U. Shipbester Kharkongor v. Khasi Hills Autonomous District Council
1997-09-08
N.SURJAMANI SINGH
body1997
DigiLaw.ai
Upon hearing the learned counsel on both sides, it appears to me that the writ petitioner, U. Shipbester Kharkongor, made a prayer in this writ petition for a direction to the respondents to take into account of the objections and the representation of the residents of Tyrna Elaka dated 16.10.95 as in Annexure V before settling the boundary disputes and for quashing the impugned orders dated 20.2.93 and 28.8.95 as in Annexure III and VII to the writ petition, passed by the respondent Nos. 1 to 4 and also for a direction to the respondent No.5 and his villagers not to cut and fell any tree from the present Tyrna Elaka. 2. According to the writ petitioner, since time immemorial, the boundaries of Tyrna Elaka in the North stretched upto Cherra Syiemship and Mawmluh Village is in fact part and parcel of Tyrna Elaka. As per publication/notification dated 5.3.1941 issued by the then Secretary to the Govt of Assam, Revenue Department, the boundaries of the British villages/territories including the boundaries of Tyrna Elaka have been described and thus, Tyrna Elaka has its own clear and distinct boundaries as seen in the document marked as Annexure I to the writ petition. On 16.4.92 the respondent No. 6 who was then the Sirdar of Tyrna Elaka, without the knowledge and the consent of the people of the Elaka, convened a Durbar where he announced that the boundary pillars will be erected to demarcate the boundaries of Mawmluh and Tyrna on 18.4.92 but no demarcation could be carried out on 18.4.92 as the people raised objection to it. But. on 30.4.92, the respondent No.6 again convened a Durbar with regard to the erection of boundary stones between Mawmluh and Tyma Elaka and thereafter, the respondent Nos.5 and 6 and their followers forceably erected the boundary stones to demarcate the boundaries of Mawmluh and Tyrna which is against the interest of the public at large of Tyma Elaka. the writ petitioner contended. 3. One ULM Kharpuri alongwith other persons filed objection to the respondent No.3 namely the Chief Executive Member, KHADC, Shillong, against the illegal action relating to the forceable erection of boundary pillars by the respondent Nos.5 and 6 and the then Executive Member. Incharge Elaka.
the writ petitioner contended. 3. One ULM Kharpuri alongwith other persons filed objection to the respondent No.3 namely the Chief Executive Member, KHADC, Shillong, against the illegal action relating to the forceable erection of boundary pillars by the respondent Nos.5 and 6 and the then Executive Member. Incharge Elaka. But the respondents concerned informed the said ULM Kharpuri and others, including the writ petitioner, that their petition was without any basis and the same is devoid of merit by a letter dated 26.8.92 issued by the respondent No.2. It is also the case of the writ petitioner that the respondent No.2, by an order dated 20.2.93 fixed by the boundary lines of Tyrna and Mawmluh without taking into consideration the various objections of the natives of Tyrna Sirdarship who were going to be the persons most affected by the said demarcation. Being dissatisfied with the action of the respondent No.2, one Willip Phanrang, a member of the Ad-hoc Committee, filed a writ petition being Civil Rule No. 61 (SH) 93 before this Court. This Court, by an orer dated 2.6.95 directed the respondent No.2 to consider the objection raised by the said Willip Phanrang. According to the writ petitioner, the people of Tyrna Elaka came to learn about the illegal agreement entered between U Nores Wanphai. ex-Sirdaisof Tyrna Elaka and U. Browel Shabong, the respondent No.5 and others. The people of Mawmluh also filed a complaint to the police and also to the Executive Committee, KHADC, Shillong, for illegal felling of trees within Tyrna Elaka, but the Executive Committee, without hearing'the petitioner and the people of the Elaka, through its Special Officer (Law), issued lette* dated 22.11.95 alongwith an order dated 28.8.95 as in Annexure VII to the writ petitioin which is impugned in this writ petition. The writ petitioner went on to state that the impugned order dated 28.8.95 was passed in utter disregard and in flagrant violation of this Court's order dated 2.6.95 as mentioned above and the action'of the respondent Nos-4 to 4 and the private respondent Nos.4 to 6 is against all customary norms and practices. The petitioner also contended, that the impugned orders of demarcation dated 20.2.93 and 28.8.95 as in Annexure III and VII are violative of principles of natural justice. 4. The case of the writ petitioner was contested by the respondents. The respondent Nos.
The petitioner also contended, that the impugned orders of demarcation dated 20.2.93 and 28.8.95 as in Annexure III and VII are violative of principles of natural justice. 4. The case of the writ petitioner was contested by the respondents. The respondent Nos. 1 to 4 filed affidavit-in-opposition and the respondent No.6 filed affidavit-in-opposition separately. The respondent Nos.1 to 4 contended that Mawmluh Elaka is one of the administrative unit recognised as such by the District Council under the provisions of United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 as amended up to date and the boundaries between the two Elakas namely Tyrna and Mawmluh have already been demarcated and fenced by the Executive Committee vide its order dated 20.2.93 and corresponding sketched map was also prepared after making thorough enquiry and making survey by the forest surveyor and as such, there is no justifiable ground for challenging the validity of the said order. Before passing the aforesaid order, the Executive Committee thoroughly verified the matter besides deputing a surveyor and after making survey in the presence of the villagers including the Chiefs (Sirdars) of both the Elakas and their respective Durbars and drew the sketched map showing the boundaries of both the Elakas. There was also mutual agreement between the Sirdars and the respective representatives of both the Elakas on 7.3.92 regarding specification of boundaries of both the Elakas in presence of the Executive Members. Incharge Elaka Administration and on the basis of the aforesaid agreement dated 7.3.92, the Executive Committee deputed a surveyor and the surveyor, after making survey works and drawing the sketch maps submitted a report to the Executive Committee, and. thereafter the Executive Committee passed the aforesaid order. In another case, being Civil Rule No.2762 of 1992 filed by one Willip Phanrang, before this Court, this Court disposed of the said case on 12.2.93 with a direction to the authority concerned to dispose of the objections within 3 months and on the basis of the aforesaid direction of this Court, the Executive Committee accordingly disposed of the same and thereafter the said Willip Phanrang filed another writ petition being Civil Rule 61(SH) 1993 before this Court, challenging the order of demarcation of boundaries of the two Elakas and this Court disposed of the said writ petition on 2.6.95 with a direction to the Executive Committee to reconsider the same.
On the basis of the said direction given by this Court, the Executive Committee reconsidered the matter afresh and rejected the objection and upheld the order dated 20.2.93 mentioned above. It is also the case of the respondents that, the present writ petition is barred by principle of res-judicata inasmuch as the impugned order dated 20.2.93 was challenged in the earlier civil rule and that the same was disposed of by this Court on 2.6.95 in the connected Civil Rule No.61(SH) 1993. 5. The case of the respondent No.6 is, that in the Durbar held on 21.3.86, the Durbar decided to finalise the matter relating with the Mawmluh at the point known as Ka La Syntie as per the wisdom of the elders and in pursuance of the amicable settlement, the boundary stones were ultimately erected on 30.5.92 though initially there were disturbances by non residents of Tyrna Elaka. The Durbar was further held on 30.4.92 in which 206 members out of 213 members attended the Durbar and decided as hereunder : "(i) to confirm the settlement as per the decision of the Durbar dated 21.3.1986. (ii) to request the District Council to indicate clearly the land under the possession of UK, residents of people of Tyrna or whoever. (iii) to enforce the boundaries by clear boundary marks. (iv) to withdraw the pending case. (v) to penalise according to law any one who disturb this peaceful settlement." According to him. the agreement was signed by him alongwith the Secretary, Headman and other ciders of Tyrna in pursuance to the decision of the Durbar from time to time and there was no infirmily or irregularity in the said agreement. 6. The learned counsel for the writ petitioner submitted that, the writ petitioner has been authorised by the natives/residents of Tyrna Elaka to file the present writ petition and as such, the writ petitioner desires to protect the interest of all the residents of Tyrna Elaka. The learned counsel for the writ petitioner supported all the points raised by the writ petitioner in the writ petition and also contended, that the impugned orders are violative of the principles of natural justice and also the same are in utter disregard and in flagrant violation of the Court's order dated 2.6.95 passed in Civil Rule No.61(SH) 1993. On this ground alone, the impugned orders can be quashed, the learned counsel contended. 7.
On this ground alone, the impugned orders can be quashed, the learned counsel contended. 7. On the other hand, the learned counsel for the contesting respondents contended, that the writ petition is not maintainable inasmuch as it is barred by principle of res-judicata and that the same is hit by the provisions of law laid down under Order 1 Rule 8 CPC as there is no material on record for supporting the fact that the writ petitioner had duly represented all the natives/residents of Tyrna Elaka and that there is no order or direction or permission from the end of this Court for enabling the present writ petitioner to file and pursue this writ petition for and on his behalf as well as on behalf of the natives/residents of Tyrna Elaka in the representative capacity. 8. Now. this Court is to examine as to whether the writ petitioner has an enforeceable right and a writ or appropriate order can be issued in favour of the writ petitioner or not. 9. It is well settled that the right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like, Hebaeus Corpus or Quo Warranto. this rule may have to be relaxed or modified. The existence of the right is the foundation of the exercises of jurisdiction of the High Court under Article 226. These principles of law finds its place in the decision of the Apex Court rendered in Calcutta Gas Co (Proprietary) Ltd vs. State of West Bengal & others reported in AIR 1962 SC 1044 . Though the jurisdiction of the High Court under Article 226 is wide in that sense, the concluding words of the Article clearly indicates that, before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Articles 226. In this regard, a reference may be made to another decision of the Apex Court rendered in State of Orissa vs. Ram Chandra Dev & another reported in AIR 1964 SC 685 . 10.
The existence of a right is thus the foundation of a petition under Articles 226. In this regard, a reference may be made to another decision of the Apex Court rendered in State of Orissa vs. Ram Chandra Dev & another reported in AIR 1964 SC 685 . 10. This Court is also further to see whether the writ petitioner is really a person aggrieved by the impugned orders and, whether the impugned orders are materially adverse to him or not. In the instant case, the petitioner filed this writ petition in the representative capacity but there is no whisper in the writ petition about the approximate numbers of the natives/residents of Tyrna Elaka for whom he has been representing them nor any whisper about the population of the Tyrna Elaka in his writ petition. No permission was ever obtained by the writ petitioner for persuing this writ petition in a representative capacity and no notice of the institution of the present writ petition was also served to all the persons so interested particularly the natives/residents of Tyrna Elaka. It is also an admitted position that the impugned order dated 20.2.93 was challenged by one Willip Phanrang under Civil Rule No.61(SH) 1993 and the said civil rule was disposed of on 2.6.95 and that, as per direction and order passed by this Court in the instant case, the respondents concerned, reconsidered the matter on the basis of the objections filed by the party concerned before taking a final decision in the matter. 11. In my considered view, the spirit and the principles of law laid down under Order 1 Rule 8 CPC, applies to the present writ petition and the writ petitions of the like nature filed under Article 226 of the Constitution of India and the present writ petition is hit by the said provisions of law and, as such, on this ground alone, this writ petition deserves its outright rejection. 12. Over and above this, the writ petitioner has failed to establish the existence of his legal right and for enforcement of it and rather, he cannot be held to be an aggrieved person by the impugned orders in the existing facts and circumstances of the case. This Court is further to examine as to whether there is infirmity or irregularity in the impugned orders dated 20.2.93 and 28.8.95. 13.
This Court is further to examine as to whether there is infirmity or irregularity in the impugned orders dated 20.2.93 and 28.8.95. 13. After proper application of my mind in this matter, the Chief Executive Member of KHADC, Shillong and the Executive Member of the said KHADC/ the respondents herein, had dealt with the matter exhaustively and issued a reasoned order. The said respondents had duly complied with the Court's order as mentioned above and passed the impugned order as in Annexure VII to the writ petition. It is well settled that while exercising the power of judicial review in respect of a particular matter or decision of an authority, the Court is concerned primarily as to whether there has been any infirmity in the 'decision making process'. Courts have inherent limitations on the scope on any such enquiry and the Court cannot act as an appellate authority by substituting its opinion in the matter. These principles of law also finds its place in a case between Sterling Computers Ltd vs. M/s M & N Publications Ltd & others reported in AIR 1996 SC 51 . 14. Applying these principles of law in the instant case, I am of the view that there is no infirmity or irregularity in the 'decision making process' of the concerned respondents while passing the impugned orders. 15. For the reasons and observations made above, this writ petition is devoid of merit and accordingly, it stands dismissed. However, considering the facts and circumstances of the case, parties shall bear their own cost.