Mongmetong Village v. Deputy Commissioner, Mokokchung
1990-04-03
H.K.SEMA
body1990
DigiLaw.ai
1. By this petition the revisionist has challenged the order of Deputy Commissioner dated 24.5.83 contained in Memo No. LR 32/ 81-82/83-84/98-114 wherein the Deputy Commissioner, Mokokchung directed the petitioner's village to stop cultivation within the reserve forest with immediate effect. In order to appreciate the case in its proper perspective the impugned order dated 24. 5. 83 (Annexure 1 to the petition) is reproduced below in extenso :- , "Annexure-l Government of Nagaland Office of the Deputy Commissioner : : Mokokchung. No. LR. 32/81-82/83-4/98-114 Dated Mokokchung the 24th May 83. ORDER Whereas the then Sub-Divisional Officer (C) Mokokchung, Shri E.T.D. Lambert created a Reserved Forest known as Wazasukong or (Chubi) Reserved Forest in 19'4 and the same reserve forest was placed under Lie charge of Divisional Forest Officer, Mokokchung at a Liter stage, and the boundary of the Wazasukong reserved Forest as per the decision of the then Sub-Divisional Officer (C), Mokokchung is as follows : On the North :- Tsuet River of Longrangba Stream. On the East :- Arangya Stream and Chubi River. On the South :- Chubi River and Zateuba Stream. On the West :- Rara Stream & Tzuet River. And whereas the villagers of Mongmetong and Mekokla have cleared the jungle illegally and are cultivating within the boundary of the above. Reserved Forest and putting their claim and counter claims which has resulted in a land dispute, giving rise to law and order problems in the area. Now, therefore, 1 Shri Raghu Men on, Deputy Commissioner Mokokchung, in exercise of the powers vested in me under the Rules for Administration and Justice and Police in N a gal and, 1937, hereby order that the villagers of Mongmetong shall stop cultivation within the above said Reserved Forest with immediate effect. Anybody violating this order shall be arrested and prosecuted in the Court of Law. Sd/- Raghu Menon, Dy. Commissioner, Mokokchung. No. LR. 32/81-82/83-84 Dated Mokokchung the th May, 83, Copy to : 1. The Commissioner for information. 2. The Deputy Commissioner Wokha for information. 2. The Superintendent of Police Mokokchung for information and necessary action. 4. The Circle Officer, Ongpangkong for information and necessary action. 5. The D F O, Mokokchung. He is requested to take up the matter with Chief Conservator of Forest for necessary action in planting boundary pillars. 6.
The Commissioner for information. 2. The Deputy Commissioner Wokha for information. 2. The Superintendent of Police Mokokchung for information and necessary action. 4. The Circle Officer, Ongpangkong for information and necessary action. 5. The D F O, Mokokchung. He is requested to take up the matter with Chief Conservator of Forest for necessary action in planting boundary pillars. 6. The Chairman, Village Council Mongmetong, for information the villagers and for strict compliance of the above order. 7. The Chairman Village Council Mekokla for infcrmation and necessary action. Sd/ R.Menon 24.5.83 Deputy Commissioner, Mokokchung." 2. The case at hand dates back to 1934 when a dispute relating to inter village boundary between petitioners village (Mongmetong), and Mekokla and Aliba village were settled by E.T.D. Lambert the then Sub-Divisional Officer (C), Mokokchung by an order dt. 9.5.1934. 3. The petitioner has challenged the impugned order of the Deputy Commissioner on the grounds that no opportunity of hearing was given to the petitioner before rendering the order impugned and as such the impugned order is violative of the principles of natural justice and the same is liable to be set aside. In was. also debated at the bar that then S.D.O (C), Mokokchung had no authority to take away the customary rights of the petitioners village over the land in question in the manner in which it is sought to be done in the instant case. Shri A.R.Bartnakur, also submits that no notification was issued constituting the land as reserve forest as enjoined under section 14, 15 and 16 of Nagaland Forest Act, 1968. He further submits that even assuming there was such an order passed on 9.5.34 the same was passed in the absence of the petitioner and without hearing the parties. He also submits that then S.D.O. (C) was not a competent Court and in that view of the matter the order dated 9.5.34 passed by the then S.D,O(C) can not be regarded as a judicial order having the force of law. 4. As against this Shri D. N. Choudhury, learned counsel for the lotervenor (Aliba village) submits that the order dated 9. 5. 34 passed by the then S. D. O (C), Mokokchung was a judicial order of a competent Court and such the principle of res-judicata is applicable in the instant case. He further submits as the order dated 24. 5.
As against this Shri D. N. Choudhury, learned counsel for the lotervenor (Aliba village) submits that the order dated 9. 5. 34 passed by the then S. D. O (C), Mokokchung was a judicial order of a competent Court and such the principle of res-judicata is applicable in the instant case. He further submits as the order dated 24. 5. 83 passed by the Deputy Commissioner, Mokokchung was in the nature of executing the order passed by the then S. D. O (C), Mokokchung hearing of the parties was not at all necessary inasmuch as the rights of the parties with regard to the land in dispute have been conclusively determined by the order dated 9. 5. 34 of the then S. D. O (C), Mokokchung. 5. With regard to the first submission of Mr. Barthakur that the petitioner have not given opportunity of being heard before passing the impugned order has no force, it has been stated by Shri D. N. Choudhury, learned counsel for the Intervenor and indeed adroitly that the order passed by the Deputy Commissioner, Mokokchung was in the nature of executing the order dated 9. 5. 34 passed by the then S. D. O. (C) Mokokchung whereby the said order the rights of all the adjoining villages namely Mekokla, Mongmetong and Aliba village have finally determined over the forest in question. Tnerefore, the question of giving another hearing was not at alt necessary. On the contrary the learned Deputy Commissioner has rightly exercised his discretionary power in order to defuse the situation arising out of the dispute involving enter village and also inter district which was likely to create law and order problem of the area warranting immediate intervention by the administrative officer, [a such a' situation, what is more important is that the sense of public tranquility played greater role than rule of law. Therefore keeping in view the back ground of the situation prevailing at that particular point of time the learned Deputy Commissioner had no alternative but to pass such an administrative order to control the prevailing situation. At this stage it will be pertin3nt to mention here that similar order was passed by the Deputy Commissioner, Wokha District, stopping Mekokla village from clearing jungle and cultivating the land within the reserve forest areas. However, Mekokla village was not at all aggrieved by the said order.
At this stage it will be pertin3nt to mention here that similar order was passed by the Deputy Commissioner, Wokha District, stopping Mekokla village from clearing jungle and cultivating the land within the reserve forest areas. However, Mekokla village was not at all aggrieved by the said order. I am mentioning this as this will have important bearing in subsequent paragraph which will be presently dealing by me. Mentioned may be made that Mokokla village now fall under Wokha District. 6. The next submission of Mr. Rarthakur that the petitioner were not knowing the existence of order dated 9. 5. 34 had no force as the parties to the suit were abide by the said order all through even to the knowledge of the petitioner. This fact was further compounded by Mekokla village who was a party to the dispute in 1934 and a similar order was served upon Mekokla village by Deputy Commissioner, Wokha in 1983, but the said village was not aggrieved by the said order of the Deputy Commissioner, Wokha. This go to show that the parties were in the know of the existence of order dated 9. 5. 34 and abide by the said order all through. 7. That apart, on perusal of the order dated 9.5.34 the parties were heard when the order itself speaks that "Mekokla claim the Sachak as their bouadary with Aliba Mongmetong say that they own the portion between Sachak and Arangya and Longlangba". This go to show that the parties were heard before rendering the impugned order dated 9.5.34. The argument that parties were not heard before impugned order dated 9.5.34 are passed is not correct appreciation of the order. 8. The further submission of the learned counsel or the petitioner that the then S. D.O. (C), Mokokchung was not a competent Court and in that view of the matter the order passed by the S.D.O.(C) was not a judicial order has also no force. The learned counsel further submits that the order dated 9. 5. 34 lacks reasoning and in that view of the matter the same can not be treated as the order of competent Court. From generation to generation this kind of simple orders are passed keeping in view the back ground, character and simplicity of the people of this area.
The learned counsel further submits that the order dated 9. 5. 34 lacks reasoning and in that view of the matter the same can not be treated as the order of competent Court. From generation to generation this kind of simple orders are passed keeping in view the back ground, character and simplicity of the people of this area. Such orders are passed in consonance with the principle of justice, equity and fair play and not in accordance with the rule of law. Because for many decades the people of this area are not governed by the rule of law but law of nature. The administration of justice in this area was therefore, carried out according to the system of law prevailing in the area at that time a ad not according to the technicalities of complex Code which has been excluded throughout the past century, because it would be too difficult for the local people to understand it. In this view of the matter what is important is that, the people of this area should be able to presence their case effectively unhampered by the technicalities of complex Code so that, justice may hot fail. This is more so, when the disputant parties are the indigenous inhabitants of the Nagas. Keeping this view in mind the erstwhile Naga Hills District Administrator use to pass simple order on the spot after hearing the parties on the basis of equity, justice and fair play and not in accordance with the procedural law which was unknown to this part of the country at that time justice was the administered to serve public purpose and not on the basis of technicalities of the complex Code. In otherwords, the adjudication of dispute was not on the basis of civil law, but on the basis of system of law prevailing in the area at that time namely justice, equity and good conscience. These are three important pillars on which the administration of justice embarked upon. This system of justice was respected and accepted by all and sundry. Therefore, the argument that the Court of the then S. D. O. (C), Mokokchung was not a 'competent Court and the decision rendered by that Court is not a judicial decision is not correct. 9.
These are three important pillars on which the administration of justice embarked upon. This system of justice was respected and accepted by all and sundry. Therefore, the argument that the Court of the then S. D. O. (C), Mokokchung was not a 'competent Court and the decision rendered by that Court is not a judicial decision is not correct. 9. It was lastly contended by the learned counsel for the petitioner that no notification was issued under section 14, 15 and 16 of the Nagaland Forest Act, 1968 constituting the land as reserve forest. id my opinion, this submission has no relevance in the case at hand as the order declaring the disputed land as forest reserve was passed on 9.5.34 and Nagaland Forest Act came into force only in 1968. 10. Now let me discuss the important question of law concerning with this case. It is contended by Mr. D. N. Choudhury, learned counsel for the Intervenor that the present petition is barred by doctrine of res-judicata. The doctrine of res-judicata contained in section 11 and 12 of the Code of Civil Procedure prohibits the subsequent Court to try another suit 01 issue which has been finally decided by a competent Court. I have already hold that the Court of the then S. D. O. (C», Mokokchung was a competent Court and the decision rendered by this Court was a judicial decision. How the spirit of the Code is to be applied in the area governed by rules was considered by the Apex Court in Guru Mayum Sakhi Gopal Sarma vs. K. Ongi Mnisije Devi, Civil Appeal No. 559/1957 decided on 4.2.1961 ( S. C ). Following the decision of the Apex Court, the Division Bench of this Court in Vimede Angaral vs. Ziekrne Angami, AIR 1982 Gau 108 held that principal of res-judicata is applicable in Nagaland. This decision was further affirmed in Humtso Village vs.- Yikura VUlage AIR 1983 Gau 15 where the Division Bench of this Court held the same view. Therefore, it is now settled position in law that the principle of res-judicata is applicable in Nagaland. 11. Section 11 of the C. P. C. embodies the doctrine of rei-judicata which rests oh the principle that one should not be finality twice for the same cause and that there should be finality of litigation. This rule also rests on public policy.
11. Section 11 of the C. P. C. embodies the doctrine of rei-judicata which rests oh the principle that one should not be finality twice for the same cause and that there should be finality of litigation. This rule also rests on public policy. The basic principle of the rule is that the cause of action for the second suit having merged in the judgment of the first, it does not any, more survive. This principle is at par with rule of natural justice and of universal application. In otherwords, res-judicata is a rule of universal law pervading every well regulated system of jurisprudence. This being the position in law it must be held that the present petition is barred by principle of res-judicata, I said so because, the right and interest of disputant parties have already been decided on 9.5.34 which has now attained its finality. 12. It is interesting to note that the disputant parties in 1934 are Mongmetong village, Mekokla village and Aliba village. Of the three villages Aliba village never violated the order dated 9.5.34 although in the initial stage they refused to accept the decision for which they were fined Rs. 25/- and paid. Mekokla village allegedly violated the order dated 9. 5. 34 and for which a similar order was passed by the Deputy Commissioner, Wokha by order dated 29. 4. 83 (as the village falls under Wokha District as stated earlier ) stopping the Mekokla village from cultivating any land within the reserve forest area Wajasakong or (Chubi). However the Mekokla village was not at all aggrieved by this order. This go to show that the disputant parties respected and accepted the order passed on 9.5.34 which has now attained its finality as there was no appeal against the decision. 13. In the result, there is no merit in this petition and the same is liable to be dismissed which I hereby do. In the; facts and circumstances of this case no order as to cost. Petition dismissed.