Maling Gomba vs Namgey Tsering

S.N. Phukan, J.—This revision petition has been filed under Regulation No. 50 of the Assam Frontier (Administration of Justice) Regulation, 1945, for short, ''the Regulation'' against the memo dated 6.7.92 issued by the Extra Assistant Commissioner (Judicial) by which the Petitioner was informed that his appeal filed against the order dated 27.12.91 was dismissed by the Deputy Commissioner. The said letter dated 6.7.92 is at Annexure-IX and the order of the Extra Assistant Commissioner, Lumla Sub-Division No. LML/JUD-1/91-92 is at Annexure-VI to the present petition. As the petition could not be filed within 30 days as required under Regulation 51 of the said Regulation, a petition u/s 5 of the Indian Limitation Act has also been filed.

Considering the nature of facts of this case as well as law applicable both the petitions for condonation of delay and the question whether in the main revision petition, rule has to be issued or not including granting of the interim prayer were taken up together.

Considering the fact that interpretation of Regulations Nos. 50, 51, and 52 of the Regulation is necessary vis-a-vis the provisions of Indian Limitation Act which may have far reaching consequences, at the request of this Court Mr. A.M. Majumdar, learned Advocate General for the State of Arunachal Pradesh also addressed this Court.

Both the parties are members of the Scheduled Tribes, the Petitioner herein is a young person and is a member of the Scheduled Tribes and permanent resident of the State of Arunachal Pradesh. He is at present studying at the National Law School, Bangalore.

It may be stated that a complaint was filed by the Petitioner before the learned Extra-Assistant Commissioner, Lumla Sub-Division, Tawang District, Arunachal Pradesh stating that his late father Tensing Dekpa had purchased a plot of land at the village chacha in the year 1948 and that as the value of the land has increased villagers of Khoso village were trying to acquire the land. Instead of treating this petition as Civil suit the Extra-Assistant Commissioner made a local inspection and noted his views including the claim of the villagers. Both the parries were summoned to his office, the sale deed was also produced. Thereafter, a village Council was constituted by order dated 30.10.91 for an amicable solution and the council gave two recommendations. On the basis of these materials the petition was disposed of by ordering that the father of the Petitioner had purchased a plot of land and also acquired the land and constructed house on the upper side of Lumla-Zamithang road. But it was ordered that the lower portion of the land just by the side of the road will remain with the village authority of Khoso village. The Petitioner being aggrieved filed a petition before the Deputy Commissioner and as stated above by the letter dated 6.7.92 vide Annexure-IX, it was ordered that the appeal was disposed of upholding the above order of the Extra-Assistant Commissioner dated 27.12.91 (Annexure-VI). Permission was also obtained from the Deputy Commissioner to approach this Court vide letter dated 11.9.92 (Annexure-X).

According to the Petitioner, as a revision has to be filed within 30 days from the order, he could not do so for the reasons stated in the petition and those grounds are mainly absence of knowledge and of the order and that as he is a student of National Law College, Bangalore could not come down to Gauhati and also to his village for preparation of the present revision petition.

Heard Mr. A.K. Bhattacharyya, learned Counsel for the Petitioner, Dr. Singh, learned Counsel for the opp. party and as stated above Mr. A.M. Majumdar, learned Advocate General, Arunachal Pradesh.

The Administration of Justice in the State of Arunachal Pradesh is governed by a set of Rules, namely, the Assam Frontier (Administration of Justice) Regulation, 1945 (1 of 1945). These Regulations were framed under Sub-section (2) of Section 92 of the Government of India Act, 1935. Chapter II deals with criminal trials and chapter IV deals with civil procedures. From these two chapters, it appears that Code of Criminal Procedure and the CPC are not applicable for trial of criminal cases and civil suits etc, and the courts are guided by the principles contained in these two courts.

For the purpose of the present dispute, this Court is concerned with Regulation Nos. 50, 51 and 52 which are quoted below:

The (High Court) may on application or other-wise, call for the proceedings of any original case or appeal decided by the (Deputy Commissioner) and not appealable under this Regulation find may pass such Orders as (it) may deem fit.

Every petition of appeal u/s 47 or Section 48 and every application u/s 50 shall be accompanied by a copy of the order against which the appeal or application is made, and shall be filed within thirty days of the date of such order, excluding the time taken in procuring a copy of the order,

(The High Court), the court of Deputy Commissioner), (Assistant Commissioner) shall be guided by the spirit, but shall not be bound by the letter, of the Code of Civil Procedure, 1908, and shall follow subject to any express provisions of these rules, the Principles of the Indian Limitation Act, 1908 in disputes between persons who are not indigenous to the Union Territory of Arunachal Pradesh.

Reading Regulation 51, it appears that an application under Regulation 50 has to be filed within 30, days from the date of the order excluding the time taken in procuring a copy of the order. According to Regulation 52 High Courts the Court of Deputy Commissioner and Assistant Commissioner shall be guided by the spirit and shall not he bound by letter of the Code of Criminal Procedure. Regarding Limitation Act, it is provided that subject to any express provisions of the Regulation, the principles of Indian Limitation Act shall be followed in disputes between persons who are not indigeneous to the State of Arunachal Pradesh.

Now the crux of the problem is whether by invoking the principle contained in Section 5 of the Limitation Act or by following any other principle, the period of 30 days as contained in Regulation 51 can be condoned by this Court in the present case as both the parties are Tribals and in view of Regulation 52 principle of the said Act may not be applicable.

Mr. A.K. Bhattacharyya has submitted that almost identical rules are being followed in all the Tribal areas of the North East. In this connection learned Counsel has drawn attention of this Court to Rules for the Administration of Justice and Police in the Garo Hills District, Meghalaya more particularly Rule 39, which inter alia, provides that although the Indian Limitation Act has been barred, the principles of the Act should be closely followed in dispute between the persons not belonging to a Scheduled Tribe. Attention of this Court has also been drawn to a decision of the Division Bench of this Court in Government of Manipur Vs. Thokchom Tomba Singh and Others, In paragraph 14 of the judgment, the above Rule 39 was quoted and it was held that the Limitation Act, therefore, is not applicable to that case as both the parties belong to the Scheduled Tribes.

According to Mr. A.K. Bhattacharyya, the provision of Section 29 of the Indian Limitation Act will apply and, therefore, the Petitioner shall be entitled to get the benefits of the said Sections.

According to the learned Advocate General as the Act itself is not applicable, the question of applying Section 29 of the Act cannot arise, That apart, the learned Advocate General further submitted that if this Court holds that the period of 30 days as mentioned in Regulation 51 is not mandatory and can be extended, it may amount to making law by the court. Mr. Majumder, learned Advocate General has made a very fair suggestion that if this Court is of the prima facie view that the impugned orders are not tenable in law by exercising powers under Article 226 of the Constitution, this Court can definitely keep the subordinate courts within limits and in other words it can set aside the impugned orders and direct the courts below to proceed in accordance with law.

The question of equity was also raised and according to Dr. Singh this principle is not applicable as there is a statutory provisions and the Rules are silent regarding extending the above period of 30 days by condoning the delay. Mr. Majumdar bus urged that enquiry can be applied when law is silent and by applying the principle of equity a vested right can be taken away.

Mr. Majumdar has raised another point that in Regulation 51 in excluding the period of time taken in procuring a copy of the order, the legislature has already made part of the principle of the Limitation Act applicable. According to the, learned Counsel in view of the expression "subject to any express provision" under Regulation 52 even non-Tribals the period of 30 days under Regulation 51 can not be extended by applying the principle of Section 5 of the Limitation Act.

In my opinion the question has to be viewed from different angle. Section 95(2) of the Government of India Act, 1935 empowered the Governor to make Regulations for peace and good Government for the areas as mentioned in the said Sub-section. This, expression peace and good Government is very wide and it has been held that Regulation to prohibit liquor traffic would come under the ''expression peace, order and good Government'' See Ashbury v. Ellis (1983) A.C. 339, Russel v. Queen 7 App. Ces 826, Ontaria v. Canada (1896) A.C. 348. It was also held that the power to expel anlien to the Country where from he comes would also come under the expression peace, order and good Government See A.G. Canada v. Cin (1906) A.C. 542, R. v. Crewe (1910) 2 KB 576. While applying any regulation made by the Governor for such areas namely excluded and partly excluded areas under the above wide power of ''peace and good government'' court can allow the principles of Justice, Equity and good conscience. Keeping in view that normal laws do not apply and also the back ground of the areas and the fact that the indigenous people of the areas do not know the technicalities of law.

A Division Bench of this Court in Digendra Kumar Das v. Rosie A. Rikhimi 1977 A.L.R. 281 had considered similar rules, namely, the Khasi Siemships (Administration of Justice) Order, 1950 which is applicable to a part of the State of Meghalaya and under this order application of CPC has been barred for trial of suits between members of the Scheduled Tribes and it was provided that only spirit should be followed. Though there was no difference of opinion between the two Hon''ble Judge regarding the ultimate finding Hon''ble Mr. Lahiri, J., (as his Lordship then was) recorded a separate minutes as his Lordship could not agree that the ratio of Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, would be applicable to the case. The provisions of the said Order and decision of the Apex Court in Civil Appeal No. 659/57 disposed of on 9.2.61 Gurumayum Sakhigopal Sarma v. K. Onghi Anisija Devi was duly considered, In the above case, the Apex Court considered similar regulation, namely, Manipur State Hill Peoples (Administration) Regulation under which CPC was also not made applicable under the said Regulation. The Apex Court held that court should try suits of proceedings untrammelled, untangled and unravelled by the technicalities of the Code and that application of the spirit does not mean the application of the provisions by the back-door. It was also observed that there are certain principles of law which are of universal application and are immemorial principles governing civil litigation and only such principles are applicable as they are principles of Justice, Equity and good conscience.

The law laid down by the Apex Court in the State of State of Nagaland Vs. Ratan Singh, etc., was also considered by his Lordship. In that case the validity of a similar set of rules, namely Rules for Administration of Justice and Police in the Nagaland District came up for consideration before the Apex Court and the Rules were held to be valid. Referring to the above two decisions of the Apex Court his lordship in the above decision of the Division Bench of this Court held that, the justice should be dispensed untrammelled by the technicalities of the CPC and should try the suits or proceedings untagled or unravelled, or untrammelled by the technicalities of the CPC and the only consideration should be to dispense justice in accordance with the principles of Justice, Equity and good conscience. The same view, namely principles of law, which are of universal application and the principles of justice, equity and good conscience should be applicable in trials by courts concerned was also laid down by a Single Judge of this Court (Hon''ble Mr. Justice K.M. Lahiri as his Lordship then was) in U. Stoling Nongland v. K. Lyngdoh Uminog (1981) 1 G.L.R. 340. In that case similar set of Rules, namely, United Khasi & Jaintia Autonomous District (Administration of Justice) Rules, 1953 were considered and these Rules also provide that only the spirit of the CPC shall be applicable in trial of suit under these Rules.

Though Mr. Majumdar, learned Advocate General has urged that, in view of the expression "subject to any express provisions of this Rule" in Regulation 52 of Regulation, Section 5 of the Indian Limitation Act will not be applicable in case where litigation is between the parties who are non-Tribals, I am unable to accept the contention of the learned Advocate General. I say so as there is no express prohibition in Regulation 51 that the spirit of Section 5 of the Limitation Act shall not be applicable in case of such litigation. In this connection, I may mention that the Apex Court has taken a liberal view regarding condonation of delay and expressed un-happyness that the above approach of the Apex Court has not percolated down to all other courts in the hierarchy. The Apex Court also observed that the judiciary is respected net on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, Therefore, in my considered view in case of litigation between non-tribals as the principles of Limitation Act are applicable under Regulation 52 of the Regulation principles of Section 5 of the Limitation Act will also be applicable in such litigation for condoning the delay of 30 days as laid down in Regulation 51.

As Section 5 of the Limitation Act will be applicable for the purpose of condoning delay of 30 days provided under Regulation 51, in case of Limitation where both the parties are non-tribals, I hold that applying the principles of justice, equity and good conscience any appeal under Regulation 47 or 48 or any application under Regulation 50 filed beyond the period of 30 days, as provided under Regulation 51, can be condoned by applying the principles of Section 5 of the Limitation Act being universal principle as laid down by the Apex Court. I, therefore, hold that the present petition for condonation of delay can be considered by this Court.

I have perused the petition and the grounds stated thereto and I am satisfied that it is a fit case to condone the delay.

I also accept the contention of Mr. Majumder, learned Advocate General that by invoking powers under Article 227 of the Constitution, this Court can entertain the present civil revision even though it was filed beyond time as the Petitioner has made a prima facie base for exercising revisional power of this Court under Regulation.

For the reasons stated above, the prayer for condoning delay is accepted and the Petitioner is allowed to file the revision petition challenging the two impugned orders.

Heard learned Counsel for the parties. In my opinion it is a case for issue (sic, of) Rule and also for stay. Accordingly, Rule may be issued and interim stay may be granted.

In the result, the preliminary point regarding limitation is disposed of.