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2020 DIGILAW 61 (GAU)

Marbom Riram v. Bepu Riram

2020-01-21

KALYAN RAI SURANA

body2020
JUDGMENT Kalyan Rai Surana, J. - Heard Mr. L. Perme, the learned counsel for the petitioner and Mr. R. Saikia, the learned counsel appearing for the respondents. 2. This appeal under Section 48 of the Assam Frontier (Administration of Justice) Regulation, 1945 is directed against the order dated 13.10.2015 passed by the learned Addl. Deputy Commissioner, Basar, West Siang District (Now Laparada District). The order to the following effect was passed and the same is hereinbelow quoted for ready reference:- wxyz Therefore, basing on the records, and as per statements of the witnesses and the final verification report of the board, the following orders are passed. zyxw wxyz 1) Sri Marbom Riram, GB is directed to comply the order of the then ADC Basar, dated 21/09/2014 in letter and spirit. zyxw wxyz 2) Sri Marbom Riram, GB is directed not to create any kind of obstruction to the irrigation source of Smti. Bepu Riram and Sri Mobom Riram by reusing the head source that water from both Pindi and Yalom Stream. zyxw wxyz 3) Sri Marbom Riram shall construct RCC drainage system at slide Prone area at the earliest and will immediately remove the newly to avoid any unforeseen damage to the WRC fields of Smti. Bepu Riram and Sri Mobom Riram. zyxw wxyz 4) Sri Marbom Riram is further directed to divert the flow of water towards his own WRC field before it touches or flows towards the pine cultivation area of Sri Karbom Riram as it may cause damage/disturbances. Further the works of re-starting the old source of his irrigation channel at Pindi and Yalom Stream be shared by the concerned parties namely Smti. Bepu Riram and Sri Marbom Riram. zyxw wxyz With above orders this case stands disposed off. Copies of this order be furnished to all concerned free of cost . zyxw 3. The learned counsel for the petitioner has taken a preliminary issue that in view of Notification No. JUD/DCS-37/2010 dated 06.01.2014 by which the Government of Arunachal Pradesh had appointed Civil Judges as well as Judicial Magistrates and it was provided that in all cases (both Criminal and Civil) shall be instituted only in the Court of CJM-cum-Civil Judge (Sr. Division) and JMFC-cum-Civil Judge (Jr. Division). Accordingly, by referring to the complaint dated 12.05.2015 by the respondent Nos. 1 & 2, it is submitted that the Addl. Division) and JMFC-cum-Civil Judge (Jr. Division). Accordingly, by referring to the complaint dated 12.05.2015 by the respondent Nos. 1 & 2, it is submitted that the Addl. Deputy Commissioner, West Siang District, Basar exercised jurisdiction not vested by him in law by taking up adjudication of the Civil disputes between the parties. It is submitted that if the Court is not satisfied on this preliminary point, then he would make his submission on the merit of the impugned order. 4. Per contra, the learned counsel for the respondents by referring to the statements made in the affidavit-in-opposition had sought to project that since 2012 there were series of disputes between the appellant and the respondent No. 3 and in continuation of the said disputes, a series of Keba decisions were pronounced and in order to enforce the Keba decisions, the present complaint was filed. It is submitted that notwithstanding that the present application was filed by the respondent Nos. 1 & 2, but the impugned order would show that the previous Keba decisions and the findings recorded therein were relied upon by the learned Addl. Deputy Commissioner, West Siang District, Basar while allowing the said case. Hence, it is submitted that the impugned order is a continuation of the recourse of the respondents to enforce the previous Keba decisions. It is also submitted that all the Keba decision were finally settled by the In-charge Addl. Deputy Commissioner, West Siang District, Basar by order dated 21.09.2014, which was required to be complied with, which finds reference in the impugned order dated 13.10.2015. Hence, it is reiterated that the impugned order was not in exercise of original jurisdiction, but the authorities was enforcing the previous order dated 21.09.2014 by the In-charge Addl. Deputy Commissioner, Basar. 5. On a perusal of the materials available in the writ petition, affidavit-inopposition as well as the affidavit-in-reply, it is observed that in order dated 21.09.2014, there is a reference to the presence of the appellant and the respondent No. 3. There is no reference in the said order to the names of the respondent Nos. 1 & 2 as parties in the said proceeding. Even the copy of the said order dated 21.09.2014 is not found to be communicated to the respondent Nos. 1 & 2 but the said order was only communicated to the appellant and the respondent No. 3. 1 & 2 as parties in the said proceeding. Even the copy of the said order dated 21.09.2014 is not found to be communicated to the respondent Nos. 1 & 2 but the said order was only communicated to the appellant and the respondent No. 3. However, the complaint dated 12.05.2015 is only by the respondent Nos. 1 & 2 and, as such, the respondent No. 3 was not a party to the said complaint. Therefore, the Court is unable to accept the submission made by the learned counsel for the respondents that the impugned order dated 13.10.2015 was for enforcement of the order dated 21.09.2014 because the order obtained by the respondent No. 3, it is not open to the respondent Nos. 1 & 2 to enforce such order. Therefore, the preliminary submissions made by the learned counsel for the appellant about lack of jurisdiction of the learned Addl. Deputy Commissioner, West Siang District, Basar in passing the impugned order dated 13.10.2015 is accepted by holding that the authority was exercising the original jurisdiction which is barred by virtue of the Notification No. JUD/DCS-37/2010 dated 06.01.2014, by which, the Deputy Commissioner as well as the Addl. Deputy Commissioner has been divested with the power and authority to adjudicate Civil and Criminal disputes as judicial Courts have now been constituted in the State. Moreover, the submission made by the learned counsel for the appellant is found to be supported by the case of Nabam Nikum and Ors.-vs-State of Arunachal Pradesh and Ors., (2016) 2 GauLT 1036 (DB). 6. In view of want and/or lack of jurisdiction, the impugned order under Memo No.BSR/LK-176/2014-15/Vol-III/869 dated 13.10.2015 stands vitiated for want of jurisdiction and the said authority passing the order dated 13.10.2015 would be coram non-judice, and the entire exercise of adjudication, by such a forum, would be a nullity ab-initio. Hence, the said order dated 13.10.2015 is set aside and quashed. This writ petition stands allowed. wxyz However, before parting with the records and on the prayer made by the learned counsel for the respondents, it is provided that this order shall not cause any prejudice to the respondents to seek appropriate remedy before the competent Court. zyxw