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2022 DIGILAW 743 (GAU)

Jumli Basar, S/o. LT. Nyajum Basar v. Additional Deputy Commissioner

2022-07-14

ROBIN PHUKAN

body2022
JUDGMENT : 1. This civil revision petition under Section 50 of the Assam Frontier (Administration of Justice) Regulation, 1945, read with Section 151 of the Code of Civil Procedure and Article 227 of the Constitution of India is preferred by the petitioner, namely, Shri Jumli Basar, challenging the correctness or otherwise of the order No. BSR/LK-176/2017-18/11-215, dated 11.03.2020, passed by the Additional Deputy Commissioner, Basar, and also the order No. BSR/LK-176/13- 14/VOL-III, dated 02.06.2014. 2. The factual background leading to filing of the present petition is briefly stated as under: “The father of the petitioner, namely, Lt. Nyajum Basar of village Gori-II, P.O./P.S. Basar, District Leparada, purchased a plot of jhum land measuring 3.5 acres from one Shri Miken Basar of Gori village on 26.12.1977 by executing a sale deed. Thereafter in the year 1980, Shri Miken Basar claimed that the father of the petitioner has been occupying excess land sold to him and thereafter a survey was conducted and found that the father of the petitioner has occupied excess of jhum land measuring 1.1 acre. Then, as per Galo customary law, the said dispute has been resolved by sacrificing a cow as community feast and one male mithun and one brass bowl was given to Shri Miken Basar in lieu of 1.1 acre of jhum land. Thereafter, in the year 1997, dispute arises over 1.1 acre of land and then the matter was referred to village authority (local keba) and accordingly, the matter was resolved once again as per Galo customary law. However, again on 15.05.1997, a second round of keba, purported to be a Bango Level Keba, was held in which a decision was arrived at that Nyado Basar, the uncle of the petitioner, shall cultivate 2 (two) bigas of land which he was already cultivating and Nydao Basar shall sacrifice any animal and give local brass plate to Shri Nyajum Basar, father of the petitioner, on the ground that both the parties in the dispute are brothers in relation and they should maintain cordial relationship in future. Thereafter, on 28.05.2014, Shri Nyado Basar filed a complaint before the Additional Deputy Commissioner, Basar, against the petitioner for violation of purported Bango Level Keba order No. BSR/JDL/03/1997. In pursuant to the said complaint, the Additional Deputy Commissioner, Basar, issued order No. BSR/LK-176/13-14/VOL-III, dated 02.06.2014, fixing Bango Level Keba to decide the land dispute between the parties on 16.06.2014. Thereafter, on 28.05.2014, Shri Nyado Basar filed a complaint before the Additional Deputy Commissioner, Basar, against the petitioner for violation of purported Bango Level Keba order No. BSR/JDL/03/1997. In pursuant to the said complaint, the Additional Deputy Commissioner, Basar, issued order No. BSR/LK-176/13-14/VOL-III, dated 02.06.2014, fixing Bango Level Keba to decide the land dispute between the parties on 16.06.2014. Thereafter, Bango Level Keba was held on that day and a decision was taken there that Nyado Basar shall continue to cultivate a portion of the land but will not sell the said land without the consent of the family members. Then, being aggrieved by the decision of the Bango Level Keba, dated 16.06.2014, the petitioner along with his mother filed a civil appeal No. 138/2014 before the learned Additional District and Sessions Judge, Basar, but the learned Additional District and Sessions Judge, Basar, transferred the matter to the Additional Deputy Commissioner, Basar, on the ground that regular civil court does not have the jurisdiction under Assam Frontier (Administration of Justice) Regulation, 1945. Thereafter, on 11.03.2020, the Additional Deputy Commissioner, Basar, disposed of the case No. BSR/LK/176/2017-18 without affording any opportunity to the petitioner of being heard and also without affording any opportunity of cross-examination to the witnesses.” 3. Being aggrieved by the order dated 11.03.2020, passed by the Additional Deputy Commissioner, Basar, directing for holding a Bango Level Keba, a nonexistent forum under AFR, 1945, on 02.06.2014, which is barred by the judgment of this Court in the case of Registrar General, Gauhati High Court Vs. Union of India & Ors. Being aggrieved by the order dated 11.03.2020, passed by the Additional Deputy Commissioner, Basar, directing for holding a Bango Level Keba, a nonexistent forum under AFR, 1945, on 02.06.2014, which is barred by the judgment of this Court in the case of Registrar General, Gauhati High Court Vs. Union of India & Ors. reported in 2013 (4) GLT 1109, filed the present civil revision petition for quashing the impugned order dated 11.03.2020 on the following grounds: (i) That the Additional Deputy Commissioner, Basar, has no jurisdiction to issue impugned order, dated 02.06.2014, directing the village authorities to conduct a Bango Level Keba, a non-existent forum under the Assam Frontier (Administration of Justice) Regulation, 1945; (ii) That the Additional Deputy Commissioner, Basar, has acted illegally and with material irregularity in passing the impugned order dated 11.03.2020 and that the said order has been passed in contravention of the principle of natural justice and there was procedural elapsed in passing the impugned order by the learned Additional Deputy Commissioner; (iii) That the petitioner has not been afforded any opportunity of being heard and also not allowed to cross-examine the witnesses and that the learned Additional Deputy Commissioner, Basar, has failed to appreciate the law of position as the petitioner’s father was in possession of the land for last 20 years since 1977 to till 1997 without any intervention from any quarter; and therefore, it is contended to allow the petition. 4. I have heard Mr. G. Bam, learned counsel for the petitioner. Also heard Ms. P. Pangu, learned Junior Government Advocate for the respondent No. 1 and Mr. I. Bam, learned counsel for the respondent No. 2. 5. Mr. G. Bam, learned counsel for the petitioner, submits that the matter has already been decided in the year 1997 and the same has already attained finality having not been challenged before any forum and the litigation started in the year 2014 and the learned Additional Deputy Commissioner, Basar, has directed for holding one Bango Level Keba, which is a non-existent forum in view of the judgment of this Court in WP(C)/255(AP)/2016, dated 04.09.2019, and that the Additional Deputy Commissioner has no power to decide the civil matters in view of the decision of this Court in Registrar General, Gauhati High Court (supra) and also in view of the order of this Court, dated 13.02.2018 in WP(C)/193(AP)/2017 with WP(C)/181(AP)/2017. Further, Mr. Further, Mr. Bam submits that the learned Additional Deputy Commissioner has decided the matter without giving any opportunity of being heard to the petitioner and also without giving opportunity to cross-examine the witnesses and that material witnesses have not been examined and therefore, it is contended to set aside the impugned order. 6. Per contra, Mr. I. Bam, learned counsel for the respondent No. 2, submits that the first keba was held on 13.04.1997 and the same has not been challenged and it was decided in favour of the respondent No. 2 and the second keba was held on 15.05.1997, wherein, decision was taken in favour of the respondent No. 2 and the same was also not challenged. Thereafter, the respondent filed one complaint before the Additional Deputy Commissioner, who is the appellate authority under Section 46 of the AFR, 1945, and that the allegation of violation of principle of natural justice is incorrect and the plea of adverse possession is not applicable and that the learned Additional Deputy Commissioner has rightly decided the complaint and the impugned order, dated 11.03.2020, is not suffering from any illegality or impropriety and the same warrants no interference of this Court and therefore, it is contended to dismiss this petition. 7. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also the impugned order, dated 02.06.2014, by which the learned Additional Deputy Commissioner, Basar, has directed to conduct Bango Level Keba and also the impugned order, dated 11.03.2020, by which the learned Additional Deputy Commissioner, Basar, has decided the matter in favour of the respondent No. 2 and also perused the case law- Registrar General, Gauhati High Court (supra) and the judgment and order of the co-ordinate Bench of this Court in WP(C)/193(AP)/2017 with WP(C)/181 (AP)/2017, dated 13.02.2018, and in WP(C)/255(AP)/2016, dated 04.09.2019. 8. It appears from the judgment and order dated 14.09.2019, passed in WP(C)/255(AP)/2016, that Bango Level Keba could not assumed jurisdiction to decide the dispute between the petitioners and the respondents and that only village authority has been recognized as one of the forum for resolving civil dispute and except the village authority, the Assistant Commissioner, the Deputy Commissioner and the High Court, no forum recognized under Assam Frontier (Administration of Justice) Regulation, 1945, for resolving the land and river dispute between the parties. 9. 9. Again, in the case of Registrar General, Gauhati High Court (supra), a Division Bench of this Court in paragraph Nos. 13, 14 & 15 observed as under: “13. We now take up the issue in relation to the State of Arunachal Pradesh. The Arunachal Pradesh Judicial Service Rules, 2006 have been promulgated by the State of Arunachal Pradesh constituting judicial service. Selection, appointment and posting of officers has taken place against almost all the sanctioned posts. Courts have been duly constituted and are functioning. Vide Central Laws (Extension to Arunachal Pradesh) Act, 2007, CPC has been made applicable to the State of Arunachal Pradesh. Vide notification dated 24.10.2011, CrPC has been made applicable to the State of Arunachal Pradesh. 14. Question for consideration is whether Civil Courts Act or the North East Frontier (Administration and Justice) Regulations, 1945 (the Regulations) would apply in relation to matters dealt with by the regular Courts manned by the members of Arunachal Pradesh Judicial Service or such courts have to be taken to have been constituted under the Civil Courts Act. Admittedly, the State of Arunachal Pradesh is in no manner different from the districts of Dima Hasao and Karbi Anglong in the State of Assam except that Administration of Justice Act on the pattern of 2009 Acts mentioned in Para 3 above have not been enacted. Nonetheless, after setting up of courts, it is not possible to hold that the regulations still hold the field even to the extent of conferment of jurisdiction on courts merely because the Regulations to that extent have not been expressly repealed. Once Civil Courts Act is held applicable, as we have held in respect of tribal districts of Assam, the Regulations will cease to operate to that extent. 15. Thus, administration of justice by regularly constituted Courts manned by judicial officers of the cadre will function as per the Civil Courts Act and to that extent the North East Frontier (Administration and Justice) Regulations, 1945 conferring judicial powers on the executive will cease to operate. The doctrine of implied repeal will apply.” 10. 15. Thus, administration of justice by regularly constituted Courts manned by judicial officers of the cadre will function as per the Civil Courts Act and to that extent the North East Frontier (Administration and Justice) Regulations, 1945 conferring judicial powers on the executive will cease to operate. The doctrine of implied repeal will apply.” 10. In WP(C)/193(AP)/2017 with WP(C)/181(AP)/2017, a co-ordinate Bench of this Court has held that neither the Deputy Commissioner nor his subordinates enjoys the power to take up dispute of civil nature any longer and therefore quashed the impugned order passed by the Additional Deputy Commissioner, Nyapin, dated 24.01.2017, 28.02.2017 & 23.03.2017, and given liberty to the parties to approach appropriate forum for resolving the disputes. 11. In the case in hand, the dispute relates to a plot of land measuring 2 (two) bighas between the petitioner and the private respondent No. 2. As per the Bango Level Keba decision, dated 15.05.1997, the respondent No. 2 has been cultivating over the said 2 (two) bighas of land and he has sacrificed animal and given local brass and plate to Shri Nyajum Basar, father of the petitioner. Thereafter, the respondent filed complaint before the Additional Deputy Commissioner against the petitioner for violation of the Bango Level Keba decision and keba order No. BSR/JDL/03/1997 and thereafter, vide order dated 02.06.2014, the Additional Deputy Commissioner, Basar, has directed to conduct a Bango Level Keba again fixing 16.06.2014. Thereafter, being aggrieved by the decision of Bango Level Keba, the petitioner, along with his mother, filed a civil appeal No. 138/2014 before the learned Additional District & Sessions Judge, Basar, but the same was transferred to learned Additional Deputy Commissioner, Basar, on the ground that regular civil court does not have the jurisdiction under AFR, 1945. Thereafter, the learned Additional Deputy Commissioner, Basar, has disposed of the matter vide impugned order dated 11.03.2020. 12. In view of the ratio laid down in the case of Registrar General, Gauhati High Court (supra) and also in view of the order of a co-ordinate Bench of this Court in WP(C)/193(AP)/2017 with WP(C)/181(AP)/ 2017, neither the Deputy Commissioner nor his subordinates enjoys any power to take up dispute of civil nature any longer. 12. In view of the ratio laid down in the case of Registrar General, Gauhati High Court (supra) and also in view of the order of a co-ordinate Bench of this Court in WP(C)/193(AP)/2017 with WP(C)/181(AP)/ 2017, neither the Deputy Commissioner nor his subordinates enjoys any power to take up dispute of civil nature any longer. Moreover, the Bango Level Keba has not been recognized as a forum for resolving land and river dispute between the parties and as such, the impugned order of the learned Additional Deputy Commissioner, dated 02.06.2014, referring the complaint of the respondent to Bango Level Keba to decide the land dispute between the parties, is without any jurisdiction. Besides, there is also allegation of violation of principle of natural justice as allegedly the Additional Deputy Commissioner has not afforded opportunity of being heard to the petitioner and also to cross-examine the witnesses. 13. In view of above, we find sufficient ground in this civil revision petition and accordingly, the same stands allowed. The impugned order, dated 02.06.2014, passed by the learned Additional Deputy Commissioner, referring the matter to Bango Level Keba and the impugned order, dated 11.03.2020, passed by the learned Additional Deputy Commissioner, Basar, deciding the dispute in favour of the respondent No. 2, stands set aside and quashed. 14. And in view of judgment of a Division Bench of this Court in Registrar General, Gauhati High Court Vs. Union of India & Ors. [2013 (4) GLT 1109] and also 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 matter is remanded to the Court of learned Additional District Judge, Basar. The parties are directed to appear before the Court of learned Additional District & Sessions Judge, Basar, within a period of 15 days from the date of receipt of certified copy of this judgment and order. On receipt of the order of this Court, the learned Additional District & Sessions Judge, Basar, shall proceed to hear the matter in accordance with law and make an endeavour to dispose of the same within a period of 3 (three) months from today. 15. In terms of above, this civil revision petition stands disposed of.