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2002 DIGILAW 314 (GAU)

Bharati Linggi v. Miri Linggi

2002-07-25

I.A.ANSARI

body2002
I. A.ANSARI, J.— This application is made under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India and Section 50 of the Assam Frontier (Administration of Justice) Regulations 1945 against the order No. DR/LR-13(Pt-11)726035-37, dated 30.11.99, passed by learned Addl. Deputy Commissioner, Dibang Valley district, Roing, holding, inter alia, that plot No. 682 of Roing township stood allotted by the Government in favour of the O.P., namely, Sri Miri Linggi and restraining the petitioner from taking any type of activities including construction of shed/building, etc., thereon. 2. Briefly stated, the facts giving rise to this revision petition are according to the petitioner, as follows: Deceased Atura Linggi, father of the present revision petitioner, had originally instituted this revision. Late Aturu Linggi has been in lawful possession of plot No. 682 of Roing township in Dibang Valley district, measuring about 20,824 square meters, on the same having been allotted to him by Govt. allotment No. 34 dated 28.12.81 (Annexure-A to the writ petition). In fact, the said deceased had purchased the said land from one Takum Gamling in consideration of Rs.8,0007- and two Mithuns and after purchase thereof, the said deceased had developed the same by clearing jungles and received, in course of time, allotment, thereof by allotment order dated 28.12.81, aforementioned and had been using the same for the residential accommodation by paying land revenue regularly in respect thereof till 1996. When the petitioner's father started construction over the said land, O.P., namely, Shri Miri Linggi, raised objection thereto on the ground that though the petitioner's father had been allowed to stay in a portion of the said land, the said portion of the land stood allotted to the O.P. The O.P. thus, laid of claim of ownership over the said land, though no notice had been served on the petitioner's father before making allotment thereof. The dispute, which so arose between the parties, was referred by the learned A.D.C, Roing to the local authority i.e. Kebang, for settlement when the matter was still pending before the Kebang, O.P. filed an application before the learned Addl. Deputy Commissioner, Dibang Valley district, Roing. The dispute, which so arose between the parties, was referred by the learned A.D.C, Roing to the local authority i.e. Kebang, for settlement when the matter was still pending before the Kebang, O.P. filed an application before the learned Addl. Deputy Commissioner, Dibang Valley district, Roing. On coming to know of the same, petitioner's father also Submitted an application as reply to the application for settlement of the dispute made by the O.P. However, to the utter surprise of the petitioner, he received the impugned order, dated 13.11.99, aforementioned. Aggrieved by this order, petitioner's father approached this Court by way of this revision petition, which is, now, pursued by the petitioner. 3. I have carefully perused the revision petition and the materials on record including the impugned order. I have heard Mr T. Pertin, learned counsel for the petitioner. None has appeared on behalf of the O.P. 4. Though the order impugned in this revision was originally challenged on several grounds, as indicated from the contents of the revision petition, Mr Pertin has, at the time of hearing, assailed the impugned order on two alternative grounds, which I deal with hereinbelow. 5. According to Mr Pertin, under the Assam Frontier (Administration of Justice) Regulation, 1945, (hereinafter referred to as "the said Regulations"), a civil dispute can come up before an Additional Deputy Commissioner (ADC) either in the form of an original suit as laid down in Regulation 37 or in the form of an appeal from the original order under Regulation 46, read with Regulation 49. 6. In the case at hand, submits Mr Pertin, a regular Kebang was constituted, vide order, dated 13.10.99, issued by the learned ADC, Dibang Valley district, Roing, himself, but while the proceedings before the Kebang were not even concluded, the OP filed an application before the learned ADC on the same subject matter, which was lying for adjudication before the Kebang, and the learned ADC also, vide the impugned order, disposed of the application by determining the title and possessory right of the parties over the land in dispute. Such a course, adopted by the learned ADC, is, according to Mr Pertin, completely illegal and contrary to the scheme, embodied under the said Regulations, in which the emphasis is, points out Mr Pertin, on settlement of dispute between members of tribal communities by taking resort to arbitration and for settlement of dispute with the help of Kebang. It is also submitted by Mr Pertin that if the dispute was to be tried as a civil suit by learned ADC, then, the petitioner's predecessor-in-interest ought to have been given an opportunity to file written statement and evidence ought to have been recorded in the form of a civil suit so as to enable the learned Addl. Deputy Commissioner to dispose of the suit on the strength of evidence on record. Though the learned ADC, submits Mr Pertin, could have exercised the powers of an appellate forum under Regulation 46, the same was possible only if any specific decision had been taken by the Kebang, but in this case, since no decision had been reached by the Kebang with regard to the dispute between the parties, the question of the learned ADC invoking the provisions of Regulation 46 was also not possible. 7. Mr Pertin, therefore, submits that in any view of the matter, the impugned order is palpably illegal and indefensible and hence, the same may be set aside with direction to the authorities concerned to allow the matter to be settled in the Kebang. 8. Before entering into the merit of the submissions made by Mr Pertin, it is, to my mind, pertinent to point out that Chapter IV of the said regulations lays down the procedure for disposal of civil disputes. According to Regulation 36, civil justice shall be administered by the Deputy Commissioner, the Assistant Commissioner and the village authorities, Regulation 37 lays down that while the Deputy Commissioner may try suits of any value, the Assistant Commissioner may try suits not exceeding Rs.1,000/- in value. The definition of Deputy Commissioner given under Regulation 2 shows that the expression 'Deputy Commissioner' includes an 'Additional Deputy Commissioner'. Hence, a civil suit of any value may be decided by an ADC too. 9. Regulation 38(1) lays down that the Deputy Commissioner and Assistant Commissioner shall, in every case in which both parties are indigenous, endeavour to persuade them to submit to arbitration by panchayat. 10. Hence, a civil suit of any value may be decided by an ADC too. 9. Regulation 38(1) lays down that the Deputy Commissioner and Assistant Commissioner shall, in every case in which both parties are indigenous, endeavour to persuade them to submit to arbitration by panchayat. 10. Thus, a careful reading of Regulations 37 and 38 read with Regulation 36 aforementioned shows that in civil disputes, the endeavour shall be to persuade indigenous people to submit to arbitration by panchayat, which is commonly known as Kebang, and if a suit has to be tried, such a trial is possible either by the DC or by the ADC or by the Asstt. Commissioner depending upon value of suit. 11. Regulation 59, which appears in Chapter V, shows that in all criminal cases as well as civil suits, general principles of the Evidence Act shall be applied. 12. Thus, the above scheme, embodied in the said regulations, shows that the initial endeavour of the authorities concerned shall be to get civil disputes decided before a Kebang by way of arbitration and if the same is not possible, a civil suit may be entertained and in such a suit, provisions of the Evidence Act will apply. 13. In view of the fact that the learned Addl. Deputy Commissioner himself had constituted, vide circular, dated 13.10.99, a Kebang for settlement of the land dispute between the parties concerned, the learned ADC could not have, merely on application made by the parties concerned, disposed of the matter on the basis of his own impressions drawn from the records without taking any evidence or without, at least, giving opportunity to the parties, who were likely to be affected, to adduce evidence in support of their respective cases. Viewed from this angle, the learned ADC had usurped jurisdiction in the matter, which was still pending before the Kebang. Even if the learned ADC wanted to dispose of the matter in the manner of a civil suit, the same could have been done only after giving due notices to the parties concerned to file their written statement and also to adduce evidence in support of their respective cases. Having not done so, the learned ADC acted with material irregularity in dealing with the matter. Having not done so, the learned ADC acted with material irregularity in dealing with the matter. Thus, the impugned order has no strength or sanction of law and can not be allowed to stand good on record of subject in dispute, the question of entertaining the application of the opposite party as an appeal under Regulation 46 also did not arise at all inasmuch as Regulation 46 can be resorted to only if a person aggrieved by a decision of Kebang prefers appeal against such decision. Viewed from this angle, too, the impugned order is void. 15. In the result and for the reasons discussed above, this revision succeeds and the impugned order is set aside and the learned Deputy Commissioner, Dibang Valley, district Roing, is directed to allow the matter to be decided by way of arbitration at the Kebang and if the same fails, the matter may be dealt with in accordance with law keeping, however, in view of the observations made hereinabove. 16. Send back the case record along with a copy of this judgment and order.