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2015 DIGILAW 1055 (GAU)

Likha Serbi v. State of Arunachal Pradesh

2015-08-19

INDIRA SHAH

body2015
JUDGMENT : Indira Shah, J. Whether Civil Courts Act or North East frontier (Administration of Justice) Regulation 1945 (1945 Regulation, in short) would apply in relation to matters dealt with by the regular Courts manned by the members of the Arunachal Pradesh Judicial Service is the issue raised in this writ petition. 2. The power and functions of the judiciary was with the executives in the State of Arunachal Pradesh. The Govt., of Arunachal Pradesh took the decision to separate the judiciary from the executive and in exercise of power under Article 309 of the Constitution, with consultation with the High Court has framed Rules being Arunachal Pradesh Judicial Service Rules, 2006. Judicial Officers have been appointed and consequent to their appointment the Government of Arunachal Pradesh issued a notification dated 06.1.2014 directing all the Deputy Commissioner to transfer all the pending cases (both Criminal and Civil) to the Court of Chief Judicial Magistrate-cum-Civil Judge Senior Division and Judicial Magistrate First Class-cum-Civil Judge Junior Division. 3. The private respondent lodged a complaint to the Deputy Commissioner on 02.01.2013 alleging that the petitioner had deceitfully occupied his land. Petitioners case is that he purchased the land on 25.05.2004 and since then he is in occupation of the land. The complaint lodged by the private respondent was numbered as DC/ICC/JUD/MISC-01/2013 and the petitioner was summoned. Thereafter, on 19.03.2013 the Judicial Magistrate-cum-Extra Assistant Commissioners passed the order to maintain the status-quo in respect of the aforesaid land. 4. It is submitted by Mr. Panging that after the appointment of the Judicial Officer, the Extra Assistant Commissioners have been dispensed of the power of Judicial Magistrate but the Extra Assistant Commissioner, Itanagar has continued to proceed with the case between the petitioner and the private respondent in his capacity as the Executive Magistrate and finally disposed of the same by holding that the disputed plot of land belongs to the private respondent. 5. Relying on the case of Registrar General, Gauhati High Court v. Union of India, 2013 (4) GLT 1109, it is submitted that before separation of judiciary from the Executives and consequent to appointment of the Judicial Officers in the State of Arunachal Pradesh, the Civil Justice was administered by the Deputy Commissioner, the Assistant Commissioner and the Village Authorities under Section 36 of Regulation 1945. Since selection, appointment and posting of Judicial Service has taken place against all sanctioned post in terms of Arunachal Pradesh Judicial Service Rules, 2006, the Deputy Commissioner and the Assistant Commissioners have not role to play in the administration of justice by sitting as regular Courts. 6. Para 13, 14 and 32 of the Registrar General (supra) may be quoted as under :- "(13) we now take up the issue in relation to the State of Arunachal Pradesh. The Arunachal Pradesh Judicial Service Rules, 2006 have been promulgated by the State of Arunachal Pradesh constituting judicial service. Selection, appointment and posting of officers has taken place against almost all the sanctioned posts. Courts have been duly constituted and are functioning. Vide Central Laws (Extension to Arunachal Pradesh) Act, 2007, CPC has been made applicable to the State of Arunachal Pradesh. Vide notification dated 24.10.2011, CrPC has been made applicable to the State of Arunachal Pradesh. (14) Question for consideration is whether Civil Courts Act or the North East Frontier (Administration and Justice) Regulations, 1945 (the Regulations) would apply in relation to matters dealt with by the regular Courts manned by the members of Arunachal Pradesh Judicial Service or such Courts have to be taken to have been constituted under the Civil Courts Act. Admittedly, the State of Arunachal Pradesh is in no manner different from the districts of Dimashasao and Karbi-Anglong in the State of Assam except that Administration of Justice Act on the pattern of 2009 Acts mentioned in Para 3 above have not been enacted. Nonetheless, after setting up of Courts, it is not possible to hold that the regulations still hold the field even to the extent of conferment of jurisdiction on Courts merely because the Regulations to that extent have not been expressly re pealed. Once Civil Courts Act is held applicable, as we have held in respect of tribal districts of Assam, the Regulations will cease to operate to that extent. 32. It is, thus, clear that if legislative intent is to bar applicability of CPC and CrPC to Customary Courts or Courts manned by executive officers, the said bar cannot be held to be applicable to regular Courts. This interpretation will be harmonious with the functioning of regular Courts under the Civil Courts Act and also customary or executive Courts under the Administration of Justice Rules. This interpretation will be harmonious with the functioning of regular Courts under the Civil Courts Act and also customary or executive Courts under the Administration of Justice Rules. Accordingly, we hold that the Bengal, Agra and Assam Civil Courts Act, 1887 is applicable to the districts of Dimahasao and Karbi-Anglong in the State of Assam and the States of Arunachal Pradesh and Nagaland. The Administration of Justice Rules applicable in the State of Nagaland and the North East Frontier (Administration and Justice) Regulations, 1945 applicable in the State of Arunachal Pradesh will give way to the provisions of the Civil Courts Act to the extent of inconsistency in relation to functioning of Courts manned by members of cadre of judicial service." 7. Learned counsel appearing on behalf of the respondent No. 5, on the contrary, has submitted that 1945 Regulation is statute and it continues to be in force so long as it is not amended or repealed. Learned counsel has cited the common judgment dated 14.5.2015 passed by Division Bench of this Court in WP (C) 422(AP)/2013, WP(C) 70(AP)/2014, WP(C) 72(AP)/2014, WP(C) 73(AP)/2014 and WP(C) 65(AP)/2014. 8. In the aforesaid cited case the issue was jurisdiction of Deputy Commissioner on appeals preferred against the decision of Village Authority. It was observed that the provisions of Regulation of 1945 could not have been done away by an Executive fiat in the term of the aforesaid notification dated 08.06.2010 and 06.10.2014. Notification dated 06.10.2014 pertains to civil and criminal Court and does not specifically provide for applicability of the provisions made in the said notification even in respect of appeals from the decision of the village Authority. 9. In para 12 of the aforesaid judgment, it was held:- "12. In view of the above, all the Writ Petitions are disposed of directing the State of Arunachal Pradesh to amend the Regulation, 1945 suitably in terms of the draft Arunachal Pradesh Civil Court received from the High Court. This shall be done as expeditiously as possible. Till then, i.e., in the interregnum, it is hereby provided that the Appellate Forum under the aforesaid Regulation, 1945 shall continue to exercise their jurisdiction in respect of appeals preferred against the decisions of the Village Authority." 10. The aforementioned judgment was passed in a situation where there was no forum for filing appeal against the decision of the Village Authorities. The aforementioned judgment was passed in a situation where there was no forum for filing appeal against the decision of the Village Authorities. The Civil Courts Act does not envisages any forum of a Village Authority whereas 1945 Regulation provides such authority and also provides that an appeal shall lie to the Deputy Commissioner/Assistant Commissioner from a decision of a Village Authority. 11. Article 50 of the Constitution of India says that the State shall take steps to separate the judiciary from the executive. In the case of Subhasis Chakravorty v. State of Meghalaya & Ors., 2002 (1) GLT 227, it was observed in para 7 "(7) Article 50 of the Constitution provides that the State shall take steps to separate the Judiciary from the Executive in the public services of the State. This article is placed in Part-IV of the Constitution. Article 37 of the constitution provides that the provisions contained in part-IV of the constitution shall not be enforceable by any Court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Since Article 50 is a provision in Part-IV of the constitution titled Directive Principles of State Policy, the said Article by itself may not be enforceable by the Court. But article 50 cannot be read in isolation from the scheme of the Constitution. The Supreme Court has held that Rule of Law and Independence of Judiciary are basic features of the Constitution. For preserving these basic features of the Constitution, it may be necessary to separate the subordinate Judiciary from the Executive by appropriate writs and directions." 12. The doctrine of implied repeal was dealt with in the case of State of M.P. v. Kedia Leather & Liquor Ltd. & Ors. (2003) 7 SCC 389 and in para 13, 14 and 15, it was observed "13. There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the legislature while enacting a law has complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation. There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the legislature while enacting a law has complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further is further strengthened on the principle expressio unius (persone vel rei) est exclusion alterius. (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett v. Bradley. The continuance of the existing legislation, in the absence of an express provision of repeal being presumed, the burden to show that there has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. 14. The necessary questions to be asked are : (1) Whether there is direct conflict between the two provisions. (2) Whether the legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law. (3) Whether the tow laws occupy the same field. 15. The doctrine of implied repeal is based on the theory that the legislative, which is presumed to know the existing law, did not intent to create any confusion by retaining conflicting provisions and, therefore, when the Court applies the doctrine, it does no more than give effect to the intention of the legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statues. The Court leans against implying a repeal. Unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together. The Court leans against implying a repeal. Unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together. To determine whether a later statute repeals by implication an earlier statute, it is necessary to scrutinise the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The area of operation in the Code and the pollution laws in question are difference with wholly different aims and objects, and though they alleviate nuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side." 13. The same principle has been reiterated in case of Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors. (2010) 5 SCC 246. 14. Again in case of Rakesh Wadhawan & Ors. v. Jagdamba Industrial Corporation & Ors. (2002) 5 SCC 440 , it was observed in para 24 as under "24. It is a settled rule of construction that in case of ambiguity, the provision should be so read as would avoid hardship, inconvenience, injustice, absurdity and anomaly. Justice GP. Singh in his Statutory Interpretation (2001 Edn.) states. "In selecting out of different interpretations the Court will adopt that which is just, reasonable and sensible rather that which is none of those things as it may be presumed that the legislature should have used the word in that interpretation which least offends our sense of justice. If the grammatical construction leads to some absurdity or some repugnance or inconsistency with the rest of the instrument, it may be departed from so as to avoid that absurdity, and inconsistency. Similarly, a construction giving rise to anomalies should be avoided." 15. In the case of Ch. Tika Ramji & Ors, etc. v. State of Uttar Pradesh & Ors., AIR 1956 SC 676 , the Apex Court while discussing the provisions of Article 254 of the Constitution observed as under :- 27. Similarly, a construction giving rise to anomalies should be avoided." 15. In the case of Ch. Tika Ramji & Ors, etc. v. State of Uttar Pradesh & Ors., AIR 1956 SC 676 , the Apex Court while discussing the provisions of Article 254 of the Constitution observed as under :- 27. Nocholas in his Australian Constitution, 2nd Ed., p.303, refers to three tests of inconsistency or repugnancy:- (1) There may be inconsistency in the actual terms of the competing statutes (R. V. Brisbane Licensing Court, (1920) 28 CLR 23). (2) Though there may be no direct conflict, a State Law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive code (Clyde Engineering Co. Ltd. v. Cowbum, (1926) 37 CLR 466). (3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject-matter (Victoria v. Commonwealth, (1937) 58 CLR 618; Wenn v. Attorney-General (Viet.) (1948) 77 CLR 84)." 16. The state respondents in para 4 of their affidavit in opposition have averred:- "4. That the deponent states that the notification No. JUD/DSC-37/2010, dated 8.6.2010 issued to the Deputy Commissioners whereby directed not to take up trial of cases, both Civil and Criminal after appointment of two District and Sessions Judges cum District Judges in the State to harmonise the system of Judicial administration as initial startup to the phase-wise separation of Judiciary from the Executive. Now, the State Respondents have now received, the draft Arunachal Pradesh Civil Courts Bills, from the Hon'ble Gauhati High Court. The said Bill would provide provisions for appeal against the decision of village authority to a regularly constituted civil Court. However, it is felt that the proposed draft may take sometime to become an Act/Law as Legislative business is a time consuming process as it has to pass through different stages. Therefore, till the draft bill becomes a Law of the Assam Frontier (Administration of Justice) Regulation 1945, is suitably amended and or both are synchronised it is submitted that the Hon'ble High Court allow the Deputy Commissioners and Assistant Commissioners to administer the provisions of Assam Frontier (Administration of Justice) Regulation 1945, for facilitating easy access to Justice, especially appeals from the village Authorities." 17. Division Bench of this Court in WP (C) 422 (AP) 2013 in para 12 has directed the state to amend regulation 1945 suitably in terms of draft Arunachal Pradesh Civil Courts received from the High Court. In the interregnum it is held that the appellate forum under the regulation 1945 shall continue to exercise the jurisdiction in respect of appeals preferred against the decisions of the Village Authority. 18. The Division Bench of this Court in Registrar General Case has held that after setting up of Courts, it is not possible to held that the regulations still hold the field even to the extent of conferment of jurisdiction on Courts merely because the regulation to that extent have not been expressly repealed. Once Civil Court Act is held applicable, the regulations will cease to operate to that extent. 19. It is categorically finding of Division Bench that the administration of justice by regularly constituted Courts manned by judicial officers of the cadre will as per the Civil Courts Act and to that extent the North East Frontier (Administration Justice) Regulations 1945 conferring judicial powers on the executive will cease to operate. The doctrine of implied repeal will apply. 20. In terms of Article 50 of the constitution the State of Arunachal Pradesh has taken decision to separate the judiciary from the executive and issued notifications in this respect. Judicial officers have been appointed and have been conferred jurisdiction to try civil and criminal cases. In view of the circumstances, the Executive cannot and should not exercise the jurisdiction as regular civil or criminal Courts. They shall, however, continue to exercise their jurisdiction only in respect of appeals preferred against the decisions of the Village Authority. 21. Here in this case the Assistant Commissioner has exercised his jurisdictions as regular Civil Courts, in spite of notification issued by the Government directing the Deputy Commissioner/Assistant Commissioners to transfer all the pending cases (both Civil and Criminal) to the Courts of Chief Judicial Magistrate-cum-Civil Judge (Sr. Division) and Judicial Magistrate-cum-Civil Judge (Jr. Division) for trial and disposal. The act of the Assistant Commissioner is contrary to the decision rendered by the High Court in Registrar General Case (supra). Therefore, the impugned order dated 23.07.2014 passed by Extra Assistant Commissioner, Itanagar in Case No.DC/ICC/JUD/MISC-01/2013, is liable to be set aside and quashed. 22. Accordingly, it is set aside and quashed. Division) for trial and disposal. The act of the Assistant Commissioner is contrary to the decision rendered by the High Court in Registrar General Case (supra). Therefore, the impugned order dated 23.07.2014 passed by Extra Assistant Commissioner, Itanagar in Case No.DC/ICC/JUD/MISC-01/2013, is liable to be set aside and quashed. 22. Accordingly, it is set aside and quashed. Private respondent will, however, be at liberty to approach regular Civil Court for redressal of his grievance. This writ petition is accordingly disposed, of.