WP(C)/100/2021 of KENNEDY CH. MARAK AND 2 ORS Vs G.H.A.D.C AND 4 ORS. on 13 August 2024

J U D G M E N T

1. This is an application filed under Article 226 of the Constitutionof India, the petitioners being aggrieved with the judgment and orderdated 05.02.2019 passed by the Executive Member, I/C Land &Revenue, Garo Hills Autonomous District Council (GHADC), Tura inGHADC-REF/19 A.C. of 2015 and the order dated 16.10.2020 passed bythe Chief Executive Member, GHADC, Tura in GDC Rev Appeal No. 2A/C of 2019, have now approached this Court praying for a direction bythis Court to set aside and quash the abovementioned impugned orders.

2. Heard Mr. P.T. Sangma, learned counsel for the petitioners whohas submitted that the petitioners are from the lineage of the last recorded Nokma of Jamadar Amathe Akhing III-33 under GondenggiriAkhing, the parents of the petitioner No. 2 (L) Jongen Sangma and hiswife (L) Jingme Ch. Marak being such registered Nokma by virtue of theappointment order dated 08.08.1979 issued by P. Momin, ExecutiveMember, Incharge Revenue, Garo Hills District Council, Tura.

3. The learned counsel has further submitted that after the demise ofJongen Sangma, his wife Jingme Ch. Marak had filed a petition forregistration of her daughter Smti. Repolish Ch. Marak along with herhusband Shri. Jimberth T. Sangma as the Nokma of the said JamadarAmathe Akhing III-33 under Gondenggiri Akhing which fact was alsoadmitted by the respondents.

4. The learned counsel has again submitted that the controversybetween the parties arose only as regard the area of jurisdiction, thepetitioners maintaining that the said Jamadar Amathe Akhing III-33consisted of 77 bitots (hillocks) whereas the respondents have contendedthat the area consists of only 59 bitots.

5. This controversy apparently refers to a litigation by the partiesbefore the Waribokgre Village Court in V/C Case No. 4 of 1969 whereinthe Village Court after hearing the parties had vide order dated04.12.1969 decided the matter in favour of Jingme Ch. Marak thepredecessor of the present petitioners herein. The order of the VillageCourt was challenged by the respondent therein, Smti. Genjak Mechikbefore the Subordinate District Council Court whereby vide order dated23.03.1971 the order of the Village Court was set aside. The petitionerthen preferred an appeal before the District Council Court against the said

order dated 23.03.1971 and again vide order dated 14.12.1972 the DistrictCouncil Court had set aside the order dated 23.03.1971 passed by theSubordinate District Council Court. Against this order dated 14.12.1972the respondent Smti. Genjak Mechik as petitioner had filed a CivilRevision Petition No. 5(H) of 1976 before the Gauhati High Court andthe Hon’ble High Court vide judgment dated 08.12.1977 had dismissedthe said petition and in effect had upheld the order dated 14.12.1972passed by the District Council Court.

6. On the strength of the High Court’s order dated 08.12.1977, thepredecessor of the petitioners filed an application before the DistrictCouncil for execution of such order, accordingly, the said order dated08.03.1979 was passed in GDC-REV No. 1 A/C of 1979-1980 wherebythe predecessors of the petitioner No. 1, Jogen Sangma and his wifeJigme Mechik were declared as inheritors of the Jamadar Akhing withinthe Akhing land of Gongenggiri.

7. The learned counsel went on to submit that the respondent hasagain approached the High Court with a writ petition being Civil RuleNo. 38 (SH) of 1989 challenging the order dated 08.03.1979. The HighCourt upon hearing the parties, have, vide order dated 28.08.1989remanded the matter to the Executive Member, In-charge, Revenue todecide the matter afresh, however, it was also made clear that nosubmission be entertained in the matter already decided in Civil RevisionNo 5(H) of 1976.

8. As to the order dated 28.08.1989, the respondent has failed toapproach the District Council Court and as such the dispute between the parties was put to rest. The petitioner thereafter has approached theExecutive Member I/C Land & Revenue vide GHADC REF/19 A.C. of2005 with an application for registration of the name of Shri Jimberth T.Sangma and his wife Smti. Repolish Ch. Marak as the Nokma of JamadarAmathe- III-33, the reason being that since the petitioner has inherited thesaid Akhing in the year 1979, the first Nokma being Smti Jingme Ch.Marak and her husband Jogen T. Sangma, therefore the said applicants,Shri Jimberth T. Sangma and his wife Smti. Repolish Ch. Marak areentitled to be appointed as the Nokma of the said Jamadar Amathe- III-33within the Gondenggiri Akhing land.

9. On the objection of the respondent No. 3 herein, claiming that theAkhing land belongs to the Chambugong clan, the Executive Memberthen passed the impugned order dated 05.02.2019 holding that theappointment of Smt. Repolish Ch. Marak and her husband Shri JimberthT. Sangma was as Jamadal Nokma for 59 bitots within GondenggiriAkhing.

10. The learned counsel has submitted that the petitioners beingaggrieved by the order dated 05.02.2019 passed by the ExecutiveMember I/C Land & Revenue, an appeal was preferred before the ChiefExecutive Member being GDC Rev Appeal No 2 A/C of 2019. However,the Chief Executive Member, vide order dated 16.10.2020 had dismissedthe appeal as devoid of merits. Hence this petition.

11. The learned counsel has maintained that the Executive Member inpassing the impugned order dated 05.02.2019 has exceeded hisjurisdiction inasmuch as the matter in favour of the petitioner through his

predecessor has been settled on the strength of the order dated 08.12.1977passed in Civil Revision No 5(H) of 1976 as well as the order dated28.08.1989 passed in Civil Rule No. 38(SH) of 1989 wherein the controlof the petitioners over 77 bitots of land of Jamadar Amathe Akhing III-33has been confirmed and as such the impugned order is hit by the principleof res judicata.

12. The final submission of the learned counsel is that the principle ofnatural justice has been violated since the petitioner was not given anynotice when the impugned appellate order dated 16.10.2020 was passedby the Chief Executive Member.

13. In reply, Mr. S. Deb, learned counsel for the respondent No. 3while refuting the contention and the submission made by the learnedcounsel for the petitioner has submitted that at the first instance thispetition is not maintainable as it suffers from non-joinder of necessaryparties, that is the present Nokma of the Godenggiri Akhing, Shri. RonjithT. Sangma and Smti. Benje Ch. Marak which Akhing encompasses theland in question known as Jamadar Amathe Akhing have not been arrayedas respondents in this case, instead, Shri. Mechail Ch. Marak who is onlya Chra (elder male member) of the Chubogong Clan was impleaded asrespondent No. 3.

14. The learned counsel went on to submit that the petitioners cannotbe said to be ignorant of this aspect of the matter since the said Nokmathat is Shri. Ronjith T. Sangma and Smti. Benje Ch. Marak were verymuch party to the proceedings before the Executive Member who hadpassed the impugned order dated 05.02.2019 as well as before the Chief Executive Member who had passed the impugned appellate order dated16.10.2020.

15. The learned counsel has also submitted that the respondent No. 3has filed his affidavit-in-opposition in this case and has made severalfactual and legal averments thereto. However, the petitioners have notfiled any rejoinder to the said affidavit-in-opposition and as such, withoutany rebuttal to the contentions made in the said affidavit-in-opposition,the same remain uncontroverted. In this regard, the order dated26.09.2014 passed in WA. No. 43/2011 in the case of Shri. ChellishSangma & Anr. v. Smti. Labina Sangma & Ors., para 9 and 10 is cited insupport of this contention.

16. Reverting to the facts of the case between the parties, the learnedcounsel has submitted that there is no dispute that Gondenggiri III-33Akhing belongs to the Chambugong clan, the same having beenestablished in the relevant records since the British regime with thegenealogical tree, map-wareng and Ma’ambi being maintained in theGHADC. Since the year 2013 till date, the registered Nokma(s) of thesaid Akhing are Shri Ronjith T. Sangma and his wife Smti. Benje Ch.Marak who are the descendants of the original Nokma late ChagranSangma and Smti Khanje Marak.

17. The learned counsel has also submitted that the father of thepetitioner No. 1, (L) Jogen T. Sangma had approached the then Nokma ofthe said Akhing (Gondenggiri) as well as the office of the ExecutiveMember, GHADC claiming to be the Jamadal Nokma of the GondenggiriAkhing, however, upon scrutiny of the records, the GHADC vide order dated 14.10.2009 had rejected the said claim. The claim of the petitionersas Jamadal Nokma of the said Akhing is therefore hit by the principle ofres judicata, further submits the learned counsel.

18. The learned counsel has further contended that the petitionershave not come before this Court with clean hands, inasmuch as they havefailed to mention that vide the said order dated 14.10.2009, the claim ofthe petitioners’ predecessors as Nokmas of Gongenggiri Akhing III-33(9)have been rejected by the GHADC as baseless. There is no appeal filedagainst this order, the same has therefore attained finality.

19. In such a situation, the petitioners by filing the petition before theExecutive Member I/C Land and Revenue, GHADC seeking to recognizeSmti. Repolish Ch. Marak and Shri. Jingberth T. Sangma, the petitionersNo. 2 & 3 respectively as the Jamadal Nokmas of Gondenggiri Akhingand the rejection of the prayer made therein vide the impugned orderdated 05.02.2019 in GHADC- Rev/19 AC of 2015 is justified as thelearned Executive Member has heard the parties after considering thepetition, the written statement, the issues framed and the arguments of theparties.

20. Again, the learned counsel has submitted that on appeal by thepetitioners, the learned Chief Executive Member, GHADC has dulyconsidered the written submission filed by the parties as well as the oralargument advanced before him and on consideration of such argument,the impugned appellate order dated 16.10.2020 was passed. Thechallenge of the petitioners that they have not been heard by the CEM iswithout basis and is to be discarded, further submits the learned counsel.

21. Mr. S. Dey, learned Standing Counsel of the respondent GHADCin response to the argument of the learned counsel for the petitioners hassubmitted that the dispute between the parties in this case is the claim ofthe petitioners to be appointed as the Jamadal Nokmas of Amathe Akhingwithin the Gondenggriri Akhing. This claim cannot be sustained as therecannot be an Akhing within an Akhing.

22. The learned SC has further submitted that there are no records toprove that the said Jamadar Akhing has been recognized as such sincethere is no map or demarcation of such unrecognized Akhing. This hasbeen clarified by the Executive Member I/C Land & Revenue in his orderdated 08.03.1979.

23. The claim of the petitioners is only with regard to the ownershipof 77 bitots of land within the said Gondenggiri, which however uponadjudication, it was clarified that the total land entitled to them is only 77plot of land or 59 bitots.

24. The learned SC has also submitted that the proceedings before theExecutive Member as well as the Chief Executive Member was carriedout in accordance with due procedure as was mandated in the case ofSmti Dore Sangma v. The Chief Executive Member, Garo Hills DistrictCouncil, Tura & Ors. reported in (1988) 2 GLR 120, with the respectiveparties having been given ample opportunities to present their respectivecase by filing written statement and upon framing of relevant issues, theargument of the parties have been heard followed by the passing of thesaid impugned order. Therefore, there is no violation of the saidprocedure or the principle of natural justice.

25. The learned SC has also endorsed the contention of the learnedcounsel for the respondent No. 3 that this petition is bad for non-joinderof proper and necessary parties in the form of the present Nokmas ofGondenggiri Akhing and on this ground alone, this petition ought to bedismissed.

26. On an overall observation of the case between the parties, thisCourt is made to understand that the dispute between the principal partiesis with regard to control of an area known to the petitioner as JamadarAmathe (A.mate) Aking III-33 which is contained within the GondenggiriAkhing land as admitted by the parties.

27. It is the case of the petitioners that the said Jamadar Amathe fallswithin the boundaries of 77 bitots (hillocks) carved out of the said largerportion of Akhing land called Gondenggiri. It is for this particular plot ofland that an application was made by the predecessor of the petitioner tobe appointed as Nokma of the said Jamadar Amathe Akhing III-33.

28. As is evident from the submission and contention of the partiesnoted herein above, the history of the dispute dates back to the case filedby the predecessors of the petitioners before the Waribokgre VillageCourt in Case No. 4 of 1969, the subject matter being the claim ofownership over 77 plots of Akhing land which was decreed by the VillageCourt in favour of the predecessors of the petitioners herein. On appealbefore the Subordinate District Council Court the order of the VillageCourt was vacated. Being aggrieved by the order of the SubordinateDistrict Council Court, the predecessors of the petitioners preferred anappeal before the District Council Court and the District Council Court vide order dated 14.12.1972 set aside the order of the Subordinate DistrictCouncil Court and in effect has upheld the order of the WaribokgreVillage Court.

29. The opposite parties therein had then approached the High Court(Shillong Bench of the Gauhati High Court as this Court then was) with aCivil Revision Petition No. 5(H) of 1976 assailing the said order dated14.12.1972. The Hon’ble High Court vide order dated 08.12.1977 haddismissed the petition finding no merits on the substance in the saidrevision petition.

30. On the strength of the said order dated 08.12.1977 the petitionershad approached the Executive Member, In-charge, Revenue, Garo HillsDistrict Council and vide order dated 08.08.1979 in GDC-REV.No. 5 A/Cof 1979-80, Shri. (L) Jogen Sangma and his wife Smti. Jingme MarakMichik were appointed as Nokma of Jamadar Akhing existed in theGondenggiri Akhing land. A certificate to this effect was issued by theSecretary, Executive Committee Garo Hills District Council on03.02.2004 certifying that Shri. Jogen Sangma is appointed AkhingNokma of Gondenggiri Akhing III-33 (9) w.e.f. 08.08.1979.

31. Against the order dated 08.08.1979, Gonjak Marak Nokma andanother approached the Gauhati High Court (Shillong Bench) with a writapplication registered as Civil Rule No. 38(SH) of 1989 and the Hon’bleHigh Court in the Division Bench vide judgment and order dated28.08.1989 has held that the impugned order cannot be sustained, that isthe order dated 08.08.1979 and has remanded the case to the ExecutiveMember, In charge Revenue to decide the matter afresh. It is also the direction of the Court that the matter already decided in the Civil Suit andultimately in Civil Revision No. 5(H)/76 cannot be agitated afresh. Whatcould be understood of the body of the order dated 28.08.1989 is that theissue of the 77 plots of land as “Amathe” of the predecessors of thepetitioners herein has been settled. What remains is the issue ofdeclaration of the said predecessors of the petitioners as Jamadar Nokma.

Analysis

32. It is this issue of recognition of Smti. Repolish Ch. Marak and herhusband Shri. Jimberth T. Sangma, the petitioners No. 2 and 3 hereinrespectively as the Nokma of Jamadar Amathe III-33 (within GondenggiriAkhing) which was taken up by the Executive Member In-Charge Land& Revenue GHADC in GHADC-REF/19 A.C of 2015 and upon hearingthe parties and on consideration of the issues framed therein, theimpugned order dated 05.02.2019 was passed rejecting the claim of thepetitioners as Nokma of Jamadar Akhing since the same was not bornefrom the records of the office of the District Council as was indicated inthe order dated 14.10.2009 passed in response to a petition dated07.09.2009 filed by Smti. Gengak Marak, Nokma of Gondenggiri Akhingland. However, the Executive Member has come to a finding that thepetitioners, that is Smti. Repolish Ch. Marak and her husband Shri.Jimberth T. Sangma are appointed as Jamadar Nokma for 59 bitots ofland within Gondenggiri Akhing. It is further directed that the 59 bitots bedemarcated and a map to be prepared.

33. The petitioners being aggrieved by the said order dated05.02.2019 had approached the Chief Executive Member in GDC RevAppeal No. 2 A/C of 2019, who after hearing the parties and on consideration of their respective written submissions as is seen in theorder dated 27.02.2020 had passed the said impugned order dated16.10.2020.

34. At this juncture, it may not be out of place to note that thecontention of the petitioners that they have not been heard before theChief Executive Member is factually incorrect. The argument advanced inthis regard is rejected.

35. On the issue of non-joinder of proper and necessary parties, it isthe contention of the respondent/GHADC that the respondent No. 3herein was not a party to the proceedings before the Executive Member orthe Chief Executive Member since he is not the Nokma of theGondenggiri Akhing whereas Shri. Ronjith T. Sangma and his wife Smti.Benje Ch. Marak are the recognised Nokma of the Gondenggiri Akhing,having not been impleaded as respondents in these proceedings, this writpetition is not maintainable on such ground. This Court on perusal of theimpugned order has however noted that the name of Mechail Ch. Marakhas been recorded as the respondent along with others. Nothing from therecords brought before this Court is indicated that the said Nokma of theGondenggiri Akhing was arrayed as party respondents before theExecutive Member as well as the Chief Executive Member. The fact thatthe said Mechail Ch. Marak has not raised any objection on the issue ofnon-joinder of proper and necessary parties in the proceedings before theExecutive Member as well as the Chief Executive Member to raise thisissue at this point of time may not be proper.

36. It is well settled that proceedings before the Executive Member or the Chief Executive Member of the District Council which are quasi-judicial in nature, the High Court would insist that such proceedings haveto be conducted keeping in mind the principles laid down in the case ofSmti Dore Sangma (supra). At para 20 of the same is found the following:

“20. For all these reasons, we would hold that the RevenueMember alone has jurisdiction to decide the types of disputes athand. But then while doing so, the Revenue Member has to followthe fundamental principles of judicial procedure; these being: (1)framing of issues which has been regarded as necessary for courtsto get the grip of the case. (See Vindeo vs. Ziakruool, (1983) 1GLR (NOC) 34). (2) Opportunity to lead evidence on the issuesframed–the evidence given could be recorded in full or summaryof the same could be noted; and (3) hearing of the partiesthemselves or through their lawyers if engaged. This apart, someother accepted principles of sound judicial procedure like notallowing a document to be used in a case without the other sidehaving been given opportunity to rebut the same should also befollowed when the case is taken up by the Revenue Member in thefirst instance or by the Chief Executive Member on appeal.”

37. It is also fundamental that the power of judicial review of aconstitutional court exercising writ jurisdiction is mainly not to dwell onthe merits of the decision taken but to evaluate the decision-makingprocess so as to ensure that there is fairness in the proceedings, moreparticularly that the principle of natural justice is adhered to. The HighCourt exercising writ jurisdiction, more often than not cannot substituteits own findings on the merits of the case under consideration which itcan do so in its appellate or revisional jurisdiction.

38. On careful examination of the procedure adopted by the ExecutiveMember and the Chief Executive Member, it is seen that due procedurehas been followed as has been mandated in the case of Dore Sangma (supra) and as such, this Court is not inclined to interfere with thefindings rendered by the said Executive Member and Chief ExecutiveMember respectively.

39. However, in keeping with judicial propriety, this Court wouldreiterate the decision of a Division Bench of this Court (as it then was) inthe judgment and order dated 28.08.1989 passed in Civil Rule No.38(SH) of 1989 wherein it was held “…We however, make it clear thatthe Executive Member shall not entertain any submission in regards tothe matter already decided in the Civil Suit and ultimately in CivilRevision No. 5(H)/76.…” which in essence has maintained the decision ofthe Waribokgre Village Court as regard the 77 plots as ‘Amathe’ of thepredecessors of the petitioners herein.

40. There being no procedural defects in the proceedings leading tothe passing of the impugned orders, this petition is accordingly found tobe devoid of merits and the same is liable to be dismissed and is herebydone so.

41. Records of the Department produced before this Court to behanded over to the Standing Counsel, GHADC.

42. In view of the dismissal of this instant petition, any status quoorder or such similar orders involving the parties herein in the facts andcircumstances of this case stands vacated.

43. Petition disposed of. No costs.

Judge