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2018 DIGILAW 69 (MEG)

Intak Ch. Marak v. G. H. A. D. C.

2018-10-08

MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Dispute between the petitioner and respondent No. 3 pertains to Gongrang stream with its tributary. Mauzadar of Mauza No. 1, Garo Hills District Council, Tura has conducted the enquiry regarding A'khing boundary dispute between Darengiri I-6 and Dagal Gopgiri I-6. In his report submitted to the Executive Member I/C Revenue Branch GDC, Tura dated 06.06.2002 has stated that the matter is required to be looked into on the basis of the records available in the office of the Executive Member. He has further reported that in both the Nokma's maps, Gongrang stream (mamong) exist, on that basis both the parties claim "Gongrang stream" to be within their respective A'khing. 2. It is to be made clear that the petitioner and respondent No. 3 are separate Nokma's having their separate A'khing but are adjacent to each other. The boundary line marked by "Gongrang stream" has given rise to a dispute, as both the Nokma's are claiming the "Gongrang stream" to be part of their A'khing. 3. The Executive Member I/C Revenue in GDC, Tura after considering the report submitted by the Mauzadar and the enquiry report which was Serial No. 07 Regular List submitted by the earlier Mauzadar has declared that A'khing dispute in question belongs to Dagal Gopgiri A'khing land. Dissatisfied with the said order dated 16.10.2008 of the Executive Member, the respondent No. 3 filed an appeal under Section 8 (2) of the Garo Hills Autonomous (Social, Customs and Usages) Validating Act, 1958 before the Chief Executive Member. 4. The Chief Executive Member (Appellate authority) while considering the entire records, after reference to the record of 1915 reached to the conclusion that the said stream is part of A'khing of respondent No. 3, appeal was accordingly allowed and order of the Executive Member dated 16.10.2008 has been set aside. The petitioner aggrieved by the order dated 26.08.2014 of the Chief Executive Member has filed the instant writ petition. 5. Learned counsel for the petitioner would submit that the Chief Executive Member was adamant to decide the matter in favour of respondent No. 3 that is why he has called for the report from Mauzadar twice. In view of a clear report regarding demarcation done in the year 1930, there was no requirement of enquiring the matter again and again. Learned counsel for the petitioner would submit that the Chief Executive Member was adamant to decide the matter in favour of respondent No. 3 that is why he has called for the report from Mauzadar twice. In view of a clear report regarding demarcation done in the year 1930, there was no requirement of enquiring the matter again and again. Further added that the Chief Executive Member while deciding the appeal has not adhered to the principles of judicial procedure as were evolved by the Division Bench of the Gauhati High Court while rendering the judgment in the case of Smti. Dore Sangma and Ors. vs. The Chief Executive Member, Garo Hills District Council, Tura & Ors. reported in (1988) 2 GLR 120. 6. Learned counsel for respondent No. 3 in opposition stated that even the Member who passed the order dated 16.10.2008 has not followed the said procedure, in fact, it was for him to follow the said procedure while dealing with the matter initially. 7. After considering the rival submissions of the learned counsel for the parties, it is quite clear that a disputed questions of fact have remained to be resolved, i.e., whether "Gongrang stream" was part of A'khing of the petitioner or A'khing of respondent No. 3. There are two maps as was reported by the Mauzadars, one belonging to the A'khing of the petitioner and another belonging to A'khing of respondent No. 3, in both the maps, the stream exists. Another disputed question is the demarcation of 1930 as well as demarcation of 1915. Such disputed questions of fact require a regular trial which has not been done. Regular trial means trial in accordance with the governing fundamental principles of judicial procedure as have been evolved by the Division Bench of Gauhati High Court in the judgment as referred to above. Paragraph 20 of the said judgment is advantageous to be quoted: "20. For all these reasons, we would hold that the Revenue Member alone has jurisdiction to decide the types of disputes at hand. But then while doing so, the Revenue Member has to follow the fundamental principles of judicial procedure; these being: (i) framing of issues which has been regarded as necessary for courts to get the grip of the case. (See Vindeo vs. Ziakruool, (1983) 1 GLR (NOC) 34). But then while doing so, the Revenue Member has to follow the fundamental principles of judicial procedure; these being: (i) framing of issues which has been regarded as necessary for courts to get the grip of the case. (See Vindeo vs. Ziakruool, (1983) 1 GLR (NOC) 34). (2) Opportunity to lead evidence on the issues framed - the evidence given could be recorded in full or summary of the same could be noted. (3) hearing of the parties themselves or through their lawyers if engaged. This apart, some other accepted principles of sound judicial procedure like not allowing a document to be used in a case without the other side having been given opportunity to rebut the same should also be followed when the case is taken up by the Revenue Member in the first instance or by the Chief Executive Member on appeal." 8. The learned counsel for the parties, confronted with the position of law and procedure, agreed for setting aside both the orders i.e., of the Chief Executive Member and of the Executive Member, rightly so, because the disputed questions of fact cannot be decided in writ proceedings. Both Executive Member and Chief Executive Member have committed error in not following the proper procedure and in not addressing the issues in their right perspective, therefore, in that background indulgence is warranted. Writ petition as such is allowed, both orders passed by the Chief Executive Member dated 26.08.2014 as well as order dated 16.10.2008 passed by the Executive Member are set aside. The Executive Member I/C Revenue, Garo Hills District Council, Tura shall hold the de novo trial, hear both the parties after following the procedure as referred above shall decide the matter afresh with promptitude. 9. Learned counsel for the petitioner as well as for respondent No. 3 shall advice their clients to appear before the Executive Member (I/C), Revenue, Garo Hills District Council on 12.11.2018. At the request of the learned counsel for the parties, date for appearance before the Executive Member is fixed on 12.11.2018. 10. Copy of this order be sent to the Chief Executive Member as well as the Executive Member I/C Revenue along with the respective records forthwith. 11. Petition shall stand disposed of as above.