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2020 DIGILAW 462 (GAU)

Pramita Kemprai v. Subhankar Hojai

2020-05-05

AJAI LAMBA, MANISH CHOUDHURY

body2020
JUDGMENT Manish Choudhury, J. - Heard Mr. B.N. Sharma, learned counsel for the review petitioner and Mr. B. Baruah, learned counsel for the respondent. 2. The petitioner has sought review of that part of the judgment and order dated 17.07.2019 passed in Mat. Appeal No. 33/2016 by which this Court had directed the parties to appear before the Judge Subordinate, North Cachar Hills Autonomous District Council Court, Haflong on 23.09.2019 either by themselves or through their authorised counsel for further orders. 3. The background facts, in brief, which led to the filing of the appeal, Mat. Appeal No. 33/2016 can be exposited as follows : the appellant who is the review petitioner here, and the respondent had got married on 26.04.2016 at a temple and thereafter, a deed of marriage had been executed before the Notary Public, Diphu on 28.04.2016. Shortly thereafter, the respondent had instituted a proceeding, T.S. Case No. 80/2016 in the Court of learned Judge Subordinate, North Cachar Hills Autonomous Council Court, Haflong for declaration of his marriage with the appellant-review petitioner as null and void on the ground that they fall within the prohibited degree of relationship for marriage. By the impugned order dated 25.10.2016, the learned Judge Subordinate, North Cachar Hills Autonomous Council Court, Haflong had dissolved the marriage between the parties with the grant of an alimony of Rs. 70,000/- to the appellant-review petitioner. Aggrieved by the said impugned order dated 25.10.2016, the appellant-review petitioner had preferred the appeal, Mat. Appeal No. 33/2016. This Court upon consideration of the matter had, inter-alia, found that no reasonable opportunity was granted to the appellant-review petitioner to put forward her case in an effective manner. It had been found that the learned Judge Subordinate, North Cachar Hills Autonomous Council Court had, on the basis of the suggestion of the Mauzadars and her superior, granted divorce, thereby, surrendering and abdicating the judicial power vested on the said Court. Accordingly, the impugned order dated 25.10.2016 had been set aside granting liberty to the appellant-review petitioner to file her written statement, if so advised, with the further direction to the parties to appear before the learned Judge Subordinate, North Cachar Hills Autonomous Council Court, Haflong on 23.09.2019. 4. Accordingly, the impugned order dated 25.10.2016 had been set aside granting liberty to the appellant-review petitioner to file her written statement, if so advised, with the further direction to the parties to appear before the learned Judge Subordinate, North Cachar Hills Autonomous Council Court, Haflong on 23.09.2019. 4. The only ground urged in this review petition on behalf of the review petitioner is that there is no jurisdiction vested in the Court of Judge Subordinate, North Cachar Hills Autonomous Council Court, Haflong to try the matter of divorce in view of separation of judiciary in the North Cachar Hills District, now renamed as Dima Hasao District. In support of his such submission, Mr. Sharma has referred to the communications dated 05.07.2007 (Annexure-II) and dated 05.04.2011 (Annexure-III) and to the notifications dated 21.09.2012 (Annexure-IV) and dated 14.07.2017 (Annexure-V) respectively. 5. On the other hand, Mr. Baruah, learned counsel appearing for the respondent has submitted that no interference is called for as the Judge Subordinate, North Cachar Hills Autonomous Council Court, Haflong is vested with the jurisdiction to try the matter of divorce between the two parties involved herein as both are tribals belonging to the Dima Hasao District. In support of his submission, he has referred to the Sixth Schedule to the Constitution of India ("the Sixth Schedule", for short), more particularly, to Paragraph 4 and Paragraph 5 thereof, and to the provisions of the North Cachar Hills Autonomous Districts (Administration of Justice) Rules, 1955. 6. We have given due consideration to the submissions made by the learned counsel for the parties and also considered the materials referred to by them. 7. The State Government, by the notification dated 21.09.2012 (Annexure-IV), has established a number of courts, indicated therein, including that of the Court of District & Sessions Judge in the Dima Hasao District of Assam for trial of civil and criminal cases within their respective local limits with effect from the date of taking over charge by the Presiding Officers of those courts. The notification dated 14.07.2017 (Annexure-V) has been issued in exercise of the powers conferred by Section 3(2)(ii) of the Assam Administration of Justice in the North Cachar Hills District Act, 2009 and on the recommendation of this Court, as communicated vide letter dated 03.07.2017 of the Registrar General, Gauhati High Court. The notification dated 14.07.2017 (Annexure-V) has been issued in exercise of the powers conferred by Section 3(2)(ii) of the Assam Administration of Justice in the North Cachar Hills District Act, 2009 and on the recommendation of this Court, as communicated vide letter dated 03.07.2017 of the Registrar General, Gauhati High Court. By the said notification dated 14.07.2017, all suits, cases, appeal, application, proceedings or other business relating to both Civil and Criminal Justice pending on that date before the Court of Deputy Commissioner, Dima Hasao District or Assistants to the Deputy Commissioner, Dima Hasao District have stood transferred to the competent Civil and Criminal Courts of appropriate jurisdictions which have been established vide notification dated 21.09.2012 with effect from the date of inauguration of judicial Courts in Dima Hasao District i.e. from 29.07.2019. The communications dated 05.07.2007 (Annexure-II) and 05.04.2011 (Annexure-III) are in relation to facilitating the matter of separation of judiciary, inter-alia, in the Dima Hasao District i.e. North Cachar Hills District. It may be relevant to mention that the communication dated 05.07.2007 (Annexure-II) was made in reference to orders dated 09.05.2007 and 10.05.2007 passed by the Supreme Court in W.P.(C) No. 1022/1989 (All India Judges Associations and others vs. Union of India and others). 8. It has, thus, become necessary to refer to the provisions of Assam Administration of Justice in the North Cachar Hills District Act, 2009 (the 2009 Act, for short), which is an Act of the State legislature promulgated for administration of justice - both Civil and Criminal - in the North Cachar Hills District in the State of Assam to facilitate the trial of suits and cases by regular Civil and Criminal Courts, subject to the provisions of the Sixth Schedule. The Preamble of the 2009 Act reads as under :- wxyz Preamble zyxw wxyz Whereas it is expedient to provide for the administration of Justice both - Civil and Criminal in the North Cachar Hills District in the State of Assam to facilitate the trials of suits and cases by regular Civil and Criminal Courts in order to effect the Constitutional mandate of separation of Judiciary from Executive pursuant to the directive of the Apex Court subject to provisions of the Sixth Schedule to the Constitution of India and the matters connected therewith or incidental thereto. zyxw wxyz Whereas it is expedient for bringing the Judiciary separated from the Executive to take away the existing system of Administration of Justice by the Deputy Commissioner or his Assistants within the scope and ambit of the Sixth Schedule of the Constitution of India and to set up regular Civil and Criminal Courts for discharge of Judicial functions. The North Cachar Hill Areas being the Tribal areas contemplated under Article - 244 of the Constitution is covered by the Sixth Schedule to the Constitution. Therefore, the regular Civil and Criminal Courts shall be made functional subject to provisions of Para - 4 and 5 of the Sixth Schedule to the Constitution. zyxw 9. The 2009 Act was published in the Official Gazette on 29.10.2009 and in terms of Section 1(3) of the said Act, it had come into force at once. Section 3(2)(ii) of the Act, 2009 has provided that suits, cases, applications, proceedings or other business relating to both Civil and Criminal Justice pending before the Court of Deputy Commissioner or the Assistants to Deputy Commissioner shall stand transferred to the competent Civil and Criminal Courts of the appropriate jurisdiction to be established under the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973, as the case may be, with effect from such date as may be notified by the State Government. It was in that context, the notification dated 14.07.2017, referred above, had been issued in terms of Section 3(2)(ii) of the 2009 Act. From the Preamble and the provisions of the 2009 Act, it is clear that the applicability of the provisions of the 2009 Act is subject to the provisions of Paragraph 4 and Paragraph 5 of the Sixth Schedule. 10. Article 244(2) of the Constitution of India has stated that the provisions of the Sixth Schedule shall apply to the administration of Tribal areas in the State of Assam, Meghalaya, Tripura and Mizoram. As per Paragraph 20(1) of the Sixth Schedule read with Entry I of Part I of the Table thereof, the areas under the North Cachar Hills are tribal areas within the State of Assam. As Paragraph 4 and Paragraph 5 of the Sixth Schedule to the Constitution of India are of relevance, the said two paragraphs are quoted in extenso hereunder :- wxyz "4. As Paragraph 4 and Paragraph 5 of the Sixth Schedule to the Constitution of India are of relevance, the said two paragraphs are quoted in extenso hereunder :- wxyz "4. Administration of justice in autonomous districts and autonomous regions.- (1) The Regional Council for an autonomous region in respect of areas within such region and the District Council for an autonomous district in respect of areas within the district other than those which are under the authority of the Regional Councils, if any, within the district may constitute village councils or courts for the trial of suits and cases between the parties all of whom belong to Scheduled Tribes within such areas, other than suits and cases to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply, to the exclusion of any court in the State, and may appoint suitable persons to be members of such village councils or presiding officers of such courts, and may also appoint such officers as may be necessary for the administration of the laws made under paragraph 3 of this Schedule. zyxw wxyz (2) Notwithstanding anything in this Constitution, the Regional Council for an autonomous region or any court constituted in that behalf by the Regional Council or, if in respect of any area within an autonomous district there is no Regional Council, the District Council for such district, or any court constituted in that behalf by the District Council, shall exercise the powers of a court of appeal in respect of all suits and cases triable by a village council or court constituted under sub-paragraph (1) of this paragraph within such region or area, as the case may be, other than those to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply, and no other court except the High Court and the Supreme Court shall have jurisdiction over such suits or cases. zyxw wxyz (3) The High Court shall have and exercise such jurisdiction over the suits and cases to which the provisions of sub-paragraph (2) of this paragraph apply as the Governor may from time to time by order specify. zyxw wxyz (3) The High Court shall have and exercise such jurisdiction over the suits and cases to which the provisions of sub-paragraph (2) of this paragraph apply as the Governor may from time to time by order specify. zyxw wxyz (4) A Regional Council or District Council, as the case may be, may with the previous approval of the Governor make rules regulating - zyxw wxyz (a) the constitution of village councils and courts and the powers to be exercised by them under this paragraph; zyxw wxyz (b) the procedure to be followed by village councils or courts in the trial of suits and cases under sub-paragraph (1) of this paragraph; zyxw wxyz (c) the procedure to be followed by the Regional or District Council or any court constituted by such Council in appeals and other proceedings under the sub-paragraph (2) of this paragraph; zyxw wxyz (d) the enforcement of decisions and orders of such Councils and courts; zyxw wxyz (e) all other ancillary matters for the carrying out of the provisions of subparagraphs (1) and (2) of this paragraph. zyxw wxyz (5) On and from such date as the President may, after consulting the Government of the State concerned, by notification appoint in this behalf, this paragraph shall have effect in relation to such autonomous district or region as may be specified in the notification, as if - zyxw wxyz (i) in sub-paragraph (1), for the words "between the parties all of whom belong to Scheduled Tribes within such areas, other than suits and cases to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply,", the words "not being suits and cases of the nature referred to in sub-paragraph (1) of paragraph (5) of this Schedule, which the Governor may specify in this behalf," had been substituted; zyxw wxyz (ii) sub-paragraphs (2) and (3) had been omitted; zyxw wxyz (iii) in sub-paragraph (4) - zyxw wxyz (a) For words "A Regional Council or District Council, as the case may be, may with the previous approval of the Governor make rules regulating", the words "the Governor may make rules regulating" had been substituted; and zyxw wxyz (b) For clause (a), the following clause had been substituted, namely :- zyxw wxyz "(a) the constitution of village councils and courts, the powers to be exercised by them under this paragraph and the courts to which appeals from the decisions of village councils and courts shall lie;" zyxw wxyz (c) For clause (c), the following clause had been substituted, namely :- zyxw wxyz "(c) the transfer of appeals and other proceedings pending before the Regional or District Council or any court constituted by such Council immediately before the date appointed by the President under subparagraph (5);" and zyxw wxyz (d) In clause (e), for the words, brackets and figures "sub-paragraphs (1) and (2)", the word, brackets and figure "sub-paragraph (1)" had been substituted. zyxw wxyz (6) Nothing in this paragraph shall apply to the Bodoland Territorial Council constituted under the proviso to sub-paragraph (3) of paragraph 2 of this Schedule. zyxw wxyz 5. zyxw wxyz (6) Nothing in this paragraph shall apply to the Bodoland Territorial Council constituted under the proviso to sub-paragraph (3) of paragraph 2 of this Schedule. zyxw wxyz 5. Conferment of powers under the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898, on the Regional and District Councils and on certain courts and officers for the trial of certain suits, cases and offences.- (1) The Governor may, for the trial of suits or cases arising out of any law in force in any autonomous district or region being a law specified in that behalf by the Governor, or for the trial of offences punishable with death, transportation for life, or imprisonment for a term of not less than five years under the Indian Penal Code or under any other law for the time being applicable to such district or region, confer on the District Council or the Regional Council having authority over such district or region or courts constituted by such District Council or any officer appointed in that behalf by the Governor, such powers under the Code of Civil Procedure, 1908, or, as the case may be, the Code of Criminal Procedure, 1898, as he deems appropriate, and thereupon the said Council, court or officer shall try the suits, cases or offences in exercise of the powers so conferred. zyxw wxyz (2) The Governor may withdraw or modify any of the powers conferred on a District Council, Regional Council, court or officer under sub-paragraph (1) of this paragraph. zyxw wxyz (3) Save as expressly provided in this paragraph, the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898, shall not apply to the trial of any suits, cases or offences in an autonomous district or in any autonomous region to which the provisions of this paragraph apply. zyxw wxyz (4) On and from the date appointed by the President under sub-paragraph (5) of paragraph 4 in relation to any autonomous district or autonomous region, nothing contained in this paragraph shall, in its application to that district or region, be deemed to authorise the Governor to confer on the District Council or Regional Council or on courts constituted by the District Council any of the powers referred to in sub-paragraph (1) of this paragraph." zyxw wxyz (emphasis supplied) zyxw 11. The Supreme Court of India in its order dated 09.05.2007 passed in W.P.(C) No. 1022/1989 (All India Judges Association and others vs. Union of India) had, inter-alia, emphasized to ensure that the judiciary be separated from the executive in the district of North Cachar Hills on the basis of the suggestion to be given by the High Court and to appoint the required number of Judicial Officers. It has not been brought to the notice of this Court by the learned Counsel for the parties that any notification has been issued under sub-paragraph (5) of Paragraph 4 of the Sixth Schedule. Paragraph 4 of the Sixth Schedule speaks, inter-alia, about the administration of justice in autonomous districts. It has been prescribed, inter-alia, that the District Council for an autonomous district in respect of areas within the district may constitute village councils or courts for the trial of suits and cases between the parties all of whom belong to Scheduled Tribes within such areas, other than suits and cases to which the provisions of sub-paragraph (1) of Paragraph 5 of the Sixth Schedule apply, to the exclusion of any court in the State, and may appoint suitable persons to be members of such village councils or presiding officers of such Courts, and may also appoint such officers as may be necessary for the administration of the laws made under Paragraph 3 of the Sixth Schedule. 12. In exercise of the powers conferred under sub-paragraph (4) of Paragraph 4, the North Cachar Hills Autonomous Council, with the previous approval of the Governor, has framed a set of Rules, "the North Cachar Hills (Administration of Justice) Rules, 1955" ("the 1955 Rules" and/or "the Rules, 1955", for short). The Rules, 1955 have provided for constitution of 3 (three) classes of Courts in the areas within the North Cachar Hills Autonomous District, to be constituted by the District Council for the trial of suits and cases between the parties all of whom belong to Scheduled Tribes within such areas, other than suits and cases to which the provisions of sub-paragraph (1) of Paragraph 5 of the Sixth Schedule apply and they are - wxyz (1) Village Courts. zyxw wxyz (2) Subordinate District Council Court. zyxw wxyz (3) District Council Court. zyxw 13. zyxw wxyz (2) Subordinate District Council Court. zyxw wxyz (3) District Council Court. zyxw 13. A Village Court has been vested with the jurisdiction to try suits and cases of the natures prescribed therein in the 1955 Rules in which both the parties belong to Scheduled Tribes and are residents within its jurisdiction. A Subordinate District Council Court has been vested with the original jurisdiction in respect of all suits and cases in which both the parties do not fall within the local jurisdiction of the same Village Court, but within the areas under the jurisdiction of the Subordinate District Council Court, subject to restrictions provided under Rule 23. Rule 23 has provided the kinds of suits and cases which the Subordinate District Council Court is not competent to try and Rule 24 states that until such time as the Governor deems fit to invest the Subordinate District Council Courts with such powers by notification in the Official Gazzate, such suits and cases referred to in Rule 23 shall be tried and dealt with by the then existing courts of the Deputy Commissioner and his Assistants. A District Council Court is a Court of appeal in respect of all suits and cases triable by the Subordinate District Council Court, apart from other powers vested in it by the 1955 Rules. Chapter V of the 1955 Rules has provided for the procedure to be followed by all the three afore-mentioned classes of Courts. Rule 7 has provided that there shall be one Subordinate District Council Court at Haflong and the said Court shall be presided over by one or more Judicial Officers as may be prescribed and appointed by the District Council with the approval of the Governor. The jurisdiction of the said Court extends to the hearing and the trial of suits and cases arising within the North Cachar Hills Autonomous District. Under sub-paragraph (3) of Paragraph 4, the High Court exercises such jurisdiction over the suits and cases to which the provisions of sub-paragraph (2) of Paragraph 4 apply as the Governor may from time to time by order specify. Under the provisions of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954, the High Court has extensive jurisdiction over the afore-mentioned three classes of Courts, as have been outlined therein including the powers of appeal and revision. 14. Under the provisions of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954, the High Court has extensive jurisdiction over the afore-mentioned three classes of Courts, as have been outlined therein including the powers of appeal and revision. 14. The Court of Judge Subordinate, NC Hills Autonomous Council Courts, Haflong is a Court constituted under the provisions of 1955 Rules. In the case in hand, both the parties belong to Scheduled Tribes and are residents of North Cachar Hills District and the subject-matter of the suit between them is divorce. A suit relating to divorce between the parties, both of whom belong to the Scheduled Tribes and are residents of the North Cachar Hills District, has not been excluded under Rule 23 of the 1955 Rules from the category of suits and cases which a Subordinate District Council Court is not competent to try. 15. It is relevant at this stage to refer to the provisions of the Assam Autonomous Districts Administration of Justice (Miscellaneous Provisions) Act, 1957 ("the Act, 1957", for short). Section 2 of the Act, 1957 has stated that the Deputy Commissioner and an Assistant to him shall have no power to try a case which is exclusively triable by any Court constituted under Paragraph 4 of the Sixth Schedule. 16. In view of the aforesaid provisions of law, a re-look at the provisions of 2009 Act makes it clear that the suits, cases, appeal, application, proceedings or other business relating to both Civil and Criminal Justice which are pending before the Court of Deputy Commissioner or the Assistants to the Deputy Commissioner only had been transferred to the competent Civil and Criminal Courts of the appropriate jurisdiction and it does not provide for transfer of the suits and cases pending before the Courts constituted under the 1955 Rules. By the notification dated 14.07.2017, all suits, cases, appeal, application, proceedings or other business relating to both Civil and Criminal Justice which were then pending before the Court of Deputy Commissioner or the Assistants to the Deputy Commissioner had been transferred to the competent Civil and Criminal Courts of appropriate jurisdiction. By the notification dated 14.07.2017, all suits, cases, appeal, application, proceedings or other business relating to both Civil and Criminal Justice which were then pending before the Court of Deputy Commissioner or the Assistants to the Deputy Commissioner had been transferred to the competent Civil and Criminal Courts of appropriate jurisdiction. Neither the provisions of 2009 Act nor the notification dated 14.07.2017 has provided for the transfer of suits and cases pending before the three classes of Courts constituted under the 1955 Rules, which have been made in exercise of powers under Paragraph 4 of the Sixth Schedule. 17. The provisions of Paragraph 4 and Paragraph 5 of the Sixth Schedule came up for the consideration before the Supreme Court recently in Special Leave to Appeal (Crl.) No. 1218 of 2018 (The State of Meghalaya vs. Melvin Sohlangplaw) and in its judgment dated 11.02.2020, it has observed as under :- wxyz "9.1 As mentioned supra, paragraph 4 of the 6th Schedule contemplates the "trial of suits and cases between the parties all of whom belong to Scheduled Tribes" to the exclusion of any other Court in the State. Though the expression "suits and cases" has not been defined in Article 366 of the Constitution, the Cr.P.C., or the C.P.C., in common legal parlance developed over the years, the expression ''suit'' is used to connote legal proceedings of a purely civil nature, while the term ''case'' is used to connote either a civil suit or a criminal proceeding." zyxw 18. In the light of the above discussions, it is established that the Subordinate District Council Court has not been divested of its original jurisdiction in any manner from conducting the trial of suits and cases between the parties all of whom belong to Scheduled Tribes within its territorial jurisdiction. As a corollary, the Court of Judge Subordinate, North Cachar Hills Autonomous Council is vested with the jurisdiction to try the divorce proceeding between the review petitioner and the respondent, both of whom belong to the Scheduled Tribes and are residents within the territorial jurisdiction of the said Court, to the exclusion of any other Court in the North Cachar Hills District. In view of the above, this Court does not find any merit in the submissions advanced on behalf of the review petitioner and, thus, the present review petition being devoid of merit, stands dismissed. In view of the above, this Court does not find any merit in the submissions advanced on behalf of the review petitioner and, thus, the present review petition being devoid of merit, stands dismissed. There shall, however, be no order as to cost.