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2018 DIGILAW 5 (MEG)

Kamala Lama v. Manju Lama

2018-03-12

S.R.SEN

body2018
JUDGMENT : S.R. Sen, J. Heard Mr. K. Paul, learned counsel for the petitioner as well as Mr. K.C. Gautam, learned counsel for the respondent. 2. The brief fact of the petitioner's case in a nutshell is that: "This is an application under Article 227 of the Constitution of India against the impugned Order dated 26.02.2016 passed by the Court of the Assistant to Deputy Commissioner, Shillong, dismissing the Misc. Case No. 67 (T) 2000 renumbered as 329 (T) 2013 filed by the Petitioner for revocation of the Succession Certificate dated 16.11.1999 issued in favour of the respondent. The brief facts of the case are that the Respondent as Petitioner had filed an application for the grant of Succession Certificate against the debts and securities left behind by Late. Bijoy Kumar Lama and a Certificate to that effect was issued on 16.11.1999 by the Court of the Assistant to Deputy Commissioner, Shillong in favour of the respondent herein. The same on being issued, the Petitioner on 24.08.2000 had filed an application, registered as Misc. Case No. 67 (T) 2013 for revocation of the same. Notice was issued and served upon the respondent on 24.04.2001, and the respondent entered appearance and sought time to file the show cause. The same vide order dated 19.11.2002 was closed on deliberate failure on the part of the respondent to file. On 10.07.2007 the then Presiding Officer retired and the instant matter was kept in cold storage for almost eight years. The same on being revived was endorsed and put up on 21.09.2015 before the present Assistant to Deputy Commissioner and ordered for issuance of notice to the parties fixing 29.01.2016 for service report and appearance. On 29.01.2016 the Learned Assistant to Deputy Commissioner was on leave and the matter was posted on 26.02.2016 for Orders. However on 26.02.2016 while the service report was awaited, the Learned Trial Court dismissed the application filed by the petitioner with the observation that no steps have been taken by the Petitioner till date, hence the Misc. Case has become in-fructuous. Being aggrieved by the Order dated 26.02.2016 passed in Misc. Case 329 (T) 2013 by the Learned Court of the Assistant to Deputy Commissioner, Shillong dismissing the application for revocation of the Succession Certificate dated 16.11.1999 filed by the Petitioner and hence this Revision Petition." 3. Case has become in-fructuous. Being aggrieved by the Order dated 26.02.2016 passed in Misc. Case 329 (T) 2013 by the Learned Court of the Assistant to Deputy Commissioner, Shillong dismissing the application for revocation of the Succession Certificate dated 16.11.1999 filed by the Petitioner and hence this Revision Petition." 3. The learned counsel for the petitioner submits that the petitioner has filed an application for revocation of the Succession Certificate bearing (S/C) Misc. Case No. 76 (T) 1999 dated 16.11.1999, but the same was dismissed for default. On being aggrieved by the order passed by the learned Assistant to the Deputy Commissioner, Shillong he approached this Court. 4. In reply to the submission advanced by the learned counsel for the petitioner, the learned counsel for the respondent submits that the Succession certificate was issued quite some time back, so now at this stage an application for revocation may not be proper. 5. After hearing the submissions advanced by the learned counsel for the parties, I have a different view that prima facie on the face of record, the Succession certificate referred above is without any jurisdiction. It is a settled principle of law that as per the Succession Certificate Act, it is the District Judge who has the power to grant the Succession certificate, which is generally applicable throughout India. However, here it is accepted under the Rules of Administration of Justice that the Additional Deputy Commissioner has also been vested with the power to issue the Succession certificate in the scheduled area, but no way the Assistant to the Deputy Commissioner is entrusted with any power either by notification or either by statute to issue the Succession certificate. Any order or judgment passed without jurisdiction is null and void and has no legal sanction; therefore the (S/C) Misc. Case No. 76 (T) 1999 dated 16.11.1999 is hereby set aside. However, the parties are at liberty to file a fresh Succession certificate in the Court having competent jurisdiction. 6. The Registry is directed to send back the Lower Court case record to the concerned Court along with a copy of this judgment and order. 7. With this observation and direction the petition is allowed and stands disposed of. 8. No order as to costs.