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1996 DIGILAW 208 (GAU)

Kolamisangma v. State of Meghalaya

1996-09-03

D.N.CHOWDHURY

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The controversy in this writ petition relates to Nohnaship of the Akhing and No. 1 -1 (5) of Nowa Ron gcheng Akhing. The petitioner claim himself to be the lawful heir of late Ranma Sangma and his wife late Rotdi Manak Meehik, who were originally the Nokmas of the said Akhing. According to the petitioner they were compelled to leave the village along with other villagers because of the epitemic and during their absence respondent Nos.2 and 3 were appointed as Nokma of Nowa Rongcheng Akhing and recorded their name accordingly. 2. The petitioner has annexed an order dated 3.12.66 passed by the Executive Member lie Revenue etc of Garo Hills District Council. The said order reads as follows: "3.12.66: Sri Ongran Marak and others including wife of Ungran Rono Sangma of Nowa Rongcheng on present today. With reference to my order dated Tura the 20th November, 1965 by which Ongran Marak was appointed a custodian Nokma of the all Akhing under circumstances stated therein and mat if no objection is coming forward within a year the same person would be appointed a permanent Nokma. I now appoint Sri Ongran Marak and his wife Rono Sangma of Nowa Rongheng village as Nokmas of the Nowa Rongcheng Akhing with effect from 3.12.66 and their names shall be recorded as such in all document Map. GT and any other matter paper connecting with this Akhing. Sd/-KP Marak, EAI i/e Revenue Garo, Tura, 3.12.66." The petitioner also brought to my notice an order dated 26.7.67 passed by the Executive Member, I/c Revenue of the Garo Hills District Council. From the said order it appears that the petitioner as well as the respondent Nos.2 and 3 appeared before the Executive Member on the said date, and the learned Executive Member made the following endorsement in the order sheet. The case appears to be complicated is needs revision or study of case record etc. The decision on the case will be announced on 21.8.67. Parties may be informed accordingly...." 3. I have not made aware as to whether any decision of the case was subsequently announced on 21.8.67 as evinced from the orders. The review e petition was presented before the learned Executive Member which was numbered as GDC-REV. No. 16 A/C of 198/-88. The decision on the case will be announced on 21.8.67. Parties may be informed accordingly...." 3. I have not made aware as to whether any decision of the case was subsequently announced on 21.8.67 as evinced from the orders. The review e petition was presented before the learned Executive Member which was numbered as GDC-REV. No. 16 A/C of 198/-88. The learned Executive Member heard both the parties and considering rival claims passed the order dated 14.8.85 refusing to review the said order. The order of the learned Executive Member was assailed by way of an appeal before the Chief Executive Member, Garo Hills District Council, and the learned Chief Executive Member upon hearing the parties and upon considering the materials on record rejected the appeal and uphold the order of the learned Executive Member, Revenue dated 14.8.89. Hence this writ application. 4. Mr. P. Talukdar, learned counsel appearing for the petitioner, submits that the right of the petitioner to continue as the Nokma of the Akhing land has been taken away in a most arbitrary fashion without giving any opportunity to the petitioner. According to Mr. Talukdar it has not only affected the right of the petitioner Nos. 1 and 2 but also as a result jeoparadised the rights of the Maharis, and, therefore, the authorities before passing the impugned order was duly bound to take the petitioners as well as the Maharis into confidence. Mr. R. Kar, learned counsel, assisted by Mr. WC Sangma appearing for respondent Nos.2 and 3 submits, on the otherhand, that no illegality and impropriety has been committed by the authorities requiring interference from this Court. According to Mr. Kar, the authorities duly considered the case of the petitioner viz-a-viz the case of the respondents and on fair consideration of the respective cases, the authorities arrived on its' own decision in conformity with the law and in the absence of any infirmity in the decision making process this Court should loath intervence in this matter, and, therefore, it should dismiss the same. 5. The Nokmashp, so long, was administered by the Deputy Commissioner of the district until those were replaced by the Sixth Schedule of the Constitution of India and the Sixth Schedule of the Constitution of India clothed the District Council with the administration of customary rights including that of the administration of the Nokmas as well as the Akhing land. 5. The Nokmashp, so long, was administered by the Deputy Commissioner of the district until those were replaced by the Sixth Schedule of the Constitution of India and the Sixth Schedule of the Constitution of India clothed the District Council with the administration of customary rights including that of the administration of the Nokmas as well as the Akhing land. Under the Garo Customary Law the ownership of the Akhing land vest on the community itself. Normally such land belongs to a particular clan known as the Mahari. The District Council has by now defined Akhing under Regulation II of the 1954 and Act No.1/60 as (a) any land held by a clan or machong under the custody of head of the clan or machong called Nokma and recognised as such by the District Council; (b) any land held collectively by a particular community of a village or group of village under the custody of a recognised head of the said community called Nokma. 6. Justice Jangsan Sangma in his book Principles of Garo Law in Chapter VIII narrated about the 'Succession to Akhing land.' According to Justice Sangma, "Akhing land is also subject to ordinary laws of inheritance through the system of Nokma and Nokkram, who are entitled to succeed to the Akhing, and they shall be recognised as Nokmas by the Government When they succeed their names are entered in the record of the District Council (formerly the records were of the Deputy Commissioner). The real owner is the wife, but for all practical purposes die husband is spoken of as the proprietor." The learned author by Meaning "Government' definitely meant about the 'District Council'. Because District Council as by after coming force of the Indian Constitution, came into the shoes of Deputy Commissioner in regard to the customs and customary rights within the tribal areas. 7. A Nokma is the person who holds title to the Akhing land or the Village Community as the head of the clots, but the Nokma acts as a custodian of the property. These are undoubtedly important aspects in the village administration. 7. A Nokma is the person who holds title to the Akhing land or the Village Community as the head of the clots, but the Nokma acts as a custodian of the property. These are undoubtedly important aspects in the village administration. From the judgment and order of the appellate Court which deliberated in detailed fashion held mat the petitioners as appellants are direct descendants of late Ranma Sangma, Nokmas of Nowa Rongcheng Akhing but according to appellate authority the Rongrin people deserted the Akhing land and the controversy in question was decided long back after considering the respective cases of the parties. The appellate authority did not find any merit to disturb the situation. Mr. Kar, learned counsel for the respondents, further brought to my attention to the order of the Executive Member I/c Revenue dated 20.11.65. According to Mr. Kar the authority before entering the name of the respondent Nos.2 and 3 as the Nokmas in the register took all necessary precautions by delving into the records and thereafter the order dated 20.11.65 appointing the respondent No.2 as Nokma of the Akhing temporarily with effect from 21.11.65 with the right that "If there is no opposition from anybody within a year from 21.11.65 he shall be confirmed the appointment and his name shall be entered as Nokma in all Akhing Record Register, map, GT etc." Accoording to Mr. Kar the authority before passing the order relied on the report of Mauzadar No. 1 and also some of the statements of Chras appeared in enquiry and gave an undertaking in writing. 8. I have given my anxious consideration on this subject. The decision of the authorities namely the decision dated 3.12.66, 14.8.89 and 11.4.91 of the authorities affected the right of the petitioner. In normal circumstances the petitioner would have taken recourse to the civil Court and is if affected their civil right and questioned the legality and validity of the decision of the learned Executive Member as well as the Chief Executive Member. The Garo Hills District (Social Customs and Usages) Validating Act, 1958 creates a bar to the jurisdiction of the civil Court. Therefore the legislature imposed responsibility apart from the Sixth Schedule and the Act in question independently clothed the District Council with the responsibility to adjudicate on such controversy. The Garo Hills District (Social Customs and Usages) Validating Act, 1958 creates a bar to the jurisdiction of the civil Court. Therefore the legislature imposed responsibility apart from the Sixth Schedule and the Act in question independently clothed the District Council with the responsibility to adjudicate on such controversy. From the order dated 26.7.67 the learned Executive Member at least taken into consideration the grievances of the petitioner and accordingly he observed that the matter is of complicated nature and needs revision or study of the case records. On his own the learned Executive Member observed that the decision of the case would be announced on 21.8.67. From the aforesaid order it appears that atleast the learned Executive Member wanted to give second thought on it but no such orders thereafter was passed on the matter as revealed by the decisions of the Executive Member dated 14.8.89 as well as the appellate order of the learned Chief Executive Member dated 11.4.91 as alluded earlier that the order in question affected the civil rights of the petitioner and to some extent the learned Chief Executive Member admitted the said position but thought it fit not to interfere in the matter in view of the lapse of time. The learned Executive Member while passing order 20.11.65 as well as the order dated 3.12.66 might have valid reasons for arriving at this conclusions, but admittedly the said two orders were passed in the absence of the petitioner and the said position, to some extent, was sought to be remedied by the order dated 26.7.67. It is not the question whether the petitioner had any defence on it. The question involves the dispension of the justice providing fair opportunity to the parties before adjudicating rights of the parties. Considering the aforesaid aspects of the matter I am of the view that the appellate authority namely the Chief Executive Member shall independently examine the entire matter afresh without being trammelled by the law of limitation so much so that the Law of Limitation is not applicable in the case of Tribals. While disposing the respective rights of the parties the learned appellate authority shall, no doubt, consider all the facts and situations of the case including as to whether the authorities while acting on the report of the Mauzadar and Chras whether the petitioner were intimated about the same. While disposing the respective rights of the parties the learned appellate authority shall, no doubt, consider all the facts and situations of the case including as to whether the authorities while acting on the report of the Mauzadar and Chras whether the petitioner were intimated about the same. The learned Chief Executive Member shall also consider the customary rights about the successions of the Akhing land and pass appropriate order in this regard. The learned Chief Executive Member shall accordingly examine the entire matter afresh given opportunity to the respective parties preferably within 3 (three) months from the date of receipt of certified copy of this order. It is, however, made clear that until the case is finally disposed of by the learned Chief Executive Member, the respondent Nos.2 and 3 shall remain as a Nokma of Nowa Rongcheng as a stop gap arrangement. It is, however, made clear the this Court has not adjudicated the respective rights of the petitioner Nos.1 and 2 as well as the respondent Nos.2 and 3 and the therefore allowing the respondent Nos.2 and 3 to act as Nokmas of the Akhing land should not, therefore, be construed as a seal of approval of their appointment. 9. The writ petition is accordingly allowed to the extent as indicated above. 10. There shall, however, be no costs.