The High Court
Case Details
THE HIGH COURT OF MEGHALAYA WP(C) No.[SH]221/2011 1. 2. 1. 2. Smti Sakche R.Marak W/o Shri Pollen D.Sangma. Shri Pollen D.Sangma H/o Smti Sakche R.Marak Both of them are the R/o Chisimari, PO: Rongrang P.S Mendipathar, East Garo Hills, Meghalaya. -VERSUS- The Garo Hills Autonomous District Council, Tura. Represented by the Secretary, Executive Committee, Garo Hills District Council, Tura. The Chief Executive Member, Garo Hills Autonomous District Council, Tura. …..Petitioners. 3. The Executive Membber, I/c Land and Revenue, GHADC, Tura. 4. The Secretary Executive Committee, Garo Hills Autonomous District Council, Tura. 5. Smti. Nose R.Marak, W/o Late Hasindro Sangma R/o Chisimari, PO; Rongrang P.S.: Mendipathar, District: West Garo Hills Meghalaya. …..Respondents. BEFORE THE HON’BLE MR JUSTICE T NANDAKUMAR SINGH Advocate for the petitioners Advocate for the respondents Date of hearing Date of Judgment - - - -
Legal Reasoning
Mr. AH Hazarika, Adv. Mr.S Dey, SC, GHADC. Mr. R Kar, Adv for respdt.5. 15-05-2013 15-05-2013 WP(C)No.(SH) 221 of 2011 Page 1 of 5 JUDGMENT AND ORDER (ORAL) As agreed to and prayed for by learned counsel for the parties, this writ petition is taken up for disposal by passing a consensus order. 2. Heard Mr AH Hazarika, learned counsel appearing for the petitioner, Mr S Dey, State learned counsel appearing for respondent No. 1 – 4 and Mr. R Kar, learned counsel appearing for respondent No. 5. 3. For passing this consensus order, it is not required to mention the fact in detail leading to the filing of different cases for Nokma of Chisimari A’Khing land. It is the case of the present writ petitioners that writ petitioner had inherited the Chisimari A’Khing Land from the predecessor-in-interest. The writ petitioner No.1 was Nokma of Chisimari A’Khing Land. Both the parties are not disputing that the petitioner and the private respondent are the members of the Garo Scheduled Tribe of Meghalaya and they are governed by the Garo Customary Law and the practices prevailing among the Garo Community since time immemorial, and the social custom of Garos are validated by an Act called “The Garo Hills Autonomous District (Social Customs and Usages Validating) Act 1954. 4. It is the further case of the present petitioner that the petitioner No.1 had approached the Executive Member, I/c Land and Revenue, Garo District Council (GDC) by filing an application/case, which was registered as GDC-REV-51 (A/C) of 1990-91, for registration of her name as Nokma of Chisimari IV-51(2)(B) A’Khing Land. It is also alleged that the respondent No. 5 was given the chance to file objection to the said case by issuing notice to her. WP(C)No.(SH) 221 of 2011 Page 2 of 5 5. The learned Executive Member I/c Land and Revenue, GHADC, Tura passed an order dated 18-2-1999, in the absence of the respondent No. 5 as she did not appear even after getting maximum chance for giving her objections, after perusal of the record that the present writ petitioner No.1 should be recorded to be the Nokma of Chisimari A’Khing Land. It is the further case of the writ petitioner that pursuant to the order dated 18-2-1999 passed by the Executive Member, I/c, GHADC, Tura name
Decision
of the writ petitioner No.1 was recorded as Nokma of Chisimari, A’Khing. 6. It is the case of the respondent No. 5 that the members of the clan and others had filed an application to the Executive Member, I/c Land & Revenue, GHADC, Tura for reviewing the said order dated 18-2-1999 for the reason that the respondent No.5 is the Nokma of Chisimari A’Khing Land. The learned Executive Member, Land and Revenue, GHADC, Tura passed an order dated 16-4-1999 for reviewing the earlier order dated 16-2-1999 and directed that the present respondent No.5 should be recorded as a Nokma of Chisimari A’Khing Land. It appears from the submissions of the learned counsel for the parties that the learned Executive Member, I/c Land and Revenue, GHADC, Tura had passed the said order for reviewing the order dated 16-4-1999 without giving any notice to the present petitioner. 7. It is the case of the present petitioner that the petitioner had no knowledge about the said order dated 18-2-1999 whereunder the learned Member GHADC had directed the name of respondent No.5 to be recorded as Nokma of Chisimari A’Khing Land. Therefore, the present writ petitioner No.1 filed an application, which was registered as GDC-REV-51 (A/C) of 1990-91, basing on the said order of the Executive Member, I/c Land and Revenue, GHADC, Tura dated 18-2-1999 for recording the name of the writ petitioner No.1 as Nokma of Chisimari A’Khing Land. The learned Executive WP(C)No.(SH) 221 of 2011 Page 3 of 5 Member, I/C Land and Revenue, GHADC, Tura had passed the order dated 14-10-2008 basing on the earlier order dated 18-2-1999 for recording/registering the name of the writ petitioner No.1 as Nokma of Chisimari A’Khing Land. 8. The respondent No.5 filed an Appeal No. 17(A/C) 2008 in the Court of the Chief Executive Member, GHADC, Tura against the said order of the Executive Member dated 14-10-2008. A copy of the Memo of Appeal No. 17(A/C) 2008 is annexed at Annexure - V in the present writ petition. In the Memo of the said Appeal, it had been mentioned that respondent No.5 was appointed as the new Nokma of Chisimari A’Khing Land under the said orders of the Executive Member, I/c Land and Revenue, GHADC, Tura dated 16-4-1999. On perusal of the records of the Misc.Appeal No. 17(A/C) 2008, it appears that copy of the said order dated 16-4-1999 was not annexed, but the learned Executive Member, I/c Land and Revenue, GHADC, Tura called for the record of 16-4-1999. 9. The learned Chief Executive Member, GHADC allowed the Misc.Appeal No. 17(A/C) 2008 by passing the impugned order dated 29-6- 2011 for the only reason that the procedure laid down by the Gauhati High Court in Smti Dore. Sangma and others vrs Chief Executive Member, GHADC, reported in (1988) 2 GLR 120 was not followed while passing two consecutive orders dated 18-2-1999 and 14-10-2008 by the Executive Member, I/c Land and Revenue, GHADC, Tura, but while passing the impugned order dated 29-6-2011, the Executive Member, I/c Land and Revenue, GHADC, Tura also did not follow the procedure laid down by the Gauhati High Court in Smti Dore Sangma’s case (Supra). 10. Both the counsel appearing for the parties are of the considered view that the procedure prescribed for passing the order relating to the Nokmaship was not followed not only by the Executive Member, I/c WP(C)No.(SH) 221 of 2011 Page 4 of 5 Land and Revenue, GHADC, Tura but also by the Chief Executive Member, GHADC in passing the orders mentioned above. 11. For the reasons discussed above, this Court is of the considered view that the Trial Court should decide afresh as to who would be the Nokma of Chisimari A’Khing Land i.e. whether the writ petitioner or the respondent is the rightful Nokma of Chisimari A’Khing Land. Accordingly, for enabling the Trial Court i.e., the Executive Member, I/c Land and Revenue, GHADC, Tura to decide the said matter afresh, the impugned orders dated 18-2-1999, 16-4-1999, 14-10-2008 and 29-6-2011 are hereby set aside. 12. Parties are directed to approach the Executive Member, I/c Land and Revenue, GHADC, Tura for deciding the issue as to who is the rightful Nokma of Chisimari A’Khing Land and the Executive Member, I/c Land and Revenue, GHADC, Tura shall decide this issue only after giving the opportunities to the petitioner and respondents to put up their respective cases. 13. For administration of the Chisimari A’Khing Land, status quo as on today shall be maintained till the matter is finally disposed of by the Executive Member, I/c Land and Revenue, GHADC, Tura. Further, it is also made clear, while the matter is pending with the Executive Member, I/c Land and Revenue, GHADC, Tura, no new patta should be issued. 14. With the above observations and directions, this writ petition is disposed of. S.Rynjah JUDGE WP(C)No.(SH) 221 of 2011 Page 5 of 5