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2017 DIGILAW 70 (MEG)

Prosthina M. Sangma v. Kolami Sangma

2017-10-23

DINESH MAHESHWARI, VED PRAKASH VAISH

body2017
JUDGMENT : Dinesh Maheshwari, J. This intra-court appeal is directed against the order dated 06.03.2017 as passed in WP(C) No. 265 of 2014 whereby, the learned Single Judge of this Court has not approved the impugned orders passed by the authorities of the Garo Hills Autonomous District Council ['GHADC'] on 07.12.2009 and 17.12.2013; and has directed the Chief Executive Member, GHADC to carry out the proceedings afresh and to determine the contentious issues in accordance with the guidelines given in the previous order dated 03.09.1996 in WP (SH) 54 of 1991. 2. The dispute herein, between the appellant on one hand and the respondents No. 1 and 2 on the other, relates to Nawa Rongcheng A'khing No. 1-1(5) of which, the appellant claims to be the Nokma. The case of the appellant is that the predecessors of the private respondents left the said A'khing in the year 1940 and started settling in West Khasi Hills but then, the private respondents lodged a claim over the said A'khing after a lapse of about 40 years. It is noticed that the said respondents filed a review petition before the Executive Member I/c Revenue, GHADC that was dismissed and the appeal filed by the respondents was also dismissed by the Chief Executive Member, GHADC on 11.04.1991. Thereafter, the private respondents preferred a writ petition before the Shillong Bench of Gauhati High Court, being WP (SH) 54 of 1991, which was disposed of by the order dated 03.09.1996 with directions to the appellate authority to independently examine the matter afresh while also providing that the predecessors of the present appellant, who were respondents No. 2 and 3 in the said writ petition, would remain as Nokma of the A'khing in question as a stop-gap arrangement. It appears that the said predecessors of the appellant attempted to maintain a time-barred writ appeal but the application for condonation of delay therein was rejected on 03.07.1998. It appears further that after the order aforesaid and before any other proceeding, the said predecessors of the appellant expired and thereafter, the appellant was appointed as Nokma on 07.12.2009. The private respondents of this appeal, thereafter, approached the Chief Executive Member, GHADC for consideration of the matter afresh but the Chief Executive Member, rejected their claim by the order dated 17.12.2013, which was questioned in the writ petition leading to this appeal. 3. The private respondents of this appeal, thereafter, approached the Chief Executive Member, GHADC for consideration of the matter afresh but the Chief Executive Member, rejected their claim by the order dated 17.12.2013, which was questioned in the writ petition leading to this appeal. 3. The learned Single Judge of this Court took note of the admitted position that after the earlier round of litigation in the Shillong Bench of Gauhati High Court, the record relating to the matter remained untraceable and the same was never transmitted to the office of the GHADC. The learned Single Judge wondered as to how any effectual decision could have been taken by the subordinate authority in the absence of evidence and other documents and, therefore, while disapproving the order dated 07.12.2009 as passed by the Executive Member I/c Revenue, GHADC in GHADC-Rev No. 109 A/C of 2009 as also the order dated 17.12.2013 as passed by the Chief Executive Member in GHADC-Rev. No. 20 A/C of 2011, the learned Single Judge directed the Chief Executive Member to start the proceedings afresh and to proceed with fresh evidence and issues as per the guidelines in the aforesaid order dated 03.09.1996. The learned Single Judge also directed the Registrar General of this Court to trace out the related record of the Shillong Bench of the Gauhati High Court and to transmit the same to the District Council, if found. The learned Single Judge concluded on the writ petition with the following observations and directions: "6. After hearing the submissions advanced by the learned counsels for the parties, I could not understand in absence of evidence and other documents, how a prudent and effective judgment was passed by the Trial Court, which in my view is not possible at all. Therefore, I feel a fresh time bound trial is necessary to find and to give proper adjudication. Therefore, the impugned order dated 07-12-2009 passed by the Executive Member, I/c Revenue, GHADC in GHADC-Rev No. 109 A/c of 2009 and impugned order dated 17-12-2013 passed in GHADC-Rev/No. 20 A/C of 2011 by CEM, GHADC are hereby set aside. CEM GHADC is directed to start fresh proceedings and to proceed with fresh evidence and issues in accordance with the guidelines given in the judgment passed by the Hon'ble High Court in WP (SH) 54 of 1991, dated 03-09-1996. 7. CEM GHADC is directed to start fresh proceedings and to proceed with fresh evidence and issues in accordance with the guidelines given in the judgment passed by the Hon'ble High Court in WP (SH) 54 of 1991, dated 03-09-1996. 7. In the meantime, Registrar General is directed to find the case record bearing Civil Rule No. 3579 of 1991/W.P.(SH) 54 of 1991 in the case of Shri. Kolami Sangma v. State of Meghalaya & Ors. immediately and if found, to be transmit to District Council. 8. With the observation and direction, the instant writ petition is allowed and stands disposed of." 4. Having regard to the subject matter of this intra-court appeal and the directions in the order impugned, while taking up this appeal for consideration, we directed the Registrar General to make necessary search and submit specific report as regards the referred record. The Registrar General has now made a detailed report dated 12.10.2017, inter alia, pointing out that despite all possible efforts, the related record could not be traced. 5. In the totality of the facts and circumstances of the case, when the peculiar fact remains rather indisputable that while passing the impugned order dated 17.12.2013, the related record was not available before the authority concerned, we are at one with the learned Single Judge that the adjudication as said to have been made cannot be approved. Therefore, we find no case for interference in this appeal. 6. Learned counsel for the appellant has, however, attempted to argue that with setting aside of the orders dated 07.12.2009 and 17.12.2013, a rather incongruous position has been brought about whereby the appellant, who was otherwise continuing as Nokma, may be prejudiced in relation to her present status. In regard to these submissions, only a little clarification would suffice. 7. It is noticed that in the earlier round of litigation, the learned Single Judge of Shillong Bench of Gauhati High Court, while disposing of the writ petition filed by the present respondents [WP (SH) 54 of 1991], and while restoring the matter for reconsideration of the Chief Executive Member, GHADC, also made interim arrangement so as to continue the respondents No. 2 and 3 of the said writ petition as Nokma of Nawa Rongcheng A'khing as a stop-gap arrangement. The learned Single Judge finally issued the directions in the order dated 03.09.1996 as follows: "The learned Chief Executive Member shall accordingly examine the entire matter afresh giving opportunity to the respective parties preferably within 3 (three) months from the date of receipt of certified copy of this order. It is, however, made clear that until the case is finally disposed of by the learned Chief Executive Member, the Respondent Nos. 2 and 3 shall remain as a Nokma of Nawa Rongcheng as a stop-gap arrangement. It is, however, made clear that this Court has not adjudicated the respective rights of the petitioner Nos. 1 and 2 as well as the Respondent Nos. 2 and 3 and therefore allowing the Respondent Nos. 2 and 3 to act as Nokmas of the Akhing land should not, therefore, be treated as a seal of approval of their appointment. The writ petition is accordingly allowed to the extent as indicated above." 8. The present appellant claims to be the successor-in-interest of the respondent No. 3 of WP 54 (SH) of 1991, as being her daughter. If the appellant answers to such a status and lineage; and does not suffer from any other disqualification for being appointed as Nokma then, the directions in the order dated 03.09.1996 in relation to the respondents No. 2 and 3 therein are, obviously, applicable to her too. In the totality of circumstances of the case, we are also of the view that in case of any other requirement, the parties concerned may apply for interim relief afresh before the Chief Executive Member, GHADC so as to ensure proper management of the A'khing in question. 9. Having regard to the circumstances of the case, it appears appropriate that for the purpose of re-construction of the record, the respective parties may supply all the documents/copies available with them. After such submissions of the documents/copies, the learned Chief Executive Member, GHADC shall get the record re-constructed and shall carry out such further inquiry as deemed necessary; and shall take the decision afresh, while making an endeavour to conclude the matter expeditiously, preferably within six months from the date of first appearance of the parties. 10. With the observations and directions foregoing, this appeal stands disposed of. The parties through their respective counsel shall stand at notice to appear before the learned Chief Executive Member, GHADC on 20.11.2017.