RANGALANG G.S. AND ANR. Vs. DEBARDAO LANGTHASA AND ORS.
HIGH COURT OF GAUHATI
Rangalang G.S. And Anr.
Debardao Langthasa And Ors.
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Goswami, C.J. -
(1.) ON 1 -2 -1971 Debardao Langthasa G. B. representing' the villagers of Yah village made a complaint against Rangalang and 11' others -as well as some others whose names were not known to him, residing In Chotoni -englo village, alleging that there was apprehension of breach of peace on account of the latter's trespassing into their village disregarding the recognised boundaries between the two villages. Paragraph 2 of this petition discloses the following' fact; "That, there is distinct boundary between your petitioner's village and that of the accused persons as fixed in the year 1948 by the order of the S. D. O. N. C. Hills and since then agreed upon peacefully between both (sic) the villages." On receipt, of this application, the District Magistrate. North Cachar Hills. directed the police to enquire into the matter under Section 145 Criminal Procedure Code for the purpose of drawing up proceedings under that section. On receipt of the police report on 2 -3 -71. The District Magistrate drew up a well -minarv order under Section 145 Criminal1 Procedure Code and asked the parties to submit written statements and documents with regard to their possession of the -disputed land. The Second party submitted written statement through Rangalang G. B. and Langdibuing on 24 -3 -71. In Paragraph 1 of their statement the following facts are disclosed
That, your humble aggrieved complainants are bona fide cultivators of" Choto -Niangloa and made jhums, situated' within the lawful boundary of Ch. Niana -loa allotted by the then S. D. O. of North Cachar Hills during the time of British regime and it was recognised by N. C. Hills, District Council. Haflong vide Memo No. Rev/B/2/71/2 dated 21 -1 -70.
They also submitted a sketch map -where a boundary line is described between the two villages. The learned Magistrate examined two witnesses from each village and recorded their statements on 23rd and 24th April. 1971 by visiting the area in dispute. After recording the statements he also made another -"spot enquiry" on the 25th of April, 1971 in order to appreciate the evidence which -was recorded by him on the previous; two days. After carefully examining the evidence, the learned District Magistrate came to the conclusion that he must give effect to the boundary of 1948 which tallied with the evidence given by the First party before him and which also substantially corresponded with what he actually found on the spot. In that view of the matter, he declared the disputed area which is abutting the boundary between the two villages to be in possession of the Yah Villagers by his order dated 27 -4 -1971. This order is impugned before us in Criminal Revision 95 of 1'971 as also in Criminal Revision No. 64 of 1972.
(2.) MR . B. K. Das, the learned Counsel for the petitioners, argued the case in both the matters. A preliminary 'Objection was taken by Mr. J. P. Bhattacharjee the learned Counsel for the opposite parties, with regard to the maintain ability of the first application which "was one under Rule 15 of the Administration of Justice Rules North Cachar Hills District and later on allowed to be also under Section 439/561A of the Code of Criminal Procedure and clause 4 of 'the Assam High Court Order, 1948. One of the 2nd Party, Rangalang Jame who is common in both the cases, filed later -on an application under Article 227 of the Constitution of India and under Section 439/561A of the Code of Criminal Procedure and clause 4 of the Assam High Court Order. 1948 which was registered as Criminal Revision No. 64 of 1972. As a matter of fact, this preliminary point was earlier taken before the learned Single Judge who heard the case. It appears that reference was made at the Bar to several decisions of this Court, mostly of Single Bench and on of Division Bench wherein it was pointed out that there was some conflict of views. It was because of this reason that the learned Single Judge thought it fit to place the matter before the Chief Justice for necessary orders and that is how it has come before this Division Bench. After hearing the learned Counsel for both sides, it is now common ground that there is no conflict of views in the decisions referred to in the referring order. As a matter of fact, there is no authoritative decision of this Court with regard to the maintainability of an application under Section 439 Criminal Procedure Code out of a proceeding under Section 145 Criminal Procedure Code arising in the Hill areas where the Administration of Justice Rules 1937 and other laws obtain. Since it is possible that this point may crop up again and again before this Court we gave an opportunity to the learned Counsel appearing on both sides to address us so that we may give a decision on the point.
(3.) IT is common ground that Criminal Procedure Code does not in terms apply to the area with which we are concerned, namely North Cachar Hills. The Rules for the Administration of justice in the North Cachar Hills Sub -Division, 1937 have been, however, kept alive for Administration of Criminal Justice inter alia. When the District Council was formed under the provisions of the Sixth Schedule to the Constitution of India, the North Cachar Hills Autonomous District (Administration of Justice) Rules, 1955 were promulgated in exercise of the powers conferred under sub -paragraph (4) of paragraph 4 of the Sixth Schedule to the Constitution. It is now common Ground that there are District Council Courts as well as existing Courts. Under Rule 23 of these later Rules the Subordinate District Council Court is not competent to try certain suits and cases specified therein unless specifically empowered by the Governor by notification in the Gazette. It is also common ground that there is non -notification of the Governor under Rule 23 (2). That being the position. Rule 24 immediately comes into play. By that Rule, suits and cases referred to in Rule 23 shall continue to be tried and dealt with by the existing Courts until such time as the Governor deems fit to invest the Subordinate District Council with such powers by notification in the Gazette. Under Sub -Rule (2) thereof the existing Courts mean the Courts of the Deputy Commissioner and his Assistants. Under Rule 23 (2) (f) disputes as to immovable property of the nature similar to that contemplated under Section 145 of the same Code are mentioned. In view of these provisions, it is now common ground that the Deputy Commissioner, who is also the District Magistrate is competent to entertain disputes of the nature similar to that contemplated under Section 145 Criminal Procedure Cede although the Code is not in force in the area. Mr. Das, therefore does not challenge the competence of the District Magistrate to initiate proceedings under Section 145 Criminal Procedure Code in view of the above position in law.;
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