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2022 DIGILAW 938 (GAU)

Narayan Debnath v. State of Assam

2022-08-26

SANJAY KUMAR MEDHI

body2022
JUDGMENT : Sanjay Kumar Medhi, J. Heard Shri Biswajit Debnath, the petitioner no. 4 in person. Also heard Shri R. Borpujari, learned Standing Counsel, Revenue Department for the respondent no. 1 whereas Shri S. Baruah, learned State Counsel for the respondent nos. 2 and 3 and Shri AI Uddin, learned counsel for the respondent no. 4. 2. Considering the nature of grievances as well as in view of the fact that a preliminary objection has been raised questioning the maintainability of the writ petition, the matter has been taken up for hearing at the admission stage. 3. Before going to the issue raised in the writ petition, it is necessary to place on record the brief facts of the case. 4. A proceeding was initiated by the respondent no. 4 before the Circle Officer, Lanka whereby the jamabandi in respect of the writ petitioners was challenged. In the said proceeding which was registered as Misc. Case No. 3/2015-16, the Circle Officer, Lanka has passed an order dtd. 13/2/2017 whereby the application of the respondent no. 4 was allowed and the jamabandi in respect of the writ petitioners was cancelled. Against the aforesaid order, the writ petitioners had preferred an appeal before the learned Additional Deputy Commissioner, Hojai which was registered as Misc. Appeal No. 4/2017. The Additional Deputy Commissioner vide an order dtd. 4/4/2018 had remanded the matter for a fresh consideration to the Circle Officer. However, the said order dtd. 4/4/2018 was put to challenge by the present writ petitioners in an earlier round of writ petition which was registered as WP(C)/532/2019. The primary contention of the writ petitioners was that they were not given proper opportunity. This Court had allowed the said writ petition vide an order dtd. 15/2/2019 and the matter was remanded back to the learned Additional Deputy Commissioner, Hojai. On such remand, the learned Additional Deputy Commissioner, Hojai after consideration of the case had passed an order dtd. 8/7/2019 whereby the appeal was dismissed. It is the said order dtd. 8/7/2019 which is the subject matter of challenge in the writ petition. 5. The petitioner no. 4 has submitted that he is appearing in person and also representing the other petitioners. The issue as to whether the petitioner, who is not a counsel can represent the other petitioners would be decided at a later stage. 8/7/2019 which is the subject matter of challenge in the writ petition. 5. The petitioner no. 4 has submitted that he is appearing in person and also representing the other petitioners. The issue as to whether the petitioner, who is not a counsel can represent the other petitioners would be decided at a later stage. The contention of the petitioners is that the submissions made before the learned Deputy Commissioner have not been considered in its proper perspective. He further submits that there has been gross violation of the principles of natural justice as the petitioners were not given an effective hearing. Allegation of violation of the fundamental rights including the rights under Article 14 of the Constitution of India has been made with the contention that the petitioners have not been treated equally. It is further submitted that in the impugned order, no reasons have been recorded and even the counter claim has not been considered. It is further contended that an order dtd. 2/11/2016 passed by the learned Additional District Magistrate in a proceeding under Sec. 107 of the CrPC has also been put to challenge. 6. Shri Borpujari, learned Standing Counsel, Revenue Department has however submitted that the present writ petition is not maintainable for more than one count. He submits that against the order dtd. 8/7/2019 which is the subject matter of challenge in this writ petition, an appeal is available in the Assam Board of Revenue and without taking recourse to the said provision of appeal, the instant writ petition has been filed. It has further been submitted that the petition has been filed by suppressing material facts which have been pointed out in the objection filed by the private respondent no. 4. It has also been submitted that without any proper authority, the petitioner no. 4 cannot represent the other petitioners. 7. Shri Uddin, learned counsel for the respondent no. 4 by drawing the attention of this Court to the IA(Civil)/2148/2022 has submitted that the writ petition in its present form is not maintainable at all. Firstly, he endorses the submission of the learned Revenue Department Counsel that under Regulation 147(a) of the Assam Land and Regulation, the order dtd. 8/7/2019 is appealable in the Assam Board of Revenue and no reasons have been cited as to why such provision of appeal has been bypassed. Firstly, he endorses the submission of the learned Revenue Department Counsel that under Regulation 147(a) of the Assam Land and Regulation, the order dtd. 8/7/2019 is appealable in the Assam Board of Revenue and no reasons have been cited as to why such provision of appeal has been bypassed. As regards the challenge made to the order passed in the application under Sec. 107 of the CrPC, it is submitted that such order is also appealable under Sec. 373 of the CrPC. The learned counsel for the respondent no. 4 has also made a serious allegation of suppression of material facts which would have a bearing in the present lis. He submits that prior to filing of this writ petition, a title suit has been instituted in the Court of the learned Munsiff, Hojai being TS No. 4/2016. The said suit has been instituted by the same petitioners herein as plaintiffs and is at the stage of evidence as the entire facts have been suppressed in this writ petition. By drawing the attention of this Court to the copy of the plaint which has been annexed to the IA, the learned counsel for the respondent no. 4 submits that the reliefs prayed for are substantially the same and by suppressing the same facts, a collateral proceeding in the form of the present writ petition has been instituted. The learned counsel for the respondents have also drawn the attention of this Court to one of the prayers namely restoration of possession and therefore have contended that when admittedly the writ petitioners are not in possession of the land in question, the question of mutation in their name will not arise. 8. Shri Uddin, learned counsel for the respondent no. 4 has also pointed out that during the pendency of this writ petition, the petitioner no. 2 has passed away as it is only after filing of the IA that the petitioners have filed another IA being IA(Civil)/2199/2022 praying for substitution of the said petitioner no. 2. 9. After hearing the parties, a specific query has been put to the petitioner no. 2 has passed away as it is only after filing of the IA that the petitioners have filed another IA being IA(Civil)/2199/2022 praying for substitution of the said petitioner no. 2. 9. After hearing the parties, a specific query has been put to the petitioner no. 4, who is appearing in person, on the point of his authority to represent the other petitioners, the question of suppression of material facts qua the pendency of the title suit being TS No. 4/2016, objection regarding availability of alternative remedy in the Assam Board of Revenue and lastly the fact of the death of the petitioner no. 2 during the pendency of this writ petition. 10. The petitioner no. 4 in person has drawn the attention of this Court to Sec. 32 of the Advocates Act, 1961 and he is contended that he is authorized to represent the other petitioners also. For ready reference, Sec. 32 of the said Act, 1961 is quoted herein below- "32. Power of Court to permit appearances in particular cases.- Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case." 11. The said Sec. empowers the Court to permit appearances through persons who are not enrolled as an advocate in any particular case. The power vested to the Court is a discretionary one which is required to be exercised in a particular case meaning thereby on examination of the facts and circumstances of the case. Such discretion cannot be construed as a matter of right and everything will depend on the facts and circumstances of the case. In the instant case, when the lis is with regard to an inter-parte dispute regarding property, this Court is of the opinion that the power vested under Sec. 32 of the Act of 1961 is not to be exercised and therefore it is held that apart from representing his own case, the petitioner no. 4 is not permitted to represent the other petitioners as the same would open a flood gate which would be in the derogation of the Advocates Act, 1961 which lays down all the conditions precedent for a person to practice as an advocate. 12. 4 is not permitted to represent the other petitioners as the same would open a flood gate which would be in the derogation of the Advocates Act, 1961 which lays down all the conditions precedent for a person to practice as an advocate. 12. With regard to the objection regarding availability of alternative remedy in the form of an appeal under Regulation 147(a), it is submitted that such availability would not be an absolute bar for approaching a writ Court. A specific submission has been made regarding violation of principles of natural justice. 13. This Court is of the opinion that though the availability of the alternate remedy may not be an absolute bar for a writ Court, in the instant case, nothing has been shown that the petitioner before this Court would suffer any prejudice by approaching the Appellate Authority which is a statutory one under the Assam Land and Revenue Regulation. This Court has also taken into account that the questions raised in this writ proceedings involves questions of fact which cannot be gone into by a writ Court and under those facts and circumstances, the action of the writ petitioners is bypassing the Appellate Authority is held to be impermissible in law. A similar view of this Court is also with regard to the order passed in the proceeding under Sec. 107 CrPC as a remedy lies in the CrPC itself in the form of an appeal under Sec. 373. In any case, the jurisdiction of this Court conferred by Article 226 of the Constitution of India is not to be exercised in a routine manner and that too in a manner for challenging any orders passed under Sec. 107 of the CrPC. 14. The Court is now confronted with the allegation of suppression of material facts as nothing has been reflected regarding filing of the Title Suit being TS No. 4/2016 by the same petitioners in the learned Court of Munsiff, Hojai. The explanation given against the said allegation is that though the matters are connected, in the comprehension of the petitioners it will be dealt with by the appropriate Court. Such explanation, apart from being wholly untenable in law as well as the facts reflects lack of bona-fide on the part of the petitioners. The explanation given against the said allegation is that though the matters are connected, in the comprehension of the petitioners it will be dealt with by the appropriate Court. Such explanation, apart from being wholly untenable in law as well as the facts reflects lack of bona-fide on the part of the petitioners. A Writ Court is after all a Court of Equity wherein the basic necessity of approaching the same is to come with clean hands. In the instant case, in every step the petitioners have been seen to have approached this Court without any bona-fide and concealing the aforesaid facts which has a direct bearing in the adjudication of the present case is held to be a material suppression which has been intentionally made as the title suit was instituted at an earlier point of time. A careful perusal of the pleadings presented on behalf of the petitioners does not even reflect a whisper of such case. 15. Under the aforesaid facts and circumstances, this Court is of the opinion that the writ petition is liable to be dismissed both on merits as well as due to suppression of material facts. As valuable time has been wasted by the petitioners, this Court impose a cost of Rs.25,000.00 (Rupees Twenty Five Thousand) to be deposited in the Registry of this Court. The cost may be credited to the account of the Gauhati High Court Legal Services Committee. 16. However, considering that the petitioner no. 4 is appearing in person, the cost is reduced to Rs.10,000.00 (Rupees Ten Thousand). 17. The writ petition accordingly stands dismissed.