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2021 DIGILAW 526 (GAU)

Allok Tayeng v. Anong Tayeng

2021-09-02

ROBIN PHUKAN

body2021
JUDGMENT : 1. This Civil Revision Petition, under section 50 of the Assam Frontier Justice Regulation Act, 1945, is directed against the order dated 1.11.2017, passed by the Deputy Commissioner, East Siang District, Pasighat, in Title Suit No. 02/2011 and in I.A. No. 08/2017, as well as the consequent order dated 15.11.2017, passed by the Addl. Deputy Commissioner, Mebo, East Siang District. 2. It is to be mentioned here that vide impugned order dated 1.11.2017, the Deputy Commissioner, East Siang District, Pasighat has decided the Title Suit No. 02/2011, and related Interlocutory Application being I.A. No. 08/2017, dated 25.10.2017, with a direction to the Addl. Deputy Commissioner/EAC/Village Authorities of Mebo Sub-Division, to take necessary steps and to submit the subject-matter of dispute before him for proposal and acceptance by holding de novo trial of the case by the village authorities of Mebo banggo/Mebo banggo panchayat in an open darbar, within a period of two months, from the date of order. Accordingly, vide order dated 15.11.2017, the Addl. Deputy Commissioner, Mebo fixed banggo kebang to be held on 28.11.2017, at Mebo Musup Meboand and further directed all the HGBs/GBs of Mebo Sub-Division to attend the said Banggo Kebang at Mebo Musup and further directed Pis of ADC Office, Mebo to attend the Kebang and help the HGBs/GBs to chair the Kebang. 3. Heard Mr. T. Taki, learned counsel for the petitioner and also heard Mr. S. Taye, learned counsel appearing for the respondents. 4. The factual background leading to filing of this Revision Petition is adumbrated hereinafter:— “The petitioner, Shri Alok Tayeng is a permanent resident of Mebo Towiv East Siang District, Arunachal Pradesh. He occupied a plot of land, located at Mebo Moruk area, in the year 1995. Prior to that, the Gaaribura of the Mebo Village accorded him permission to occupy the said plot of land. Then he has cleared the dense forest area measuring about 40 acre of land and obtained Land Possession Certificate and no objection certificate was issued for legal entitlement of the land in questioM/His possession of the said plot of land was recognized by different authorities in due course of time. Thereafter, the Government of Arunachal Pradesh made a proposal, dated 15.7.2000, for establishment of an Induagcial Estate in the Mebo area. Accordingly, Mebo Kebang has accepted the Govt. Thereafter, the Government of Arunachal Pradesh made a proposal, dated 15.7.2000, for establishment of an Induagcial Estate in the Mebo area. Accordingly, Mebo Kebang has accepted the Govt. proposal and decided to offer the land at Mebo Moruk area in the petitioner and had also decided that the revenue generated from me Industrial Estate shall be kept as Mebo Welfare Fund. Then on 17.7.2000, the EAC, Mebo has deputed Pis for verification and feasibility df the site for establishment of the Industrial Estate and after verification, file Kebang has declared that the land under occupation of the petitioner is a suitable site. Thereafter, a meeting was held in the chamber of EAC, MEebo on 28.7.2000, in connection with the establishment of Industrial Estate at Mebo Village, but no decision could be taken because of the claim made by another 3 persons for establishment of Industrial Estate in their 0m??? land. To resolve the dispute one Kebang was held on 6.8.2000, wherein, it was finally decided that the Industrial Estate will be established at Mebo community land and not on private land. Thereafter, on 30.11.2011, a Banggo Kebang was conducted at Mebo community hall, wherein, the village authorities unanimously decided that there shall be no community land at Mebo Moruk area, any individual who occupied land at Mebo Moruk area are their individual land and it is further decided by the Kebang that the land occupied by the petitioner at Mebo Moruk area is his individual land and no one has any vested right to interfere the same. The declaration of title/ownership over the land located at Mebo Monik Area was in the favour of the petitioner as it revealed from the certifted copy, issued by the HGBs/GBs and Kebang decision dated 30.11.2011. Thereafter, the petitioner had developed the land by clearing the dense forest and investing huge amount, and thereafter, some group of people under the name and style as Mebo Moruk Rikyu came to the garden of the petitioner and damage the iron pillar and fencing wires without any va ??? reason and without any notice and information. Therefore, the petitioner instituted one Title Suit being T.S. No. 02/2011, arraying as many as 15 respondents before the Deputy Commissioner, Pasighat. reason and without any notice and information. Therefore, the petitioner instituted one Title Suit being T.S. No. 02/2011, arraying as many as 15 respondents before the Deputy Commissioner, Pasighat. After admission of the suit, the Deputy Commissioner, East Siang District, Pasighat did not hear the parties for more than 6 years, though, he has directed the partites to maintain status quo till disposal of the Title Suit vide order dated 29.12.2011. But, the respondents have wilfully violated the court's order and they have dismantled the properties in the disputed land by using heavy machinery like JCB. Thereafter, the petitioner approach the Deputy Commission again by filing an Interlocutory Application, being I.A. No. 08/2017, on 25.10.2017, for necessary action against the respondents for their wilful violation of the court's order. The Deputy Commissioner, then, entertained the I.A. No. 08/2017. Thereafter, vide the impugned order dated 1.11.2017, the Deputy Commissioner, East Siang District, Pasighat disposed of the Title Suit No. 02/2011, and the I.A. No. 08/2017, both, vide the impugned order dated 1.11.2017, and pursuant to the said order, the Addl. Deputy Commissioner, Mebo vide the impugned order dated 15.11.2017, fixed 28.11.2017 for holding Banggo Kebang at Mebo Musup and directed the HGBs/GBs of Mebo Sub-Division to remain present in the Kebang, without fail.” 5. Being highly aggrieved, the petitioner has preferred this revision petition against the impugned order, dated 1.11.2017, of the Deputy Commissioner, Pasighat and order dated 15.11.2017, of the Addl. Deputy Commissioner, Mebo on the following grounds (a) that, no summon/notice was issued to the petitioner before disposal of the Title Suit No. 02/2011, and I.A. No. 08/2017; (b) that, no information was given to the petitioner regarding listing/fixing of the case; (c) that, the stage of Title Suit was for submission of draft issues and I.A. No. 08/2017, was filed by the petitioner but no date of hearing was intimated to him; (d) that, there is clear violation of natural justice and no opportunity of being heard was afforded to the petitioner before disposal of the case; and (e) that, there is no provision for conducting inter-village kebang/banggo kebang. 6. 6. The respondent side also submitted affidavit-in-opposition, wherein it is stated that the petitioner has filed false Title Suit claiming himself as the owner and possessor of the land in question and in fact the respondents/villagers are the real owner of the said land and that respondents have never violated the interim order passed by the Deputy Commissioner, Pasighat. It is further stated that the Deputy Commissioner, Pasighat, by referring the matter to the village authorities for a fresh decision has not committed any illegality and there was no violation of the principles of natural justice. It is also stated that by obtaining interim status quo order in the Title Suit, the petitioner did not bother to pursue the matter and kept the same pending for 6 years. And only on a petitions filed by the respondent, the Deputy Commissioner has taken up the matter and passed the impugned order without summoning the plaintiff and defendants of the Title Suit and referred the matter to Bangoo kebjan, and in fact it is a village level Kebang and not inter-village level Ketyng. It is also stated that as stated various Kebang was never held between the petitioner and the private respondents regarding the land situated at Moruk Rikyu area and, however, it was a fact that on 30.11.2011/the village authorities decided the matter in favour of the respondents, i. e., the original land owner of the Mebo Village. It is further stated that Mebo Moruk Rikyu was originally belongs to the ancestors of Mebo Villagers since time immemorial and it was possessed and owned by 197 families. It was a village community land and the petitioner Alok Tayeng, after fraudulently obtaining no objection certificate from the Gaonbura, has claimed 40 acre land and started constructing permanent structure there, for which the Mebo Villagers held Kebang and evicted the petitioner from there. It is also stated that the Title Suit filed by the petitioner; against the decision of Kebang dated 30.11.2011, is not maintainable and that after separation of judiciary from the executive the petitioner should have approached appropriate forum for filing the Title Suit. It is also stated that after the order of the Deputy Commissioner on 1.11.2017, the Gaonburas/Village Authorities conducted Kebang on 28.11.2017, and decided that the petitioner had no land at Moruk area under Mebo Circle. It is also stated that after the order of the Deputy Commissioner on 1.11.2017, the Gaonburas/Village Authorities conducted Kebang on 28.11.2017, and decided that the petitioner had no land at Moruk area under Mebo Circle. It is also stated that there is no basis for filing this civil revision petition and as such it is liable to be dismissed with heavy cost. 7. Mr. Taki, the learned counsel for the petitioner has submitted that in the year, 2011 judiciary was not separated in the State of Arunachal Pradesh and the civil disputes were decided by the Deputy Commissioner. It is further submitted that the Deputy Commissioner has without informing the parties and without hearing the parties disposed of the Tide Suit No. 02/2011, and I.A. No. 08/2017, which is in contravention to the principles of natural justice. It is further submitted that the petitioner is prejudiced by the impugned order and, therefore, it is contended to set them aside and remand the matter back to the Deputy Commissioner to hear the parties and thereafter, to take a fresh decision, as per the provision under section 38 of The Assam Frontier (Administration of Justice) Regulation, 1945. 8. Per contra Mr. S. Taye, the learned counsel for the respondent has submitted that there is no provision for filing an appeal direcdy before the Deputy Commissioner and, therefore, the Deputy Commissioner, East Siang District, righdy send it back to the Banggo Kebang, i.e., the Village authorities. It is further submitted that the revision petition is not at all maintainable and it is barred by res judicata as the same was already decided in the year, 2011. It is also submitted that the petitioner has fraudulently obtained no objection certificate from the Gaonbura, and that the land in question belongs to 197 villagers of Mebo village and the Deputy Commissioner, Pasighat has rightly sent it back to village authorities for a fresh decision. Therefore, it is contended to dismiss the petition. 9. Having heard the submission of the learned Advocates of both the parties and also perusing the record we find substance in the submission of the learned counsel for the petitioner. It appears that the impugned order was passed in violation of the principles of natural justice. Therefore, it is contended to dismiss the petition. 9. Having heard the submission of the learned Advocates of both the parties and also perusing the record we find substance in the submission of the learned counsel for the petitioner. It appears that the impugned order was passed in violation of the principles of natural justice. Before passing the impugned order dated 1.11.2017, by which the Deputy Commissioner has disposed of the Title Suit No. 02/2011, and I.A. No. 08/20, no opportunity of being heard was afforded either to the petitioner or to the respondent side. Thus, the principle of “audi alteram partem,” which is one of the principles of natural justice, appears to be not complied with. 10. It is worth mentioning in this context that the principle of natural justice has been designed to ensure fairness in action by the state and public bodies and, therefore, an important facet of article 14 of the Constitutions of India. While explaining the principle of “audi alteram partem” hon'ble Supreme Court in Union of India v. Tulsiram Patel, (1985) 3 SCC 398 has observed as under “95. The principles of natural justice have, thus, come to be recognized as being a part of the guarantee contained in article 14 because of the new and dynamic interpretation given by this court to the concept of equality which is the subject-matter of that article. Shortly put, the syllogism runs, thus, violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of article 14 :, therefore, a violation of a principle of natural justice by a State action is a violation of article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body men, not coming within the definition of “State” in article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially.” 11. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially.” 11. Another Constitution Bench judgment of hon'ble Supreme Court, in Delhi Transport Corporation v. DTC Mazdoor Congress, 1991 Supp (1) SCC 600, throws considerable light on the observance of principles of natural justice, in particular “audi alteram partem” rule. In the aforesaid case, it has been held that “The audi alteram partem rule, which, in essence, enforces the equity clause of article 14 of the Constitution, is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party in question unless application of rule has been expressly excluded by Act or regulation or rule. The rule of principles of natural justice does not supplant but supplement the rules and regulations and it is the demand of the rule of law, which permeates our Constitution that the rule is observed both substantially and procedurally. It is, thus, trite that any action prejudicial to a citizen, which is taken by the State or public authority without affording him an opportunity of being heard would be unfair and arbitrary. An action which is unfair and arbitrary would fall foul of rule of equality, which is soul and spirit of article 14 of the Constitution.” 12. In Kishore Samrite v. State of U.P., (2013) 2 SCC 398 hon'ble Supreme Court, while dealing with the principle of natural justice, specially ‘Audi Alteram Partem’, held that “23. Compliance with the principle of ‘audi alteram partem’ and other allied principles of natural justice is the basic requirement of rule of law. In fact, it is the essence of judicial and quasi-judicial functioning, and particularly the courts would not finally dispose of a matter without granting notice and adequate hearing to the parties to the lis.” 13. Application of above principles of law to the facts and circumstances of the case in hand, reveals that the principle of “audi alteram partem” is given a complete go bye by the Deputy Commissioner, East Siang District, Pasighat, while passing the impugned orders. The Title Suit No. 02/2011 and I.A. No. 08/20, both were disposed of by which the Deputy Commissioner behind the back of the petitioner by the impugned order, dated 1.11.2017, and without giving an opportunity of being heard, ‘actum of which is not disputed by the respondent side also. The Title Suit No. 02/2011 and I.A. No. 08/20, both were disposed of by which the Deputy Commissioner behind the back of the petitioner by the impugned order, dated 1.11.2017, and without giving an opportunity of being heard, ‘actum of which is not disputed by the respondent side also. Thus, it is prejudicial to the right and interest of the petitioner. And as such the impugned orders requires interference of this court. 14. In the result, we find sufficient merit in this revision petition and, accordingly, the same stand allowed. The impugned order dated 1.11.2017, by which the Deputy Commissioner, East Siang District, Pasighat, disposed of Title Suit No. 02/2011, and I.A. No. 08/20, stands set aside. The case is remanded back to the Deputy Commissioner, East Siang District, Pasighat, with a direction to decide the same a fresh after affording the parties the opportunities of being heard and also to allow them to adduce evidence in support of their case, if they wishes. 15. Since considerable time elapsed after filing of the Title Suit, the parties are directed to appear before the Deputy Commissioner on or before 30th September, 2021. And we hope and trust that, on appearance of the parties before him, the Deputy Commissioner will endeavour to dispose of the same expeditiously, preferably, within a period of two months. The registry of this court is directed to transmit the case record to the Deputy Commissioner, Pasighat, immediately.