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2011 DIGILAW 719 (GAU)

Labina Sangma v. Garo Hills Autonomous

2011-08-26

T.VAIPHEI

body2011
This writ petition is directed against the order dated 8-1-2003 passed by the Chief Executive Member of the Garo Hills District Council in GDC-Revenue/Appeal No. 22 A/c of 1999 upholding the decision of the Executive Member in charge of Revenue declaring the respondents No. 5 and 6 as Nokmas of Jendragre A'khing of West Garo Hills District. 2. This case has a chequered history. It is hoped that this is a litigation to end all litigations between the parties over the Nokmaship of the Akhing land. Before proceeding further, I may first briefly refer to the facts of the case as pleaded by the petitioners. Sometime in the year 1995 the late Parkin Marak had moved the Executive Member-in-charge of Land Revenue (“EM” for short), Garo Hills District Council for appointing him as the Nokma of the Akhing, which was registered as GDC Rev/11 A/C of 1995-96. It was stated in the application that the late Rasan R. Marak, husband of late Tame A. Sangma, who were the last recorded Nokma had died in 1995 and as per Garo custom, the Maharis of this particular Akhing decided to appoint the said Parkin R. Marak and Mrs. Donme A. Sangma as the Nokma of the Akhing land. On the death of the said Parkin Marak, a substitution application was made by the petitioner and three others on 17-8-1998 stating that all Chras and Chatchis of A'gitok Koksep clan of Jendragre had proposed the names of the petitioner No. 1 and the petitioner 2, who is none other than the daughter of the said Donme A. Sangma in place of the late Parkin Marak and his wife Donme A. Sangma and prayed that they be allowed to substitute the deceased petitioners. The application was immediately opposed by the respondents No. 5 and 6 on the ground of partiality of the Mauzadar's report and their non-selection by the Mahari clan. According to the petitioners, they are the legal heirs of the last recorded Nokmas of the Akhing land, namely, the late Rasan Marak and the late Tame A. Sangma and the direct descendants of the said recorded Nokma: they were also elected by the whole Agitok Koksep Sangma clan. 3. According to the petitioners, they are the legal heirs of the last recorded Nokmas of the Akhing land, namely, the late Rasan Marak and the late Tame A. Sangma and the direct descendants of the said recorded Nokma: they were also elected by the whole Agitok Koksep Sangma clan. 3. It is the case of the petitioners that the respondents No. 5 and 6 have no legal right to claim the Nokmaship as per Garo custom inasmuch as they are not the legal heirs of the last recorded Nokma, namely, the late Rasan Nokma and Tame A. Sangma nor were they elected by the clan people of the Akhing land i.e., A'gitok Koksep Sangma clan. According to the petitioners, Donme Sangma is the daughter of the late Tame Sangma and Rasak Marak and that Donme Sangma is the wife of late Parkin Marak and after death of Parkin Sangma, the petitioner No. 1, who is their daughter, married the petitioner No. 2. After the application was filed by the petitioners, the District Council directed the Mouzadar to conduct an enquiry and submit his report. The Mauzadar submitted his report dated 16-11-1995 and took the statements of the Maharis, Chras and Departo. It is claimed by the petitioners that in the year 1937, the Deputy Commissioner, Garo Hills by the order dated 7-1-1937 had declared the late Rasan Marak as the Nokma of the Akhing. The EM by the order dated 28-1-1999 disposed of the case by declaring the respondents No. 5 and 6 as the Nokmas. Aggrieved by this, the petitioners took the matter to appeal before the Chief Executive Member, Garo Hills District Council (“CEM” for short), which was registered as GDC Revenue Akhing Appeal Case No. 22/99. After hearing the parties, the CEM by the impugned order dismissed the appeal and upheld the judgment of the EM. This is how this writ petition has been filed before this Court for appropriate relief. No affidavit-in-opposition is filed by the respondents. However, Ms. A. Paul, the learned counsel for the private respondents, relying on the lower court records, extensively argued the case in the course of hearing and defended the impugned order and judgment of the CEM and EM and prayed for dismissal of the writ petition with costs. 4. From the record, it is obvious that the late Khiljing Marak was the husband of the late Nema Sangma. 4. From the record, it is obvious that the late Khiljing Marak was the husband of the late Nema Sangma. After the death of Nema Sangma, Smt. Thame Sangma, who was the eldest sister of Nema Sangma, became the substituted wife of Khiljing Marak. After the death of Khiljing Marak, Smt. Thame Sangma married Rasan R. Marak. According to the respondents, after the death of Thame Sangma, Smt. Memji/Sangma was given in marriage to Rasan R. Marak. There is no dispute that Donme Sangma was the daughter of Tame Sangma. The finding of the EM is that the respondent No. 5 is the grand daughter of the late Nema Sangma and that the petitioner No. 1 is a descendant of the last recorded Nokma, namely, Thame Sangma. The EM also recorded the findings that the late Thame Sangma's right of Nokmaship also expired with her death since a successor wife has only a life interest and not a heritable interest, which could be passed on to her daughter; that no semblance of any right could accrue to the petitioner herein (Smt. Labina Sangma). According to the EM, late Khiljing Marak and late Nema Sangma had three daughters, namely, Khanji Sangma, Noam Sangma and Kalse Sangma and the respondent No. 5 is the daughter of late Noam Sangma and even Donme Sangma, the original petitioner for Nokmaship admitted this fact. The EM took the view that since the respondent No. 5 is the original daughter of Nema Sangma and reversionary heir to the Akhing, in order to uphold the Garo customary law, the Akhing should now revert to the rightful reversionary heir i.e. the respondent No. 5 and her husband, the respondent No. 6. The CEM upheld these findings recorded by the EM, the correctness whereof are under challenge in this writ petition. 5. Assailing the impugned order, Mr. S.P. Mahanta, the learned counsel for the petitioner, submits that both the CEM and EM have misread the evidence on record and have in the process failed to take note of the actual position of the recorded Nokma and the customary law of inheritance with respect to Nokmaship among the Garos. 5. Assailing the impugned order, Mr. S.P. Mahanta, the learned counsel for the petitioner, submits that both the CEM and EM have misread the evidence on record and have in the process failed to take note of the actual position of the recorded Nokma and the customary law of inheritance with respect to Nokmaship among the Garos. According to the learned counsel, the question as to who should be the Nokma has been firmly settled by the Deputy Commissioner, Garo Hills by his order dated 7-1-1937 wherein he had already declared Rasan Marak as the Nokma of the Akhing. As the petitioner No. 1 is none other than the granddaughter of Rasan Marak and Tame Sangma, contends the learned counsel, she and her husband i.e. the petitioner No. 2 are entitled to the Nokmaship. It is the submission of the learned counsel for the petitioners that the decision of the Deputy Commissioner on 7-1-1939 would operate as res judicata between the parties or, in the alternative, such an order passed some seventy four years ago cannot and should not be unsettled now. As the direct descendant of the last recorded Nokma, the petitioners have the better claim over any other person including the respondents No. 5 and 6. On the other hand, Ms. A. Paul, the learned counsel for the respondent Nos. 5 and 6, supports the impugned orders and submits that as the respondent No. 5 is the granddaughter of Khiljing Marak and Nema Sangma, both the EM and CEM rightly held that she is entitled to the Nokmaship of the Akhing together with her husband, the respondent No. 6. 6. Before proceeding further, it may be apposite to reproduce hereunder the order dated 07.01.1937 passed by the Deputy Commissioner, Garo Hills (W Shaw) : “7.8.37 Name Mechik died a long time ago. Then Khijing married Thama Mechik. Then Thame Mechik's husband Khiljing Nokma died after Wangala in 1936. Now Rasan Marak has been given a husband. Rasan marak and Khiljing are of the clan Rangsa Megongchi. Noan Mechik, Rimje Mechik, Saljan Marak, Ranang Marak, Thagong marak, Thagong Marak, Roke Marak, Changnan Marak, Thonang Sangma, Jinan Sangma, Rakhi Sangma and Dingsang Sangma all present as Chatchis and Chras of they have no objection. Enter Rasan Marak as Nokma and inform DFO. Sd/- W. Shaw” 7. Rasan marak and Khiljing are of the clan Rangsa Megongchi. Noan Mechik, Rimje Mechik, Saljan Marak, Ranang Marak, Thagong marak, Thagong Marak, Roke Marak, Changnan Marak, Thonang Sangma, Jinan Sangma, Rakhi Sangma and Dingsang Sangma all present as Chatchis and Chras of they have no objection. Enter Rasan Marak as Nokma and inform DFO. Sd/- W. Shaw” 7. It is an admitted position of the parties that after the death of Khiljing Marak, Rasan Marak married the said Thame Sangma and that Donme Sangma was the daughter of Thame Sangma and Rasan Marak; that Donme Sangma married Parkin Marak and the petitioner No. 1 (Labina A Sangma) is the daughter of Donme Sangma and Parkin Marak, and married Derickson M Sangma, the petitioner No. 2. There is no dispute that Rasan Marak was the last recorded Nokma. It had been the said Donme Sangma and her husband Parkin Marak, who filed an application for the Nokmaship. Later on, the petitioner Nos. 1 and 2 stepped into the shoes of the said Donme Sangma and Parkin Marak. It is also an admitted position of the parties that the respondent No. 5 (Mrs. Chellish Sangma) is the granddaughter of the late Khiljing marak. It so happened that it was after the death of the original wife of the late Khiljing Marak, nameloy, Nema Sangma, that Thame Sangma was given as the substituted wife to the late Khiljing Marak. The mother of the respondent No. 5 never became Nokma. When an application was filed by the mother of the petitioner No. 1, namely, Donme Sangma, and subsequently by her for the Nokmaship of the Akhing, an objection was raised by the respondent No. 5 and the respondent No. 6, who is her husband. It is obvious from the pleadings of the parties that no application was ever filed by the respondents No. 5 and 6 for the Nokmaship. In fact, the impugned orders granting the Nokmaship to the respondents No. 5 and 6 have been passed without any application filed by them. In my opinion, both the Chief Executive Member and the Executive Member have acted improperly and exceeded their jurisdictions by issuing the impugned orders in favour of the respondent Nos. 5 and 6 without their seeking a relief in that behalf. 8. In my opinion, both the Chief Executive Member and the Executive Member have acted improperly and exceeded their jurisdictions by issuing the impugned orders in favour of the respondent Nos. 5 and 6 without their seeking a relief in that behalf. 8. That apart, it is obvious that the order dated 7.8.1937 passed by the erstwhile Deputy Commissioner of Garo Hills declaring Rasan Marak, the grandfather of the petitioner, to be the Nokma has remained unchallenged for the last more than 70 years. As a matter of fact, it was only when the mother of the petitioner filed an application for recording her as the Nokma that the respondents made objection (only objection) for the first time: they have slept over the matter for the last over 70 years. The issue raised by the respondent Nos. 5 and 6 challenging the right of the petitioner to be recorded as the Nokma of Jendragre A'khing is, therefore, barred by res judicata or, at any rate, by the doctrine of waiver and acquiescence. In D Sangma v. Chief Executive Member, Garo Hills, (1988) 2 GLR 121, a Division Bench of this Court held that the principle of res judicata, which is founded on equity, justice and good conscience has to apply to proceedings before the Revenue Member also. 9. For what has been stated in the foregoing, this writ petition is allowed. Both the impugned orders dated 28-1-1999 and dated 8-1-2003 (Annexure-7 and Annexure-9 respectively) are hereby quashed. Let a mandamus issue directing the respondent authorities to appoint the petitioner as the Nokma of Jedengre A'khing land within a period of thirty days from the date of receipt of this judgment. The parties are, however, directed to bear their respective costs.