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2015 DIGILAW 574 (GAU)

Nabam Nikum v. State Of Arunachal Pradesh

2015-05-14

B.K.SHARMA, MANOJIT BHUYAN

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JUDGMENT AND ORDER : B.K. Sarma, J. All the writ petitions involving the same issue have been taken up having heard analogously and are being disposed of by this common Judgment & Order. 2. While in WP(C) No.422/2013 the prayer made is to set aside and quash the Notification dated 8.6.2010 (Annexure-V), in other 4(four) Writ Petitions, the challenge is to orders passed by the jurisdictional Deputy Commissioner on the appeals preferred by the petitioners against the decision of the Village Authority. 3. The issued falls for our consideration is as to whether by the impugned Notification dated 8.6.2010 of the Government of Arunachal Pradesh, all the Deputy Commissioners/Additional Commissioners could have been divested of their powers and jurisdiction to take up the trial of the cases, both civil and criminal including institution, till the Assam Frontier (Administration of Justice) Regulation, 1945 is suitably amended. Admittedly under the provisions of the said Regulation and depending upon the pecuniary jurisdiction, appeal lies to Deputy Commissioners/Additional Deputy Commissioners against the decision of the Village Authorities. An embargo has been created with the issuance of the impugned Notification dated 8.6.2010 in terms of which the aggrieved party aggrieved by the decisions of the Village Authority has been rendered remedy less. 4. Prior to issuance of the said Notification, aggrieved party was entitled to prefer appeal either to the Deputy Commissioner or to the Assistant Commissioner depending upon the pecuniary jurisdiction. In the counter affidavit filed by the State Respondents in WP(C) No.422/(AP)/2013 the Notification dated 28.4.2011 of the Chief Secretary, Govt., of Arunachal Pradesh has been enclosed, the said Notification was issued in reference to the impugned Notification dated 8.6.2010 ordering that except Deputy Commissioner of Tezu, Yupia and Capital, all Deputy commissioners being vested with the powers to administer Civil Justice under the Assam Frontier (Administration of Justice) Regulation, 1945 would continue to take up cases wherever specific directions are issued by the High Court for trial of such cases till the said Regulation, 1945 is suitable amended. 5. As noted above, in the Writ Petitions the challenge is to the orders of the jurisdictional Deputy Commissioner on appeals preferred by the petitioners against the decision of Village Authority. 5. As noted above, in the Writ Petitions the challenge is to the orders of the jurisdictional Deputy Commissioner on appeals preferred by the petitioners against the decision of Village Authority. The petitioners have referred to another Notification dated 6.1.2014 (Annexure-V of WP (C) No.72/2014 of the Chief Secretary of the State which reads as under: “Government of Arunachal Pradesh Department of Law and Judicial Itanagar No. JUD/DCS-37/2010 Dated Itanagar the 6th January, 2014. Notification Consequent upon the appointment of five Chief Judicial Magistrate-cum-Civil Judge (Sr. Division) and five Judicial Magistrate-cum-Civil Judge (Jr. Division) by the State Government and subsequent posting of the officers and vesting of powers in them by the Hon’ble High Court vide notification Nos. HC.VII-02/2013/6584/A, HC.VII-02/2013/6585/A, HC.VII-02/ 2013/6586/A, dated 07.08.2013, HC.VII-02/2013/ 6934/A, dated 12.08.2013, HC.VII-02/2013/6730/A, dated 02.09.2013 and HC.VII-02/2013/6222/ A, HC.VII-02/2013/6223/A, & HC.VII-02/2013/6224/A, dated 26.07.2013 respectively, the Governor of Arunachal Pradesh, in consultation with the Hon’ble High Court, is pleased to order that the Deputy Commissioners where the said Judicial Offices are posted shall transfer all pending cases (both Criminal and Civil) to the Courts of said Chief Judicial Magistrate-cum-Civil Judge (Sr. Division) and Judicial Magistrate-cum-Civil Judge (Jr. Division) for trial and disposal thereof. Henceforth, all cases, both criminal and civil shall be instituted only in the Court of Chief Judicial Magistrate-cum-Civil Judge (Sr. Division) and Judicial Magistrate-cum-Civil Judge (Jr. Division). The Governor of Arunachal Pradesh is further, pleased to order that wherever Judicial Officers are not posted, the Executive Magistrate in the State vested with powers of Judicial Magistrate shall continue to exercise judicial power only in respect of bail and remand matter. Sd/- (H.K. Paliwal) Chief Secretary Memo No.JUD/DSC-37/2010 Dated Itanagar the 9th January, 2014”. 6. While Mr. Jini, learned counsel appearing for the petitioners submits that in view of the above quoted Notification debarring the Deputy) Commissioners from taking up the appeals against the decision of the Village Authority, the respective Deputy Commissioners could not have and ought not have entertained appeals against the Village authority’s decisions, at least after the issuance of the said Notification dated 9.1.2014, Mr. D. Panging, learned counsel representing respondent no.3 submits that the said Notification dated 6.1.2014 has been issued only in respect of regular criminal and civil cases to be entertained by the Judicial Officers and cannot be made applicable in respect of decision of the Village Authority. D. Panging, learned counsel representing respondent no.3 submits that the said Notification dated 6.1.2014 has been issued only in respect of regular criminal and civil cases to be entertained by the Judicial Officers and cannot be made applicable in respect of decision of the Village Authority. Referring to the provisions of the Regulation of 1945, he submits that the said Regulation having provided for independent appellate forum in respect of decision of the Village Authority, the said Forum cannot be done away with that too with the issuance of the impugned Notifications. 7. Mr. K. Ete, learned Additional Advocate General, Arunachal Pradesh referring to the Government stand in the matter submits that till such time the Regulation 1945 is amended the provisions thereof would continue to operate and the appellate Forum provided in the said Regulation will have to be allowed to function. He also submits that the Notification dated 8.6.2010 is in respect of regular Court, both Criminal and Civil and does not pertain to the decision of the Village Authority. He has also produced the written instructions furnished to him by the State Government. For a ready reference the relevant portion of the said written instruction is quoted below: “Para 3. The answering State respondents admit herein that, after the issue of the said notification no.JUD/DSC-37/2010, dated 8.6.2010, all the Deputy Commissioners were directed not to take up trial of cases, both Civil and Criminal after appointment of two District and Sessions Judge Cum District Judges in the State of harmonise the system of judicial administration as initial startup to the phase wise separation of Judiciary from the Executive. Further the State Respondents have now received the draft Arunachal Pradesh Civil Courts Bills, from the Hon’ble Guwahati 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. 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 or 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 would be pleased to allow the Deputy Commissioners & 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. Para 17. As reiterated at para 3 to the petition, the matter of provisions for appeal to a Civil Court, as envisaged in the draft Arunachal Pradesh Civil Courts Bill, would be considered for legislation in the near future so as to provide appeal provisions from any decision of the Village authority. It is submitted that the Hon’ble Court may be please to remand the matter to the Court of Deputy Commissioner, Pasighat to dispose of the case as per provisions of the Assam Frontier (Administration of Justice) Regulation 1945, since the said regulation has neither been amended as per the notification No. JUD/DSC-37/2010 dated 08.06.2010 not it has been repealed, as the said notification has stood as a stumbling block for seeking justice in preferring appeal against decisions of village authorities. The matter has assumed more significance and urgency because of the fact that complete separation of judiciary from Executive is yet to be materialised due to non existence of regular Courts in far flung areas of innocent tribal people who are not accustomed to the modem judicial system. Para 19. Admitted, in view of the notification no.JUD/DSC/37/2010 dated 08.06.2010 Deputy Commissioners have been barred from taking trial of both Civil and Criminal cases till the 1945 Regulation is suitably amended, as there is no remedy for Litigants against Village authority at present in the State of Arunachal Pradesh.” 8. We have given our anxious consideration to the submissions advanced by the learned counsel for the parties and have also perused the entire materials available on record. We have given our anxious consideration to the submissions advanced by the learned counsel for the parties and have also perused the entire materials available on record. In the case of Registrar General, Gauhati High Court v. Union of India & Ors, reported in 2013 (4) GLT 1109, this Court amongst others, dealt with the aforesaid Regulation of 1945. Dealing with the said Regulation it has been observed thus: “13. We know 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 Amnachal 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 Dima Hasao 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 repealed, 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. 15. Thus, administration of justice by regularly constituted Courts manned by judicial officers of the cadre will function as per the Civil Courts Act and to that extent the North East Frontier (Administration and Justice) Regulations, 1945 conferring judicial powers on the executive will cease to operate. The doctrine of implied repeal will apply. 32. 15. Thus, administration of justice by regularly constituted Courts manned by judicial officers of the cadre will function as per the Civil Courts Act and to that extent the North East Frontier (Administration and Justice) Regulations, 1945 conferring judicial powers on the executive will cease to operate. The doctrine of implied repeal will apply. 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. Accordingly, we hold that the Bengal, Agra and Assam Civil Courts Act, 1887 is applicable to the districts of Dima Hasao and Karbi Anglong in the State of Assam and the State 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 away to the provisions of the Civil Courts manned by members of cadre of judicial service.” 9. In the aforesaid decision the Court was concerned with the issue relating to separation of judiciary from the Executive and possibility of any conflict of jurisdiction of autonomous councils vis-a-vis regular Civil and Criminal Courts established in tribal areas. As noted above, paragraph 32 of the judgment deals with the kind of situation in which we are confronted with. It has been observed that Regulation, 1945 is applicable in the State of Arunachal Pradesh which would give way to the provisions of the Civil Courts to the extent of inconsistency in relation to functioning of Court manned by members of the cadre of judicial service. 10. Mr. Ete, learned Additional Advocate General has submitted that recommendation has been received by the State Govt., from the Gauhati High Court in respect of enactment of Arunachal Pradesh Civil Courts. As per above quoted written instruction, pursuant to furnishing of draft Arunachal Pradesh Civil Code from the Gauhati High Court steps are being taken for amending the provisions of the Regulation of 1945. As per above quoted written instruction, pursuant to furnishing of draft Arunachal Pradesh Civil Code from the Gauhati High Court steps are being taken for amending the provisions of the Regulation of 1945. In the interregnum, it is the stand of the State Respondents to allow the Deputy Commissioner and Assistant Commissioner and to administer the provisions of the said Regulation, 1945 towards facilitating easy access to justice, especially appeals from the Village authorities. 11. There is another aspect of the matter. As submitted by the learned Addl. Advocate General, Assam, the provisions of the Regulation of 1945 could not have been done away by an executive flat in the form of the aforesaid Notification dated 8.6.2010 and 6.1.2014. As discussed above, the Notification dated 6.1.2014 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. 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 Courts 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. 13. At this stage submissions have been made by the learned counsels for the parties that in the interregnum and in pursuance to the impugned Notifications, the jurisdiction exercised by the District Judge/Addl. District Judge in respect of decisions of the Village Authority the same may have to be protected by appropriate saving clause in the proposed amendment of Regulation, 1945. The State Respondents are directed to keep in mind the said aspect of the matter while amending Regulation, 1945. However, it is made clear that irrespective of saving clause and/or independent of saving clause. It will always be open for the party aggrieved by any such decision to make challenge to the same on available grounds other than the ground of jurisdiction. 14. However, it is made clear that irrespective of saving clause and/or independent of saving clause. It will always be open for the party aggrieved by any such decision to make challenge to the same on available grounds other than the ground of jurisdiction. 14. In view of the above, the petitioners involved in WP(C) No.70(AP)/2014, WP(C) No.72(AP)/2014, WP(C)No.73(AP)/2014 and WP(C)No.65(AP)/2014 are granted liberty to assail the orders passed by the Deputy Commissioners in appeals against the decisions of the Village Authority by preferring Civil Revision Petition, it is further provided that while entertaining the said Civil Revision Petition, time consumes in this process shall be kept in mind. It is further made clear that this order will not affect validity of any order already passed by the District Judge/Addl. District Judge in exercise of appellate power against the orders passed by the Village Authority, which, however, will be subject to such remedy as may be available in law except the plea of want of jurisdiction. 15. With the above directions all the petitions shall stand disposed of without, however, any order as to costs.