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2022 DIGILAW 1111 (GAU)

Imo Lollen S/o. Lt. Tai Lollen v. Horjum Lollen

2022-09-28

ROBIN PHUKAN

body2022
JUDGMENT : 1. Heard Mr. T. T. Tara, learned counsel for the petitioners. And also heard Mr. T. Pertin, learned counsel for the respondents. 2. In this petition, filed under Section 50 of the Assam Frontier (Administration of Justice) Regulation, 1945 (here-in-after referred as ‘the AFR, 1945’), read with Section 115 of the Code of Civil Procedure, four petitioners, namely Shri Imo Lollen and three others prayed for setting aside and quashing the judgment and order, dated 31.07.2017, passed by the learned Dy. Commissioner, Aalo, West Siang District, in connection with the Case No.WS/JK/TS-280/2017. 3. The factual background, leading to filing of the present petition, is briefly stated as under: “The respondent Horjum Lollen had lodged a complaint before the Head Gaon Burha (HGB) Kombo Tarsu to the effect that the opposite party (the petitioners herein) had forcibly entered into his land Nyoli Tangom Nipro area, with the intention of occupying the said land and erected stone boundary pillars. Thereafter, on the basis of the said complaint, a keba was conducted against the illegal and forceful occupation of the respondents. Thereafter, hearing the parties, on 08.02.2017 and 09.02.2017, the village authority has decided as under: “(i) After careful study by examining the history of the Nyoli Tangom Nipro land, the keba members came into conclusion that the grandparents of Late Hogmo-Hokpak was advanced to live there. However, they recognized the upper area of uncultivated land as land of Dagde-Dagayi clan though cover the area together. Accordingly, the upper area was declared in favour of Dagde-Dagayi clan, as the Dagde-Dagayi families had constructed camps during the Chinese aggression. It is also found that they constructed hut one or two times. Further, it could not be proved that Nyoli Tangom Nipro land is a part of Haro family. (ii) The lower part of Nyoli Tangom Nipro land area was occupied by Hogmo-Hokpak and Mod Lollen. As such it was decided the lower part of disputed area in favour of Horjum Lollen. (iii) It is also decided that the keba members will demarcate the boundaries of Nyoli Tangom Nipro land by conducting spot verification. (iv) Today’s case was not against Nyoli Tangom area”. 4. Being highly aggrieved by the aforesaid decision of Keba, the respondent has preferred an appeal before the learned Deputy Commissioner, Aalo. Then, after hearing both the parties and also perusing the materials on record, the Dy. (iv) Today’s case was not against Nyoli Tangom area”. 4. Being highly aggrieved by the aforesaid decision of Keba, the respondent has preferred an appeal before the learned Deputy Commissioner, Aalo. Then, after hearing both the parties and also perusing the materials on record, the Dy. Commissioner, Aalo had found that the Nyoli Tangom Nipro land is continuously under the ownership and possession of Late Mod Lollen and Sri Horjum Lollen and therefore, the learned Dy. Commissioner, Aalo has set aside and quash the keba decision of the village authority of Tarsu village dated 08.02.2017 and 09.02.2017, for the interest of Natural Justice and awarded the Nyoli Tangom land to Sri Horjum Lollen. 5. Being aggrieved, the petitioners approached this Court by filing the present petition on the ground:- (i) That, the judgment and order dated 31.07.2017, suffers from manifest illegalities, as it was passed without following due process of law. (ii) That, the impugned judgment and order has been passed on the basis of a manufactured and unauthentic piece of paper, produced by the respondent No.1 and as such the impugned order is not tenable in the eye of law, as the same was passed on relative consideration. (iii) That, while deciding the matter, the learned Dy. Commissioner, Aalo has not afforded reasonable opportunity of presenting the case of the petitioners, as provided under Section 46 of the AFR, 1945 and he has also not recorded any evidence and decided the matter in most illegal and irregular manner. (iv) That, the Keba decision dated 08.02.2017, and 09.02.2017, was passed under the supervision of the Head Gaon Burha at one voice of the Keba members of the Kombo area, who are acquainted with the history of the case and the learned Dy. Commissioner, Aalo has set aside the same illegally and arbitrarily, on the basis of an unreliable agreement, dated 26.08.2007. (v) That, the learned Dy. Commissioner, Aalo has failed to appreciate the fact that a fine agreement dated 26.08.2007, was entered into between the respondent No.1 and one of his associate, in most clandestine manner, without the knowledge of the petitioner and the learned Dy. Commissioner, Aalo has set aside the Keba decision solely on the basis of said document. (vi) That, the Dy. Commissioner, Aalo has failed to appreciate the fact that a fine agreement dated 26.08.2007, was entered into between the respondent No.1 and one of his associate, in most clandestine manner, without the knowledge of the petitioner and the learned Dy. Commissioner, Aalo has set aside the Keba decision solely on the basis of said document. (vi) That, the Dy. Commissioner, Aalo under the dictate and supervision of respondent No.1 as well as by the MLA, has passed the impugned judgment and order on relative consideration and therefore, it is contended to set aside the impugned judgment and order dated 31.07.2017, passed by the learned Dy. Commissioner, Aalo, West Siang District. 6. Mr. T.T. Tara, learned counsel for the petitioners submits that the learned Dy. Commissioner, Aalo has decided the title in favour of the respondent but, under Section 46 of the AFR, 1945, he has no right to decide such title. Mr. Tara further submits that while passing the impugned judgment and order, the learned Dy. Commissioner, Aalo has failed to comply with the Principle of Natural Justice and he has not afforded any opportunity of being heard to the petitioner for adducing evidence before him. Mr. Tara has also referred one case i.e. Mahipal Singh Tomar vs. State of Uttar Pradesh, reported in 2013 (12) SCALE 304 in support of his submission. Mr. Tara further submits that the learned Dy. Commissioner, Aalo is the cousin brother of the respondents and he has passed the impugned judgment and order in favour of the respondent, as per the dictation of the local MLA. Mr. Tara, therefore, submits that the impugned order suffers from manifest illegalities and therefore, contended to set it aside. 7. On the other hand, Mr. T. Pertin, learned counsel for the respondents submits that the learned Dy. Commissioner, Aalo is not only the cousin brother of the respondents, but he is also the cousin brother of the petitioners as well and that the Principle of Natural Justice is duly complied with, while passing the impugned judgment and order and the learned Dy. Commissioner, Aalo has afforded opportunity of being heard and also to adduce evidence before him. Mr. Commissioner, Aalo has afforded opportunity of being heard and also to adduce evidence before him. Mr. Pertin further pointed out that while deciding the complaint lodged by the respondents, the village authority has changed the subject matter of the dispute and they have signed the Keba decision, after two months and they have manipulated the Keba decision and that the impugned judgment and order suffers from no infirmity or illegality, requiring any interference of this Court and therefore, it is contended to dismiss the petition. 8. Having heard the submission learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the impugned judgment and order dated 31.07.2017, passed by the learned Dy. Commissioner, Aalo. I have also carefully gone through the case law referred by Mr. T.T. Tara, learned counsel for the petitioners. 9. It appears that the respondent side has not filed any affidavit-in-opposition in support of their case and as such, the assertion made in the petition remains undisputed. It also appears from the impugned judgment and order, dated 31.07.2017, that while setting aside the impugned Keba decision dated 08.02.2017, and 09.02.2017, the learned Dy. Commissioner, Aalo has relied on two documents produced before him by the appellant/respondent Sri Horjum Lollen – (1) An agreement, dated 26.08.2007, with Sri Duto Lollen, witnessed by Sri Niamo Lollen and Sri Mange Bagra, regarding imposing of fine Rs.5,000/- for unauthorized extraction of cane from Nyoli Tango area, and (2) An agreement dated on 24.04.1996, on penalty signed in between Sri Geli Bagra in one part and Late Mod Lollen and Horjum Lollen on the other part, in presence of Sri Limar Diyum as witness and based on above two documents, the learned Dy. Commissioner, Aalo held that the disputed land is continuously under the possession of Sri Horjum Lollen for more than 20 years till date, and thereafter, set aside the impugned Keba decision. 10. The petitioners herein have challenged the aforementioned finding of the learned Dy. Commissioner, Aalo, merely on the basis of two unauthenticated documents, the same was passed. It is to be noted there that the present petitioners were not a party to the aforesaid agreements and the same were executed without the knowledge of the petitioners. 10. The petitioners herein have challenged the aforementioned finding of the learned Dy. Commissioner, Aalo, merely on the basis of two unauthenticated documents, the same was passed. It is to be noted there that the present petitioners were not a party to the aforesaid agreements and the same were executed without the knowledge of the petitioners. Therefore, deciding the title of the disputed land solely on the basis of the aforesaid two documents by the learned Deputy Commissioner, Aalo appears to be not in conformity with law. Besides, the petitioners have challenged the impugned judgment and order on the ground that it was passed on relative consideration and that no opportunity of being heard and adducing evidence were afforded to the petitioners. The assertions, so made by the petitioners in ground No.4 and in ground No.8 is not specifically denied by the respondents, by filing any written objection or affidavit-in-opposition. Mr. T.T. Tara, learned counsel for the petitioners has rightly pointed this out in his argument and the ratio laid down in the case law referred by him also fortified his submission. 11. It is to be mentioned here that in the case of Mahipal Singh Tomar (supra), the Hon’ble Supreme Court has held that in administrative law, the ‘rule of natural justice’ have traditionally been regarded as comprising ‘ audi alterem partem’ and ‘ nemo judex in causa sua’. The first of these rules requires the maker of a decision to give prior notice of the proposed decision to the persons affected by it and an opportunity to them to make representation. The second rule disqualifies a person from judging a case if he has direct pecuniary or proprietary interest or might otherwise be biased. The first principle is of great importance because it embraces the rule of fair procedure or due process. Generally speaking, the notion of fair hearing extends to the right to have notice of the other side’s case, the right to bring evidence and the right to argue. 12. It is to be noted here that adducing evidence in support of defence is a valuable right. Denial of such right would amounts to the denial of a fair trial. Reference in this context can be made to a decision of Hon’ble Supreme Court in Talab Haji vs. Madhukar Paroshootam Mandkar & Anr. 12. It is to be noted here that adducing evidence in support of defence is a valuable right. Denial of such right would amounts to the denial of a fair trial. Reference in this context can be made to a decision of Hon’ble Supreme Court in Talab Haji vs. Madhukar Paroshootam Mandkar & Anr. reported in AIR 1058 SC 376 and also in Kalyani Bhaskar (Mrs.) vs. M.S. Sarapoornam (Mrs.) reported in (2007) 2 SCC 258 . As opportunity of being heard and also adducing evidence in support of their case was not afforded to the petitioners by the learned Deputy Commissioner, Aalo, their right to fair trial stands violated here in this case. 13. It is not in dispute that the learned Dy. Commissioner, Aalo is the cousin brother of the respondents. Mr. M. Pertin, the learned Senior Counsel, for the respondent in his argument fairly admitted the same. But, Mr. Pertin also pointed out that the Deputy Commissioner, Aalo is the cousin brother of the petitioners also. This being the position, the learned Deputy Commissioner ought not to have tried the matter, in the interest of justice and in view of the second principle of natural justice i.e. ‘nemo judex in causa sua’, which disqualified him from judging a case if he might otherwise be biased. 14. Further, a careful perusal of the Keba decision dated 08.02.2017 & 09.02.2017 reveals that while the said Keba was conducted, the Gaon Burha, the village elders, knowledgeable persons and all clan members were present and after hearing both the parties and minutely hearing the statement of village elders and knowledgeable persons, they have declared the following:- (i) The upper area of the Nyoli Tangom Nipro land, was declared in favour of Dagde-Dagayi clan, as the Dagde-Dagayi families had constructed camps during the Chinese aggression and they had constructed hut one or two times. And it could not be proved that Nyoli Tangom Nipro land is a part of Haro family; (ii) The lower part of Nyoli Tangom Nipro land area was decided in favour of Horjum Lollen; (iii) The Keba members will demarcate the boundaries of Nyoli Tangom Nipro land by conducting spot verification; (iv) Nyoli Tangom area is not the subject matter of the case; 15. Thus, having examined the impugned judgment and order dated 31.07.2017, passed by the learned Dy. Thus, having examined the impugned judgment and order dated 31.07.2017, passed by the learned Dy. Commissioner, Aalo, West Siang District and the Keba decision dated 08.02.2017 & 09.02.2017, it appears that the Keba decision is based upon the statement of village elders and knowledgeable persons and also the statements made by both the parties before it. On the other hand, the impugned judgment and order, passed by the learned Dy. Commissioner, Aalo is solely based on two documents, which appears to be unauthenticated and besides the impugned judgment and order suffers from arbitrariness and biasness, as the learned Dy. Commissioner, Aalo is stated to be relative of the present respondents. 16. In view of above discussion and findings, it can safely be concluded that the impugned judgment and order passed by the Dy. Commissioner, Aalo suffers from manifest illegality and as such the same requires interference of this Court. Accordingly, the judgment and order dated 31.07.2017, passed by the learned Dy. Commissioner, Aalo, West Siang District, in Case No.WS/JK/TS-280/2017, stands set aside and quashed. 17. As the Arunachal Pradesh Civil Court Act, 2021 has already came into force, the present matter cannot be remanded to the court of learned Dy. Commissioner, Aalo again. And as such, the matter is remanded to the Court of learned Civil Judge, Senior Division, Aalo, to consider and hear the parties and to decide the case in accordance with law, at the earliest. The parties are directed to appear before the Court of learned Civil Judge, Senior Division, Aalo, within a period of 15 days from today. 18. The Registry shall transmit the LCR, received from the Dy. Commissioner, Aalo directly to the Court of learned Civil Judge, Senior Division, Aalo along with a judgment and order of this Court. 19. In terms of above, this Civil Revision Petition stands disposed of. The parties have to bear their own costs.