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2005 DIGILAW 275 (GAU)
S. Kamkholian Ngaihte v. State of Manipur and Ors.
2005-03-31
T.NANDA KUMAR SINGH
body2005
1. These two writ petitions are filed by one, Shri S. Kamkholian Ngaihte, challenging the orders of the Deputy Commissioner, Churachandpur in respect of the same subject matter. Such being the situation, common question of facts and laws are involved in these two writ petitions: accordingly are taken up jointly for disposal by a common judgment and order. 2. Heard Shri L. Sharat Sharma, learned counsel appearing for the writ petitioner, Mr. L. Shyamkiswor singh, learned Sr. Counsel assisted by Mr. L. Gunindro Singh appearing on behalf of the respondents 1 and 2 as well as Mr. N. Kotoswor Singh, learned counsel appearing on behalf of respondent no.4, Shri T. Dongchinpao. 3. The case of the writ petitioner, Shri S. Kamkholian Ngaihte, is that the old village called “Thanlon Village” has been existing since their immemorial time. According to the prevailing custom and usages of the community residing in the Thanlon Village, the Chief is the absolute owner of the village land and the Chief can transfer the village land by way of sale, gift and exchange to another person(s) and new transferee will be the Chief of the village. One Shri T. Chinzapau, S/o late Henzakai, proforma respondent no.3 in W.P(C) No. 495 of 2004 became the Chief of Thanlong Village in the year 1977 on the death of his father, late Henzakai. Shri Chinzapau transferred the Village land of Thanlon Village under a Gift Deed to the writ petitioner and the same Gift Deed was registered at Imphal as Shri T. Chinzapau was staying at Imphal at the time of execution of the Gift Deed for his treatment at Imphal. Thereafter, Shri T. Chinzapau filed an application dated 26.3.2003 (Annexure-A/1 to the writ petition) to the Deputy Commissioner, Churachandpur for passing necessary orders for allowing to change the Chiefship of Thanlon Village in favour of the present writ petitioner on the ground that he had relinquished his right of Chiefship in favour of the writ petitioner and also that he had no objection to enter the name of the writ petitioner as Chief of Thanlon Village in the relevant official records. The Deputy Commissioner, Churachandpur after inviting objections and holding necessary enquiry, passed orders being No. DC (CCP) Hill Misc.
The Deputy Commissioner, Churachandpur after inviting objections and holding necessary enquiry, passed orders being No. DC (CCP) Hill Misc. Matter No. 6 of 2003, Churachandpur, the 11th August, 2003 to the effect that “transfer of Chiefship of Thanlon Village from Shri T. Chinzapau to Shri S. Kamkholian Ngaihte (the present writ petitioner) S/o (L) Pumkhonthong of Thanlon Village A/P P.K.T. Street, Tiddim Road, New Bazar, Churachandpur is hereby allowed. The Sub-Divisional Officer, Thanlon shall delete and enter such names as per this order in the Government Touzi Book with immediate effect.” The further case of the writ petitioner is that to the utter surprise of the writ petitioner, the Additional Deputy Commissioner, Churachandpur passed an order being No. DC(CCP) Hill Misc Matter No. 6 of 2003, Churachandpur, the 20th October, 2003(Annexure-A/3 in W.P(C) No. 495 of 2004) for temporarily canceling the said order of the Deputy Commissioner, Churachandpur dated 11.8.2003. The writ petitioner being aggrieved by the said order of the Additional Deputy Commissioner dated 20.10.2003 filed the writ petition being W.P(C) No. 1497 of 2003 before this court wherein this court passed an interim order dated 3.12.2003 to the effect that “ in the meantime, the operation of the order dated 20.10.2003 Annexure-A/2 shall remain suspended.” 4. While the said writ petition, i.e. W.P(C) No. 1497 of 2003 was pending, the Deputy Commissioner, Churachandpur without giving any notice passed order being No. Hill Misc. Matter No. 6 of 2004 dated 8.11.2004 (Annexure-A/4 in W.P(C) No. 945 of 2004)for canceling the said order of the Deputy Commissioner , Churachandpur dated 11.8.2003 behind the back and knowledge of the writ petitioner and thereby seriously affecting the right of the writ petitioner not only to the ownership of the village land of Thanlon Village but also his right to the office of Chiefship of Thanlon Village. Accordingly the writ petitioner filed W.P(C) No. 945 of 2004 for quashing the said order of the Deputy Commissioner,Churachandpur dated 8.11.2004. 5. The cases of the respondent no.4 of W.P(C) No. 945 of 2004, who was allowed to be impleaded as respondent no.4 by the order of this court dated 10.1.2005 passed in C.Misc.appl.
Accordingly the writ petitioner filed W.P(C) No. 945 of 2004 for quashing the said order of the Deputy Commissioner,Churachandpur dated 8.11.2004. 5. The cases of the respondent no.4 of W.P(C) No. 945 of 2004, who was allowed to be impleaded as respondent no.4 by the order of this court dated 10.1.2005 passed in C.Misc.appl. No. 4 of 2005, are that the writ petitioner Shri S. Kamkholian Ngaihte belongs to “Sonna Tribe” which is a sub clan of “Ngaihte Tribe” and the said Shri T. Chinzapau and himself belong to “Thangsing Tribe” which is a sub clan of “Simte Tribe”. As per the customary law of Simte Tribe, Chief of the village is to be succeeded/inherited by the eldest surviving son of the deceased Chief and in the absence of surviving eldest son Chiefship shall go to the younger brother of the deceased Chief. As such according to Simte Custom, on the death of Shri Lumthang, founder Chief of Thanlon Village, his eldest son late Shri Henzakai succeeded him. Again on the death of late Henzakai, the then Chief of Thanlon Village, his son, Shri T. Chinzapau (respondent no.3 of W.P(C) No. 945/2004) succeeded the Chiefship of Thanlon Village. According to the Customary Law of Simte Tribe, Shri T. Chinzapau cannot transfer the village land of Thanlon Village along with the Chiefship to the present writ petitoner and if he (Shri T. Chinzapau) cannot function as chief of Thanlon village, the Chiefship shall go to Shri T. Dongchinpao (the respondent no.4 in W.P(C) No. 945/04). The Government of Manipur, being approached by the respondent No. 4, Shri T. Dongchinpao, wrote a letter dated 18.9.2004 directing the Deputy Commissioner, Churachandpur to review his order dated 8.11.2003 (Annexure-A/3 of W.P(C) No. 945/04) for transferring the Chiefship of the Thanlong Village to the present writ petitioner. Accordingly the Deputy Commissoner, Churachandpur passed the said order dated 8.11.2004(Annexure-A/8 of W.P(C) No. 945 of 2004). 6. It is an admitted case of both the parties that the Deputy Commissioner, Churachandpur passed the impugned order dated 8.11.2004(Annexure-A/8 of W.P(C)No. 945/04) without having any show cause of notice or opportunity of being heard to the writ petitioner. It is the fundamental principle of natural justice that a person whose rights are affected by an order should be given the opportunity of being heard before the authority concerned passed the said order.
It is the fundamental principle of natural justice that a person whose rights are affected by an order should be given the opportunity of being heard before the authority concerned passed the said order. Further, principle of natural justice and principle of fair play are applicable not only to the authorities performing judicial or quashi-judicial function but also performing to the administrative authorities in case the orders passed by the authority concerned adversely affect the right of any person. Reference may be made to Mandlal - Vs - State of U.P. and Ors, reported in AIR 1975 SC 2085 . The Supreme Court in Krishan Kumar - Vrs - Union of India & Ors reported in (1989) 2 SCC 504 held that even for cancellation or revocation of permission for development of land by the private authorities, the authority concderned should decide the matter consistent with the principle of natural justice. The authority concerned again permit its decision to be influenced by the abdicaton of others as this would amount to abdication and surrender of his discretion In the case in hand, the learned Deputy Commissioner, Churachandpur should not permit his decision to be influenced by the abdication of the Government of Manipur under its letter dated 28.7.2004 (Annexure-A/7 of W.P(C) No. 945/04) inasmuch as the Deputy Commissioner Churachandpur is the competent authority to decide the matter regarding the transfer of Chiefship of hill villages within his territorial jurisdiction. This point had already been decided by this court, i.e. the Gauhati High Court, in a case, Md. Iboton Miya & Ors - Vrs - State of Manipur and Ors reported in 1983 2 GLR (NOC)4. We may also profitably refer to the decisions of the Supreme Court in Style (Dress Land) Chandigarh - Vrs - Union Territory of India & Anr. Reported in (1999) 7 SCC 89 that even the administrative orders and not (sic only) quashi-judicial are required to be made in consonance with the rules of natural justice when they affect the right of the citizen to the property or attribute of the property. The Apex Court in Punjab National Bank & Ors - Vrs - Kunjbehari Mishra reported in (1998) 7 SCC 84 held that the principles of natural justice have to be followed even though it is silent on that aspect in passing the orders affecting the right of any person.
The Apex Court in Punjab National Bank & Ors - Vrs - Kunjbehari Mishra reported in (1998) 7 SCC 84 held that the principles of natural justice have to be followed even though it is silent on that aspect in passing the orders affecting the right of any person. In the case in hand, the learned Deputy Commissioner,Churachandpur has not complied with the basic requirement of law that opportunity of being heard should be given to the writ petitioner before passing the impugned order dated 8.11.2004(Annexure-A/8 of W.P(C) No. 945/04) for canceling the earlier order dated 11.8.2003 (Annexure-A/3 of W.P(C ) No. 945/04) which was passed by the learned Deputy Commissioner, Churachandpur in favour of the writ petitioner. It is well settled principle of law that the courts are more concerned with the decision making processes rather than the decision itself. Therefore, this court is more concerned with the decision making process of the learned Deputy Commissioner, Churachandpur in passing the impugned order dated 8.121.2004 (Annexure-A/8 of W.P© No. 945/04). 7. For the reasons discussed above, the impugned order of the learned Deputy Commissioner dated 8.11.2004 (Annexure-A/8 of W.P(C) No. 945 of 2004) passed in Hill Misc. Matter No. 6 of 2004 is quashed. Further, the Deputy Commissioner, Churachandpur is directed to proceed his Hill Misc. Matter No. 2 of 2004 afresh and, however, it is allowed to him to pass any reasoned orders which seems fit and proper to him. Parties are directed to appear before the learned Deputy Commissioner, Churachandpur on 4.5.2005. 8. With the above observations and directions, writ petition being W.P(C) No. 1497 of 2003 and writ petition being W.P(C) No. 945 of 2004 are allowed to the extent mentioned above. No order as to costs.[ 2005 DIGILAW 275 (GAU) · digilaw.ai ]