Supreme Court affirms Non Application of CPC & CrPC to tribal areas [Read the Judgment]

In an important judgment delivered on 28^th January, a two judge bench of Supreme Court comprising of Justices Chelameshwar and R.F Nariman has made it abundantly clear that the provisions of Civil Procedure Code, 1908 (CPC) are not applicable to the jurisdiction covered by the United Khasi-Jaintia Hills Autonomous District (Administration of Justice) Rules, 1953 (also, similarly crafted other rules) which have been drafted under Para 4 of Schedule VI to the Constitution. The bench speaking through Nariman J allowed the appeal setting aside the High Court's (Gauhati High Court, Shillong Bench) order calling application of provisions of CPC by HC to these areas the 'basic error' in the impugned judgment.

The Subordinate District Council Court had granted an ad interim ex parte injunction. The District Council Court allowing the appeal set aside the injunction. The High Court (impugned) in appeal allowed the Civil Revision Petition holding that since the appeal to District Council Court had been filed within 30 days of the ex parte order, it would not be maintainable under CPC during pendency of the application for vacation of the injunction.

The question of law to be decided was application of CPC (in letter or only in spirit) to these areas. The issue had to be examined on an extensive reading of Sec 1, O39 R3A of CPC and Rule 28, 47 of the 1953 Rules. Sec 1 of CPC expressly bars its jurisdiction to prescribed areas. O39 R3A r.w O43 states that an appeal can only be entertained under an extraordinary circumstance – namely, the failure or omission of the Subordinate Court to comply with its provisions. However, Rule 28 of the 1953 Rules states that an appeal shall lie to the District Council Court from the decisions of a Subordinate District Council Court in any case, Civil or Criminal. Rule 47 further makes it more clear stating that In civil cases, the procedure of the District Council Court, the Additional District Council Court, the Subordinate District Council Court and the Additional Subordinate District Council Courts shall be guided by the spirit but not bound by the letter of the CPC in all matters not covered by recognized customary laws or usages of the District."

The Court witted in Para 8 –

"It is clear from the reading of these Rules that an appeal is provided as a matter of right from all "decisions" of a Subordinate District Council Court to the District Council Court. That an interim order is a "decision" for the purpose of these Rules is not disputed before us. Further, under Rule 47, in civil cases, these courts shall be guided by the spirit but not bound by the letter of the Code of Civil Procedure in all matters not covered by customary laws."

Moreover, in Para 9, the judgment went one step ahead & also relied upon an Assam High Court Judgment which had held that even the Criminal Procedure Code is not applicable to these areas and affirmed this view. It was further made clear that an appeal has been provided as a matter of right under Rule 28 of the 1953 Rules and only the spirit of the Code of Civil Procedure applies. Two judgments were therefore nullified to this extent as they based their reasoning upon the letter and not the spirit of CPC. The judgment removed all clouds of doubt by reasoning further that even otherwise, the judgments relied upon by the respondent state that such appeal is maintainable under the CPC, but the court may relegate the appellant to the alternative remedy provided – an application to vacate the stay within 30 days. This in turn does not go to the maintainability of the appeal but only goes to whether discretion ought to be exercised against the appellant if the provisions of Order 39 Rule 3A have been followed.

It has thus been made clear that by virtue of Sec 1 of CPC and Sec 1(2) of CrPC, the provisions of these statute books do not apply in letter to the states and tribal areas expressly excluded. In fact the Regional Councils created under Para 4 of Schedule VI to the Constitution are competent to rule on their own jurisdiction flowing from the respective rules they derive their existence from. However, being descriptive codes, the spirit enshrined within CPC & CrPC should be followed in such parent Rule Books for proper governance of these areas.

Read the Judgment here.