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2009 DIGILAW 161 (GAU)

Binchi Boje v. Dakchi Kadu

2009-03-03

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. M. Boje, learned counsel for the revision petitioner and also heard Mr. T. Leriak, learned counsel for the sole respondent. 2. This revision petition is directed against the order dated 19.04.2008 passed by the Judicial Magistrate Second Class-cum-Circle Officer, Koyu, East Siang District in Case No. Ky/HT-02/2007-08, whereby the petitioner has been directed to abide by the decision taken by the Kebang held on 14.03.2008. 3. The brief facts of the case are that the petitioner is in possession of a plot of land at Saku village since 1966, which was developed into cultivating paddy field by his father. The petitioner belongs to Boje clan while the respondent belongs to Kadu clan. The land in question situates in the area predominantly inhabited by the Kadu clan. The petitioner is the only family, who belongs to Boje clan. According to the petitioner, the respondent with the help of some other people have been trying to encroach upon the petitioner's land. He made a written complaint before the Circle Officer, Koyu, East Siang District, on 07.01.2008 in this regard. Without forwarding the matter to the Police for registering a criminal case, the said Circle Officer forwarded the matter vide dated 21.02.2008 (Annexure-III to the revision petition) to the Head G. B. of Saku village with a direction to convene a meeting at Saku Dere on 28.02.2008 and to give right decision/judgment. But the Keba was held on 14.03.2008 in which several decisions were taken. Although, the petitioner was present in the said 'Keba' he was not ready to accept the said decision of the 'Keba' and therefore, he made a representation dated 18.03.2008 (Annexure-V to the revision petition) to the Magistrate-cum-Circle Officer, Koyu requesting him to transfer the case from Kadu village to Circle Office at Koyu and decide the matter after convening a 'Keba' under his supervision. The Circle Officer, Koyu did not accede to the said request and passed the impugned order dated 19.04.2008 (Annexure-VI to the revision petition) upholding the decision of the 'Keba' and directing the petitioner to abide by the decision taken by the 'Keba' on 14.03.2008. 4. Mr. The Circle Officer, Koyu did not accede to the said request and passed the impugned order dated 19.04.2008 (Annexure-VI to the revision petition) upholding the decision of the 'Keba' and directing the petitioner to abide by the decision taken by the 'Keba' on 14.03.2008. 4. Mr. Boje, learned counsel for the petitioner submits that the impugned order dated 19.04.2008 was passed by the Circle Officer-cum-Judicial Magistrate Second Class, Koyu without giving any opportunity of hearing to the petitioner and as such, it is illegal and unsustainable in law. 5. Per Contra, Mr. Leriak, learned counsel for the sole respondent submits that a spot verification was made by the learned Circle Officer on 07.04.2008. According to him, the petitioner was also informed and asked by the said Circle Officer to be present on the spot on 07.04.2008 but the petitioner remained absent inspite of being informed. Mr. Leriak further submits that some Public Interpreters were also informed to be present and accordingly they were present at the time of spot verification on 07.04.2008. In support of his submission, he refers to the statement made in para 10 of the counter affidavit, which is quoted below: That as regard to the statement made in Para 9, 10 and 11, the deponent state that the petitioner made a complaint to Circle Officer, Koyu and CO made a verification on 7.4.2008 with P.I. (Public Interpreter) and both parties were summoned to his office on 18.4.2008 and accordingly the deponent appeared but the petitioner did not appear and thereafter on 19.4.2008, the Circle Officer issued an order to comply the kebang decision which was decided on 14.3.2008 and the copy was served to the petitioner. 6. Further submission of Mr. Leriak is that there is a provision for appeal under Section 47 of the Assam Frontier (Administration of Justice) Regulation, 1945 before the Deputy Commissioner from any decision, original or appellate passed by the Assistant Commissioner which includes the Circle Officer. According to him, the petitioner, if he is aggrieved by the decision/order of the Circle Officer, Koyu passed on 19.04.2008, the petitioner should have filed a statutory appeal before the Deputy Commissioner but he has not filed any such appeal and as such, the present revision petition is liable to be dismissed, as being not maintainable. 7. In reply to the above submission of Mr. Leriak, it is submitted by Mr. 7. In reply to the above submission of Mr. Leriak, it is submitted by Mr. Boje, learned counsel for the petitioner that the petitioner was not informed in writing or verbally by the Circle Officer about the spot verification of the land in question. The statement made in para 10 of the counter affidavit filed by the respondent is not supported by any document and as such it cannot be accepted as true. It is further submitted by the learned counsel for the petitioner that Section 47 of the Assam Frontier (Administration of Justice) Regulation, 1945 speaks about any decision, original or appellate of the Assistant Commissioner without any reference to the Circle Officer and as such, according to him, no appeal lies before the Deputy Commissioner against the order passed by the Circle Officer. In such a situation, the petitioner has no other alternative except to approach the High Court by way of revision under Section 50 of the aforesaid Regulation, 1945. 8. I have considered the rival submissions made by the learned counsel for the parties. It is an admitted position that the Circle Officer, Koyu took a decision by the impugned order dated 19.04.2008 rejecting the petitioner's prayer for transfer of the case from Kadu village to Circle Office at Koyu and directed the petitioner to abide by the decision taken by the 'Keba' held on 14.03.2008. The impugned order dated 19.04.2008 is an original order passed by a subordinate officer of the Deputy Commissioner and no appeal has been filed by the petitioner against the said order of the Circle Officer before the higher authority namely, the Deputy Commissioner as the post of Circle Officer, in the administrative set-up, is of the status of Assistant Commissioner i.e. subordinate to the Deputy Commissioner, who has to assist the Deputy Commissioner concerned. Such being the status and position of the Circle Officer, it can be safely held that any order passed by the Circle Officer can be treated as an order passed by the Assistant Commissioner or subordinate officer of the Deputy Commissioner within the meaning of Section 47 of the aforesaid Regulation, 1945. Against the order of the Assistant Commissioner or Circle Officer, an appeal lies with the Deputy Commissioner under the provision of Section 47 of the said Regulation, 1945. 9. Against the order of the Assistant Commissioner or Circle Officer, an appeal lies with the Deputy Commissioner under the provision of Section 47 of the said Regulation, 1945. 9. The petitioner, in my considered view had an alternative remedy by way of appeal before the Deputy Commissioner instead of approaching mis Court by filing this revision petition. The appeal having not being filed as provided under the aforesaid provision of the law before the Deputy Commissioner concerned, I am not inclined to accept this revision petition and pass any order as prayed for by the petitioner. The petition is liable to be dismissed on this ground and accordingly, the same is dismissed. 10. However, the petitioner is given liberty to file an appeal before the appropriate forum in accordance with the provision of Section 47 of the Regulation, 1945 within a period of 2 (two) weeks from today and the question of condoning the delay, if any, in filing the said appeal may be considered by the appellate authority in view of the time spent by the petitioner in pursuing the revision petition before this Court. 11. The revision petition stands dismissed without any order as to cost. Petition dismissed.