Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 671 (GAU)

Minjo Kato v. Gotam (Gongam) Geyi

2011-08-09

K.MERUNO

body2011
K. Meruno, J. - Heard Mr. Marto Kato, learned counsel for the petitioner. Also heard Mr. Tony Pertin, learned counsel appearing for the respondent. 2. This Civil Revision Petition has been filed under Section 50 of the Assam Frontier (Ad­ministration of Justice) Regulation, 1945, read with Section 115 of the Code of Civil Procedure, 1908, for setting aside and quashing the Keba order dated 13.02.2011 and order dated 28.02.2011, passed by the learned Additional Deputy Commissioner, Kamba, West Siang District, in connection with Case No. KMB/JUD/16(A)/2010-11. 3. In the dispute between the petitioner and the respondent, the Keba rendered its decision on 13.02.2011. Against the said de­cision, the petitioner filed an Appeal before the Court of learned Additional Deputy Com­missioner, Kamba, and after hearing the par­ties, by its order dated 28.02.2011, the learned Additional Deputy Commissioner upheld the Keba decision of dated 13.02.2011. 4. The sole respondent while contesting the case at hand, have raised the question of maintainability of the present Civil Revision Petition, mainly on the ground that the im­pugned order dated 28.02.2011 is an order passed under Section 46 of the Assam Fron­tier (Administration of Justice) Regulation, 1945, (hereinafter referred to as the Regula­tion of 1945) and the same is an Appeallable order, under Section 48 of the said Regula­tion, and is not covered by Section 50 of the Regulation of 1945. 5. Mr. Tony Pertin, learned counsel ap­pearing for the sole respondent, submits that the petitioner have already accepted the Keba decision dated 13.02.2011 and paid the settled amount of Rs. 20,000/- which was fixed as "BrNTER", which is a local custom­ary system offinal settlement. After accept­ing and acknowledging the "BINTER" amount of Rs.20,000/-, the petitioner vide his letter dated 01.03.2011, has claimed for enhancement of the said amount to Rs. 1,00,000/- before the Additional Deputy Commissioner, Kamba. 6. Mr. Pertin, learned counsel, further sub­mits that in the facts and circumstances of the case, the present Revision Petition is not main­tainable and the same is liable to be rejected. He has also referred to a decision of this Court as reported in 2009(5) GLT 139: Neiloulhou G. B. Vs. 1,00,000/- before the Additional Deputy Commissioner, Kamba. 6. Mr. Pertin, learned counsel, further sub­mits that in the facts and circumstances of the case, the present Revision Petition is not main­tainable and the same is liable to be rejected. He has also referred to a decision of this Court as reported in 2009(5) GLT 139: Neiloulhou G. B. Vs. Khrielhoulie & Party, which pertains to the provisions of the Rules for Administration of Justice and Police in Nagaland, which is identical to the provisions contained in the Assam Frontier (Administra­tion of Justice) Regulation, 1945, with regard to Appeal and revision and the same prin­ciples can be applied to the present case. 7. Mr. Marto Kato, learned counsel for the petitioner, in addition to his submissions, has further contended that under the said Regulation of 1945, there is no provision for second Appeal and the only remedy avail­able to an aggrieved person is to file a Revi­sion Petition as provided under Section 50 of the Regulation of 1945. He also contends that the Additional Deputy Commissioner and the Deputy Commissioner, under the provision of Regulation of 1945, have concurrent powers and jurisdiction and therefore, an order passed by an Additional Deputy Commissioner can­not be Appealed before the Deputy Com­missioner. Since no provision in the Regula­tion of 1945, provides for second Appeal, so, according to Mr. Kato, learned counsel, Section 50 of the Regulation is the only fo­rum left for an aggrieved party and in view of the above, he submits that the present Revi­sion Petition has been filed against the im­pugned decision dated 28.02.2011 passed by the Additional Deputy Commissioner, Kamba, and the Revision Petition is therefore main­tainable in its present form and it is not liable to be rejected. 8. I have heard the learned counsel ap­pearing for the parties at length on the ques­tion of maintainability of the present Civil Re­vision Petition. It is to be noted that the Apex Court in the case of National Highway Au­thority of India Vs. Ganga Enterprises & Anr., reported in (2003) 7 SCC 410 , has held that when the question of maintainability have been raised, it is to be considered first before going into the merit of the case and as such, the question of maintainability which has been raised in this Revision Petition is being taken-up first without going into the merit of the case. Both the learned counsel appearing for their respective parties have extensively quoted and relied upon the Assam Frontier (Administration of Justice) Regulation, 1945, (Regulation I of 1945), with latest amend­ments, written by Mr. Marto Kato, who is also the learned counsel for the petitioner, and therefore, whatever, have been quoted in this judgment, have been taken out from the said Regulation authored by Mr. Kato, learned counsel. 9. It is true that though there is no provi­sion for second Appeal under the Regulation of 1945, but at the same time, Section 48 of the Regulation clearly stipulates that an Ap­peal shall lie to the High Court against the decision of a Deputy Commissioner which also includes the Additional Deputy Commissioner, as contemplated under Section 2-Definition of the Regulation. 10. I have also perused the provisions con­tained in the Assam Frontier (Administration of Justice) Regulation, 1945, in particular, Sections 46, 48 and 50, with regard to the impugned order dated 28.02.2011, passed by the Additional Deputy Commissioner, Kamba, in an Appeal filed by the present petitioner against the Keba decision dated 13.02.2011. Section 46 of the Regulation reads as fol­lows: "Appeals from village authorities: (1) Any person aggrieved by a decision of a village authority, may Appeal to the Assistant Commissioner in suits not exceeding Rs.500/-and 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 grounds 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." The provisions of sub-sections (2) and (3) of Section 46, are neither disputed nor sub­section (1) is also disputed. It is seen that before the appellate court of Additional Deputy Commissioner, Kamba, none of the parties raised the question of maintainability of the Appeal nor raised any objection with regard to the value of the suit in question. It is seen that before the appellate court of Additional Deputy Commissioner, Kamba, none of the parties raised the question of maintainability of the Appeal nor raised any objection with regard to the value of the suit in question. The Court of learned Additional Deputy Commis­sioner, as it appears and evident from the or­der dated 28.02.2011, has given due oppor­tunity to both the parties in accordance with law and also after careful consideration of the Keba decision dated 13.02.2011, hearing of the learned counsel appearing for the parties, and independent witnesses, learned counsel for the petitioner, the Court below did not find any substantial ground for Appeal against the Keba decision dated 13.02.2011 as preferred by Sri Minjo Kato regarding Yut Kamru WRC Field and, therefore, the Additional Deputy Commissioner, Kamba, upheld the Keba decision dated 13.02.2011. This would therefore, show that the Appeal was taken-up within the purview of Section 46 of the Regulation of 1945. Section 48 of the Regulation reads as fol­lows: "48. Appeals from Deputy Commissioner : An Appeal shall lie to the (High Court) from an original decision of the (Deputy Commissioner) if the value of the suit is not less than Rs.500/-or if the suit involves a question of trial of rights or customs, or of the right to, or possession of , immovable property." Section 50 of the Regulation reads as follows: "50. Powers of Revision: The (High Court) may, on application or otherwise, call for the proceedings of any original case or Appeal de­cided by the Deputy Commissioner and not Appeallable under this Regulation and may pass such orders as (it) may deem fit." 11. From the above extract of Sections 48 and 50, it is seen that there is a clear dis­tinction between Section 48 and Section 50 of the Assam Frontier (Administration of Jus­tice) Regulation, 1945. Section 48 of the Regulation of 1945, par­ticularly deals with the matter of Appeal from the Deputy Commissioner to the High Court whereas Section 50 of the said Regulation pertains to power of revision of the High Court. As per Section 50 of the Regulation, the High Court, may, on application, or oth­erwise, call for the proceedings of any origi­nal case or Appeal decided by the Deputy Commissioner and not Appeallable under the Regulation of 1945. As per Section 50 of the Regulation, the High Court, may, on application, or oth­erwise, call for the proceedings of any origi­nal case or Appeal decided by the Deputy Commissioner and not Appeallable under the Regulation of 1945. This goes to show that a revision to the High Court will lie under Sec­tion 50 of the said Regulation if no provision for Appeal has been made under the provi­sions of the Regulation of 1945. While Sec­tion 48 of the Regulation stipulates that an Appeal shall lie to the High Court from the original decision of the Deputy Commissioner, if the value of the suit is not less than Rs.500/-or if the suit involves the question of trial of rights or customs or of the rights to, or pos­session of immovable property. It has also been noted in the comments under Section 48 of the said Regulation, that the case of Anong Apang Vs. State of Arunachal Pradesh & Ors., has been referred wherein this Court observed that: "The use of expression 'original decision' does not mean that every interlocutory or in­terim order passed during the course of a suit or trial will fall within the purview of the expres­sion 'original decision' occurring in Section 48 of the Assam Frontier (Administration of Jus­tice) Regulation, 1945, it rather meant the ulti­mate decision, which reached in any suit or pro­ceeding covered by the said Regulation, and concludes/terminates the suit/proceedings as far as the Court of the Deputy Commissioner is concerned." 12. Since it has already been stated above that the parties have not agitated with regard to the value of the suit during the Appeal be­fore the Court of Additional Deputy Com­missioner, Kamba, nor is the same disputed in the present Revision Petition, the only ques­tion is whether the order dated 28.02.2011 can be construed to be 'original decision' as contemplated under Section 48 of the Regu­lation of 1945. The order dated 28.02.2011, in my considered opinion, is not an interlocu­tory order but it is an order which concluded the proceedings asfaras in the Court of Deputy Commissioner. Therefore, considering the ob­servations made by the High Court in Anong Apang's case, quoted above, an Appeal aginst the decision of the Deputy Commis­sioner (which includes the Additional Deputy Commissioner) is an order Appeallable un­der Section 48 of the Regulation of 1945. Therefore, considering the ob­servations made by the High Court in Anong Apang's case, quoted above, an Appeal aginst the decision of the Deputy Commis­sioner (which includes the Additional Deputy Commissioner) is an order Appeallable un­der Section 48 of the Regulation of 1945. Though the said order has been passed by the Additional Deputy Commissioner, Kamba, as per Section 2 of the definition in the Regu­lation of 1945, the definition of the Deputy Commissioner includes the Additional Deputy Commissioner, as such, in view of the above, the decision of the Additional Deputy Com­missioner dated 28.02.2011, is an order, for which, provision for an Appeal has been pro­vided under Section 48 of the said Regula­tion. The power of revision as stipulated un­der Section 50 of the Assam Frontier (Ad­ministration of Justice) Regulation, 1945, is attracted only where no provision for an Ap­peal has been stipulated in the said Regula­tion. Since the provision of Appeal is clearly provided under Section 48 of the Regulation of 1945, the revision under Section 50 of the said Regulation, will not be applicable to the present case. 13. It is seen that this Civil Revision Peti­tion has been filed under Section 50 of the Assam Frontier (Administration of Justice) Regulation, 1945, which, this Court, in its con­sidered opinion, that the instant Revision Pe­tition filed under Section 50 of the said Regu­lation, is not maintainable in view of the fact that under Section 48 of the said Regulation, provision for an Appeal has been clearly stipu­lated. Therefore, considering the matter in the attending facts and circumstances of the case and as discussed above, this Court finds that the instant Civil Revision Petition is not main­tainable under Section 50 of the Assam Fron­tier (Administration of Justice) Regulation, 1945, and it is, therefore, accordingly, re­jected and dismissed. Interim order passed by this Court on 30.03.2011 shall also stand vacated. However, there shall be no order as to costs. 14. In the facts and circumstances of the case, the decision so cited by Mr. Tony Pertin, learned counsel for the respondent, has not been relied upon by this Court on account of the fact that the provisions of Sections 48 and 50 of the Assam Frontier (Administration of Justice) Regulation, 1945, clearly stipulates the conditions with regard to preferring an Appeal and filing of a Civil Revision Petition.