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2020 DIGILAW 718 (GAU)

Nuzota Swuro v. Theyeveyinyekha

2020-10-15

SONGKHUPCHUNG SERTO

body2020
JUDGMENT : 1. Heard Mr. N. Mozhui, learned counsel appearing for the petitioners. None has appeared on behalf of the respondent in spite of the notice issued and served. 2. This is a revision petition under article 227 of the Constitution of India, read with rule 32 of the Rules for Administration of Justice and Police in Nagaland (3rd Amendment) Act, 1984 and section 151 of the Code of Civil Procedure, 1908 challenging the order dated 20.3.2019 passed by the Chetheba Town GB's Court; the order dated 9.4.2019, passed by the DB's Court, EAC Office, Chetheba Town in Civil Suit Case No. 2; and the order dated 22.8.2019, passed by the DB's Court, ADC Office, Chozuba Town, Phek in Land Dispute Case No. 5/2019. 3. ‘Hie facts leading to the filing of this petition briefly stated are as follows: About 60 years ago, the father of the petitioners late Chekhwuneyi Swuro purchased a piece of land, namely, Zukhulu situated at Chetheba Town in Phek district from the respondent's father, late Tsosayi Nyekha with a bag of salt which was followed by payment of some amount of money in the later years. Thereafter, the possession of the land was handed over and the land was developed into agricultural land by the late father of the petitioners. But when a portion of the land was expected to be acquired for construction of two lane road passing through the Chetheba Town and for which payment of compensation was expected, the respondent challenged the ownership of the land before the GB's Court at Chetheba (which is being challenged as non-existent). The GB's Court in its order dated 20.3.2019 (impugned herein) ruled that the land belongs to the petitioners but directed that the compensation expected for the land should be shared between the parties. Thereafter, the respondent filed another case before the court of DB's; EAC Office, Chetheba which was registered as Civil Suit No. 2. The case was disposed by the impugned order passed on 9.4.2019 according to the petitioners but as per the record on 25.4.2019. In that order, it was decided that the portion of the land surrounded with fencing belongs to the petitioners but the portion outside the fencing belongs to the respondent. Thereafter also, the respondent filed another case before the DB's court at Chozuba which was registered as Land Dispute Case No. 5/2019. In that order, it was decided that the portion of the land surrounded with fencing belongs to the petitioners but the portion outside the fencing belongs to the respondent. Thereafter also, the respondent filed another case before the DB's court at Chozuba which was registered as Land Dispute Case No. 5/2019. The case was disposed by the impugned order dated 22.8.2019, wherein the order passed by the DB's court at Chetheba in Civil Suit No. 2 was upheld. Being aggrieved, the revision petitioners are before this court. 4. It is contended that the Chetheba Town is not a Village, therefore, there is no legally constituted GB's Court in existence as per the provision of the Rules for Administration of Justice and Police in Nagaland. The learned counsel of the petitioners submitted that as per rule 39 of Chapter-IVA of Rules for Administration of Justice and Police in Nagaland (3rd Amendment) Act, 1984, there are three types of customary courts; (i) Village courts, (ii) Subordinate District customary courts, (iii) District customary courts. And, the Village Courts are set up in the Villages whereas the Subordinate District customary courts and District customary courts are set up in the Sub-divisional and District headquarters, respectively. The learned counsel further submitted that the place where the land in question is situated being, a Sub-divisional headquarter there cannot be a legally constituted village court. Therefore, the order passed by the court which does not legally exist is none-est and as such, it deserves to be quashed and set aside. 5. The next case of the petitioners is that after the first impugned order was passed, the respondent approached the DB's Court at EAC Office, Chetheba by filing a Civil Suit Case No. 2 and the DB's Court disposed the same by the impugned order dated 9.4.2019 (which as per the court record is dated 25.4.2019), and in that, after having recorded the finding that the land in question had been purchased by the petitioners’ late father from the respondent's late father decreed that the land within the fencing belongs to the petitioners but the land outside the fencing belongs to the respondent. This decision of the DB's court is illegal and erroneous because the land purchased by their late father included the land outside the fencing. This decision of the DB's court is illegal and erroneous because the land purchased by their late father included the land outside the fencing. It is also contended that under rule 23A of the Rules for Administration of Justice and Police in Nagaland (2nd Amendment) Act, 1982, a DB's court can fry and decide cases only when they are referred to them by the Deputy Commissioner or Additional Deputy Commissioner or Assistant to the Deputy Commissioner as the case may be. But, in this case, since there was no such order passed by any of the authorities mentioned the exercise undertaken by the DB's court in the EAC Office, Chetheba was without jurisdiction. Therefore, the impugned order deserves to be quashed and set aside. 6. The third case of the petitioners is that after the above stated impugned order was passed by the DB's Court at Chetheba EAC Office, the respondent also approached the DB's Court in the Office of the ADC, Chozuba, in the same district and in that, the DB's court after making an observation that it was not proper for the respondent (petitioner in that case) to file a case since the person who purchased the land had already expired, upheld the judgment/order passed by the DB's court in the Office of EAC, Chetheba. This order, according to them, was passed without jurisdiction or any authority of law. Their learned counsel reiterated his earlier submission that as per rule 23A of the Rules for Administration of Justice and Police in Nagaland (2nd Amendment) Act, 1982, the DB's court can try only those cases which are referred to by the Deputy Commissioner or Additional Deputy Commissioner or Assistant Deputy Commissioner as the case may be. But in this case since there is nothing in the record to show that any order referring the dispute between the parties to the D.B' s court at Chozuba was passed by any of the authorities mentioned, the order passed by the DB's court is without jurisdiction and in violation of the rules. Therefore, the same also deserves to be quashed and set aside. 7. Rule 30 and rule 40 of the Rules for Administration of Justice and Police in Nagaland (3rd Amendment) Act, 1984 provides as follows: “30. A new Chapter ‘IVA-Customary Courts shall be inserted after Rule-38 and before 39 of the Principal Rules. “IVA-Customary Courts” (Constitutional of Courts) 39. Therefore, the same also deserves to be quashed and set aside. 7. Rule 30 and rule 40 of the Rules for Administration of Justice and Police in Nagaland (3rd Amendment) Act, 1984 provides as follows: “30. A new Chapter ‘IVA-Customary Courts shall be inserted after Rule-38 and before 39 of the Principal Rules. “IVA-Customary Courts” (Constitutional of Courts) 39. There shall be three classes of Customary Courts as specified below, in the State of Nagaland to be constituted by the State Government for the trial of suits and cases between the parties all of “whom belong to a Scheduled tribe or Tribes with powers and jurisdiction mentioned in this Chapter, (i) Village Courts. (ii) Subordinate District Customary Courts. (iii) District Customary Courts.” “(i) Village Courts 40. (i) There shall be a Village Court for each village. (2) Each Village Court shall be composed of members of the Village Council constituted under the Nagaland Village and Area councils Act, 1979 (Nagaland Act No. 1 of 1979) including Gaonburas and Angs of the respective village: Provided that in “An Area” members of the traditional established village institutions like Putu Menden and recognised as Village Council under the aforesaid Act and the Gaon buras shall constitute a village court. (3) There shall be a Chairman and a Secretary of each village court, provided that a sitting member of any Area Councils under the Nagaland Village and Area Councils Act, 1978 shall not be entitled to be a Chairman of any Village Court. (4) The Chairman of the Village Council under the Nagaland Village and Area Councils Act, 1978 shall be the Chairman of the court, the Secretary of the Village Court shall be selected and appointed by the Village Court from amongst the Members of the Village Court. Provided that the village inhabited by persons belonging to Sema, Konyak or any other Tribe or Tribes having hereditary Chiefs/Angs by custom or inhabited by majority of any such Tribes the Chairman of such Village Court shall be the hereditary Chief of the such village.” On careful reading of the above provisions of the rule would show that there shall be three class of customary courts; one at the Village level and second at Sub-divisional level and third at the District level. Further, the above provision particularly, rule 40 shows that every village shall have a Village court consisting of the Village council members constituted under the Village and Area Councils Act, 1978 (Nagaland Act. No. 1 of 1979) including Gaon buras and Angs of the respective villages. What can concluded from this provision of law is that Chetheba Town being a Sub-divisional headquarter is supposed to have a Sub-ordinate District customary court and not the Village court consisting of members of Village Council and Gaon buras. Therefore, the GB's court which passed the first impugned order dated 20.3.2019 was not a legally constituted court as per the Rules for Administration of Justice and Police in Nagaland (3rd Amendment) Act, 1984). As such, the impugned order being passed by a court not legally constituted is none-est in the eye of law. 8. Further, rule 4 of the Rules for Administration of Justice and Police in Nagaland (2nd Amendment) Act, 1982 provides as follows: “4. The following shall be inserted after rule 23 of the Rules for Administration of Justice and Police in Nagaland, 1937 as Rules. “23A. The Dobhasis, hence, forward shall try and decide such civil cases only as may be referred to them by the Deputy Commissioner or Additional Deputy Commissioner or Assistant to the Deputy Commissioner as the case may be.” The above provisions of the Rules for Administration of Justice and Police in Nagaland (2nd Amendment) Act, 1982 shows that the DB's court can try and decide only such civil cases which are referred to them by the Deputy Commissioner or Additional Deputy Commissioner or Assistant to the Deputy Commissioner as the case may be. In other words, the DB's court, on their own, cannot assumed, jurisdiction to try civil cases but, will have the same only when cases are referred to them by the authorities mentioned in the rules. In the record of the two cases, i.e., Civil Suit No. 2 and Land Dispute No. 5/2019 wherein the two impugned orders, i.e., the order dated 9.4.2019/25.4.2019 and the order dated 22.8.2019 were passed, respectively, no mention is made to the effect that the two cases were referred to the two courts by the authorities mentioned in the Rule 23A of the Rules for Administration of Justice and Police in Nagaland (2nd Amendment) Act, 1982. The impugned orders neither reveals that the authorities mentioned at rule 23A of the Rules for Administration of Justice and Police in Nagaland (2nd Amendment Act), 1982 had referred the dispute to the two DB's courts. Therefore, it can safely be concluded that the two DB's court on their own had assumed the jurisdiction and tried the cases which came directly to them. Any order or judgment passed without jurisdiction or any authority is illegal and it is none-est. As such, there is no option under the law but to quashed and set aside the two impugned orders. In view of the conclusions drawn above, the three impugned orders are hereby quashed and set aside. Civil revision petition is disposed of. Return the LCR.