WP(C)/304/2018 of DIWAN A SANGMA AND ANR Vs THE CHIEF EXECUTIVE MEMBER, GHADC on 20 September 2024

J U D G M E N T

1. The petitioners, said to be the Nokma of Rangmalgre III-28(5)Aking have approached this Court with this instant petition on beingaggrieved by the order of the respondent No. 2/Executive Member, GaroHills Autonomous District Council, Tura dated 23.08.2016 whereby theregistration of the Nokmaship of the petitioners have been cancelled, andalso by the order dated 23.03.2018 passed by the respondent No. 1/ChiefExecutive Member, Garo Hills Autonomous District Council, Tura, who has upheld the said order dated 23.08.2016 in appeal.

2. Heard Mr. E.B. Sangma, learned counsel for the petitioners whohas submitted that the petitioner No. 2 belongs to the ‘Chambugong Clan’coming from the lineage of the genealogical tree of the Rangmalgre III-28(5) Aking Nokma family, being the biological daughter of late RakjiMarak who was the daughter of late Gatran Sangma and late WatmeMarak Mechik (female) who were the then Nokma of Rangmalgre III-28(5).

3. The learned counsel has further submitted that after the demise ofthe last recorded Nokmas of Rangmalgre Aking, Raban Sangma andNosing Marak, an application was filed before the respondent No. 2 byShri. Duran Marak, the matrilineal uncle of the petitioner No. 2 forregistration of the names of the petitioner No. 2 and her husband as theNokma of Rangmalgre III-28(5) Aking. The application was registered asGDC-30 A/C of 2003-2004. On an enquiry conducted by the Mouzadarand after complying with all the formalities, a report dated 18.11.2003was filed by the Mouzadar and the respondent No. 2 on being satisfiedwith the same, has accordingly registered the names of the petitionersherein as the successor Nokmas of Rangmalgre Aking III-28(5) videorder dated 03.12.2003.

4. It is also the submission of the learned counsel that on 24.03.2004a fresh petition under Section 7 and 8(1) of the Garo Hills AutonomousDistrict (Social Customs and Usages) Validating Act, 1958 was filed bythe respondent No. 3 herein for registration of the name of the petitionerNo. 2 as the Nokma of the said Rangmalgre III-28(5) Aking. The petition was registered as GHADC-Rev/33 A.C/2004.

5. The respondent No. 2 then directed the Mouzadar to conduct a re-enquiry on the basis of the said petition dated 24.03.2004 and uponenquiry, a report dated 07.06.2004 was filed, inter alia, indicating thereinthat the petitioners herein have already been registered and appointed asNokma of the said Rangmalgre Aking. The respondent No. 2 however,vide order dated 24.08.2004, has directed that notice be issued to theparties to appear before him. Notice was accordingly issued upon thepetitioner No. 2 only on 01.03.2007 with direction to appear before theCourt of the respondent No. 2 on 07.03.2007.

6. The learned counsel went on to submit that the petitioners filedtheir written statement on 12.04.2007 to which the respondent No. 3 fileda rejoinder dated 20.09.2007 to the same, however, without seeking leaveto amend his pleadings, has added new set of facts. Again, the petitionerhas filed a counter to this with a prayer for dismissal of the main petitionbut the respondent No. 2 proceeded to frame the issues on the basis of thesuggested issues filed by the parties.

7. The respondent No. 2 after considering the materials before himincluding the written statement and rejoinder and on the basis of theissues framed by him, after hearing the parties had passed the impugnedorder dated 23.08.2016, the petitioners being aggrieved by such orderhave preferred an appeal before the respondent No. 1/Chief ExecutiveMember, GHADC the same being registered as GHADC-Rev./Appl. No.9 of 2016. A rejoinder to the contents in the memo of appeal was filed bythe respondents No. 3 and 4. The respondent No. 1 after hearing the parties had vide the impugned judgment and order dated 23.03.2018upheld the order of the respondent No. 2 dated 23.08.2016. Thepetitioners therefore are before this Court with this instant petitionseeking a direction to set aside and quash the impugned judgment andorder dated 23.08.2016 passed by the Executive Member, InchargeRevenue, GHADC/respondent No. 2 and the impugned judgment andorder dated 23.03.2018 passed by the Chief Executive Member,GHADC/respondent No. 1.

8. The learned counsel has contended that the fact that thepetitioners herein have been registered as the Nokma of the saidRangmalgre III-28(5) Aking vide order dated 03.12.2003 passed by thecourt of the respondent No. 2 itself is a matter of record and is a knownfact as far as the proceedings before the successor/respondent No. 2 isconcerned, as such, the said order having attained finality with no appealpreferred against the same at the relevant point of time, the respondentNo. 2 vide the impugned judgment and order dated 23.08.2016 could nothave reopened the case on the same facts and circumstances and also onthe same cause of action. The respondent No. 2 not being conferred withthe power of review under the Garo Hills Autonomous District (SocialCustoms and Usages) Validating Act, 1958 could not have passed theimpugned order which in essence is a review of the earlier order dated03.12.2003 (supra) since the power of review is not an inherent power.The case of Patel Narshi Thakershi & Ors. v. Shri. PradyumansinghjiArjunsinghji, (1971) 3 SCC 844, para 4 has been cited in this regard.

9. The learned counsel has also submitted that the respondent No. 2had rejected the amendment application filed by the respondent No. 3

vide order dated 14.06.2012 however, in the impugned judgment andorder dated 23.08.2016 the respondent No. 2 has reconsidered thecontents of the amendment application which fact was reflected in thesaid order, which could not have been done so without giving thepetitioners an opportunity to response to such application at the relevantpoint of time. In the context of this contention, the learned counsel hascited the case of A.K. Gupta and Sons Ltd. v. Damodar ValleyCorporation, (1966) 1 SCR 796, para 28.

10. The learned counsel has reiterated that the order dated 03.12.2003confirming the status of the petitioners as Nokma of the said Aking inquestion, the same could not be disturbed except by a relevant orderpassed by a superior court. That the respondent No. 2 vide the saidimpugned judgment and order dated 23.08.2016 had cancelled theNokmaship of the petitioners, such order or action is ultra vires, illegaland unjustified and the same cannot escape the scrutiny of law. It istherefore proper for this Court to set aside and quash the said impugnedorder, submits the learned counsel.

11. Similarly, the appellate authority, that is the respondent No. 1, onappeal having disregarded the settled issues of facts as far as the status ofthe petitioners are concerned and being fully aware of the said orderdated 03.12.2003, have, in a mechanical manner without due applicationof mind, in total contravention of the settled principle of justice, equityand fair play passed the impugned order dated 23.03.2018 which order isalso liable to be dismissed herein, submits the learned counsel.

12. Mr. S. Dey, learned Standing Counsel, GHADC/respondents No.

1 and 2 in his submission has recounted the case of the petitioners, that is,the fact that one Shri. Duran Marak had approached the respondent No. 2for registration of the names of the petitioners as the Nokma of the saidRangmalgre III-28(5) Aking, wherein in such application it has beenindicated that the petitioner No. 2 is the daughter of the last recordedNokma and as such, is entitled to be named as the said Nokma. However,this is a suppression of facts inasmuch as the biological daughter of thelast recorded Nokma is Watje Ch. Marak, the respondent No. 4 herein.The learned Standing Counsel has further submitted that to correct theanomaly which has occurred in the order dated 03.12.2003 an applicationwas filed by the respondent No. 3 before the respondent No. 2 seekingregistration of the name of respondent No. 4 as the Nokma thoughinadvertently instead of the name “Smti. Watje Ch. Marak” the name“Smti Winje Ch. Marak” (petitioner No. 2) appeared. However, in courseof the proceedings the respondent No. 3/petitioner had filed anamendment petition before the respondent No. 2 to correct the mistakewhich was allowed and reflected in the impugned order dated23.08.2016.

13. It is also the submission of the learned Standing Counsel that theproceedings before the respondent No. 2 as far as the petition filed byrespondent No. 4 dated 24.03.2004 have been conducted in a fair andtransparent procedure with the relevant parties being issued notice toappear before the court of the respondent No. 2 and also the filing of theobjection and rejoinder was allowed. Further, both parties having filedtheir suggested issues, the respondent No. 2 had framed the issues on11.06.2009 and the argument of the parties was accordingly heard.

14. On the merits of the case of the parties, while adhering to theprinciples found in the Garo customary law wherein the right to inheritproperty is vested only in one daughter who becomes the heiress and isknown as the Nokna, the Nokna being the rightful daughter of the Nokmaand as such, in the area of inheritance and lineage vis-à-vis appointmentof Nokma, the court of the respondent No. 2 having come to the findingsthat the respondent No. 4 is the biological daughter of the last recordedNokma and also that her claim to Nokmaship having secured theapproval of the Maharis who have decided to recommend her name to beappointed as the Nokma, the decision and findings rendered in theimpugned order dated 23.08.2016 cannot be faulted. In this regard, theorder dated 26.09.2014 passed in the case of Smti. Chellish Sangma &Anr. v. Smti. Labina Sangma & Ors., in WA No. 43 of 2011 by a DivisionBench of this Court, para 4, 5, and 6 was cited in support of thiscontention.

15. The learned Standing Counsel has also refuted the contention ofthe petitioners that the respondent No. 2 has no power or authority toreview its own judgment or order and has submitted that the proceedingsbefore the court of the respondent No. 2 is to be guided by the spirit ofthe Code of Civil Procedure in order to render complete justice to theparties and as such, there is no infirmity or illegality or even irregularityin the manner and procedure adopted by the respondent No. 2 in thepassing of the said impugned order dated 23.08.2016. The order dated21.03.2017 passed by this Court in the case of Shri. Munising T. Sangma& Ors. v. GHADC & Ors., WP(C) No. 314 of 2014, para 5 is cited in thisregard.

16. Mr. S. Deb, learned counsel for the respondents No. 3 and 4respectively, has submitted that the impugned judgment and order of therespondent No. 2, who is the Executive Member Incharge of Revenue hascovered all the factual aspects of the case between the contesting partiesand has rightly come to the conclusion that the respondent No. 4 isrightfully the one who should be made the Nokma of the saidRangmalgre III-28(5) Aking, the appeal made against this finding alsobeing deservingly rejected.

17. Reiterating the factual circumstances of the case, the learnedcounsel has submitted that the respondent No. 4 is the rightful daughterof the last and undisputed Nokmas (L) Raban Sangma and Nosing Marakand was also chosen by the Chras and Maharis as the successor Nokmaor Nokna. On the other hand, the petitioners having failed to prove theirlineage to the last recorded Nokma, have no vested right to claim theNokmaship.

18. The learned counsel has further submitted that by suppressing andmisrepresentation of facts, the petitioners have got themselves registeredas Nokmas and as such, obtaining an order by way of fraud would renderthe said order non est in the eyes of law. Therefore, the order dated03.12.2003 cannot be sustained, the subsequent petition for registrationof the name of the respondent No. 4/Watje Ch. Marak as the Nokma ofthe said Aking in question has been dealt with by the learned ExecutiveMember Incharge Revenue/respondent No. 2 in the light of the materialson record leading to the conclusion drawn as is evident in the order dated23.08.2016 whereby the registration of the names of the petitioners asNokmas have been cancelled.

19. It is the submission of the learned counsel that the order dated23.08.2016 passed by the respondent No. 2 has been passed based onsound principles of Garo customary law in connection with Nokmashipand after proper appreciation of the materials on record. Due procedure interms of the judgment in the case of Dore Sangma, (1988) 2 GLR 120,has been adhered to, the petitioners having failed to prove their claim orcase in the face of the concurrent findings of the respondent No. 2 andrespondent No. 1 have preferred this instant writ petition without anymerits and the same is liable to be rejected.

20. This Court, without repeating whatever have been stated as far asthe facts and circumstance of the case of the parties is concerned, exceptwhat is necessary to be stated for the purpose of emphasis, inasmuch asthe same have been elaborately enumerated hereinabove, will considerthe relevant issue(s) to be decided which have a bearing on the claim andcounterclaim of the respective parties herein.

21. On consideration of the factual matrix of the case of the parties,what is understood is that Shri. Duran Marak, the matrilineal Uncle of thepetitioner No. 2 approached the Executive Member Incharge Revenue,GHADC in the year 2003 with a prayer for registration of the name of thepetitioner No. 2 and her husband, the petitioner No. 1 as Nokma of thesaid Rangmalgiri Aking III-28(5). After due and proper procedure wasfollowed, in view of the related report of the Mouzadar, the order dated03.12.2003 was passed confirming the petitioners as the said Nokmas.

22. It is also noticed that from the contents of the said order dated03.12.2003, the Executive Member Incharge Revenue has noted that on there being no objections from any quarters and on the statements of theclan people, the same was passed.

23. Further, as is evident from records is found the application dated24.03.2004 filed by Shri. Mingseng Ch. Marak/respondent No. 3 seekingregistration of the name of Smti. Winje Ch. Marak, who is the petitionerNo. 2 herein as the Nokma of the self-same Rangmalgre Aking. Thisapplication was assumed to be an objection to the registration of thenames of the petitioners as Nokmas since the Executive Member hascaused issuance of notices and has also called upon the parties to filetheir written statement.

24. Again, it could not be understood as to how and under whatprovision and procedure an application seeking to reinforce the name ofthe petitioner No. 2 as Nokma was considered or taken as an applicationobjecting to such registration. From the impugned order dated23.08.2016, the Executive Member has observed that after the filing ofthe said application dated 24.03.2004 by Shri. Mingseng Ch. Marak, anapplication dated 17.05.2012, for amendment of the same wassubsequently filed by Shri. Mingseng Ch. Marak. This amendmentapplication was however not allowed by the Executive Member videorder dated 14.06.2012.

25. However, it is surprising to note that the Executive Member in theimpugned order dated 23.08.2016 has referred to this amendmentapplication and has allowed the same, by doing so, the whole course ofthe case between the parties have been changed inasmuch as according tothe argument of the learned counsel for the petitioner, such amendment

seeks to correct the name of “Winji Ch. Marak”, the petitioner No. 2 tothat of “Smti Watje Ch. Marak”, the respondent No. 4 herein, whichwould in essence be considered or taken as an application of objection tothe registration of the name of the petitioners as Nokmas, followingwhich, notices to the contesting parties and filing of written statementand rejoinder can be allowed. But having rejected the amendmentapplication, the Executive Member could not have proceeded with theproceedings culminating in the passing of the said impugned order. Theimpugned order dated 23.03.2016 was therefore passed without any basisand not in accordance with due procedure, the same has even verged onthe threshold of violation of the principle of natural justice as the saidamendment application was not made known to the petitioners who wereparties in the said proceedings before the Executive Member.

26. This would lead to one conclusion, that is, that the saidapplication filed by Shri. Mingseng Ch. Marak/respondent No. 3 beforethe Executive Member dated 24.03.2004 is an application for review ofthe order dated 03.12.2003. However, there being no specific provision ofreview under the Garo Hills Autonomous District (Social Customs andUsages) Validating Act, 1958 and the power to review not being aninherent power as was held by the Hon’ble Supreme Court in the case ofPatel Narshi Thakershi (supra) relied upon by the petitioner, theExecutive Member could not have made such related observations in theorder dated 23.08.2016. The said order is therefore liable to be set asideand dismissed.

27. This aspect of the matter was also not noticed or discussed by theappellate authority, that is, the Chief Executive Member/respondent No. 1

in his order dated 23.03.2018, also impugned herein.

28. This Court would not go into the merits of the case of therespective parties as the respondents herein have collectively argued onthe merits of the case to say that the petitioners have got their namesregistered as Nokmas by suppression of facts and therefore the impugnedorders passed are justified in this regard. The reliance of the respondentsNo. 1 and 2 on the case of Smti. Chellish Sangma (supra) was also basedon this premise. However, this Court would agree with the petitionerswho have placed reliance on the case of Mohammed Hanif v. State ofAssam, (1969) 2 SCC 782 wherein at para 5, extracts of which isreproduced herein, the Hon’ble Supreme Court has held as follows:- “5. It is true that the jurisdiction of the High Court under Article226 is an extraordinary jurisdiction vested in the High Court notfor the purpose of declaring the private rights of the parties butfor the purpose of ensuring that the law of the land is implicitlyobeyed and that the various tribunals and public authorities arekept within the limits of their jurisdiction. In other words, thejurisdiction of the High Court under Article 226 is a supervisoryjurisdiction, a jurisdiction meant to supervise the work of thetribunals and public authorities and to see that they act within thelimits of their respective jurisdiction. In a proceeding underArticle 226 the High Court is not concerned merely with thedetermination of the private rights of the parties; the only objectto such a proceeding under Article 226 is to ensure that the law ofthe land is implicitly obeyed and that various authorities andtribunals act within the limits of their respective jurisdiction….”

29. In view of the observations and discussion made hereinabove, thisCourt is of the considered opinion that the impugned order dated23.08.2016 as well as the order dated 23.03.2018 have been passedbeyond jurisdiction and not in conformity with the accepted procedure, the same are therefore hereby set aside and quashed. Consequently, theprayer of the petitioners in this regard is also hereby allowed.

30. The records as produced by the learned Standing Counsel,GHADC are hereby also returned to him.

31. Petition disposed of. No costs.

Judge