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2022 DIGILAW 1154 (GAU)

Yaya Bomjen, D/o. Lt. Gibom Bomjen v. Jumbom Koyu, W/o. Lt. Tanya Koyu

2022-10-19

ROBIN PHUKAN

body2022
JUDGMENT : 1. In this Civil Revision Petition, under section 50 of the Assam Frontier (Administration of Justice) Regulation 1945, (AFR1945), the petitioner-Shri Tumsen Basar has put to challenge the order, Memo No. NRL-01/2019-2020, dated on 22.03.2021, passed by the learned Addl. Commissioner, Nari, Lower Siang District, in Execution Case No. NRJ-01/2020. 2. It is to be noted here that vide the impugned order, dated 22.03.2021, the learned Addl. Commissioner, Nari had directed the EAC, Nari to conduct an enquiry by taking opinion of the villagers in regard to the decision of 15.06.19, to create new cause of action to tilt the proceeding in favour of the private respondent. 3. The factual background leading to filing of the present petition is briefly stated as under:- “Smti. Yaya Bomjen, daughter of Shri Gibom Bomjen, Nari village lodged one complaint before the Addl. Deputy Commissioner, Nari, Lower Sinag District that an approach road, leading to her residence, has been blocked by Smti. Jumbom Koyu, wife of Late D. Koyu of Nari Village. On the other hand Smti. Jumbom Koyu claimed that the said approach road has been blocked by the complainant herself at the other end, and thereby, not allowing any traffic/passerby to pass through it. Then the learned Addl. Deputy Commissioner, Nari, vide letter dated 06.06.2029, has directed Shri Tumken Dora and Shri Gomi Rina, both are Gaonburah of Nari village to conduct Keba, within 15 days of issuing of the said order. Accordingly, one Keba was held on 15.06.2019, and the Keba has resolved unanimously that from that day onward the road/route shall be opened by Smti. Jumbam Koyu. The Keba also decided that the parties shall not complain again regarding the same. An order of leaving the old Road has also been passed. After that, Smti. Jumbom Koyu preferred an appeal against the said Keba decision dated 15.06.2019, in the court of Deputy Commissioner, Lower Siang District, Likabali. The Deputy Commissioner then referred the matter to the Addl. D.C. Nari to decide the same. But, the learned Addl. D.C., Nari has disposed of the matter by directing the parties to approach appropriate/competent court, as in view of judgment of this court in WP(C) 99(AP) 2018, dated 13.03.2018. Thereafter, the petitioner had filed one representation before the village authority for execution of the Keba decision. D.C. Nari to decide the same. But, the learned Addl. D.C., Nari has disposed of the matter by directing the parties to approach appropriate/competent court, as in view of judgment of this court in WP(C) 99(AP) 2018, dated 13.03.2018. Thereafter, the petitioner had filed one representation before the village authority for execution of the Keba decision. But, the village authority had refused to decide the same and referred the matter to the Addl. Deputy Commissioner. But, the learned Addl. Deputy Commissioner also refused to decide the same. Then on 03.03.2021, the respondent had started permanent construction. Then one FIR had been lodged with the concerned Police Station, but, the same was referred to Addl. D.C., Nari. Then the In-Charge Addl. D.C. Nari had visited the spot with police and issued order on 05.03.2021, to the respondent, to remove all obstruction within 10 days. The said timeline has elapsed on 15.03.2021. Then on that day the respondent had filed reply against the decision on 05.03.2021. Then the Addl. D.C. had accepted the reply and passed the impugned order, dated 22.03.2021, and directed the EAC, Nari to enquire about the matter by taking opinion of the villagers in regards to decision dated 15.06.2019.” 4. Being highly aggrieved by the impugned order, dated 22.03.2021, the petitioner has preferred this Civil Revision Petition under section 50 of the AFR-1945, on the following grounds:- (i) That, if the impugned order, dated 22.03.2021, is allowed to operate then it will not only amounts to creation of new cause of action pertaining to the dispute, but also amounts to superseding the due procedure prescribed under AFR-1945, and as the dispute has already been settled on 15.06.2019, the same cannot be open and inquired into; (ii) That, while the learned Addl. D.C., Nari had refused to take up the appeal of the respondent No.1 and the execution petition filed by the petitioner on the pretext of having no jurisdiction he cannot act upon the written submission made by the respondent No.1, and as such his action is arbitrary and whimsical; (iii) That, the learned Addl. D.C., Nari cannot passed any order admitting the application filed by the respondent No.1 on 15.03.2021, after the gap of two years against the decision on 15.06.2019; (iv) That, the impugned order of the learned Addl. D.C., Nari cannot passed any order admitting the application filed by the respondent No.1 on 15.03.2021, after the gap of two years against the decision on 15.06.2019; (iv) That, the impugned order of the learned Addl. Deputy Commissioner, Nari had failed to follow the procedure as laid down under Order XLI Rule 27 of the CPC. And the same is tainted with ill motive and also arbitrary; (v) That, the impugned order passed by the learned Addl. Deputy Commissioner is illegal and improper and not consistent with the existing law and as such the same is not sustainable in law; (vi) That, the impugned order of the learned Addl. D.C. i.e. sending the matter back to EAC, Nari, is barred by the principle of res-judicata; (vii) That, the impugned order was passed without hearing both the parties and it lack administrative fair play I and as such liable to be quashed; 5. The respondent No. 1 had filed her affidavit in opposition denying the assertions made in the petition. It is stated that the impugned order is interlocutory order and not a final order and that the ADC, Nari has not been made a party, and as such, the petition is bad in law and that she had purchased the present plot of land in the year 1995, from one Gamdo Bomjen and Kirman Sora, and subsequently, she had developed the land in the year 1997, and also developed a temporary footpath leading to the market area and later on, the said foot path was used by the villagers as short cut to reach the market, that the petitioner had developed her plot of land in the year 2010 or 2011 and thereafter, the petitioner had blocked the foot path leading to the market, and thereafter, blocked by the compound wall of the Govt. Primary School, the said foot path was no longer in use and then after sometime the respondent also blocked the same from her end, and that the factum of existence of the foot path for decade is misleading and that the Keba has directed both the parties to comply its decision and as such she is not a judgment debtor as projected by the petitioner, and that she is ready abide by the decision of Keba provided the petitioner also abide by the said decision, and therefore, it is contended to dismiss this petition. 6. 6. The respondent No.2 and 3 also filed their affidavit in opposition denying the averments made by the petitioner in her petition. It is stated that the petitioner is liable to be dismissed for non-joinder of necessary parties as the Addl. D.C. Nari has not been made a party, and that the Keba decision is a comprehensive decision and the said Keba was conducted as per direction of Addl. D.C. Nari, that there is no provision for forceful execution of the Keba decision by the Village Authority and that the present Civil Revision Petition is an abuse of the process of law and that there is no illegality in the order dated 22.03.2021, issued by the Addl. D.C., and therefore, it is contended to dismiss the petition. 7. The petitioner also filed one affidavit in reply to the affidavits submitted by the respondents, denying all the assertions made in the affidavit-in-opposition filed by the respondents. It is stated that arraying of the Govt. Officer as respondent is not necessary herein this petition, and that the Keba decision had already attained finality and the appeal filed the respondent No.1 is dismissed and that the respondent cannot agitate against the decision of Keba, and that reinvestigation, as ordered by the Addl. D.C. Nari is barred by the principle of res-judicata and that after commencement of Arunachal Pradesh Civil Court Act 2021, the Addl. D. C. has no power to execute the decision of village authority. Therefore, it is contended to allow this petition. 8. I have heard Mr. C. Modi, the, learned counsel for the petitioner and also heard Mr. R. Koyu for the respondent No.1 and Mr. L. Tabin for the respondent No. 2, 3 and 4. 9. Mr. C. Modi, the learned counsel for the petitioner had reiterated the grounds mentioned in the petition and submits that since the Keba decision had attained finality, the learned. Addl. D.C. Nari cannot reopen that matter by directing the EAC, Nari to re-investigate the matter, and the impugned order is barred by the principle of res-judicata. Mr. Modi, therefore, contended to allow this petition by setting aside the impugned order. 10. Per contra, Mr. Addl. D.C. Nari cannot reopen that matter by directing the EAC, Nari to re-investigate the matter, and the impugned order is barred by the principle of res-judicata. Mr. Modi, therefore, contended to allow this petition by setting aside the impugned order. 10. Per contra, Mr. R. Koyu, learned counsel for the respondent No.1 submits that the respondent No.1 came to that place in the year 1997, and she had developed the foot path and the petitioner started residing below the land of the respondent much later, and she had started blocking the foot path. Mr. Koyu further submits that the respondent is ready to open the foot path provided the petitioner also opens the same. 11. On the other hand, Mr. L. Tabin, learned counsel for the respondent No. 2, 3 and 4 submits that they are ready to execute the Keba decision, but, the parties are adamant. Mr. Tabin further submits that respondent No.2 and 3 joined as Judge and they cannot be a party in the proceeding. Therefore, it is contended to dismiss the same. 12. Having heard the submission of learned Advocates of both the sides, I have carefully gone through the petition and the documents placed on record, and also gone through the impugned order, and I find sufficient force in the submission of Mr. C. Modi, the learned counsel for the petitioner. It is not in dispute that the Keba decision, dated 15.05.2019 had already attained finality after dismissal of the appeal filed by the respondent against the same. It is also not in dispute that the learned Addl. D.C. Nari, has refused to execute the Keba decision on the ground that after the judgment of this court in WP(C) No. 99 (AP) 2018, he has no jurisdiction to entertain civil matters. That being so, the learned Addl. It is also not in dispute that the learned Addl. D.C. Nari, has refused to execute the Keba decision on the ground that after the judgment of this court in WP(C) No. 99 (AP) 2018, he has no jurisdiction to entertain civil matters. That being so, the learned Addl. D.C. has no power and authority to pass the impugned order directing the EAC, Nari to make an enquiry regarding the intention of the village authority in respect of the old road, as referred in Point No.3 of the said Keba decision, and also to make an enquiry by taking the statement/ opinion of the village authority, who had adjudicated and passed that order and to submit the report within a period of 30 days, and if it is found that intention of the village authority is to declare the title of disputed portion of the land in favour of Smti. Yaya Bomjen then an appropriate order shall be passed against Smti. Jumbom Koyu. 13. A careful perusal of the decision of the Keba, held on 15.06.2019, reveals that it had resolved unanimously that from that day onward the road/route shall be opened by Smti. Jumbam Koyu. The Keba also decided that the parties shall not complain again regarding the same and that the old road shall continue to exist as it was. Since the decision of the Keba had already attained finality, the learned Addl. D.C., Nari had no business and authority to reopen the same being the same barred by the principle of res-judicata. Mr. Modi, the learned counsel for the petitioner has rightly pointed this during argument. Besides, in view of the judgment of this court in WP(C) No. 99 (AP) 2018, he has not been enjoying any power to entertain the civil matters. In another case, in Registrar General, Gauhati High Court Vs. Union of India & Ors. [2013 (4) GLT 1109] a Division Bench of this court also expressed the same. It may also be noted here that in view of proviso to Sub-Section 3 of Section 15 of the Arunachal Pradesh Civil Court Act, 2021, notified on 12.04.2021, in Arunachal Pradesh Gazette, the power to deal with civil matters no longer exist with the Executives Officers. Therefore, the Addl. It may also be noted here that in view of proviso to Sub-Section 3 of Section 15 of the Arunachal Pradesh Civil Court Act, 2021, notified on 12.04.2021, in Arunachal Pradesh Gazette, the power to deal with civil matters no longer exist with the Executives Officers. Therefore, the Addl. D.C. Nari has no authority to admit and act upon the application filed by the respondent No.2, after almost two years of passing the Keba decision on 15.06.2019. And as such, the impugned order, Memo No. NRL-01/2019-2020, dated on 22.03.2021, passed by the learned Addl. Commissioner, Nari, Lower Siang District, in Execution Case No. NRJ-01/2020, has failed to withstand the legal scrutiny. 14. In the result, I find sufficient merit in this petition and accordingly, the same stands allowed. The impugned order passed by the learned Addl. D.C., Nari, dated 22.03.2021, stands set aside and quashed. However, liberty will remain with the parties, to approach appropriate forum under appropriate provision of law for execution of the Keba decision, dated 15.06.2019. In terms of above, this civil revision petition stands disposed of. The parties have to bear their own cost.