WP(C)/171/2021 of ABAN MOMIN AND ANR. Vs THE GARO HILLS AUTONOMOUS DISTRICT COUNCIL AND 3 ORS. on 4 October 2024

J U D G M E N T

1. A dispute between the petitioners and the respondent No. 4 asregard the status of Nokmaship of Rongrekgiri Akhing is the subjectmatter wherein, on an application before this Court registered asWP(C) No. 26 of 2014, vide order dated 08.03.2018, the matter wasremanded to the Executive Member, Garo Hills Autonomous DistrictCouncil (GHADC) to allow cross-examination of the petitioner’s(therein) witnesses and a further direction was also given to the ChiefExecutive Member to dispose of any appeal arising thereto within onemonth.

2. On such remand, the learned Executive Member, GHADC tooknecessary steps in this regard and finally after hearing the parties, haspassed the order dated 17.12.2019 holding that the respondent No. 4 isthe Nokma of the Rongmutu clan and as such is entitled to be the jointNokma of the Rongrekgiri Akhing along with the petitioners who arethe Nokma from the Raksam clan. On being aggrieved by such order,the respondent therein has preferred an appeal before the learned ChiefExecutive Member, GHADC, who after hearing the parties has passed the order dated 16.10.2020 by dismissing the appeal and in effect,upheld the order of the learned Executive Member, GHADC.

3. The petitioners herein being aggrieved by the order of thelearned Executive Member dated 17.12.2019 as well as the order of thelearned Chief Executive Member dated 16.10.2020 have now onceagain approached this Court with a prayer that the orders impugnedherein be set aside and quashed.

4. According to the petitioner, the background story of the case isthat Rongrekgiri Akhing No. IV 56(10) in the East Garo Hills Districtwas purchased from late Jingnang Nokma of Rongbibggiri village bythe predecessor-in-interest of the Raksam Clan of the petitioners, lateSanna Sangma and late Jimra Sangma for a sum of 800/- (rupees₹eight hundred) on 08.01.1918.

5. Soon after the said purchase, the buyers then intimated the thenDeputy Commissioner, late F.E. Jackson about the said sale transaction,who then directed the Mouzadar and Laskar to prepare a map and toerect boundary pillars, which was done so on 21.01.1918, therebyrecognising the said sale transaction and the right of the Raksam clanover it.

6. In due course, late Jenang Sangma and his wife Smti. BinisMarak, Nokma had filed an application before the Executive MemberIncharge Revenue, GHADC for registration of their heiress Smti.Jostina R. Marak and her husband Aban Momin as Nokma of the saidRongrekgiri Akhing and the matter was registered as GDC-Rev No. 71

A/C of 1987, whereupon, an order dated 15.04.1987 was passedallowing the same.

7. In the meantime, one Shri. Nephilson Sangma filed anapplication before the Executive Member Incharge Revenue, GHADCdated 13.12.1996 seeking appointment of Shri. Withing Marak and hiswife Smti. Nerinjing Sangma (respondent No. 4 herein) as Nokma ofthe said Rongregiri Akhing, which application was registered as GDCRev No. 82 A/C of 1996-97. The said application was allowed videorder dated 22.08.1997, being aggrieved, the petitioners herein filed anappeal before the learned Chief Executive Member, GHADC whichappeal was dismissed vide order dated 23.09.2003.

8. Again, the petitioners herein not being satisfied with the saidorders dated 22.08.1997 and 23.09.2003 (supra), this Court wasapproached with a writ petition being WP(C) No. 340(SH) of 2005 andthis Court vide order dated 31.07.2006, set aside and quashed both theimpugned orders aforementioned and remitted the matter to the learnedExecutive Member to decide the matter afresh after giving dueopportunity to both the parties to adduce evidence and to makeoral/documentary submission.

9. Accordingly, the learned Executive Member then started freshproceedings and after hearing the parties and on perusal of both oraland documentary evidence produced by the parties has passed the orderdated 23.07.2012 rejecting the claim of the respondent No. 4 hereinand allowed the petitioners to continue as Nokma of the said Akhingland in question.

10. Yet again, the respondent No. 4 being aggrieved by the orderdated 23.07.2012 (supra) preferred an appeal before the learned ChiefExecutive Member, who vide order dated 19.12.2013 set aside theorder of the learned Executive Member.

11. It is this order dated 19.12.2013 that was challenged before thisCourt in WP(C) No. 26 of 2014 resulting in the passing of the saidorder dated 08.03.2018.

12. The learned Executive Member on receipt of the order dated08.03.2018 had caused notices to be issued to all the parties involvedand on their appearance, after filing of documents and examination oftheir respective witnesses, after hearing the parties, the learnedExecutive Member has passed the impugned order dated 17.12.2019,whereupon on being aggrieved by such, the petitioners have filed anappeal before the learned Chief Executive Member who has thenpassed the impugned order dated 16.10.2020 in GHADC-Rev AppealCase No. 12 A/C 2020 whereby the order dated 17.12.2019 passed bythe Executive Member was upheld. Hence this petition.

13. Mr. A.H. Hazarika, learned counsel for the petitioners hasadvanced his arguments by leading this Court to the history of thedispute between the parties and has submitted that since the year 1918when late Sanna Sangma and late Jimra Sangma who were married totwo sisters of the Raksam clan, the Nokmaship of Rongrekgiri No.56(10) Akhing has always been under the control of the Raksam clan.

14. The petitioner’s parents, in the year 1987 have filed theapplication before the Executive Member Incharge Revenue only for registration of their names as Nokma of the said Akhing which wasdone so vide order dated 15.04.1987.

15. However, after a lapse of 75 years or so, the respondent No. 4and her deceased husband Withing Marak were appointed as JointNokma of the said Akhing, purportedly on an application made by oneShri. Nephilson Sangma. The related order dated 22.08.1997 wherebythe said application was allowed, an appeal was therefore preferred bythe petitioners before the Chief Executive Member, GHADC whichwas not allowed, leaving the petitioner no choice but to approach thisCourt at the relevant point of time. In this regard, the claim of therespondent No. 4 that the said Akhing was jointly purchased by lateSanna Nokma, who paid ₹ 400/- and late Khanam Nokma of theRongmutu clan who paid 400/- for the same cannot be substantiated₹by documentary evidence, further submits the learned counsel.

16. The learned counsel has submitted that the fact being that whenthe then Deputy Commissioner, F.E. Jackson vide his order dated09.01.1918 has confirmed the Nokmaship of the predecessor-in-interestof the petitioners herein over the said Rongrekgiri Akhing, themembers of the Rongmutu clan of the respondent No. 4 has not madeor file any objection to the same, challenging the purport of such orderafter 75 years or so would only attract the application of the principleof res judicata, the case of Smti. Dore Sangma v. The Chief ExecutiveMember, Garo Hills District Council, Tura and Ors. reported in (1988)2 Gauhati Law Report 120 at para 23 was cited in support of thiscontention.

17. Finally, after going through a process of the dispute beingadjudicated by the forum of the learned Executive Member and onappeal by the learned Chief Executive Member, the culmination of theprocess resulting in the passing of the last impugned order, dated16.10.2020 by the learned Chief Executive Member was evidentlybased on incorrect appreciation of the factual aspect of the disputebetween the parties and furthermore, was a violation of the principle ofnatural justice inasmuch as the petitioners were never given theopportunity to be heard by the learned Chief Executive Member whilepassing the impugned order dated 16.10.2020, submits the learnedcounsel.

18. The learned counsel has further submitted that in view of thebias attitude of the concerned Executive Member and the ChiefExecutive Member, this Court may be pleased to remand the matter forreconsideration by the Court of the Judge, District Council, GHADC.

19. Also heard Mr. P. Nongbri, learned counsel who has presentedthe version of the respondent No. 4 as far as the dispute between theparties are concerned.

20. It is the submission of the learned counsel that the RongrekgiriAkhing was purchased in the year 1917 for an amount of 400/- each₹contributed equally by late Sanna Nokma of Raksam clan and KhamanNokma of Rongmutu clan. The Deputy Commissioner of Garo Hillsvide order dated 25.04.1938 has also observed that Sanna and Khamanare Nokmas of the said Rongrekgiri Akhing with the consent of theMaharis of Rongmutu and Raksam clans.

Arguments

21. The learned counsel has further submitted that the presentcontroversy arose from an application that was filed before theExecutive Member Incharge Revenue and vide order dated 22.08.1997,Withing Marak and his wife, the respondent No. 4 are recognised as thejoint Nokmas of Rongrekgiri Akhing representing the Rongmutu clan.Even on appeal by the petitioners herein, the appellate authority, that is,the Chief Executive Member has upheld the order dated 22.08.1997.However, the matter did not end there since the petitioners have thenapproached this Court by way of a writ petition and what followed isthat on the strength of the relevant orders passed by this Court, finally,by order dated 08.09.2018 passed in WP(C) No. 26 of 2014 theadjudication of the dispute between the parties was once again referredto the learned Executive Member Incharge Revenue, to continueproceedings by allowing the petitioner’s witnesses to be examined.

22. The learned Executive Member after observing due procedureand after finally hearing the parties has passed the impugned orderdated 17.12.2019 with a finding that the said Rongrekgiri Akhing is tobe controlled jointly by one Nokma from the Raksam clan and onefrom the Rongmutu clan. Again, on appeal, the learned Chief ExecutiveMember vide order dated 16.10.2020 has confirmed such order.Therefore, there being no pleadings on any alleged procedural lapse,the petitioners have not been able to make out a case in their favourand as such, this petition is liable to be dismissed, submits the learnedcounsel.

23. Mr. S. Dey, learned Standing Counsel, GHADC on behalf of therespondents No. 1, 2 and 3 respectively in his reply has refuted the contention and submission made by the petitioners to say that thefactual situation is that when the said Rongrekgiri Akhing waspurchased, half of the consideration amount was paid by the foreparents of the respondent No. 4 and throughout, this fact has not beenable to be dislodged and was confirmed even in the impugned ordersherein.

24. It is also submitted that there the learned Executive Member hasnot committed any procedural lapse in the proceedings before him andthe order was passed based on sound principles of Garo CustomaryLaw.

25. As to the contention of the petitioners that they were not heardby the learned Chief Executive Member in the appeal and the same waspassed exparte, the learned SC has submitted that this statement is notcorrect since records would show that both parties were heard and theirrespective written argument was also taken into consideration whilepassing the said order dated 16.10.2020.

26. To the prayer of the petitioners that this Court be pleased to referthe entire matter to the court of the Judge, District Council Court forproper adjudication, the learned SC has submitted that this prayercannot be accepted as there is already an express bar for civil court totake up matters involving Nokma issues as is seen from Section 11 ofthe Garo Hills Autonomous District (Social Customs and Usages)Validity (Amendment) Act, 1972.

27. In view of the submission made, the learned SC has submittedthat this petition being devoid of merits, the same be dismissed as such.

28. This Court has given careful thought to the case of the partiesand from the submission made as well as from the materials availableon record, including the relevant records of the proceedings before thelearned Executive Member and the learned Chief Executive Member, itis evident that the fact that Rongrekgiri Akhing was purchased on09.01.1918 for a sum of ₹ 800/- (rupees eight hundred) only is notdisputed, the purchasers being Sanna Nokma and Jimra Nokma. Thistransaction was confirmed by F.E.J, said to be the then DeputyCommissioner, F.E. Jackson. Annexure-2 of this petition being a copyof the said acknowledgment. However, another version of the said saletransaction emerged in the form of a report dated 12.12.1927, by oneJ.M. David filed before the then Deputy Commissioner, G.D. Walker,wherein it was said that Sana and Khaman Nokma are the AkhingNokma of Rongrekgiri since the said land was purchased in the year1917 from Shri. Jingnang Nokma of Rongbingiri, for an amount of ₹400/- (rupees four hundred) only each.

29. The dispute that ensued thereafter between the members of theRaksam clan and the Rongmutu clan is precisely on this issue, as towhat exactly is the nature and mode of the said sale transaction,whether the Akhing in question was jointly purchased by Sanna andJimra or by Sanna and Khaman.

30. In the impugned order dated 17.12.2019, the learned ExecutiveMember has indicated that records were perused and deposition of thewitnesses duly noted to come to a finding that the report dated12.12.1927 confirmed the fact that the Akhing was jointly purchasedby Sanna Nokma and Khaman Nokma who paid 400/- (rupees four₹

hundred) only each. However, the findings of the learned ExecutiveMember also include an observation that the respondent No. 4 belongsto the Rongmutu clan and whatever is decided by the clan as regard towho can be its Nokma cannot be questioned by the petitioners and theirclan, that is, the Raksam clan.

31. On appeal, the learned Chief Executive Member has alsoextensively dealt with the issues raised by the contesting parties andhas also confirmed the findings of the learned Executive Member. ThisCourt on perusal of the said order dated 16.10.2020 cannot find faultwith the same as the same is a well-reasoned one.

32. On the contention of the petitioners that they were never heardby the learned Chief Executive Member on the date the related appealcame up for hearing, as was submitted by the learned SC, GHADC andalso on perusal of the relevant records wherein on the said date ofhearing, that is 16.10.2020 it is seen that the petitioner/appellant AbanMomin has filed his hazira on the said date, which would only indicatethat he was present before the learned CEM. Therefore, suchcontention by the petitioners cannot be accepted by this Court.

33. In a case dealing with the issues of dispute as regard theNokmaship of an Akhing land, this Court while refusing to go into themerits of the case of the parties as regard statement of facts and theirevidentiary value, has reiterated the principle governing judicial reviewand in this regard has cited 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 lawof the land is implicitly obeyed and that various authorities andtribunals act within the limits of their respective jurisdiction….”

34. Even as the respondent No. 4 has questioned the stand of thepetitioners herein, wherein no specific pleadings have been made tochallenge the decision-making process of the learned EM as well asthat of the learned CEM vis-à-vis the impugned orders herein, thisCourt on an overall analysis of the facts and circumstances of this casehas found nothing wrong with the said decision-making process.

35. On the prayer of the petitioners that the matter be referred to thecivil court, that is, the court of the Judge, District Council Court, Tura,this prayer is contradicted by the petitioners themselves as at para 3 ofthis petition, Section 11 of the Garo Autonomous District (SocialCustoms and Usages) Validating (Amendment) Act, 1972 was quotedto say that since no suit or proceedings falling within the purview ofthe Act can be entertained by a civil court, the only remedy available tothe petitioners is to approach this Court under Article 226 of theConstitution. Therefore, there is no question of matters of this kind tobe adjudicated by a civil court.

36. In view of the above observations, this Court hereby finds thatthe petitioners have not been able to make out a case to upset theconcurrent findings of the learned Executive Member and the learnedChief Executive Member as is found in the impugned orders referred tohereinabove.

37. This petition is accordingly dismissed as devoid of merits.

38. The relevant records are handed over to the learned StandingCounsel, GHADC on receipt duly acknowledged.

39. Petition disposed of. No costs.

Judge