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Customary Courts cannot be treated as sub-ordinate court to District & Sessions Judge Court: HC

Nagaland News

DIMAPUR, APRIL 8: Following two different interpretations and decisions on the appellate jurisdiction of District and Sessions Judge over the Customary Court, the Kohima Bench of Gauhati High Court has placed the matter before the Chief Justice of the Gauhati High Court for referring the issue to a larger Bench.
In a judgment issued today in a civil revision petition, Justice Arun Dev Choudhury said the Customary Courts as provided under Rules of Administration of Justice and Police in Nagaland, 1937 cannot be treated as sub-ordinate court to the court of District and Sessions Judge in as much as neither Code of Civil Procedure, 1908 nor the Civil Courts Act, 1887 or the Rules, 1937 declare the Customary Courts to be Sub-ordinate Court to the Courts of District and Sessions Judge.
“Rule 31 of the Rules, 1937 confers appellate jurisdiction upon the Deputy Commissioner, which includes a Deputy Commissioner (Judicial). The Deputy Commissioner (Judicial) is appointed to administer criminal and civil justice under the Rules of 1937 as discernable from the Rule 1(b) of the Rules, 1937. The Rules, 1937 has not been amended till date by changing the nomenclature of Deputy Commissioner (Judicial)/Additional Deputy Commissioner (Judicial) to that of District and Sessions Judge and Additional District and Sessions Judge respectively, nor any amendment has been made in the CPC, 1908 or in the Civil Courts Act, 1887 conferring appellate jurisdiction under Rule 31 of the Rules, 1937 upon the District and Sessions Judges”, he said.
Thus, in the considered opinion of this Court, the District and Sessions Judge has not been conferred with the necessary jurisdiction required to take the appeal in question filed under Section 96 of the CPC read with Rule 31 of the Rules, 1937. Therefore, the District and Sessions Judge is not having any power and jurisdiction to adjudicate an appeal from the decision of Customary Court in exercise of power, either under Section 96 of the CPC, 1908 or under Order 41 or under Rule 31 of the Rules, 1937, he said.
In his judgment today, Justice Choudhury said it is apparent that two parallel courts are functioning and are permitted in the State of Nagaland, one the Customary Courts manned by Executives and other village authorities having jurisdiction as provided under the provision of Rules, 1937, by following the procedure laid down in the said Rules, 1937.
The other courts are General Courts created by virtue of Civil Courts Act, 1887, CrPC and CPC and manned by the Members of the Judicial Service under Nagaland Judicial Service Act, 2006.
The procedure followed for conduct of business and jurisdictions of General Courts are as mandated in the CPC and CrPC and for Customary Court it is the Rules, 1937. Therefore, in absence of any enactment conferring jurisdiction upon the General Court to act as an appellate authority against decision of Customary Court, the General Court cannot assume jurisdiction by virtue of the notification dated 22.08.2008, the judgment said.
However, Justice Choudhury said, in a similar situation, a contrary view was expressed by a Coordinate Bench in its judgment and order (oral) dated 08.06.2017 passed in Civil Revision No. 6(K)/ 2015. The judgment in that case said “…Village Councils do still enjoy certain powers to adjudicate civil disputes particularly in matters relating to customary laws, and their decisions are appealable before the Deputy Commissioner or his Assistant”.
Citing the minutes of a meeting held at the residence of the Chief Justice of Gauhati High Court and the notification issued by the Department of Justice and Law, Nagaland, the Coordinate Bench in its June 2017 judgment said it appears that decision for total separation of judiciary from Executive in phase manner has been taken and implementation of the same has been started with the district of Dimapur. “In view of this change that has taken place, the power of Deputy Commissioner under Rule 31 of Rules for Administration of Justice and Police in Nagaland, 1937 has to be understood as transferred to the District Judge specially in respect of the district of Dimapur.”
But in the judgment passed today, Justice Choudhury said, “In view of the reasons discussed herein above, I respectfully disagree with the view expressed and decision taken by a Coordinate Bench in the judgment of Mr. P Viyiho Awomi (supra) and therefore, judicial discipline and propriety demands that the matter be placed before the Hon’ble Chief Justice for referring the issue to a larger Bench.”
(Page News Service)