Gauhati High Court
Sachan Chandra Das vs Edilik Sangma And Ors. on 1 October, 1991
Equivalent citations: II(1993)ACC88
JUDGMENT S.K. Homchaudhury, J.
1. In these seven revision petitions, the common question urged by the petitioner which needs to be decided is whether the Deputy Commissioner of the West Garo Hills District could be appointed as a member of the Motor Accidents Claims Tribunal under Section 110 of the Motor Vehicles Act, 1939, (hereinafter mentioned as 'the Act of 1939') and now under Section 165 of the Motor Vehicles Act, 1988 (hereinafter mentioned as 'the Act of 1988'). As such, petitions are disposed of by the common judgment.
2. Sub-section (3) of Section 110 of the Motor Vehicles Act, 1939, provides that:
110. (3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he-
(a) is, or has been, a Judge of a High Court, or
(b) is, or has been, a District Judge, or
(c) is qualified for appointment as Judge of the High Court.
By Act No. 59 of 1988, the Act of 1939 was repealed and the Motor Vehicles Act, 1988 has been enacted. Sub-section (3) of Section 165 of the Act of 1988 provides that:
165. (3) A person shall not be qualified for appointment as member of Claims Tribunal unless he-
(a) is, or has been, a Judge of a High Court, or
(b) is, or has been, a District Judge, or
(c) is qualified for appointment as a Judge of a High Court.
It is apparent that both under the provisions of Section 110 of the Act of 1939 and of Section 165 of the Act of 1988, qualifications of member of Claims Tribunal are identical.
3. I have heard Mr. B.K. Das, learned Counsel for the petitioner and Mr. L. Marbariang, learned Additional Advocate General, Meghalalya who has appeared to assist the Court on this important question as desired by this Court by order dated 25.2.1991.
4. Although other points are taken in the revision petition, but Mr. B.K. Das, learned Counsel for tire petitioner, has confined his submission only on the point that Deputy Commissioner West Garo Hills, is not qualified to be appointed as a member of the Motor Accidents Claims Tribunal inasmuch as he is not a Judge of the High Court nor he has been a District Judge and/or is qualified to be appointed as a Judge of the High Court. He is a pure and simple Administrative Officer. Mr. B.K. Das has drawn may attention to Article 233 of the Constitution which provides:
233. Appointment of District Judges--(1) Appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the Stale in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed as District Judge, if he has been for not less than 7 years an Advocate or a pleader and is recommended by the High Court for appointment.
Mr. Das has also placed reliance on the decision of the Supreme Court in the case of Satya Narain Singh v. High Court of Judicature at Allahabad and a decision of the Rajasthan High Court in the case of Abdul Rashid v. Ram Dayal 1986 ACJ 477 (Rajasthan).
5. Placing reliance on Article 233 of the Constitution and the aforesaid decisions of the Supreme Court and the Rajasthan High Court, Mr. Das has submitted that it is abundantly clear that Deputy Commissioner does not possess the essential qualification to be appointed as a member of the Motor Accidents Claims Tribunal. Learned Counsel for the petition has further submitted that Motor Vehicles Act is a self-contained statute and the qualification of a member of the Tribunal has to be found from the provisions of the Act itself. The provision of the Act being very clear that no person shall be qualified for appointment as a member of a Motor Accidents Claims Tribunal unless he is or has been a District Judge or is qualified for appointment as a Judge of the High Court, the notification appointing the Deputy Commissioner, West Garo Hills as a member of the Motor Accidents Claims Tribunal is ex facie illegal and void and the Deputy Commissioner, West Garo Hills is not competent to entertain the Claim application and award compensation in case of death of or injuries to any person that resulted from an accident out of the use of the motor vehicle belonging to the petitioner. As such the entire proceedings in the Court of Deputy Commissioner, West Garo Hills are without jurisdiction.
6. Mr. L. Marbariang, learned Additional Advocate General, on the other hand, has submitted that qualification of the member of Motor Accidents Claims Tribunal in the 'partially excluded area' and the backward tribal area is to be considered not in a pedantic approach but in the background and the manner of administration of justice in that area. There is no dispute that entire Garo Hills being partially excluded area,the administration of justice has long been governed by the Rules for Administration of Justice and Police in the Garo Hills District (hereinafter referred to as 'the Rule for Administration of Justice') framed by the Governor under Section 6 of the Schedule District Act, 1874. In the whole of Garo Hills the provisions of the Code of Civil Procedure or Criminal Procedure Code do not apply as such, and the administration of justice is rendered under the provisions of the aforesaid Rules for Administration of Justice and the Rules framed by the District Council in the exercise of power conferred under sub--para (4) of para 4 of the Sixth Schedule to the Constitution in consonance with justice, equity and good conscience. The learned Additional Advocate General has submitted that even the Constituent Assembly in taking note of backwardness of the area, in its wisdom has made special provision in the Constitution in Sixth Schedule thereof and under para 4 of the Sixth Schedule to the Constitution the District Council has been empowered with making of laws for the Administration of Justice amongst the tribals, and in the Sixth Schedule to the Constitution no qualification of the judicial officer to be appointed by the District Council for the Administration of Justice has been prescribed. Under the Rules for Administration of Justice, the Deputy Commissioner is the principal Civil Court of the disctrict and also functions as Sessions Judge. Rule 15 of the Rules for Administration of Justice provides:
15. Criminal justice shall be ordinarily administered by the Deputy Commissioner and his Assistants and by the Laskars according to their Jurisdiction....
Rule 16 of the Rules for Administration of Justice provides:
16. The Deputy Commissioner shall be competent to try any case and to pass sentence of death, deportation or imprisonment upto the maximum amount awardable under the Penal Code.... Rule 24 of the Rules for Administration of Justice provides:
24. The. administration of civil justice in the Garo Hills is entrusted to the Deputy Commissioner, his Assistants and the Laskars. Rule 30 of the Rules for Administration of Justice provides:
30. The Deputy Commissioner and his Assistants (according to their powers) shall try all suit not triable by Laskars, but they may also at their discretion dispose of suits triable by Laskars....
Placing reliance on the provisions of the Rules, the learned Additional Advocate General has submitted that it cannot be disputed that the Court of Deputy Commissioner is the principal Civil Court in the district of Garo Hills.
7. The learned Additional Advocate General has further submitted that in the backward areas like Garo Hills, where under the existing judicial system, the Deputy Commissioner exercises powers of Sessions Judge and of the principal Civil Court of the district identical to those exercised by District and Sessions Judge in other areas, meaning of 'District Judge' is to be found in the background of system of administration of justice in that area and not under Article 233 of the Constitution. Learned Additional Advocate General has drawn my attention to the definition of 'District Judge' under Sub-section (17) of Section 3 of the General Clauses Act. As per Sub-section (17) of Section 3 of General Clauses Act 'District Judge' shall mean the judge of principal Civil Court of original jurisdiction but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. As such, taking into consideration the backwardness of the area and the system of administration of justice rendered there in the District Judges' as mentioned in Section 110 of the Act of 1939 and under Section 165 of the Act of 1988 has to be found as it is understood by the people of the area. Meaning of 'District Judge' strictly under Article 233 of the Constitution will frustrate the existing system of the judiciary in this tribal area.
8. I have considered the submission made on behalf of the petitioner as well as on behalf of the State from the provisions of the Rules for Administration of justice. It appears that in the tribal areas hitherto as partially excluded area where administration of justice is rendered under the provisions of Rules for the Administration of Justice and Police framed under Section 6 of the Schedule District Act, 1874, there cannot be any dispute that the Court of Deputy Commissioner is the principal Civil Court having all the powers of Sessions Judge in the District.
9. In the case of State of Nagaland v. Ratan Singh the Apex Court considered the validity of Sections 6 and 7 of the Schedule District Act, 1874. The Apex Court held the Act is not violative of Articles 14, 21, 245, 371A and 372 of the Constitution. In paras 29 and 30 of the said decision the Apex Court held:
(29) In order to avoid this implication, the Rules are attacked as ultra vires Articles 21 and 14. Article 21 is used because it is contended that these Rules do not amount to law as we understand it, particularly where the Rules say that not the Criminal Procedure Code but its spirit is to govern the administration of justice. It is urged that this is not a law because it leaves each officer free to act arbitrarily. This is not a fix reading of the rule. How the spirit of the Code is to be applied and not its letter was considered by the Court in Gurumayum Sekhigopal Sarma v. K. Onghi Anisija Devi Civil Appeal No. 659 of 1957; decided on 9th of February, 1961 (SC) in connection with the Code of Civil Procedure. With reference to a similar rule that the Courts should be guided by the spirit and should not be bound by the letter of the Code of Civil Procedure, this Court explained that the reason appeared to be that the technicalities of the Code should not trammel litigation embarked upon by the people unused to them. In that case although a suit was ordered to be dismissed for default of appearance, an order was passed on merits. The question arose whether it was dismissed under Order 9, Rule 8 or Order 17, Rule 3 of the Code of Civil Procedure. It was held by this Court that it did not matter under which Order it was dismissed but that no second suit could be brought on the same cause of action without getting rid of the order dismissing the suit. In this way the Court applied the spirit of the Code and put aside the technicalities by attempting to find out whether the dismissal was referable to Order 9, Rule 8 or Order 17, Rule 3 of the Code. That the case illustrates how the spirit of the Code is used rather than the technical rule. In the same way, under the criminal administration of justice, the technical rules are not to prevail over the substance of the matter. The Deputy Commissioner in trying the criminal cases would hold the trial according to the exigency of the case. In a petty case he would follow the summons procedure but in heinous one he would follow the procedure in a warrant case. The question of a sessions trial cannot arise because there is no provision for committal proceeding and there are no Sessions Judges in these areas. Therefore, the Deputy Commissioner who was trying the case observed that he was going to observe the warrant procedure and in the circumstances he was observing the spirit of the Code.
(30) Laws of this kind are made with an eye to simplicity. People in backward tracts cannot be expected to make themselves aware of the technicalities of a complex Code. What is important is that they should be able to present their defence effectively unhampered by the technicalities of complex laws. Throughout the past century the Criminal Procedure Code has been excluded from this area because it would be too difficult for the local people to understand it. Instead, the spirit of the Criminal Procedure Code has been asked to be applied so that justice may not fail because of some technicality. The argument that this is no law is not correct. Written law is nothing more than a control of discretion. In this area it is considered necessary that discretion should have greater play than technical rules and the provision that the spirit of Code should apply is a law conceived in the best interest of the people. The discretion of the Presiding Officer is not subjected to rigid control because of the unsatisfactory state of defences which would be offered and which might fail if they did not comply with some technical rule. The removal of technicalities, in our opinion, leads to the advancement of the cause of justice in these backward tracts. On the other hand, the imposition of the Code of Criminal Procedure would retard justice, as indeed the Governor-General, the Governor and the other heads of local Government have always thought. We think, therefore, that Article 21 does not render the Rules of 1937 ineffective.
In the area where the Court of Deputy Commissioner is the principal Civil Court, the meaning of District Judge in that area has to be found in background and age-old system of Administration of Justice and not in isolation. A broader view of term 'District Judge' has to be taken. In view of the background and manner of administration of justice rendered in that area, the sirict meaning of District Judge' is not warranted. As such, I find sufficient force in the submissions made by the learned Additional Advocate Generaland I hold that 'District Judge' contemplated in Sub-section (3) of Section 110 of the Act of 1939 and Sub-section (3) of Section 165 of the Act of 1988 is the principal Civil Court and in Garo Hills, the Deputy Commissioner being the Presiding Officer of the Principal Civil Court of the districts, the appointment of Deputy Commissioner as the Member of the Motor Accidents Claims Tribunal of East Garo Hills and West Garo Hills Districts under the provisions of the Motor Vehicles Act is quite in order and valid.
For the reason stated above, the petitions are without merit and are dismissed. I make. no order as to costs. The ad interim order staying further proceeding of the case stands vacated.