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2015 DIGILAW 1015 (GAU)

Tsithrongse Village v. State of Nagaland

2015-08-13

SUMAN SHYAM

body2015
JUDGMENT : Heard Mr. A. Das, learned counsel for the writ petitioner. Also heard Ms. V. Soukhrie, learned Govt. Advocate representing respondent No. 1 to 5 as well as Ms. A. Jamir, learned counsel appearing on behalf of respondent No. 6. 2. The basic dispute in this writ petition is pertaining to the demarcation of the boundaries between the petitioner village (Tsithrongse Village) and respondent No. 6 (Selouphe Village). It appears that both the parties have been locked in a protracted legal battle disputing one anothers entitlement over the actual area of land falling within the boundary of their respective villages. 3. Earlier by a notification dated 03-02-1992 issued by the Home Commissioner, Govt. of Nagaland the boundary of the petitioner village was notified as follows: “2. Tsithrongse Village. Boundaries North : Dhansiri River East : Singrijan by a foothpath South : P.W.D. Road West : Murise Village” 4. Thereafter by issuing notification dated 13-04-1994 the earlier Govt. notification dated 03-03-1992, insofar as the boundary of the petitioner village is concerned, was partially modified and the new boundary was notified as follows: “1. North - Dhansiri River 2. South - Khopanala River 3. East - Khopanala River 4. West - Murise Village” 5. Being aggrieved by the notification dated 13-04-1994 the petitioner had approached this Court by filing Civil Rule No. 1513/1994, inter alia, contending that the notification dated 13-04-1994 was issued by the respondent authorities without giving any opportunity of being heard to the petitioner village and that redefining of the boundary was done on completely irrelevant consideration thereby causing prejudice to the interest of the petitioner village. After hearing the learned counsel for the parties, this Court had disposed of Civil Rule No. 1513/1994 by the judgment and order dated 13-05-1996 by making the following direction. “4. Be that as it may in exercise of my writ power I am not in a position to decide this matter. The whole matter shall go back to respondents no 2 & 3 to find as follows:- (1) Whether there was a declaration on 11/8/91. (2) Whether the alleged declaration dated 11/8/91 was really signed and or there is thump impression of the head gaonburah of Singrijan and tsithrongse village. The whole matter shall go back to respondents no 2 & 3 to find as follows:- (1) Whether there was a declaration on 11/8/91. (2) Whether the alleged declaration dated 11/8/91 was really signed and or there is thump impression of the head gaonburah of Singrijan and tsithrongse village. The authority shall also find out regarding what’s the authority of the gaonburahs to make such a declaration for and on behalf of all the villagers about the boundary of the village and whether the declaration made by the gaonburah shall bind the villagers. 5. If the answer of those questions are in affirmative then the questions of making a further enquiry in this regard shall not arise. But if the authority finds that there is no such declaration made by the Gaonburah of the village in accordance with the requirements of rules and guidelines and by following the principle of natural justice, then necessary notice shall be given to the village elders. The parties may obtain a certified copy of this order & to produce the same before the authority to do the needful in terms of this order & till finalization of the matter that earlier order dated 3/2/92 shall prevail.” 6. Thereafter, several orders had been passed from time to time by the concerned authorities, inter alia, restraining both parties from carrying out any further development and from making any construction over the disputed land until resolution of the disputed issued between the two villages. Eventually, by issuing notification dated 03-02-2012 bearing No. GAB-5/5/91, the Govt. of Nagaland had notified the boundary of several villages indicated therein including the respondent No. 6 village. In the notification dated 03-02-2012 the boundary of the respondent No. 6 village has been indicated as follows: “North:- Park South:- Singrijan Village i.e. Singrijan Nallah East:- PWD Road leading to Dhansiripar West:- Dhansiri River” 7. Being aggrieved by the aforesaid notification dated 03-02-2012 the petitioner village had submitted representation dated 18-04-2012 as well as 26-09-2012 addressed to the respondent No. 2 ventilating their grievance as regards the manner in which notification dated 03-02-2012 had been issued declaring the boundary of the respondent No. 6 village. 8. Mr. Being aggrieved by the aforesaid notification dated 03-02-2012 the petitioner village had submitted representation dated 18-04-2012 as well as 26-09-2012 addressed to the respondent No. 2 ventilating their grievance as regards the manner in which notification dated 03-02-2012 had been issued declaring the boundary of the respondent No. 6 village. 8. Mr. Das, learned counsel for the petitioner submits that a bare reading of the operative part of the order dated 30-05-1996 passed by this Court in the earlier round of litigation would go to show that the respondent authorities were required to make an enquiry as to whether any declaration, as mentioned therein, was made by the Gaon Bura of the village in accordance with the requirement of the rules and guidelines and by following the principles of natural justice and thereafter, determine the disputed question of fact pertaining to the boundary dispute. Until such determination is made by the authorities, the notification dated 03-02-1992, insofar as the petitioner village is concerned, was to prevail. 9. Mr. Das, further submits that his clients are not aware as to whether any such determination, as required by the order dated 30-05-1996 had been made by the authorities till date. He, submits that in view of the order dated 30-05-1996, the notification dated 03-02-1992 is still holding the field and the same has not been superseded by any subsequent notification modifying the boundary of the village of the petitioner. However, notwithstanding the same, in the notification dated 03-02-2012 the southern boundary of the respondent No. 6 village has been shown to be one that actually encroaches upon the eastern boundary of the petitioner’s village as indicated in the notification dated 03-02-1992 which is still in force by virtue of the order dated 30-05-1996 passed by this Court. He, therefore, submits that the respondent authorities could not have altered the eastern boundary of the petitioners village by issuing the notification dated 03-02-2012 pertaining to the respondent No. 6 village without first complying with the direction passed in the order dated 30-05-1996 nor could they have done it without carrying out a proper survey and measurement of the boundary in presence of both the parties including the representatives of the petitioner village. On the basis of such argument, Mr. On the basis of such argument, Mr. Das submits that the impugned notification dated 03-02-2012, insofar as the same pertains to the respondent No. 6, is not sustainable in the eye of law and as such liable to be quashed and set aside by this Court. 10. Ms. V. Soukhrie, learned Govt. Advocate submits that although there is nothing on record to indicate as to whether the notification dated 03-02-1992 has been superseded by the subsequent notification dated 03-02-2012 insofar as the petitioner village is concerned, yet, the impugned notification has been issued on the basis of materials available before the Deputy Commissioner, Dimapur at the relevant point of time. She, further submits that although it is the admitted position of fact that there are certain disputes pertaining to the boundary of the petitioner as well as the respondent villages, yet, the Deputy Commissioner, has not been able to carry out a proper demarcation of the same primarily because of the pendency of the writ proceeding before this Court. She submits that if this Court permits the Deputy Commissioner to carry out a proper enquiry and boundary demarcation of the two villages then in that event there is a possibility that dispute would be resolved once and for all. 11. Ms. A. Jamir, learned counsel representing the respondent No. 6 submits that the notification dated 03-02-2012 reflects the correct boundary position of the respondent No. 6 village and the same does not called for any interference. She, however, submits that proper factual enquiry at the ground level to be carried out by the Deputy Commissioner, Dimapur in presence of representatives of both parties would be acceptable to her client should the same be found necessary in the facts and circumstance of the case. 12. I have considered the rival submissions made by and on behalf of the parties and have also gone through the records of the case. The basic grievance of the writ petitioner appears to be that the boundary of the respondent No. 6 village, as indicated in the impugned notification dated 03-02-2012, insofar as the southern part is concerned, encroaches upon the territorial jurisdiction of the petitioner village which area was duly recognized in favour of the petitioner by the respondents vide notification dated 03-02-1992. The basic grievance of the writ petitioner appears to be that the boundary of the respondent No. 6 village, as indicated in the impugned notification dated 03-02-2012, insofar as the southern part is concerned, encroaches upon the territorial jurisdiction of the petitioner village which area was duly recognized in favour of the petitioner by the respondents vide notification dated 03-02-1992. The petitioner’s contention is that the boundary in the notification dated 03-02-1992, insofar as the Tsithrongse village is concerned, represents the correct picture and therefore, the notification dated 03-02-2012 depicting the boundary of the respondent No. 6 village is an erroneous one. 13. The answer to the aforesaid disputed question of fact would require a factual determination which this Court is not in a position to carry out in a writ petition in exercise of the power conferred under Article 226 of the Constitution of India. It appears that the aforesaid factual dispute has already been raised by the petitioner before the concerned authorities and by means of an order dated 18-06-2012, the Home Commissioner, Nagaland, Kohima had also asked the Deputy Commissioner, Dimapur to submit a report on the boundary and demarcation of the area between Tsithrongse village and Selouphe village. Pursuant to the said letter the Deputy Commissioner, Dimapur had submitted a report dated 01-11-2012 indicating the position on the ground. However, in paragraph 7 of the said report the learned Deputy Commissioner has indicated that he is not in a position to carry out the exercise to demarcate the boundary between the two disputed villages since the matter is sub-judice before this Court. The contents of the said report in the paragraph 7 is quoted herein below for ready reference: “7. Now, since the matter is sub judice, the District Administration is not in a position to carry out exercises to demarcate the boundary between the two disputing villages, as this will result in initiation of ‘contempt of court’ procedures against the District Administration by the High Court. Therefore, unless otherwise directed by the High Court or a Higher Court of law, through an Order, the ruling of the High Court regarding the boundary remains standing and the District Administration does not have any further say in this matter.” 14. Therefore, unless otherwise directed by the High Court or a Higher Court of law, through an Order, the ruling of the High Court regarding the boundary remains standing and the District Administration does not have any further say in this matter.” 14. As has been indicated hereinbefore the answer to the disputed question can only be determined by carrying out a proper enquiry and by carrying out proper demarcation of the boundary of the two disputed village at the ground level. However, it appears that in view of the pendency of this proceeding as well as the order dated 30-05-1996 passed by this Court in Civil Rule No. 1513/1994, the respondent No. 3 has not been able to carry out the exercise at the field level. 15. In view of the above, I am of the considered opinion that this writ petition can be disposed of by directing the respondent No. 3 to carry out a proper enquiry at the field level and thereafter, carry out demarcation of the boundary between the two contesting villages. The said exercise will be carried out, if need be, by constituting a committee under the supervision of the respondent No. 3 consisting of such persons as may be deemed fit by the respondent No. 3. The committee so formed would carry out the demarcation of the boundary of both the villages by following the prescribed norms and also in presence of authorized representatives of both the contesting villages after hearing their grievances. The demarcation as directed hereinabove would be completed as expeditiously as possible, preferably within a period of 06 (six) months from today, on the basis of proper survey and enquiry, having due regard to the background facts and without being influenced by any observation made by this Court in this order. 16. It is further provided that on completion of such demarcation the respondent authorities would be at liberty to publish appropriate notification indicating the boundary of the petitioner village as well as respondent No. 6 village on the basis of finding of fact recorded by the respondent No. 3. Such notification would be deemed to have been issued in supersession of the earlier notification dated 03-02-1992 as well as 03-02-2012, thereby laying down the correct boundary description of the petitioner village as well as respondent No. 6 village respectively. Such notification would be deemed to have been issued in supersession of the earlier notification dated 03-02-1992 as well as 03-02-2012, thereby laying down the correct boundary description of the petitioner village as well as respondent No. 6 village respectively. Until the above exercise is carried out and fresh notifications are issued demarcating boundaries as aforesaid, both villages to maintain status quo with regard to their respective possession. With the above observation this writ petition shall stand disposed of.