Chitum Dere vs The State of AP and 3 Ors.

The instant writ petition under Article 226 of the Constitution of India has been filed with the following prayer:

As per the facts projected, a plot of land named “Shu-Dosum” at Sekar Village, Mechukha, Shi-Yomi District, was given to the grandfather of the petitioner by the Gaon Burah in the year 1974, and since then, the land has been under the possession of the petitioner without any disturbance and is being cultivated. However, in the year 2021, the petitioner came to learn that the private respondent no. 3 had sold his land to the respondent no. 4. The petitioner had lodged a complaint on 05.07.2021 before the Circle Head Gaon Burah, Mechukha, and accordingly, a Kebang was conducted on 10.07.2021. In the said Kebang, which was held in the presence of all the parties, a decision was given in favour of the petitioner. The respondent no. 3 had, however, lodged a complaint dated 23.07.2021 before the Additional Deputy Commissioner, Mechukha, questioning the legality of the decision dated 10.07.2021 of the Kebang. However, the Additional District Commissioner did not interfere with the same. The respondent no. 3 had, thereafter, lodged another complaint/appeal before the Deputy Commissioner, Shi-Yomi District. It, however, appears that on 09.02.2022, the Kebang decision was set aside by the District Commissioner without any notice being issued to the petitioner. It is the aforesaid action which is the subject matter of challenge in the present writ petition.

I have heard Shri K. Loya, learned counsel for the petitioner. I have also heard Ms. T. Wangmo, learned Government Advocate, Arunachal Pradesh; Ms. N. Anju, learned counsel for the respondent no. 3 and Shri C. Kobit, learned counsel appearing on instructions of Shri X. Gyati, learned counsel for the respondent no. 4.

Shri Loya, learned counsel for the petitioner, has submitted that, apart from the aspect of violation of the principles of natural justice, the impugned order has been passed without jurisdiction. He has submitted that, after the coming into operation of the Arunachal Pradesh Civil Courts Act, 2021 (in short, ‘Act of 2021’), a decision of the Kebang has to be challenged before the competent Civil Court having pecuniary and territorial jurisdiction. In this regard, he has referred to the proviso to Section 12 of the Act, which reads as follows:

He has also referred to the second proviso to Section 15, which reads as follows:

The learned counsel for the petitioner has submitted that the impugned order has been passed on 09.02.2022, which was after the promulgation of the Act of 2021, which was notified on 12.04.2021, and therefore, the matter ought to have been remanded to the competent Civil Court having territorial jurisdiction. It is also submitted that the appellate jurisdiction under Section 46 of the Assam Frontier (Administration of Justice) Regulation, 1945, which was available against a decision of the village authority, was repealed, and the appellate authority has been made the District Judge.

Ms. Wangmo, learned Government Advocate, Arunachal Pradesh, has submitted that there may not be any dispute with the proposition of law with regard to the application of the Act of 2021.

Ms. Anju, learned counsel for the respondent no. 3 has however submitted that all action taken were done bona fide and under the existing law and therefore the impugned decision may not be interfered with.

Shri C. Kobit, learned counsel appearing on instructions of Shri X. Gyati, learned counsel for the respondent no. 4 has, however, raised a preliminary objection on the maintainability of the writ petition by submitting that the appropriate provision would be Article 227 of the Constitution of India. In this regard, he has relied upon a decision of the Hon’ble Supreme Court reported in (2015) 5 SCC 423 [Radhey Shyam and Anr. Vs. Chhabi Nath and Ors.].

The rival submissions have been duly considered and the materials placed before this Court have been carefully examined.

It is not in dispute that the Arunachal Pradesh Civil Courts Act, 2021 had come into force in the year 2021 itself. The Kebang decision is dated 10.07.2021, prior to which the aforesaid Act was already notified on 12.04.2021. Be that as it may, respondent no. 3 had initially approached the Additional Deputy Commissioner, Mechukha, against the decision of the Kebang, which was not interfered with, and thereafter, the District Commissioner was approached by way of an appeal, which has been allowed vide the impugned decision.

In the considered opinion of this Court, after the promulgation of the Act of 2021, wherein a provision has been notified for redressal of grievance against the judgment by a Customary Court by a competent Civil Court, the Additional Deputy Commissioner or the Deputy Commissioner would not have jurisdiction to look into the issue. The aggrieved parties, namely, the respondent nos. 3 and 4, have to approach the competent Civil Court under the Act of 2021.

Though the learned counsel for respondent No. 4 had raised a preliminary objection on the maintainability of the writ petition by citing the case of Radhe Shyam (supra), this Court is of the view that such objection cannot be countenanced for more than one reason. Firstly, the facts and issues involved in the case of Radhe Shyam (supra) are totally different, and the bar is only against invoking writ jurisdiction against the orders passed by Civil Courts. On the other hand, the impugned order in the instant case has been passed by the Deputy Commissioner, wherein the aspect of judicial review cannot be totally restricted. In fact, in the landmark case of Whirlpool Corporation Vs. Registrar of Trade Marks, reported in (1998) 8 SCC 1, one of the exceptions for invoking the writ jurisdiction, even in situations where alternative remedies are available, is when the impugned order has been passed by an authority without jurisdiction.

The writ petition is accordingly allowed, and the impugned order dated 09.02.2022 passed by the Deputy Commissioner, Shi-Yomi District, is interfered with and set aside. The respondent nos. 3 and 4 would, however, be at liberty to approach the competent Civil Court for redressal of their grievance. The said respondents may also invoke Section 14 of the Limitation Act, 1963, in case the issue of limitation arises.

It is, however, made clear that this Court has not expressed any opinion on the inter se merits of the cases of the contesting parties, which would be looked into by the competent Civil Court.

No order as to cost(s).