1. This is an application under Rule 35 of the Rules framed for the administration of Justice (Civil) and Police in the Garo Hills District, inviting interference of this Court in the matter of the learned Deputy Commissioner, dated 9-8-50, on the ground that the two previous references made in accordance with Rule 31 of the Rules framed for the administration of justice and police in the Garo Hills were not acted upon by the learned Deputy Commissioner, as required by Rule 31 in the event of the Deputy Commissioner's disagreement with the umpire's decision : in any case, the learned Deputy Commissioner was in error in inducing the parties to refer the matter to the panchayat after he had declined to accept the decision of the umpire, dated 29-6-50: the proper course for the learned Deputy Commissioner was, if he did not elect to act upon the decision of the umpire, dated 29-6-50, to try the case himself, as there is no provision of law authorising the Deputy Commissioner once more to induce the parties to refer the matter to arbitration.
2. Mr. Sen for the petitioners point out with some reason that it appears that the learned D. C. was not prepared to accept the decision which was in favour of the petitioners : on two prior occasions, namely on 19-4-50 and 29-6-50 the umpire had given a decision in favour of the petitioners: nevertheless the Deputy Commissioner did not accept the decision, hut when a few months later, after a third panchayat had been constituted and a decision was given against the petitioners, it was readily accepted by the D. C. Be that as it may, the first reference to the panchayat made in accordance with the provisions of Rule 31 may be regarded as a non-existent reference by reason of the fact that although each party appointed three arbitrators, nevertheless the umpire called Asansing Marak was selected out of the three arbitrators.
3. Mr. Sen now concedes that Asansing Marak, an ex-moujadar, who was appointed as one of the arbitrators by the petitioners, is the same person who acted as umpire. Assuming for the purposes of disposing of this application, that the first reference was not a reference within the meaning of Rule 31, there was a reference within the meaning of Rule 31 upon which a decision was given on 29-C-1950. Mr. Lahiri for the opposite parties points out that the reason why the learned D. C. referred the matter to the panchayat for the third time was that he found that one of the arbitrators appointed by the opposite parties was not permitted to record his vote at the instigation of the umpire. Be that as it may, that cannot furnish a ground for referring the matter over again under Rule 31. It is remarkable that Rule 31 makes no provision for the D. C. to refuse to record the decision of an umpire and enforce it as his own even though he may come to the conclusion that the umpire has been guilty of misconduct. Apparently, this is an omission which may have been made on the general principle namely, that what a Judge can do, he can also refuse to do.
4. The question, however, arises whether, if a D. C. refuses to accept a decision of an umpire because it has been procured improperly, can he once more induce the parties to refer the matter in accordance with Rule 31? As I have said, there is no provision in the rules framed for the administration of justice in the Garo Hills which authorises a D. C. to refer the matter to the panchayat after the panchayat's decision has become infructuous, for one reason or another. In the case before me, the learned D. C. for the third time allowed the parties to refer the matter to the panchayat and permitted them to appoint arbitrators--a procedure which does not appear to be authorised by the rules.
5. Accordingly I set aside the decision of the learned D. C., accepting the award dated 9-8-1950 and ordering it to be enforced as his own. The learned D. C. must now proceed to dispose of the case himself according to law.
6. The rule is disposed of accordingly. In the circumstances of the case, I make no order as to costs.