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2003 DIGILAW 283 (GAU)

Dana Pertin v. Okong Tabing

2003-06-27

I.A.ANSARI

body2003
JUDGMENT I.A. Ansari, J. 1. This case should serve as a reminder to all those, who discharge judicial functions under the Assam Frontier (Administration of Justice) Regulation, 1945, that when they exercise judicial powers under these Regulations, they really exercise powers of the Sovereign and a Sovereign must not only do justice, but must also appear to have done justice. A neglected ember or spark, if left unattended, unquenched and dissatisfied, can destroy the whole house. A neglected aggrieved litigant can, similarly, bring to disrepute the whole administration of justice and even one such case may, at times, shake the confidence of the people in the impartiality and effectiveness of the judicial making processes and justice delivery system. It is one thing to follow text of law; it is quite Anr. to follow its spirit. It will be paradoxical for a judicial Court to follow the letters of law and not its spirit. While exercising judicial powers, therefore, not only letter of law, but also its spirit has to be followed; otherwise, a judicial Court will, instead of having done justice, end up having done injustice. 2. The judgment and order under challenge in the present revision petition were passed on 20.03.2001, by the learned Deputy Commissioner, East Siang District, Pashighat, in Civil Dispute No. HT-23/88/99/2000-01 upholding the decision of the Kebang held on 15.01.2001 relating to the land, which formed the subject-matter of dispute between the parties. It is the Appellant in the said appeal, who has approached this Court challenging the legality of the impugned judgment and order, dated 20.03.2001, aforementioned. 3. I have perused the materials on record including the impugned order. 4. I have heard Mr. P.K. Tiwari, learned Counsel for the Petitioner, and Mr. C. Barua, learned Senior Counsel appearing on behalf of the opposite party. 5. Though the learned Counsel for the parties have addressed this Court, at length, on various aspects of the disputes facts, which have led to the institution of the present revision, I consciously remain, for the reasons, which are assigned herein below, from referring to those facts except those, which are essential for the purpose of disposal of this revision petition. 6. Facts necessary for disposal of this revision are, briefly stated, thus: The Kabang held, on 15.01.2001, decided to the effect that the land, in dispute, belongs to the opposite party. 6. Facts necessary for disposal of this revision are, briefly stated, thus: The Kabang held, on 15.01.2001, decided to the effect that the land, in dispute, belongs to the opposite party. Aggrieved by this decision, the Appellant preferred an appeal. The decision rendered in the appeal, so preferred, stands impugned in this revision by the Appellant. 7. It is not in dispute before me that the dispute between the parties was governed by the provisions of the Assam Frontier (Administration of Justice) Regulation, 1945 (hereinafter referred to as "the regulation"). Chapter-IV of the Regulation of 1945, which is titled as "Civil Proceedings", relate to administration of civil justice. The scheme of Chapter-IV, if read carefully, is that a civil dispute shall be, normally, settled by the villagers, where the dispute arises. The aim obviously is to encourage amicable settlements of disputes at the grass-root level and least possible interference by statutorily established Courts so that disputes are settled in accordance with popular opinion and acceptable to majority of the persons concerned. No wonder, therefore, that the Regulation provides that the Deputy Commissioners and the Assistant Commissioners, who are the authorities, before whom civil disputes are raised for decision, shall, if the parties are indigenous, endeavor to persuade them to submit to arbitration by Panchayat. This Panchayat is commonly called Kebang. The manner and procedure for holding of Kebang is also indicated in the Regulation. Since a popular decision may not always be just decision, decisions of Kebang are appealable under Regulation 46. For the sake of brevity, Regulation 46 is quoted hereinbelow: 46(1). Any person aggrieved by a decision of a village authority may appeal to the(Assistant Commissioner) in suits not exceeding Rs. 500/- in value to the (Deputy Commissioner) in suits exceeding that value. (2) If such an appeal is filed, a record shall be made of the matter in dispute and of the decision of the village authority. (3) The appellate Court shall, if necessary, examine the parties and, if the decision appears to be just, shall affirm and enforce the decision as its own. If the appellate Court sees ground to doubt the justice of the decision, it shall try the case de novo or refer to a Panchayat; in any case so referred, the provisions of Section 38 shall apply as if the parties had agreed to submit to arbitration. 8. If the appellate Court sees ground to doubt the justice of the decision, it shall try the case de novo or refer to a Panchayat; in any case so referred, the provisions of Section 38 shall apply as if the parties had agreed to submit to arbitration. 8. A careful analysis of the provisions of Regulation 46(3) shows that the appellate Court shall, if necessary, examine the parties and if the decision appears to be just, it shall affirm and enforce the decision on its own. In other words, the decision of the Kebang is affirmed and enforced only if the same is just. When an appeal is preferred before the appellate Court under Regulation 46, it is incumbent on the part of the appellate Court to determine if the decision given by the Kebang is just. While determining whether justice has been done by the Kebang or not, the appellate Court shall not get swayed by the assumption that the popular decision is always just decision. Hence, normally, the opinion of the majority in the Kebang shall, though prevail, yet if the formation of such opinion is partisan or arises out of bias or prejudice or glaringly against the weight of the materials produced before the Kebang, then, such a decision rendered by the Kebang shall be interfered with by the appellate Court as unjust. 9. The expression "if necessary" used in Regulation 46(3) may give an impression that it is up to the appellate Court to decide if it needs to examine the parties to be able to dispose of the appeal. Though this impression may not be entirely wrong, the fact remains that the order of the appellate Court, which is judicial order, cannot be arbitrary, irrational or unreasonable. There is a fundamental distinction between an appeal and a revision. An appeal is preferred only when the right is vested in an Appellant and the-Appellant chooses to exercise his right, whereas revisional power may be exercised by a Court suo moto. Hence, when an Appellant comes before an appellate Court with his grievances against an order, the appellate Court's decision must indicate that the grievances of the Appellant were duly taken into considerations, while deciding the appeal. For the purpose of such consideration, hearing of the Appellant will be, generally, indispensable and necessary. It appears that Regulation 46(3) has used the expression "if necessary, examine". For the purpose of such consideration, hearing of the Appellant will be, generally, indispensable and necessary. It appears that Regulation 46(3) has used the expression "if necessary, examine". This indicates that if necessary, the appellate Court may even take evidence. If an appellate Court refuses to hear the Appellant or omits to hear the Appellant and disposes of the appeal on the basis of the Kebang decision without considering the grievances of the Appellant, then, the disposal of such an appeal will be arbitrary. In other words, if the decision of the Kebang is considered, de horse the grievance of the Appellant, the appellate Court's decision will be arbitrary. There is no room for mechanical acceptance of Kebang decision by the appellate Court. Similarly, if an appeal is decided taking into account the grievances of the Appellant alone and not the decision of the Kebang, such a decision will also be arbitrary. At the same time, if the appellate Court hears only the grievance of the Appellants and not the party in whose favour the decision of the Kebang was rendered, such an appellate decision will also be arbitrary. In short, though it is, no doubt, true that in each and every appeal, hearing of an appellate may not be necessary under the Regulation, yet such appeals would be in rarest of rare cases. Normally, therefore, the appellate decision shall be reached dispassionately upon hearing the parties concerned and upon due consideration of materials available before the appellate Court. Such materials will obviously include the decision of the Kebang. 10. In the case at hand, the record reveals that the Appellants preferred an appeal, on 27.01.2001, which the grievances, inter-alia, that the Kebang was conducted without notice to the Appellants and the decision was arbitrary. I have carefully perused the impugned order, but nowhere I find recorded the satisfaction of the learned Deputy Commissioner that the Kebang was held after due service of notices on the Appellants/Petitioner. This apart, when the specific case of the Appellants was that the Kebang had been held without notice to them, it logically follows that according to the Appellants, the materials in the possession of the Appellants, which substantiate their case had not been brought before the Kebang. This apart, when the specific case of the Appellants was that the Kebang had been held without notice to them, it logically follows that according to the Appellants, the materials in the possession of the Appellants, which substantiate their case had not been brought before the Kebang. Since the learned Deputy Commissioner has not looked into this aspect of the matter, it is not fair on the part of the revisional Court to express any opinion if the notices had been served on the Appellants/Petitioner before the Kebang was held. This aspect of the matter coupled with the question as to whether the impugned decision of the Kebang is correct are to be looked into by the learned Deputy Commissioner. 11. Because of what have been discussed above, I am firmly of the view that the impugned judgment and order, which have been passed without according any hearing to the Appellant, are highly arbitrary and suffer from miscarriage of justice. The learned Deputy Commissioner has, thus, while exercising his power under Regulation 46, conducted himself with material irregularity and the decision reached by him, as a result of such approach to the appeal, cannot be allowed to stand good on record. The appeal, therefore, needs to be remanded back to the learned Court below. Since on remand of the appeal, it is the appellate Court, which will look into the facts of the case, I have, as already indicated hereinabove, refrained from expressing any opinion on the veracity or otherwise of the conflicting claims made by the parties concerned. 12. In the result and for the reasons discussed above, this revision partly succeeds. The impugned judgment and order, dated 20.03.2001, aforementioned are hereby set aside and the appeal is remanded to the learned Court below for disposal in accordance with law. In view of the fact that disputed questions of fact have been raised in this revision, the learned Court below shall hear both the parties before disposing of the appeal. 13. In order to ensure early dispose of the appeal, parties to this revision are directed to appear in the learned Court below on 25.07.2003. The learned Court below shall dispose of the appeal, upon appearance of the parties, expeditiously and preferably within a period of three months from the date of appearance of the parties concerned. 14. 13. In order to ensure early dispose of the appeal, parties to this revision are directed to appear in the learned Court below on 25.07.2003. The learned Court below shall dispose of the appeal, upon appearance of the parties, expeditiously and preferably within a period of three months from the date of appearance of the parties concerned. 14. Send back the case record with a copy of this judgment and order. Revision partly allowed.