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2014 DIGILAW 744 (GAU)

Maluk Yomgam v. Damli Yomcha

2014-07-30

INDIRA SHAH

body2014
JUDGMENT AND ORDER (CAV) Indira Shah, J. - Heard Mr. Dicky Panging, learned counsel appearing on behalf of the petitioner. Also heard Mr. Muk Pertin, learned counsel, appearing on behalf of Respondents No. 1, 2, and 3. 2. Late Gidam Yomgam, father of Respondent No. 1 was appointed as Jamadar by the then undivided Government of Assam. In lieu of his services as Jamadar, the Government of Assam allotted him a plot of land measuring 607.66 sq. mtrs., situated at Old Market, Aalo, in the year 1952. After his death, the Respondent No. 1 became the owner of the aforesaid plot of land as Successor. The petitioner was married to Respondent No. 1's son Sri Libi Yomgam and after her marriage, when her husband was pursuing studies, she started living at the said plot of land. Her husband had constructed a wooden structure on the said plot of land and leased out to ABC India Ltd. The petitioner was collecting rent in respect of the said plot of land. The petitioner's husband, during his lifetime, applied for mutation of the land, in question, in his favour. He also applied for allotment of an adjacent plot of land measuring 1039 sq. mtrs [plot No.41(C)] in his favour. In the year 2002, the petitioner's husband died in an accident. Thereafter, the petitioner being wife and the legal heir of her deceased husband, applied for and obtained the Succession Certificate in her favour, in respect of the properties belonging to her husband including the Plot Nos. 41 [B] and 41 [C] located at Old Market Aalo. The said 2 plots of land, as applied by the petitioner, were mutated in her favour Sometime in the year, 2009, the Respondent No.2 who is an UDC posted in the office of the Deputy Commissioner, West Siang District, Aalo, filed a complaint before the Deputy Commissioner, and claimant the aforesaid 2 plots of land by stating that taking advantage of old-age of Respondent No. 1, the said 2 plots of land have been illegally regularised in favour of the petitioner. It was further alleged that the said 2 plots of land have been divided amongst the Respondents No.2 and 3 and the son of the petitioner. The Deputy Commissioner, on receipt of the said complaint, vide order dated 25.11.2010 convened a District Level Keba (DLK, in short), for settlement of the dispute. It was further alleged that the said 2 plots of land have been divided amongst the Respondents No.2 and 3 and the son of the petitioner. The Deputy Commissioner, on receipt of the said complaint, vide order dated 25.11.2010 convened a District Level Keba (DLK, in short), for settlement of the dispute. In the impugned order dated 25.09.2010, the Deputy Commissioner, Aalo, has observed that there is no village authority at District Headquarter, Aalo. Therefore, as per the convention followed at West Siang District, a DLK was convened at District Keba Dere, Aalo for amicable settlement of the case. Being aggrieved by the said order, the petitioner filed an objection on 11.12.2010. However, the objection of the petitioner was not attended to and by another order dated 24.01.2011, convened the DLK on 03.02.2011. Another proceeding of Keba has been challenged on the ground that the Deputy Commissioner has no jurisdiction to refer the dispute to the DLK. The Assam Frontier (Administration of Justice) Regulation. 1945 [Regulation of 1945, in short] regulates the civil proceedings by the Deputy Commissioner and the village authorities and the aforesaid Regulation of 1945 does not envisage a forum of DLK for deciding any civil dispute. The Deputy Commissioner had referred the dispute to a non-existent judicial authority. That apart, the Succession Certificate issued in favour of the petitioner, has been deemed to have been cancelled by the DLK since the property, in dispute, has been distributed by the Keba Decision and without jurisdiction and authority of law. 3. It is averred in the counter affidavit filed by the contesting respondents that the dispute between the parties is a family affair and both the parties are indigenous and as per Section 52 of the Regulation of 1945, the Court of Deputy Commissioner shall be guided by the spirit and not by the letters of the Code of Civil Procedure, 1908. The matter was referred to the DLK as Aalo is a township and there is no village authority' to decide the dispute in the township. As per the past practise and convention, in all matters of civil in nature within the West Siang District, DLK are convened for an amicable settlement of the case. Therefore, the Deputy Commissioner. Aalo, rightly referred the matter to the DLK for amicable settlement of the dispute. 4. Mr. As per the past practise and convention, in all matters of civil in nature within the West Siang District, DLK are convened for an amicable settlement of the case. Therefore, the Deputy Commissioner. Aalo, rightly referred the matter to the DLK for amicable settlement of the dispute. 4. Mr. Pertin, learned counsel for the Respondents No. 1, 2 and 3, has cited several instances whereby this Court has upheld the decision of the DLK. In the cited decision, no where. This Court had entered into the matter whether the Deputy Commissioner has the jurisdiction to refer the civil dispute to the DLK. 5. Section 36 of the Regulation of 1945, envisage that civil dispute shall be administered by the Deputy Commissioner. Assistant Commissioner, and the village authority. By virtue of Section 37, the Deputy Commissioner may try suits of any value and the Assistant Commissioner may try suits of any value and the Assistant Commissioner may try suits not exceeding Rs. 50,000/- in value. Section 38 empowers the Deputy Commissioner as well as the Assistant Commissioner to entertain the dispute civil in nature in which both parties are indigenous and to endeavour them to submit to arbitration by a Panchayat. A detailed description has been given under Section 38 as to how the arbitration Panchayat has to be conducted. 6. Section 40 of the Regulation of 1945, reads, as under: "40. The village authorities shall try all suits without limit of value, in which both the parties are indigenous to the Union Territory of Arunachal Pradesh and live within their jurisdiction and which are not submitted to arbitration under the provisions of Section 38. All other suits which are not submitted to arbitration under the provisions of Section 39 shall be tried by the Deputy Commissioner or an Assistant Commissioner." 7. Thus, it appears from the aforesaid provisions that the village authorities had the jurisdiction to try the suits when both the parties are indigenous and have been living within their jurisdiction. There is no provision for referring dispute to DLK/authorities. When a suit is filed before the Deputy Commissioner. Aalo, he can try the suit himself, he can refer the matter to the village authorities if both the parties are indigenous and the village authorities have territorial jurisdiction as well as pecuniary jurisdiction over the matter. There is no provision for referring dispute to DLK/authorities. When a suit is filed before the Deputy Commissioner. Aalo, he can try the suit himself, he can refer the matter to the village authorities if both the parties are indigenous and the village authorities have territorial jurisdiction as well as pecuniary jurisdiction over the matter. The Deputy' Commissioner can also refer the matter to arbitration in terms of Section 38 and the matter can be referred to arbitration if the parties agree and each party then shall have to nominate an equal numbers of members of Panchayats and a further person as Umpire. 8. It appears from the impugned order dated 25.11.2010 that an appeal was filed by the Respondent No. 1 with regard to the property dispute between the parties, but, there is nothing in the order to indicate against which order/decision the appeal was preferred before the Deputy Commissioner. 9. In the case of Jagmittar Sain Bhagat v. Director, Health Services, Haryana & Ors. reported in (2013) 10 SCC 136 , in Paragraph No.9, it has been observed, as under: "9. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the root of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or tribunal becomes irrelevant and unforcible/unexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetrate and perpetuate defeating of the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply." 10. Thus, the Statute provides 3-tier jurisdiction of Civil Courts as per the Regulation of 1945, as discussed earlier. The DLK cannot derive jurisdiction or in other words, the Deputy Commissioner, Aalo, cannot confer jurisdiction to the DLK apart from the Statute. Therefore, the orders dated 25.11.2010 and 24.01.2011. passed by the Deputy Commissioner. Aalo and in terms of the aforesaid orders, the impugned decision passed by the Keba vide order dated 03.02.2011. are hereby set aside and quashed. 11. Therefore, the orders dated 25.11.2010 and 24.01.2011. passed by the Deputy Commissioner. Aalo and in terms of the aforesaid orders, the impugned decision passed by the Keba vide order dated 03.02.2011. are hereby set aside and quashed. 11. With the above directions, this Civil Revision Petition stands disposed of. However, there shall be no order as to costs.