Council in respect of dispute between the individual parties and not between the villages is without jurisdiction. 6. Rule 31 of the Rules for Administration of justice and Police in Naga Hills district provides that, Appeal shall lie from the decision of the G.Bs Chief and Headman of Khel or any other duly recognised by Village authorities to the Deputy Commissioner or his Assistants. There is no provision for preferring an appeal to the D.Bs Court against the decision of the Village Council/ Village Court. The appeal lies with the Deputy Commissioner or his Assistants. There is also no provision under the Rules that appeal against the D.Bs Court shall lie with the Political Assistant to Deputy Commissioner of the district. The Political Assistant, in fact, is not the Court and has no authority to exercise a judicial power in the State. Therefore, the order passed by the D.Bs Court as well as Political Assistant to Deputy Commissioner are without jurisdiction and not tenable in law. 7. The Political Assistant, in fact, is not the Court and has no authority to exercise a judicial power in the State. Therefore, the order passed by the D.Bs Court as well as Political Assistant to Deputy Commissioner are without jurisdiction and not tenable in law. 7. In view of the above position, since all the orders passed by the Joint village Council, D.Bs Court as well as Political Assistant to Deputy Commissioner, are without jurisdiction, the proceedings as a whole from beginning at that initial stage are vitiated and not tenable in law. Consequently, the order of the Addl. Deputy Commissioner dated 21.7.2000 passed in No. L/D Appeal-1/2000 which arose without the said orders is also vitiated, as the wrong orders passed by the said authorities cannot be legalised by the order of the Addl. Deputy Commissioner. 8. For the aforesaid reasons, the orders passed by the joint Village Councils, D.Bs Court, Political Assistant to Deputy Commissioner, Zunheboto and Addl. Deputy Commissioner. Zunheboto are hereby set aside and quashed. 9. It may be clarified that the jurisdiction of Courts in Nagaland that by Nagaland Village and Area Councils (Amendment) Act, 1985, the Section 14 of the Village and Area Council Act, 1978 (Act No. 1 of 1979) has been deleted, thereby the power of Village Council to administer justice within the village has been taken away by this 1985 amendment. So also, by the Rules for Administration of justice and Police in Nagaland (Second Amendment) Act, 1982 by adding Rule 23 A of the Rules, the power of the D.Bs to try cases on their own is taken away and the D.Bs can try only cases referred to it by the Deputy Commissioner or his Assistants. Rule 23 A reads as follows:- "The Dobhasis hence forward shall try and decide such civil cases only as may be referred to them by the Deputy Commissioner or Additional Deputy Commissioner or Assistant to the Deputy Commissioner as the case may be." By the above amendment, the Administration of justice in the State is vested with the Deputy Commissioner and his Assistants under Rule 23 of the Rules for Administration of justice and Police in Naga Hills District, 1937. 10. 10. Appeal shall lie to the Deputy Commissioner against the decision of the Assistant to Deputy Commissioner and to the High Court against the decision of the Deputy Commissioner under Rule 29 of the rules for Administration of justice and Police in Nagaland as amended in 32 Amendment Act of 1984. Rule 29 read as follows :- "29. (1) An appeal shall lie to the Deputy Commissioner against the decision of any of his Assistants and to the High Court against the original decision of the Deputy Commissioner, if the value of the suit be Rs. 500/- or over, or of right, to or possession of immovable property: Provided that a petition of appeal accompanied by a copy of the order appealed against and by a clear statement of the grounds of appeal be filed within 30 days from the date of decision, excluding the time required for obtaining a copy of the decision : Provided further, that the appeal may be admitted after the aforesaid period of 30 days if the appellant satisfied the Appellate Court that he has sufficient cause for not preferring the appeal within such period. (2) An appeal which lies to the High Court may be presented to the Deputy Commissioner, who shall if it be in order an presented in due time, endorse upon it the date of receipt and transmit it with the records of the case to the High Court. (3) The decree of the Appellate Court shall be transferred to the Court passing the original order for execution as a decree of its own." 11. In view of the above position of law, the aggrieved party is at liberty to approach the competent court for proper adjudication of the instant dispute, if so advised. Petition disposed of. No cost.