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2011 DIGILAW 283 (GAU)

Syiem of Hima Nongstoin v. Khasi Hills Autonomous District Council

2011-03-31

MADAN B.LOKUR

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JUDGMENT Madan B. Lokur, CJ. 1. The challenge in this writ petition is to an order dated 22.5.2006 passed by the Executive Committee of the Khasi Hills Autonomous District Council, Shillong (for short KHADC) in a boundary dispute between the Nonglang Sirdarship and the Nongstoin Syiemship. According to the Sirdar of Nonglang (the plaintiff), the Syiem of Nongstoin began encroaching on land belonging to his Sirdarship from sometime in 1940/42 onwards. According to the Sirdar, the encroachment is still continuing. The concern of the Sirdar is with regard to the encroachment in three villages i.e. Mawguru, Nongkonghur and Riangkha. It is also averred that there is some encroachment in an area called Mawiong. 2. On the other hand, the stand of the Syiem of Nongstoin these three villages and the area called Mawiong actually fall within the territories of the Nongstoin Syiemship and there is no question of any encroachment by the Syiem. 3. Way back on 20.5.1939 in Boundary Case No. 4 of 1938-39, a decision was rendered by K. Cantlie, Deputy Commissioner and Political Officer, Khasi and Jaintia Hills. He passed an order relating to the boundary of the British villages of Nonglang, Nongriangsih and Jyrngam. On a perusal of the decision rendered by K. Cantlie, it is clear that he delineated the boundaries of these villages including the Sirdarship of Nonglang. For the purpose of understanding the delineation, I am only concerned with the area starting from Riangken River upto the junction of Ryndi River which is the boundary of Nonglang. K. Cantlie describes the boundary of Nonglang as follows: ...then along the Ryngken to its junction with the Pormawlein as called by Nongstoin or Porshken as called by Nonglang to Porktieh as called by Nongstoin which is still called Porshken by Nonglang to the boundary stones at Dienglangteh, then along with Porlangteh and Porshken as called by Nongstoin or Pormawlein by Nonglang to the Rangdi River on the Garo Hills. 4. On the basis of the decision rendered by K. Cantlie, a Notification was published in the Gazette of Assam dated 5.3.1941. This Gazette Notification was issued by AG Patton, Secretary to the Government of Assam in the Revenue Department and it accepted in full the boundaries of Nonglang as determined in Boundary Case No. 4 of 38-39 alongwith Misc. Political Case No. 64 of 1921 pertaining to Nonglang, Nongriangsih and Jyrngam Sirdarships. This Gazette Notification was issued by AG Patton, Secretary to the Government of Assam in the Revenue Department and it accepted in full the boundaries of Nonglang as determined in Boundary Case No. 4 of 38-39 alongwith Misc. Political Case No. 64 of 1921 pertaining to Nonglang, Nongriangsih and Jyrngam Sirdarships. The Notification dated 5.3.1941 also notes that 30 (thirty) pillars were built in 1925 from Umsynnah to above Hynrum. These pillars have been referred to in the map relied upon by the KHADC and which has also been shown to me these pillars existed when the map was prepared in 2005 and probably exist even today. 5. When the territorial/boundary dispute was raised by the Sirdar of Nonglang some time in 2000, it was decided that an inspection should be carried at the site and in fact, A. Shangpliang, Joint Secretary, KHADC, accompanied by a Survey Team conducted a spot enquiry on 17.12.2001 and 6.4.2004 where both parties were present, i.e. the representatives of the Sirdarship of Nonglang and the Syiem of Nongstoin. It appears that a further survey was also conducted by F. Syiem, a representative of the Syiem of Nongstoin. On the basis of the surveys conducted, a report was prepared on 17.11.2005. 6. The Survey Report confirms that the boundary of Nonglang is in terms of the order passed by K. Cantlie in 1939. The Report also mentions that the Syiem of Nongstoin/his representatives relied upon three documents in support of their case that the three villages and the area in dispute fall within the Syiemship of Nongstoin. Two of the three documents relied upon were a sketch drawn by U. Wickliffe Syiem and another sketch drawn by EP Syiem. The Survey Report notes that the two sketches drawn by Wickliffe Syiem and EP Syiem show completely different boundaries. On the basis of this glaring inconsistency between the two sketches, the Survey Report concludes that the two sketches cannot be relied upon for defining the boundary between the Nongstoin Syiemship and the Nonglang Sirdarship. 7. In so far as the third document is concerned, it is a map prepared by M. Wiscott, Sub-Deputy Collector at Tura. This map is based on a Joint Report prepared by M. Wiscott and Jor Manik, Sub- Deputy Collector, Shillong. Their Joint Report is dated 17.3.1942. 8. 7. In so far as the third document is concerned, it is a map prepared by M. Wiscott, Sub-Deputy Collector at Tura. This map is based on a Joint Report prepared by M. Wiscott and Jor Manik, Sub- Deputy Collector, Shillong. Their Joint Report is dated 17.3.1942. 8. On a perusal of the Joint Report, it appears that the dispute pertained to the village of Mawguru and the question was whether it fell within the Garo Hills or within the Khasi Hills. 9. At this stage, it is necessary to mention that the village Mawguru exists both in the Garo Hills as well as in the Khasi Hills and the Joint Report dated 17.3.1942 related only to village Mawguru falling in the Garo Hills. This is where the confusion arises. 10. According to the Syiem of Nongstoin, village Mawguru falling in the Garo Hills was actually within the Syiemship of Nongstoin, but according to the Nokmas of the Garo Hills, village Mawguru in the Garo Hills fell within the Garo Hills territories. The Joint Report dated 17.3.1942 does not give any positive conclusion in this regard. All that it says, in conclusion, is as follows: After considering all the evidences on record and after following the boundaries in different maps on the ground, we find that the inter-District boundary runs as indicated in the present at Flag 'C' below, which appears to us to be in accordance with the India Government Notification. If this line is accepted, all concerned may be informed accordingly. It may be noted that the inter-District boundary is not available on record although the map that was consequently prepared is available, but as mentioned above, it pertains only to the dispute with regard to village Mawguru between the Syiem of Nongstoin and the Nokmas in the Garo Hills. There is no reference in this Joint Report or the map to village Mawguru falling in the Khasi Hills which is the subject matter in dispute in the present writ petition. 11. Under the circumstances, the Joint Report and the map prepared by Wiscott and Jor Manik does not advance the case of the Syiem of Nongstoin any further. 12. There is no reference in this Joint Report or the map to village Mawguru falling in the Khasi Hills which is the subject matter in dispute in the present writ petition. 11. Under the circumstances, the Joint Report and the map prepared by Wiscott and Jor Manik does not advance the case of the Syiem of Nongstoin any further. 12. At this stage, it is important to note that the fact that there are two villages by the name of Mawguru and also Nongkonghur, one each falling in the Garo Hills and one each falling in the Khasi Hills is confirmed by a map prepared by T.S. Roy, Supervisor Recorder, KHADC on 15.11.1975. This map is based on the topo sheet/map No. 78K/NE 1st Edition 1928 produced by the Survey of India. There is a reference to this map in the order passed by the Executive Committee of the KHADC and it has been relied on to conclude that the names Mawguru and Nongkonghur are shared by villages in the Khasi Hills and in the Garo Hills. 13. From the above, it is quite clear that village Mawguru falling in the Garo Hills was the subject matter of the Joint Report given in 1942 by Wiscott and Jor Manik. Another village by the same name falling in the Khasi Hills was the subject matter of the order passed by K. Cantlie, the Gazette Notification issued by A.G. Patton and the Survey Report dated 17.11.2005 prepared by A. Shangpliang, Joint Secretary, KHADC. 14. Learned counsel appearing on behalf of the Syiem of Nongstoin, however, placed considerable reliance on the Assam and Meghalaya Autonomous Districts (Constitution of District Councils) Rules, 1951 as well as a Notification dated 16.7.1993. He drew my attention to these documents for the purpose of contending that these documents show that village Mawguru falls under the Nongstoin Syiemship. 15. Learned counsels for the respondents contend that no reliance can be placed on the Assam and Meghalaya Autonomous Districts (Constitution of District Councils) Rules as well as the Notification since they pertain only to the constituencies for the purposes of holding elections. 15. Learned counsels for the respondents contend that no reliance can be placed on the Assam and Meghalaya Autonomous Districts (Constitution of District Councils) Rules as well as the Notification since they pertain only to the constituencies for the purposes of holding elections. Rule 2(4) defines the word "constituency" for the purposes of elections to the District Council and Rule 6(3) provides that the constituencies for election to the District Council shall be territorial and the extent thereof shall be as shown in the appendix to the Assam and Meghalaya Autonomous Districts (Constitution of District Councils) Rules, 1951. 16. Without going into the issue whether the description of Mawguru village as being a part of Nongstoin Syiemship is relevant only for the purposes of election, I think the submission advanced by learned counsel for the KHADC that the constituencies and the villages constituting those constituencies keep changing from time to time is far more substantial. 17. Learned counsel for the KHADC has shown me, by way of an example, the Assam and Meghalaya Autonomous Districts (Constitution of District Councils) Rules, 1951 as they existed prior to 1993 and in those Rules, Malang Khasi and Mallang-A are shown as villages of Nongstoin Syiemship while in the post-1993 Rules, these very villages are shown as a part of the Sirdarship of Nonglang. 18. Learned counsel for the KHADC has stated at the Bar that several such examples can be given and it is not as if the Assam and Meghalaya Autonomous Districts (Constitution of District Councils) Rules are sacrosanct in so far as the boundaries of either Nongstoin Syiemship or of Nonglang Sirdarship are concerned. I am of the view that this contention of learned counsel for the KHADC must be accepted and it is really for the Executive Committee of the KHADC to determine whether a particular village falls under a particular Syiemship or a particular Sirdarship and no reliance can be placed in this regard on the Assam and Meghalaya Autonomous (Constitution of District Councils) Rules, 1951 inasmuch as they pertain primarily to constituencies for the purposes of elections. The position is the same with regard to the notification dated 16.7.1993. 19. Learned counsel for the KHADC has also drawn my attention to U. Lokentda Vs. The position is the same with regard to the notification dated 16.7.1993. 19. Learned counsel for the KHADC has also drawn my attention to U. Lokentda Vs. a Driwell Myntri & Ors., AIR 1970 Assam & Nagaland 242, which clearly brings out that as per the Sixth Schedule to the Constitution, the administration of an Autonomous District shall be vested in a District Council and that District Council has the exclusive competence of deciding the territorial boundaries of two contiguous Syiemships (in this case the territorial boundaries of one Syiemship and one Sirdarship). 20. In my opinion, since the administration of an claka as defined in the United Khasi and Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headman) Act, 1959 is with the Executive Committee of an Autonomous District Council, the boundaries of that unit and the administration of that unit are best left for decision by the Executive Committee of the Autonomous District Council. 21. In so far as the present case is concerned, the Executive Committee of the KHADC has taken the view, relying upon the order passed by K. Cantlie as well as the Notification dated 5.3.1941 in the Assam Gazette as well as the spot inspections carried out on its behalf that the villages Mawguru, Nongkonghur and Riangkha as well as the area called Mawiong fall within the territorial boundaries of Nonglang Sirdarship, that opinion should be given due weightage. In matters of this nature, where a factual dispute involving the territory of a Syiemship or a Sirdarship is concerned, the Court should be most reluctant to interfere with the decision of an expert or a competent body. Jurisprudentially speaking, expert bodies are entitled to arrive at a decision, right or wrong, but even if that decision is wrong, it would not entitle the Court in its certiorari jurisdiction to correct all errors that may have been committed by the authority concerned. 22. In Sawarn Singh Vs. State of Punjab, (1976) 2 SCC 868 the Supreme Court dealt with the certiorari jurisdiction of the Court and the extent of interference in a finding of fact and held in paragraphs 12 and 13 of the Report as follows: Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the High Court in writ proceedings under Article 226. It is well-settled that Certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts of tribunals. A writ of Certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case [Syed Yakoob Vs. K.S. Radhakrishnan, AIR 1964 SC 477 ] this limitation necessarily means that findings of fact reached by the inferior court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by an inferior tribunal, a writ of Certiorari can be issued only if in recording such a finding the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends, only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. 23. Similarly, in State of Andhra Pradesh Vs. Chitra Venkata Rao, (1975) 2 SCC 557 the Supreme Court considered the jurisdiction of the Court to issue a writ of certiorari. It was held in paragraph 23 of the Report: The jurisdiction to issue a writ of certiorari under Article 226 a supervisory jurisdiction. The Court exercises it not as an Appellate Court. The findings of fact reached by an inferior court or Tribunal as a result of the appreciation of evidence are not re-opened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. The findings of fact reached by an inferior court or Tribunal as a result of the appreciation of evidence are not re-opened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a Tribunal, a writ can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. (Emphasis supplied) 24. As far as the present case is concerned, nothing has been shown to me that any jurisdictional error has been committed by the Executive Committee of the KHADC, nor has any principle of natural justice been violated, nor has any perversity been shown in the view taken by the KHADC either in law or in appreciation of the evidence. My attention has been drawn only to a somewhat vague averment made in paragraph 12 of the writ petition to the effect that the decision of the Executive Committee of the KHADC was not based on any evidence, The averment is as vague as it can be. Since I am not sitting in appeal over the decision of the Executive Committee of the KHADC but only exercising supervisory jurisdiction under Article226 of the Constitution, it is not possible for me to interfere with the impugned order on the contentions urged by learned counsel. 25. Since I am not sitting in appeal over the decision of the Executive Committee of the KHADC but only exercising supervisory jurisdiction under Article226 of the Constitution, it is not possible for me to interfere with the impugned order on the contentions urged by learned counsel. 25. Finally, learned counsel for the Syiem of Nongstoin relied upon certain letters written from time to time, more particularly, letters dated 4.6.1963 written by the Under Secretary to the Government of Assam to the Secretary, Executive Committee, GHADC and another letter of the same date written by the Chief Executive Member, United Khasi and Jaintia Hills to the Chief Executive Member, Garo Hills District Council, Tura with respect to the boundaries between the Khasi Hills and the Garo Hills. 26. As already noted above, the dispute with regard to Mawguru in the Garo Hills is not the subject matter of adjudication or decision in so far as the present case is concerned. That apart, letters written by Government officials to one another cannot take away or detract from the value of the decision rendered by K. Cantlie and which has been accepted for the last several decades by all parties concerned. Even in the writ petition, there is no averment that the decision of K. Cantlie is incorrect, as indeed it cannot be, since that decision was accepted way back in 1941 when the conclusion relating to the boundary of the Sirdarship of Nonglang was gazetted on 05.03.1941. Under the circumstances, I find no merit in this writ petition. It is accordingly dismissed. There will be no order as to costs. Petition dismissed.