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2010 DIGILAW 697 (GAU)

Nungsangpokla v. State of Nagaland & Ors.

2010-09-08

B.K.SHARMA, H.BARUAH

body2010
B. K. Sharma, J.;- These two appeals have arisen out of the common judgment and order dated 27.9.2007 passed by the learned Single Judge in WP (C) 50 (K)/05 and 51(K)/05. Both the writ petitions were shown to have been filed by Smt. Nungsangpokla wife of late Senkalemba. 2. The learned Single Judge by the im­pugned common judgment and order dated 27.9.07 has dismissed both the writ petitions on the ground that the prayer of the petitioner for extending the benefits envisaged in OM dated 6.6.1995 issued by the Chief Secre­tary to the Govt. of Nagaland, in case of Govt. servants killed in encounters involved disputed question of facts which cannot be gone into while exercising writ jurisdiction. 3. According to the petitioner in both the writ petitions, her husband was kidnapped on 3.1.2000 by the members of an extremist organisation and eventually his dead body was found in the particular place on 9.1.2000. Be it stated here that the deceased was a Constable Messenger in the establishment of Nagaland Police Telecommunication Organi­sation. 4. The respondents resisted the claim of the petitioner on various grounds such as the petitioner's husband was a back door entrant to the service, his death was not occasioned in any action/encounters as envisaged in the OM dated 6.6.95 and there is absolutely no evidence to suggest that he was kidnapped by the members of the extremist organisation and eventually he was killed by them. Another ground urged was that the benefits envisaged in the OM dated 6.6.95 are not extendable to the petitioner as her deceased husband over stayed the leave. 5. The respondents had also filed an ad­ditional counter affidavit in the writ proceed­ing bringing on record the shocking revela­tion that in fact the writ petitions had not been filed by the wife of the deceased but was filed by an imposter taking the name of the wife of the deceased. In the said additional counter affidavit it was categorically stated that an enquiry was carried out which revealed that the wife of the deceased did not file any writ pe­tition. On perusal of the enquiry report annexed to the said affidavit coupled with the statements made in the said counter affidavit, it is found that one Shri M. Ponger Longchar had approached the Central Training Institute, Home Guards for the medical certificate. On perusal of the enquiry report annexed to the said affidavit coupled with the statements made in the said counter affidavit, it is found that one Shri M. Ponger Longchar had approached the Central Training Institute, Home Guards for the medical certificate. The enquiry also revealed that the two writ peti­tions were not filed by the wife of the de­ceased. 6. The aforesaid facts stated in the addi­tional counter affidavit was not denied by the petitioner and for that matter the impostor, who had filed the writ petitions by filling any affidavit in reply. Mr. S. Jamir, learned counsel appearing for the appellants submits that the wife of the deceased, has infact, authorised her father-in-law i.e. the father of the deceased to file the writ petitions and that on the basis of such authorisation he had filed the writ pe­titions. According to him, the father-in-law has only named the wife of the deceased in the writ petitions and in the Vakalatnama, on the basis of such authorisation. The aforesaid as­pects of the matter, though so serious in the proceeding, has not been dealt with by the learned Single Judge. However, by the im­pugned judgment and order, the writ petitions have been dismissed holding that disputed questions of facts involved in the writ peti­tions, cannot be gone into. 7. The whole basis of the claim of the pe­titioner in both the writ petitions that her hus­band died at the hands of the members of the extremist organisation is the certificate dated 8.3.05 purportedly issued by Aliba Mejenj anger Puru Menden, Mokokchung, certifying the kidnapping of the deceased on 3.1.2000 and his killing on 8.1.2000 and dis­covery of the dead body on 9.1.2000. The certificate was issued more than 5 years after the incident. Mr. B. N. Sarma, learned senior counsel representing the respondents submits that the solely on the basis of the said certifi­cate dated 8.3.05, the petitioner cannot stake claim for the benefits envisaged in the said OM dated 6.6.95. He also submits that when the writ petitions are not maintainable having been filed by some impostors and this fact having not been disputed by filling any affidavit-in-reply to the additional counter affida­vit, the writ petitions are not maintainable. 8. He also submits that when the writ petitions are not maintainable having been filed by some impostors and this fact having not been disputed by filling any affidavit-in-reply to the additional counter affida­vit, the writ petitions are not maintainable. 8. In the objection filed to the application for condonation of delay, the respondents have given the details of the proceedings initiated on account of death of the deceased to show as to how repeated claims have been made to provide benefit envisaged under the said OM dated 6.6.95. For a ready reference, the details furnished in paragraph 4 of the objec­tion are reproduced below: "4. (a) Initially one writ petition was filed namely WP (C) No. 108 (K)/2004 in the name of Smti Nungsangpokla which was filed on 23.7.2004 and subsequently withdrawn by the Counsel on 7.3.2005 with a liberty to file afresh. The prayer and the relief sought in that petition were also for payment of extraordinary pension. (b) Thereafter, writ petitions namely, WP (C) 50(K)/2005 and WP (C) 51 (K)/2005 were filed in the name of Smti Nungsangpokla by an impostor without a visible face without her knowledge and consent on 17th March 2005 and the same were dismissed on 27.9.2007 by the writ Court. (c) Long thereafter, on 29.4.2008 another writ petition namely WP (C) 62(K)/2008 was filed in this Hon'ble Court on the same cause of action by the impostor who had earlier filed the two writ petitions in the name of Smti Nungsangpokla- widow of Senkalemba-just to make illegal gain at the cost of the Government. (d) Thereafter, the learned counsel for the impostor withdraw the writ petition namely, WP (C) 62(K)/2008 on 6.5.2008 from the Court and the Court liberally allowed him to with draw the writ petition with liberty to file appropriate ap­plication/petition before appropriate forum. (e) The same impostor again file a civil re­view petition namely, Civil Review Petition No. 5 (K)/2008 in the name of Smti Nungsangpokla on 8.5.2008 before this Court. However, the re­view petition was unconditionally withdrawn on 8.7.2008 by the learned counsel at the very outset when it came up before the Court. (f) Thereafter, a writ appeal namely, WA 5(K)/2008 was filed on 1.3.2008 against the judgment and order dated 27.9.2007 passed by the learned Single Judge in WP (C) 50 (K)/2005 along with a condonation petition. However, the re­view petition was unconditionally withdrawn on 8.7.2008 by the learned counsel at the very outset when it came up before the Court. (f) Thereafter, a writ appeal namely, WA 5(K)/2008 was filed on 1.3.2008 against the judgment and order dated 27.9.2007 passed by the learned Single Judge in WP (C) 50 (K)/2005 along with a condonation petition. (g) The Division Bench of this Court by an order dated 1.9.2009 passed in Civil Misc. Case No. 38(K)/2009 condoned the delay of 543 days in filing the appeal, namely Writ Appeal No. 5 (K)/2009 against the judgment and order dated 27.9.2007 passed by the learned Single Judge in WP(C)50(K)/2005. (h) Emboldened by the order dated 16.9.2009 whereby the delay of 543 days in filing the ap­peal namely, WA 5 (K)/2009 was condoned, the same impostor filed WA 23 (K)/2009 in this Court along with the present condonation petition on 29.10.2009. The Court, however, instead of con­doning the delay straightway, ordered issue of notice to the respondents on 29.5.2009." 9. In paragraph 5 of the objection, it has been stated that the affidavits and Vakalatnamas in all the aforementioned pro­ceedings were signed in the name of the wife of the deceased by some imposters. In this connection, the respondents have placed re­liance on the enquiry report furnished to the additional counter affidavit filed in the writ petition. 10. The aforesaid plea of the respondents in their objection filed in the delay condonation petition having not been disputed by filling any affidavit-in-reply, goes unrefuted. 11. If the writ petitions have been filed by the impostor, on that ground alone they were liable to be dismissed being not maintainable. However, the learned Single Judge has decided the writ petitions on merit holding the same to be not maintainable in view of the disputed questions of facts being involved as to the cause of death of the deceased. 12. For all the aforesaid reasons, there is no question of interfering with the impugned judgment and order dated 27.9.2007 passed by the learned Single Judge in WP (C) 50(K)/05 and 51 (K)/05. Consequently, writ appeals are dismissed. It will be open for the respond­ents to take such action as may be available to them in criminal law.