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2022 DIGILAW 398 (GAU)

Chiken Basar S/o Shri Tochi Basar v. State of A. P.

2022-04-18

ROBIN PHUKAN

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JUDGMENT : ROBIN PHUKAN, J. 1. In this writ petition, under Article 226 of the Constitution of India, 3 (three) petitioners, namely, Shri Chiken Basar, Shri Tochi Basar and Shri Chito Basar, have put to challenge the Order No. LDR/LK-175/19-20/547, dated 05.07.2019, passed by the In-Charge Deputy Commissioner, Leparada District, by which, a Bango Level Keba was constituted to decide a land dispute between the petitioners and the respondent Nos. 4 and 6 and the Order No. LDR/LK-176/19-20/111, dated 05.09.2019, in continuation of the earlier order dated 05.07.2019, constituting a Bango Level Keba to decide a land dispute between the petitioners and the respondent Nos. 4 and 5, and also the decision of the Bango Level Keba, dated 13.09.2019. 2. The factual background leading to filing of the present writ petition is briefly stated as under: “There was a land dispute between the petitioners and respondent Nos. 4 and 5 over the title of a property of Lt. Mardi Basar, which the petitioner No. 2 has inherited by performing last rites of Lt. Mardi Basar. The petitioners then lodged a complaint before the Head Gaon Bura of Soi Village and a Keba was held on 29.04.2016. The Keba, after hearing the parties, has decided that the Wet Rice Cultivation (WRC) field (Rike), that was being cultivated by Lt. Mardi Basar, shall be passed on to the petitioner No. 2 and the field near Kidi river was to be divided amongst the parties. The Keba further decided that all the uncultivated land of Lt. Mardi Basar shall be passed on to the petitioner No. 2. Thereafter, respondent No. 4 has submitted a representation to the Additional Deputy Commissioner, Basar, with the allegation of unfair decision taken by the Keba Authority and prayed for settlement of the dispute by a Bango Level Keba. Accordingly, the Deputy Commissioner, Basar, vide order dated 05.07.2019 and 05.09.2019, directed for conducting a Bango Level Keba on 13.09.2019 and accordingly, a Bango Level Keba was held on 13.09.2019, wherein, the Bango Level Keba held that the petitioner No. 2 is entitled to the properties of Lt. Mardi Basar and directed for dividing the land between the petitioner No. 2 and the respondent No. 4. Mardi Basar and directed for dividing the land between the petitioner No. 2 and the respondent No. 4. As the Assam Frontier (Administration of Justice) Regulation, 1945, does not envisage a forum of Bango Level Keba for adjudicating any civil dispute and as such, the Deputy Commissioner, Basar, should not have conferred jurisdiction on a forum which is not provided by the statute and since the order, dated 05.07.2019 and 05.09.2019, passed by the Deputy Commissioner, Basar, are without jurisdiction and consequently the decision of the Bango Level Keba, dated 13.09.2019, is illegal and without jurisdiction, therefore, the petitioners approached this Court for setting aside the aforementioned orders.” 3. The respondent Nos. 3, 4 and 5 have submitted their affidavit-in-opposition denying the averments made in the petition. 4. The respondent No. 3, in his affidavit-in-opposition, stated that the Bango Level Keba system is not only prevalent in Galo areas, but also in entire Arunachal Pradesh since the time immemorial and the Government of Arunachal Pradesh has recognized the existence of such Bango Level Keba system vide Guideline No. GA (B) 62/82, dated 27.02.2001, and the same was issued to all the District Administration and amongst the village authorities and that the Deputy Commissioner, Lepa Rada District, Basar, is within the competency and permitted under the guidelines and referred the Suit to Bango Level Keba and as such, the order of the Bango Level Keba cannot be questioned in the writ petition. 5. In their affidavit-in-opposition by the respondent Nos. 5. In their affidavit-in-opposition by the respondent Nos. 4 and 5, it is stated that Village Level Keba, Bango Level Keba and District Level Keba are the practice and convention being followed by Adi-Galo tribe to resolve the disputes in between themselves and that the Keba decision, dated 29.04.2016, was not taken fairly on merit and the witnesses and submission of deponents were not taken care of and as such, the matter is agitated before the Additional Deputy Commissioner, Basar, who has directed for holding Bango Level Keba to resolve the dispute and accordingly, the Bango Level Keba was convened and the dispute was resolved and as such, the impugned order, dated 05.07.2019 and 05.09.2019 suffers from no illegality or infirmity and the decision of the Bango Level Keba, dated 13.09.2019, also suffers from no infirmity requiring any interference of this Court and that they have no objection in the event of setting aside the Bango Level Keba decision and in remanding the matter to the Deputy Commissioner to adjudicate the dispute a fresh, as per Section 46 of the Assam Frontier (Administration of Justice) Regulation, 1945. 6. I have heard Mr. D. Panging, learned counsel for the petitioners. Also heard Ms. P. Pangu, learned Junior Government Advocate representing State respondent Nos. 1, 2 and 3 and Mr. K. Dabi, learned counsel for the private respondent Nos. 4 and 5. 7. Mr. D. Panging, learned counsel for the petitioners, submits that the Assam Frontier (Administration of Justice) Regulation, 1945, nowhere provides for holding of Bango Level Keba in the State of Arunachal Pradesh and as no such forum existed in accordance with law, and that the Deputy Commissioner, Lepa Rada District, Basar, cannot confer jurisdiction upon a forum to decide the dispute between the petitioners and the respondents. According to Mr. Panging, the Order dated 05.07.2019 and 05.09.2019, passed by the Deputy Commissioner, Lepa Rada District, directing to hold Bango Level Keba and the decision of Bango Level Keba, dated 13.09.2019, suffers from manifest illegality and, therefore, it is contended to set it aside. Mr. Panging also referred a decision of a coordinate bench of this Court, dated 04.09.2019, passed in W.P. (C) No. 255 (AP)/2016, Shri Ekar Riba and Another vs. State of Arunachal Pradesh and Others and Maluk Yomgam vs. Damli Yomcha and Others, 2016 (3) GLT 344 in support of his submission. 8. Mr. Panging also referred a decision of a coordinate bench of this Court, dated 04.09.2019, passed in W.P. (C) No. 255 (AP)/2016, Shri Ekar Riba and Another vs. State of Arunachal Pradesh and Others and Maluk Yomgam vs. Damli Yomcha and Others, 2016 (3) GLT 344 in support of his submission. 8. On the other hand, Mr. K. Dabi, learned counsel for the respondent Nos. 4 and 5, supported the order of the Deputy Commissioner and also the decision of the Bango Level Keba, dated 13.09.2019, which according to Mr. Dabi suffers from no illegality or infirmity requiring any interference of this Court and, therefore, it is contended to dismiss the petition. 9. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the pleadings of the parties and the documents placed on record. 10. Though the respondent Nos. 3, 4 and 5 tried to justify existence of Bango Level Keba in the system of administration of justice in the State of Arunachal Pradesh by referring to a Guideline No. GA (B) 62/82, dated 27.02.2001, yet, such a provision is found not available in the Assam Frontier (Administration of Justice) Regulation, 1945. It is hardly believable that a guideline issued by the government can create a forum which is not recognized under the law. It is an admitted fact that no such provision exist in the Assam Frontier (Administration of Justice) Regulation, 1945, for deciding a dispute by a Bango Level Keba after a decision of Village Level Keba. Now, it is to be seen whether the Deputy Commissioner, Lepa Rada District, can confer jurisdiction upon a forum which is not in existence under any of the provision of law. 11. While dealing with the issue, Hon’ble Supreme Court in the case of Jagmittar Sain Bhagat vs. Dir. Health Services, Haryana and Others (Civil Appeal No. 5476 of 2013) in paragraph No. 9, held that “law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such a authority does not have jurisdiction on the subject matter. For the reason that it is not an objection as to the place of suing; “it is an objection going to the nullity of the order on the ground of want of jurisdiction.” Thus, for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. For the reason that it is not an objection as to the place of suing; “it is an objection going to the nullity of the order on the ground of want of jurisdiction.” Thus, for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide on the adjudicatory facts or facts in issue.” It is also held that “indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The findings of a court or Tribunal become irrelevant and unenforceable/in executable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation.” 12. A coordinate bench of this Court in W.P. (C) No. 255 (AP)/2016 held that Bango Level Keba could not have assumed jurisdiction to decide the dispute between the petitioners and the respondents as apart from village authority, the Assistant Commissioner, the Deputy Commissioner and the High Court, no other forum recognized under the Assam Frontier (Administration of Justice) Regulation, 1945, for resolving the land the river dispute between the parties. It is worth mentioning here in this context that earlier decision of a co-equal Bench binds the Bench of same strength. Reference in this context can be made to a decision of five Judge Bench of Hon’ble Supreme Court in National Insurance Company Ltd. vs. Pranoy Sethi and Others, (2017) 16 SCC 680 . 13. Having examined the impugned orders of the In-Charge Deputy Commissioner, dated 05.07.2019 and 05.09.2019 and also the decision of the Bango Level Keba, dated 13.09.2019, I find that the same fails to withstand the test of correctness. They are seems to be ex-facie illegal and nullity and accordingly, the same stands set aside and quashed. 14. 13. Having examined the impugned orders of the In-Charge Deputy Commissioner, dated 05.07.2019 and 05.09.2019 and also the decision of the Bango Level Keba, dated 13.09.2019, I find that the same fails to withstand the test of correctness. They are seems to be ex-facie illegal and nullity and accordingly, the same stands set aside and quashed. 14. It is to be noted here that in the meantime, the Arunachal Pradesh Civil Court Act, 2021, has been notified and came into force and the Deputy Commissioner, Lepa Rada District, has no jurisdiction to try the civil suit and as such, the matter cannot be remanded to the court of learned Deputy Commissioner, however, liberty is given to the parties to approach appropriate forum under appropriate provision of law. 15. In terms of above this writ petition stands disposed of. The parties have to bear their own cost.