U. Bransly Nongaiang vs U. Drolishon Syiemiong and Others

K. Lahiri, J.—This is an application under Rule 13 of the Khasi Sylemship (Administration of Justice) Order, 1950, "the Order, 1950, "the order" the short, read with Article 227 of the Constitution of India for quashing the final order dated 17.10.1985 passed by Executive Magistrate, First Class, Nongstoin, Meghalaya in a proceeding u/s 145 of the Criminal'' Procedure Code.

"The order'''' provides the procedure for dispensing Civil and Criminal Justice in the Kassi and Jaintia Hills District. The term "Syiem'' means the customary head of the Khasi Tribal Institution within a definite administrative area in the districts. The Deputy Commissioner or the Additional Deputy Commissioner and his Assistants and the Court of Syiem try cases and the suits. The officers administering judicial justice are governed by "the spirit of the Code of Criminal Procedure", and "the Code of Civil Procedure" hereinafter referred as "the Code". The High Court may call for the records of these courts, examine the correctness, legality and propriety of my finding, order or sentence recorded or passed sod may modify or set aside the order and/or remand the case for re-trial. The High Court is also governed by "the spirit of the Code".

What is signification of the expression "Justice Equity and Good Conscience? Why the Formula is Applied in the Tribal of the Region? In the tribal areas the Chief or the Syiems etc. used to administer justice. They were socio-religious leaders rather, natural leaders accountable to God and the people. Trial system was simple, uncomplicated, even handed and speedy. Judges were not fettered by the quaniary of any procedural law apart from the customary procedure followed from time immemorial. The people were used to the system and were happy with it. H was; therefore, decided not to bring the complicated procedural law to those areas. It is well known that the letter of a statute, as distinguished from its "spirit'''' means the strict and exact force of the laug(sic)ee employed, as distinguished from the general purpose rind policy of the law. The Courts were open the parties were given opportunities to produce evidence and material, argue their cases and the justice were impartial. Those were the basic elements applicable in the legal system. As such the Centre constituted by "the Cod'''' were not unchained to follow the strict and exact force of the language contained in ''''the Code'''', The Courts are therefore to follow only the general purpose and policy of "the Code".

The Formula "Justice, Equity and Good Conscience"- The origin of the formula lie in the Romeo canonical sources, way back in the 16th Century. Late the formula was applied in Italy, Germany and France. It appealed the English legal system which modified and incorporated it is their own system.

The pramble to the Act of Succession avocted in 1536 used The expressions "Equity, reason end good conscience". The East India Company carried The principle to India, In 1688, the Judges appointed in Bombay under The Company''s Law were "to behave themselves according to good conscience". The Royal Charters of 1683, 1687, 1726 and 1753 also used the expressions "Equity and Good Conscience" and "Justice and Right". The Regulation of 1781 enjoined that in all cases for which no directions were given The respective Judge "do act according to justice, equity and good conscience". The principles were to be applied where positive law or custom did not assist the Court to dispense judicial Justice. Indeed, the learn "Justice'''' eludes a precise definition. It mean The constant and perpetual disposition to render to every man his due. The Courts are to administer "commutative justice" and "distributive justice" as well. The expression "commutative justice" means that virtue whose object is to render to every one what belongs to him, as nearly as may be, or that which governs contracts. To render commutative justice, the judge must make an equality between the parties, so that no one may be gainer by another''s loss. The expressions "distributive justice" means that virtue whose object is to distribute rewards and punishments to each one according to his merits, observing a just proportion by comparing one person or fact with another, so that neither equal persons have unequal things nor unequal persons things equal. "Equity'' is a system of law or rules more consonant than The ordinary law which opinions current for The time being as to a just regulation of the mutual rights and duties of men living in a civilized society, vide Halsbury''s Laws of England, 3rd Edn,, Vol. 14, p. 464. "Equity'' according to Blackstone means "that portion of remedial justice which was formerly exclusively administered by a court of Equity as contra-distinguished from that portion which was formerly exclusively administered by a court of common law'' - vide Blackstone''s Commentaries, 429-437. The meaning of the expressions "Justice, equity and good conscience was summed up by Lord Hobhouse in Wtgheia Rajsonji v. Shekh Masludin (1887) 13 Ind. Appl. 89 (96). "Justice, equity and good conscience" could be interpreted to mean the rules of English Law and found applicable to Indian society and circumstances" It was said with reference to the English Law. It may be stated in the context that the expressious should be interpreted to mean the Rules of "the Code" as found applicable to The Khasi society and circumstances. By application of the procedural law relating to trial of oases which were in vogue have been retained but the Court is given the scope and opportunity to apply in principles of "The Code" if found suitable to the society and the circumstances. One of the basic principles is that the principles which are universally accepted should be followed by the Courts the principles of natural justice should be obeyed. Similarly, the Presiding Officer must be impartial having no interest in the case. The principles, and how "the Code '' should be applied in "the area'' are no longer rat Integra, The High Court has explained he position in Forching Rava and Others Vs. The State, N.W. Kharmawphlang v. Raj Kharmawphlang AIR 1955 Gau 4186; Smti. Bhagwati Devi Smti. Uma Chatter]ee AIR 1960 Gau 305; J, Rameswardin Singh v. Smti. Bidya Devi AIR 1960 Gau 376; Ka Idis Mary Khorkongor v, A Theirit Lyngdoh AIR I960 Gau 93 and Digendra Kumar Das v. J Rosij H. Rihimi 1977 ALR 281.

The meaning of The expression "the spirit of law", Justice, equity and good conscience'''' and the method of their applications in the tribal areas have been outlined by The Supreme Court in Gurumayaum Sakhi Gopal Sharma, Civil Appeal No. 659 of 1957 decided on 9.2.61; State of Nagaland Vs. Ratan Singh, etc., ; Saptawna Vs. The State of Assam, ; Mowu Vs. The Superintendent, Special Jail, Nowgong, Assam and Others, ; V.L. Rohlu v. Deputy Commissioner, Aizawl District 1971 Cri. L.J. 8 . The power conferred on the Court is the inherent power to secure the ends of justice. The freedom it granted to the Courts to uphold The cause of justice or to secure the ends of justice and cot to frustrate or impede the flow of justice. At this stage I recall The famous aphorism of that great historian Lord Acton:

Power tends to corrupt, and absolute power corrupts absolutely''.

When wide and inherent discretionary power hat been conferred on The Court governed by the formula it was considered necessary that the higher courts should be careful to scrutinise the use or abuse of the power and accordingly "the order" empower the higher Courts to be cautious, careful and (sic) to consider whether in a particular case the principles have been properly applied. Whether it bas butteressed, fostered and promoted the cause of justice or hindered, voided and nullified The same. The Public Interest Litigations are in tune with The spirit of our enlightened Constitution. I fee'' that the decisions are bated on spirit of The Constitution and on the principles of Justice, equity and good conscience to deliver judicial justice to The deserved.

THE PACTUAL MATRIX:

The Petitioner apprehending breach of peace in respect of the disputed land lodged a complaint to the police alleging that the opposite party men armed with deadly weapons had tried to trespass upon the land, removed The boundary stones and threatened tho Petitioner and others with dire consequences. The police enquired lulu The matter and prayed to the Additional Deputy Commissioner, Nongatoin for drawal of proceeding u/s 145 of "the Code". It may be stated here that u/a 1(2) of ''The Code" the provisions of Section 145 are applicable in the area. The case was transferred to Mr. P. Roy Lawrimaiang, Executive Magistrate, 1st Class, Nongstoin for disposal, who being satisfied that there was likelihood of breach of peace between the parties drew up a proceeding u/s 145 of "The Code'''', asked The police to attach The land end prohibited the parties from entering into it. The parties were asked to file written statement on 19.9.85. However, on the prayer of both the parties the date was extended to 11.10.85. On that date the Petitioner-first party filed an application asking for time to file written statement sating, inter alia, that the brief and document of the case bad been entrusted to his lawyer at Shillong for preparing the written statement but the lawyer did not turn up. Learned Magistrate rejected the prayer for adjournment on the ground that ''the case'' was one of emergency''. The second-party filed their written statement. Learned Magistrate straightway posted the case for final order on 17.10 85 without fixing any date for production of evidence by The parties. On 17.10.85 the Petitioner filed his written statement and prayed that be should be allowed to contest the proceedings, Learned Magistrate rejected the written statement and the prayer. He perused the written statement filed by the opposite party, The judgment and decree of Title Suit No. 12/60 and held that the Civil Court bad already decided The right'' title and interest of the disputed laud in favour of The second party. The Impugned order also show that learned Magistrate had visited the disputed land mid verified the boundaries of The disputed land and compared with the bounds of the suit land. He held that the first party could but did not contest the civil action. He held that be was incompetent to entertain The proceeding as he had no jurisdiction to interfere with the decree of The Civil Court and dropped the proceedings, released the land from attachment but strangely enough directed The first party Petitioner not to disturb The right of the second party as decreed by The Civil Court.

There is no wrangle at the bar that the letters of Section 145 of ''the Code'' are squarely applicable to The area and The procedure prescribed therein was required to be followed by the Magistrate, By the impugned order, learned Magistrate held that he bad no jurisdiction to entertain the(sic) and dropped the some. However, having held so he injected the first party not to disturb the right of The second party, The principle of Justice, equity and good conscience or the spirit of ''The Code'', do not empower a Court incompetent to try the case to render any effective order binding any of The parties. As such the order injecting The first party is illegal and void and against all the known principles of law. It is directly opposed to tie principles of justice, equity and good conscience.

The second fatal error was the rejection of the prayer for adjournment when the first party failed to file his written statement due to the acts of inaction of his lawyer who was to attend court and file the written statement but did not turn up. It is thus seen that for the remiss or inaction or negligence of the lawyer the party was penalised. The Petitioner did everything possible to cause the written statement to be filed. He engaged his lawyer who was to come and file the written statement but the lawyer failed to turn up and take steps. For the remiss of the lawyer the first party was penalised. Is it justice or equity or good conscience to penalise a party for the wrong of another person? The very same question came up before the Supreme Court, of course in different contexts,, as to whether it was just and equitable to penalise a litigant for the negligence or remiss of his lawyer in Rafiq and Another Vs. Munshilal and Another, , Goswami Krishna Murarilal Sharma v. Dhan Prakash, (1981) 4 SCC 574 and Smt. Lachi Tewari and Others Vs. Director of Land Records and Others, The Supreme Court expressed the view that for the fault, remiss or negligence of The lawyer the party should not suffer. No innocent party should suffer injustice merely because his chosen advocate committed some error, wrong or mistake. When the innocent party could not prepare and file his written statement due to inaction or negligence of his lawyer be should not be made to suffer or penalised, This is an equitable rule applied by the Supreme Court in those cases. The Rules art of universal application. Situated thus and in view of the pronouncements of The Supreme Court I am constrained to bold that learned Magistrate committed a serious error in not granting a short adjournment to the Petitioner. By the impugned order learned Magistrate disabled The Petitioner to contest the ease; he was thrown out of Court and that too for the inaction or negligence of bit lawyer over which he had no band at all. As such, the decision of the learned Magistrate is in breach of the spirit of the Code and the principles of justice, equity and good conscience. It is liable to be quashed.

Further, on 17.10.85, Petitioner tiled an application praying that his written statement be entertained and be should be allowed to contest the case, The prayer was rejected. Why was the first party penalised? There is no answer to the question. When the written statement was before the learned Magistrate he should have perused the same and should have decided the case on merits granting opportunities to both the parties. The act of refusal to entertain the written statement and not permitting the Petitioner-first party to contest the action are absolutely illegal and without jurisdiction. No reason has been given for the rejection, and the order is a not) speaking one and it is liable to be quashed on this ground as well,

Be that as it may, The Court was bound to follow The procedure laid down in Sub section (4) of Section 145 of The Court, to call upon the parties, to produce documents and evidence in support of their case, This is mandatory provisions of law and it baa been breached wherefore The first party did not get any opportunity to produce any evidence. The Petitioner was thrown out of Court and was debarred from contesting The case. The subject matter of The proceeding is a valuable property. The prejudice caused to the Petitioner is (sic) large. A party should not be debarred to contest a case or action unless the law so permits. There was no reason for not allowing The Petitioner to contest The proceeding.

It appears from the impugned order that The learned Magistrate made an ex-parte local inspection without serving any notice to the Petitioner, allegedly compared the boundaries of'' the disputed land with those of the decree, This is also in total breach of The principles of justice, equity and good conscience. It should have been done in presence of both The parties.

The Petitioner claims that be was not a parity in the suit and the same was not enforceable against him. The Petitioner further submits that The suit land is distinct and different from The disputed land, These are serious questions, and the court should have decided The questions upon hearing both the parties I am constrained to bold that in the cast In hand a party willing to contest The proceeding was denied the right to contest it without any rhyme or reason.

For the foregoing reasons 1 bold that the decision is against the spirit of the law. The procedure followed was in violation of The principles of justice, equity and good conscience and, accordingly I set aside the impugned order dated 1.10.85 and direct The Additional Deputy Commissioner, Nongstain to take up the case and/or transfer the case to some other Magistrate competent to try the case.

Before parting which the records I would like to observe that Mr. B.M. Mahata, learned Counsel for The opposite party has submitted that against the impugned order the Petitioner filed an application to the Additional Deputy Commissioner and it was sent to The Seniors Judge, Shillong for disposal. Mr. Mahanta submits that two applications are pending against the impugned order and accordingly disposal of this petition should be deferred until a decision is given by The Sessions Judge. However, I find that Rule 13 of "The order" empowers this Court to entertain this application. Mr. Mahanta has failed to show that the Sessions Judge, Shillong has any jurisdiction to entertain any revision against the order, Be that as it may, learned Sessions Judge has not yet passed any final order and as such, there is no impediment to dispose of this case, and accordingly, I have beard and disposed of The case.

In The result The petition is accepted.