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2009 DIGILAW 202 (GAU)

Baliloyi v. Deputy Commissioner, AALO

2009-03-24

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. K. Jini, learned Counsel for the Petitioners, Ms. G. Deka learned Addl. Senior Govt. Advocate, for Respondent Deputy Commissioner, Aalo, Mr. K. Ete, learned Counsel appearing for private Respondent No. 2 and Mr. M. Pertin, learned Counsel appearing for private Respondent No. 3. 2. The dispute, in the present case, is simple but the facts are as under. The present writ-Petitioners are farmers residing in the remote area of Arunachal Pradesh and they solely depend upon cultivation for their livelihood and for cultivation of their agricultural fields, since the days of their father, have been drawing water from Ropi Stream for the last 49 years for irrigation without any disturbance from any corner. In the year 1979, the Respondent No. 2 attempted to draw water from the said Ropi Stream for irrigation of his Wet Rice Cultivation (WRC) fields whereupon the Petitioners' father lodged a complaint with the village authority against the Respondent No. 2. The Village Level Keba (meeting) held on 23.06.1979 decided that the said Ropi Stream would be used by the Petitioners' father and barred the Respondent No. 2 from using the said stream. The Ropi Stream flows through the land of Respondent No. 2 and taking advantage of this, the Respondent No. 2 again created trouble to the Petitioners in the year 1985 on the pretext of erosion caused to his land whereupon the Petitioners again lodged a complaint with the village elders and the Village Level Keba held on 06.03.1985 decided that the eroded portion of Respondent No. 2's land should be corrected/protected by drawing straight canal over the Ropi Stream as well as by providing flood control by both the parties which could be used as a boundary line between the parties. In the said Keba meeting, the Respondent No. 2 was barred from collecting boulders from the said stream bed flowing towards the Petitioners' side or path. The said meeting (Keba) affirmed the earlier decision of 23.06.1979 holding that the Ropi Stream belonged to the Petitioners. In the said meeting, the Respondent No. 2 was present and accepted the decision of the said meeting but he, again, without preferring any appeal, if he was so aggrieved by the aforesaid decisions/orders of the Keba, tried to create obstruction to the Petitioners over the peaceful use of the said stream. In the said meeting, the Respondent No. 2 was present and accepted the decision of the said meeting but he, again, without preferring any appeal, if he was so aggrieved by the aforesaid decisions/orders of the Keba, tried to create obstruction to the Petitioners over the peaceful use of the said stream. The Petitioners had to lodge a complaint with the Gaon Burah and village elders against the Respondent No. 2 A Village Level Keba was then conducted on 04.05.2004 wherein it was again decided that the Respondent No. 2 would be allowed to draw scanty amount of water from the Ropi Stream to cultivate his small portion of WRC field only for the year 2004 till he gets water from an alternative source. The Respondent No. 2 was present in the said Keba meeting and he did not prefer any appeal against the said Keba decisions dated 23.06.1979, 06.03.1985 and 04.05.2004 and as such, the aforesaid orders have attained finality. However, the Respondent No. 2 again started obstructing the Petitioners from using the water from the said Ropi Stream. This time, the Petitioners made a complaint before the Deputy Commissioner, Aalo, on 17.04.2007, who on receipt of the same, ordered for conducting a meeting in the village level to resolve the dispute. Accordingly, a Village Level Keba was held on 12.05.2007 which was attended by all the parties concerned. The Keba reaffirmed its earlier decisions made in favour of the Petitioners and directed the Respondent No. 2 not to disturb the Petitioners. The decision of the Keba meeting dated 12.05.2007 was forwarded to the Deputy Commissioner, Aalo, for approval and execution of the same but no action has been taken by the concerned authorities and due to delay in execution of the said decision, the Petitioners could not cultivate their WRC fields. The Petitioners, thereafter, verbally approached the Deputy Commissioner, Aalo, on several occasions for immediate execution of the aforesaid Keba decision dated 12.05.2007 but to no effect. The Petitioners then submitted a formal representation dated 04.07.2007 before the Deputy Commissioner, Aalo, and on receipt of the same, the Petitioners were told that an order dated 31.05.2006 was passed by the Gauhati High Court and as such, the said Respondent Deputy Commissioner could not take any step for execution of the said Keba decision. 3. The Petitioners then submitted a formal representation dated 04.07.2007 before the Deputy Commissioner, Aalo, and on receipt of the same, the Petitioners were told that an order dated 31.05.2006 was passed by the Gauhati High Court and as such, the said Respondent Deputy Commissioner could not take any step for execution of the said Keba decision. 3. In the return filed, the Respondent No. 2 categorically stated that he was neither a party to the Keba meeting held on 23.06.1979 nor had he any knowledge about the same. The said decision was taken without affording any opportunity of being heard and the same was taken behind his back. The document purported to be the proceedings/resolutions of the Keba being unsigned, cannot be relied upon and accepted. Regarding Keba decision dated 06.03.1985, the Respondent No. 2 stated that it was convened to decide the dispute regarding collection of boulders by both the parties for repair and construction of embankment for flood damage control of their respective banks alongside the Ropi Stream and the said Keba never affirmed or held that the Ropi Stream belonged to the Petitioners. The subject-matter of the said Keba had nothing to do with the right of use of water of Ropi Stream and as such, the statements made by the Petitioners are totally misleading. Regarding Keba decision dated 04.05.2004, the Respondent No. 2 denying the correctness of the same stated that the Petitioners are trying to mislead this Court by wrongly translating the Keba decision 04.05.2004. There was no mention in the said Keba decision dated 04.05.2004 that Respondent No. 2 was allowed to use the water of the Ropi Stream for the year 2004 only. The Respondent No. 2 further stated that he used to draw water for irrigation purpose partly from Ropi Stream and partly from Mebbu River due to varying ground levels at different portion of his WRC fields and the Respondent No. 3, sometimes, completely blocked the irrigation canal of Mebbu River for which he filed a case against the Respondent No. 3 and the same is pending before this Court. The further plea of the Respondent No. 2 is that no question of preferring an appeal against the Keba decision dated 23.06.1979 arise as he was not a party to the said Keba meeting. The further plea of the Respondent No. 2 is that no question of preferring an appeal against the Keba decision dated 23.06.1979 arise as he was not a party to the said Keba meeting. The Respondent No. 2 further contends that he also did not prefer an appeal against the Keba decisions dated 06.03.1985 and 04.05.2004 inasmuch as the said Keba decisions never decided on the right over the Ropi Stream against him. 4. Respondent No. 3 in his return, pleaded that he has no dispute with the Petitioners and Respondent No. 2 in respect of Ropi Stream. The dispute, according to him. is with Respondent No. 2, with regard to Mebbu River. He further contends that the Respondent No. 2 took the matter of dispute over the Mebbu River before the Courts but he lost his case in the learned Trial Court, High Court as well as in the Apex Court. The Respondent No. 3 submits that once a decision has already been taken by the Apex Court, the Village Level Keba has no authority to take decision dated 12.05.2007, more so, when a Decree dated 13.06.2003 has already been passed by the Respondent No. 1, i.e. Deputy Commissioner, Aalo, directing the Respondent No. 2 to handover the disputed land as demarcated to the Decree Holder Sri Nyamo Kamduk, Respondent No. 3 in the case at hand. He further contends that the Respondent No. 2 is seeking/searching ways to reopen the aforesaid order dated 13.06.2003 which has since attained its finality and the execution decree, aforesaid, was also not the subject-matter of the Keba proceedings held on 12.05.2007. According to Respondent No. 3, the aforesaid decision dated 12.05.2007 is not the decision of village council as the Village Keba never records its evidence in English Language. He, therefore, contends that the said Keba decision dated 12.05.2007 is not acceptable to him as it has reopened the already settled dispute between him and the Respondent No. 2. 5. The Respondent Deputy Commissioner, Aalo, in his affidavit-in-opposition, particularly in paragraphs 5 and 6, tried to clarify the entire position, which are, for better appreciation, quoted herein below: 5. He, therefore, contends that the said Keba decision dated 12.05.2007 is not acceptable to him as it has reopened the already settled dispute between him and the Respondent No. 2. 5. The Respondent Deputy Commissioner, Aalo, in his affidavit-in-opposition, particularly in paragraphs 5 and 6, tried to clarify the entire position, which are, for better appreciation, quoted herein below: 5. That with regard to the statements made in paragraph-8 of the writ-petition, the deponent states that Keba decision dated 15.05.2007 was submitted by Shri Horba Loyi, GGB Pakam Village on 21.05.2007 requesting Deputy Commissioner to execute it but it could not be executed till date because Shri Nyame Kamduk (one of the Respondent) filed an appeal petition on 28.05.2007 against the said Village Level Keba decision dated 12.05.2007 stating that this particular case has attained its finality from the date of execution of order dated 13.06.2003 passed by the Deputy Commissioner, Aalo, according to judgment of Hon'ble High Court order dated 31.05.2006 and dated 16.03.2007 respectively and therefore challenged that the Extra-Assistant Commissioner (Keba), Aalo and the village authorities have not authority to re-open the case which has already been decided at the level of Hon'ble High Court. As such, the Keba order of the Extra-Assistant Commissioner (Keba) dated 10.05.2007 and Keba decision dated 12.05.2007 passed by village authorities are illegal and total violation of Hon'ble High Court order thereby requested the Deputy Commissioner to dismiss and quash the Keba decision for the ends of justice. In view of above, the Deputy Commissioner, advised them to approach Hon'ble High Court for consideration their grievances since the Deputy Commissioner cannot transgress and act beyond his competency in this particular case which according to the Hon'ble High Court order dated 31.05.2006 and 16.03.2007 has reached its finality in the matter of land dispute in between Sri Nyamo Kamduk v. Sri Hilem Loyi. 6. That with regard to the statement made in paragraph-9 of the writ-petition, the deponent states that the Hon'ble Court in its order dated 31.05.2006 directed that the order dated 13.06.2003 passed towards the execution of decree should be meticulously followed by the parties, wherein, the execution order dated 13.06.2003 states that both Shri Nyamo Kamduk and Sri Hilem Loyi shall keep 11/2 (one and half) meter each to make way for Ropi Stream which shall serve as irrigation channel for both of them. Construction of 3 (three) meters channel shall be carried-out by both the parties and therefore, Shri Nyamo Kamduk and Shri Hilem Loyi claiming exclusive rights over the use of "ROPI" Stream and thereby challenged the authority of the Extra-Assistant Commissioner (Keba) for re-opening the case and the Keba decision dated 12.05.2007 which has already attained its finality on the execution order dated 13.06.2003 according to Hon'ble High Court dated 31.05.2006 and dated 16.03.2007 respectively. 6. Mr. K. Jini, learned Counsel for the Petitioners submits that since the village authority, namely, the Keba, has already decided the matter and there is no disputed question of facts, the Respondent No. 1 (Deputy Commissioner, Aalo) be directed to carry-out the execution order dated 13.06.2003 (Annexure-K to the writ petition) in terms of the earlier Keba decisions dated 13.06.1979, 03.06.1985, 04.05.2004 and 12.05.2007 and to comply with the aforesaid decisions in respect of the Ropi Stream. 7. Mr. K. Ete, learned Counsel appearing for Respondent No. 2, on the other hand, submits that the facts of having the Keba meetings and decisions taken by it having been strongly disputed, the said decisions cannot be executed or complied with and the disputed questions of facts having been raised with sufficient materials, this Court, exercising writ jurisdiction would not like to adjudicate the matter and direct the Respondent Deputy Commissioner to execute and/or comply with the purported decision taken by the Keba. In support of his submissions, he cites the following cases (i) State of M.P. and Ors. v. M.V. Vyavsaya and Company reported in (1997) 1 SCC 156 , (ii) Orissa Agro Industries Corporation Ltd. and Ors. v. Bharati Industries and Ors. reported in (2005) 12 SCC 725 , and (iii) Atindra Bhowmick v. Agartala Municipal Company and Ors. reported in 2006 (3) GLT 630. 8. I have carefully gone through the pleadings and materials placed by the parties before this Court. The very fact of holding and taking decisions by the Village Level Keba on various dates pertaining to the dispute over the right of use of Ropi Stream has been denied by the Respondent No. 2. The said Respondent has even denied his presence in the proceedings of the Keba and claimed that the decisions were taken behind his back. The very fact of holding and taking decisions by the Village Level Keba on various dates pertaining to the dispute over the right of use of Ropi Stream has been denied by the Respondent No. 2. The said Respondent has even denied his presence in the proceedings of the Keba and claimed that the decisions were taken behind his back. The dispute, has never been settled by the Keba and the right to use of the said Ropi Stream has not been established in favour of any party by a judicial proceedings. It is the settled position of law that the object of Article 226 of the Constitution of India is the enforcement of legal right and not the establishment of a right or title. The Writ Court is not to enquire into the merits of the rival claims of rights or title to the property or matter in dispute. The question whether the Petitioners alone or the Respondent No. 2 or both the Petitioners and Respondent No. 2 have been using the said Ropi Stream for irrigation purpose or any of the parties have the exclusive rights of use of the aforesaid stream, is a matter/question which involves investigation of complicated facts and recording of evidence and as such, investigation/enquiry cannot be done in writ proceedings. Unless the said facts are enquired and established by a competent Court of facts/trial Court, the Writ Court is not in a position to issue any mandamus or direction to the authority concerned or court below for execution of a particular decision of a Court/Keba which is in dispute. There are catena of decisions rendered by the Apex Court in this regard. To refer a few of them, I would cite the cases of (i) Sohan Lal v. Union of India reported in AIR 1957 SC 529 , (ii) New Sat gram Engineering Works and Anr. v. Union of India and Ors. reported in AIR 1981 SC 124 and (iii) DLF Housing Construction (P) Ltd., v. Delhi Municipal Corporation and Ors. reported in AIR 1976 SC 386 . For better appreciation, I would quote paragraph-18 of the Housing Construction's case (supra), as under: 18. In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. reported in AIR 1976 SC 386 . For better appreciation, I would quote paragraph-18 of the Housing Construction's case (supra), as under: 18. In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course of the High Court to follow was to dismiss the writ-petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. On this short ground, while setting aside the findings of the High Court, we would dismiss both the writ-petition and the appeal with costs. The Appellants may if so advised, seek their remedy by a regular suit. 9. Because of the disputed facts found from the pleadings of the parties, as narrated earlier, and the settled position of law enunciated by the Apex Court restraining the Writ Courts from entertaining and adjudicating such matters in writ proceedings, I would dissuade myself from granting any relief to the Petitioners directing the Respondent Deputy Commissioner, Aalo, to execute or comply with the decision of the Keba decision. The matter requires a thorough enquiry and a fresh decision is to be taken by the appropriate fact finding Forum to settle the dispute between the parties by recording evidence in accordance with law. It is under such facts and circumstances, I would direct the Respondent Deputy Commissioner, Aalo, to refer the matter to the concerned village council/Keba forthwith and it shall enquire into the disputed facts, if necessary, by recording evidence of the witnesses particularly the village elders in presence of and under the supervision an official representative of the said Deputy Commissioner, Aalo, and by involving all the parties concerned, viz. the present Petitioners, both Respondent Nos. 2 and 3, after due notice to them and providing chance of representation in the proceeding to settle the dispute once for all. 10. This writ petition accordingly stands disposed of with the aforesaid directions. the present Petitioners, both Respondent Nos. 2 and 3, after due notice to them and providing chance of representation in the proceeding to settle the dispute once for all. 10. This writ petition accordingly stands disposed of with the aforesaid directions. The Respondent Deputy Commissioner, Aalo, shall take necessary steps for referring the matter to the concerned village council/Keba within 15 days from the date of receipt of a certified copy of this judgment and Order with relevant records, if any, and the said village council/Keba shall complete the entire process and deliver the decision within a period of 2 (two) months from the date of receipt of an order from the concerned Deputy Commissioner referring the matter to it. 11. There shall be no order as to costs.