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2014 DIGILAW 1012 (GAU)

Ngulhoulie Metha v. Harilal

2014-11-21

LANUSUNGKUM JAMIR

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JUDGMENT : Lanusungkum Jamir, J. 1. By this writ petition filed under Article 227 of the Constitution of India, the petitioner is praying for the following reliefs:- "In the premises aforesaid, it is most respectfully prayed that your lordship may be pleased to admit this petition, call for the records of the case, issue notice calling upon the respondent to show cause as to why the impugned order dated 29.09.09, passed by the Addl. District and Sessions Judge, Kohima. In Civil Appeal No. 1/06 (Annexure 'J' to the writ petition and impugned judgment and order dated 14.12.05, passed by the Assistant to Deputy Commissioner, Kohima in Civil Appeal No. 4/04 (Annexure 'H' to the writ petition) should not be set aside and quashed. And after hearing the parties and on cause or causes that may be shown, be pleased to allow the instant writ petition by granting relief as prayed for. And/or be further pleases to passed such other order or orders as your lordship may deem fit and proper." Brief facts of the case, as gathered from the submission of the parties and materials placed on record, is that the respondent, who hails from Bihar, came to Kohima in the year 1968, in search of work. In the year 1970, the petitioner took the respondent to his village Seiyhama. In course of time, the petitioner adopted the respondent as his son and gave him the Angami name "Medokri". The respondent also married a girl from Seiyhama village and from the said wedlock 6 (six) children were born. The respondent has cut off all relationship with his biological father and has become a bona fide member of Seiyhama village and pays house tax and all other contributions to the village. 2. In the year 1997, the respondent and the petitioner jointly, purchased a plot of land measuring about 9,150 sq.ft. at Kezieke, Kohima (hereinafter being referred to as the suit land), from one Shri Neitsulie Hesso, for a consideration of Rs. 90,000/- (Rupees ninety thousand) only, with the understanding that the land would be shared equally between them. However, the Sale Deed dated 14.7.97, in respect of the suit land, has been executed between the petitioner and Shri Neitsulie Hesso, the seller. 3. The contention of the petitioner is that he has allowed the respondent, being the adopted son, to construct temporary residence in the suit land. However, the Sale Deed dated 14.7.97, in respect of the suit land, has been executed between the petitioner and Shri Neitsulie Hesso, the seller. 3. The contention of the petitioner is that he has allowed the respondent, being the adopted son, to construct temporary residence in the suit land. But taking advantage of the same, the respondent started claiming title over the suit land. The petitioner, therefore, disowned the respondent as his adopted son and the same was intimated to the Chairman, Seiyhama Village Council. Thereafter, the petitioner has filed a complaint before the North Block Panchayat, Kohima in connection with the disputed suit land which was registered as Case No. 2/2004. The Panchayat, instead of deciding the dispute as per the Sale Deed dated 14.07.97, vide Order dated 11.09.2004, has decided the matter by dividing the suit land between the petitioner and the respondent. The Panchayat has drawn the boundary of the land between the parties by giving greater portion of the suit land to the petitioner. 4. Aggrieved by the said decision, the respondent has filed a case before the D.B.'s Court, Kohima, which was registered as Pol. Case No. 14/2004. The D.B.'s Court after hearing the parties has disposed of the matter vide Order dated 06.10.2004, directing the petitioner to pay a sum of Rs. 17,500 (Rupees seventeen thousand five hundred) only, to the respondent and to get the whole disputed land/suit land. 5. Against the said Order dated 06.10.2004, the respondent has filed an appeal, being Civil Appeal No. 04/2004, before the Court of the Assistant to Deputy Commissioner, Kohima. Apart from filing written statement, the petitioner has also filed preliminary objection with regard to the maintainability of the said appeal on 2 (two) grounds:- 1) Whether the claim of the respondent/appellant over the suit land is barred in view of the law against benami transaction? and 2) Whether the respondent/appellant's claim over the suit land is sustainable in view of the legal bar against transfer of land in Nagaland to non-indigenous inhabitants? 6. The Assistant to Deputy Commissioner, Kohima by an Order dated 14.12.2005 has decided the said 2 (two) preliminary issues by holding that the Benami Transaction (Prohibition) Act, 1988 is not applicable in Nagaland as the same is not adopted by the Nagaland Legislative Assembly. 6. The Assistant to Deputy Commissioner, Kohima by an Order dated 14.12.2005 has decided the said 2 (two) preliminary issues by holding that the Benami Transaction (Prohibition) Act, 1988 is not applicable in Nagaland as the same is not adopted by the Nagaland Legislative Assembly. Moreover, prohibition against transfer of land to non-indigenous inhabitants as provided under Section 2(2) of the Nagaland Land Revenue Regulation (Amendment) Act, 1978 is not applicable in Kohima as Kohima is beyond the Belt specified under the Notification dated 21.11.1979. Accordingly, the Assistant to Deputy Commissioner, Kohima has rejected the preliminary objection raised by the petitioner. 7. Being aggrieved by the said order dated 14.12.2005, the petitioner has preferred an appeal under Rule 29 of the Rules of Administration of Justice & Police in Nagaland, 1937 before the Addl. District & Sessions Judge, Kohima. The said appeal was registered as Civil Appeal No. 1/2006. The Addl. District & Sessions Judge, Kohima by Judgment & Order dated 29.09.2009, has disposed the said appeal by upholding the order dated 14.12.2005, passed by the Assistant to Deputy Commissioner, Kohima Being dissatisfied, the petitioner has filed this present petition. 8. The respondent has filed affidavit-in-opposition wherein objection has been raised as regards maintainability of the present petition on the following grounds:- i) Firstly, the petitioner has invoked the special jurisdiction of this Court under Article 227 of the Constitution of India without exhausting the alternative remedy. ii) Secondly, the Court can interfere and exercise its jurisdiction under Article 227 of the Constitution of India only when there is absence of or excess of jurisdiction or infringement of fundamental rights or violation of the principle of natural justice. 9. Mr. Iralu, learned counsel for the respondent submits that the proceeding before the Court below were initiated under the Rules for Administration of Justice & Police in Nagaland (hereinafter being referred to as the Rules). As such, the petitioner ought to have approached this Court by way of revision under Rule 32 of the Rules and not by way of an application under Article 227 of the Constitution of India. Rule 32 of the Rules is reproduced herein below: "32. As such, the petitioner ought to have approached this Court by way of revision under Rule 32 of the Rules and not by way of an application under Article 227 of the Constitution of India. Rule 32 of the Rules is reproduced herein below: "32. The High Court or the Deputy Commissioner may, on an application by the aggrieved party or otherwise call for the proceedings of any case decided by any officer sub-ordinate to him and pass such order as may deemed fit; Provided that the party aggrieved may move such application only availing of remedy by way of appeal, if any, provided under the Rules against such decision." 10. As regards the second ground, Mr. R. Iralu submits that the learned Court below, having jurisdiction, had rightly decided the matter and therefore, exercise of power under Article 227 of the Constitution, does not arise. 11. Mr. C.T. Jamir, learned Sr. Counsel for the petitioner submits that there is no provision under the Rules to file Appeal against the order of the Addl. District & Sessions Judge passed in an appeal filed under Rule 29 of the Rules for Administration of Justice & Police in Nagaland and as such, the only remedy available to the petitioner is to approach this Court by way of this petition under Article 227 of the Constitution of India,. Even otherwise, Article 227 of the Constitution confers on the High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Under Article 227 of the Constitution, High Court can interfere if there is erroneous assumption or exercise of jurisdiction or refusal to exercise jurisdiction or error apparent on the face of the record or arriving at a finding which is perverse or based on no material. In support of his submission, reliance has been placed on Surya Dev Rai Vs. Ram Chander Rai & Ors. reported in (2003) 6 SCC 675 and Kshitish Nandi Vs. Manada Dhar & Ors., reported in 2010 (5) GLT 186. 12. On the issue as to whether appeal can be filed against the order of Addl. District & Sessions Judge passed in an appeal filed under Rule 29 of the Rules for Administration of Justice & Police in Nagaland, this Court in Medemkaba Vs. Manada Dhar & Ors., reported in 2010 (5) GLT 186. 12. On the issue as to whether appeal can be filed against the order of Addl. District & Sessions Judge passed in an appeal filed under Rule 29 of the Rules for Administration of Justice & Police in Nagaland, this Court in Medemkaba Vs. R. Takatemjen Ao, reported in(1987) 1 GLR 156 has held that if the party has already appealed under Rule 34 (now Rule under 29 under the amendment Rules), the remedy by way of revision under the first part of the Rule of the High Court will still be available. As such, the stand taken by the petitioner that there is no provision under the Rules to file Appeal against the order of the Addl. District & Sessions Judge passed in an appeal filed under Rule 29 of the Rules for Administration of Justice & Police in Nagaland and as such, the only remedy available to the petitioner is to approach this Court by way of this petition under Article 227 of the Constitution of India, is incorrect and cannot be accepted. 13. Even otherwise, the petitioner cannot be said to be without any other alternative remedy. Under the given facts and circumstances, I am of the considered opinion that the petitioner could have approached this Court under Section 115 of the Code of Civil Procedure, 1908 which provides as under:- "115. Revision- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears.... a) To have exercised a jurisdiction so vested in it by law, or b) To have failed to exercise a jurisdiction so vested, or c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or may order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. 2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. 3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court." 14. The matter is before this Court because the preliminary objection raised by the petitioner as regards maintainability of Civil Appeal No. 04/2004, was rejected by the Assistant to Deputy Commissioner, Kohima vide Order dated 14.12.2005, and subsequent upholding of the same by the Court of Addl. District & Sessions Judge, Kohima by Judgment & Order dated 29.09.2009, passed in Civil Appeal No. 1/2006. In the event of the preliminary objection in Civil Appeal No. 04/2004, was allowed by the Assistant to Deputy Commissioner, Kohima or Civil Appeal No. 1/2006 was allowed by the Addl. District & Sessions Judge, Kohima, the Civil Appeal No. 04/2004, would have been finally disposed of. As such, it is squarely covered by the proviso to Section 115(1) of CPC, as quoted above and the petitioner could have approached this Court under Section 115 of the Code of Civil Procedure, 1908. 15. No doubt, Article 227 of the Constitution of India confers on every High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. As held in Surya Dev Rai Vs. Ram Chander Rai & Ors. (supra), the amendment of Section 115 Civil Procedure Code, 1908 cannot and does not in any manner affect the jurisdiction of the High Court under Article 226 and 227 of the Constitution of India. However, in this connection, I am tempted to refer to the case Shalini Shyam Shetty Vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 . Paragraph 49(c) of the said Judgment is reproduced as under:- "49.(c) High Court cannot, at the drop of a hat, in exercise of its power of Superintendence under Article 227 of the Constitution, interfere with the orders of the tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power of the High Court." 16. The ratio laid down in Shalini Shyam Shetty Vs. Rajendra Shankar Patil (supra), has also been reiterated and reaffirmed in the case of Sammeer Suresh Gupta Vs. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374 . 17. Considering the observations and discussions made hereinabove, this writ petition is dismissed. No costs.