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2019 DIGILAW 62 (MEG)

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

2019-03-06

H.S.THANGKHIEW

body2019
JUDGMENT : 1. Heard Ms. S.G. Momin, learned counsel for the petitioner and Mr. S. Dey, learned counsel for the respondent No. 1 and 2 as well as Mr. H.L. Shangreiso, learned counsel for the respondent No. 3 and 4. 2. This writ petition is directed against the order dated 31.08.2016 passed by the Learned Chief Executive Member GHADC in GHADC Rev/Appeal No. 57 (A/c) of 2015 by which the writ petitioners claim to Nokmaship of Malchapara Akhing has been dismissed. 3. The case the petitioners is that they represent the Cheran Sangma Clan of Malchapara Akhing in West Garo Hills and that many years ago due to the onslaught of some epidemic, the petitioners clan left the said Akhing and that due to the absence of the Cheran Sangma Clan the respondents who belong to the Agitok Jamdam Sangma clan took possession of the Akhing and have continued management of the said Akhing till date. 4. The petitioners then to reclaim their right, filed a petition before the Court of the Executive Member In-charge Revenue, GHADC at Tura which was numbered as GDC Revenue No. 19 A/C of 2013 with a prayer therein that the registration of Akhing Nokmaship of Malchapara Akhing registered in the name of Shri. Mijendro B. Marak along with his wife Smti. Goldinish A. Sangma of the Agitok Jamdam Sangma clan be cancelled, and thereafter to register the names of the petitioner through Shri. Gelson Ch Marak along with his wife Smti. Tirilla Cheran Sangma in their place. 5. The Learned Executive Member In-charge Revenue thereafter took up the matter and the private respondents herein, entered appearance and filed a written statement raising certain objections that there was no cause of action and more specifically that the claim of the petitioner was barred by the principles of waiver and acquiescence. They also submitted that the petitioners have no locus standi to interfere in the matter ownership of the Akhing, inasmuch as, the respondents clan have been registered Nokmas right from the year 1925 and the same had been recorded by the then Deputy Commissioner Shri. G.D. Walker. The question of the same being barred by limitation was also raised by the private respondents and they submitted that the petitioners have no legal right to elect or select anyone as Akhing Nokma. 6. The question of the same being barred by limitation was also raised by the private respondents and they submitted that the petitioners have no legal right to elect or select anyone as Akhing Nokma. 6. The Learned Executive Member Land Revenue, by order dated 10.08.2015 took up the matter and after hearing the parties who had filed their suggested issues, framed the same accordingly and fixed the case for the evidence. Being aggrieved by the order dated 10.08.2015 passed by the Executive Member Land Revenue the respondents No. 3 and 4, herein preferred an appeal before the Chief Executive Member GHADC, which was registered as an appeal No. A/C of 2015, assailing the order on amongst other grounds that the Learned Executive Member In-charge Revenue by the order dated 10.08.2015 had at the stage of framing of issue itself directed that evidence be lead without framing preliminary issues as to waiver and acquiescence and whether the petition was at all maintainable. 7. The Learned Chief Executive Member then by the order dated 31.08.2016, after hearing both the parties, allowed the appeal by holding that the petitioners herein, have no cause of action that they slept over their rights for last 87 years and at such a late stage there were no sufficient reasons to disturb the ownership and management of Malchapara Akhing by the private respondents and as such disposed of the matter. 8. Heard learned counsel for the parties, Ms. S.G. Momin has vehemently submitted that the order of the Learned Chief Executive Member has usurped the jurisdiction of the Learned Executive Member In-charge Revenue, inasmuch as, without due process of law and without adhering to the fundamental principles of judicial procedure has taken up the appeal and disposed of the same. She further submits that in such matters, any point of law that has to be adjudicated should be in a manner as laid down in para 20 of the judgment of the case of Smti. Dore Sangma & Ors. v. CEM GHADC & Ors. reported in (1988) 2 GLR 120. She further submits that the same not being in consonance with the said judgment, the impugned order passed by the Chief Executive Member is bad in law, and the same should be set aside and the matter be directed to be heard afresh by the Learned Executive Member In-charge Revenue. 9. Per contra, Mr. reported in (1988) 2 GLR 120. She further submits that the same not being in consonance with the said judgment, the impugned order passed by the Chief Executive Member is bad in law, and the same should be set aside and the matter be directed to be heard afresh by the Learned Executive Member In-charge Revenue. 9. Per contra, Mr. S. Dey, learned counsel for the respondent has argued that there is no infirmity in the order, inasmuch as, the Chief Executive Member has fully complied with the basic requirements for trial of such cases. He submits that the Chief Executive Member while considering the claim of Nokmaship by the petitioners has gone in depth into the matter, and has come to a finding that the petitioners could not justify their claim for Nokmaship and they also failed to produce any documents in support of their stated claim. As such, he submitted that the Nokmaship of the private respondents being unchallenged for 87 years and the fundamental principles of judicial procedure having been followed in disposing of the appeal, there is no ground of interference by this Court and the writ petition should be dismissed. 10. Mr. H.L. Shangreiso, learned counsel on behalf of the respondent No. 3 and 4 has supported the submission of the counsel for the respondent No. 1 and 2, and further submits that once a particular Akhing since its inception has stood registered in the names of the Respondents 3 and 4 clan with definite boundaries, the same cannot be claimed, settled or registered with any other person or clan. 11. Having heard learned counsels for the parties and after careful consideration of the materials on record, it is seen that the proceedings which were instituted at the instance of the petitioner was at a very nascent stage before the Executive Member In-charge Revenue. The order reflects that, only the suggested issues had been filed by the parties and issues had then been framed by the Executive Member, but he however, had directed for recording of evidence, which the respondent No. 3 and 4 were highly aggrieved with, and had therefore preferred the Appeal before the Chief Executive Member. 12. The order reflects that, only the suggested issues had been filed by the parties and issues had then been framed by the Executive Member, but he however, had directed for recording of evidence, which the respondent No. 3 and 4 were highly aggrieved with, and had therefore preferred the Appeal before the Chief Executive Member. 12. On examination of the impugned order passed by the Learned Chief Executive Member, it is found that he has gone far beyond the scope of the appeal, inasmuch as, he had proceeded to decide the entire matter finally by dismissing the claim of the writ petitioners at the appellate stage itself when the matter before the learned Executive Member was at the initial stage only. 13. The respondent counsels, thereafter in the course of dictation of this order in the open court, submitted jointly they would have no objection if the matter is remanded back to the Court of the Learned Executive Member In-charge Revenue to be tried afresh. However, the respondent No. 3 and 4 has pointedly submitted that the issue specifically with regard to the waiver and acquiescence of the writ petitioners for long 87 years and whether at this stage they could come back and claim the ownership Akhing should be taken up as a preliminary issue and that the learned Executive Member should first render a finding on the maintainability of the claim before going on to decide any other issues. 14. I find force in the submissions of the learned counsels for the respondents. As such, for the ends of justice, it is accordingly directed that the instant matter be remanded back to the Court of the Learned Executive Member In-charge Revenue to try the matter afresh, but to first frame the preliminary issues on the maintainability of the petition of the writ petitioners and render findings as to whether there exist any sufficient grounds for condoning the long time lapse of 87 years and whether the petition and the claim of the writ petitioners is barred by the principles of waiver estoppel and acquiescence. 15. The impugned order dated 31.08.2016 passed by the Learned Chief Executive Member as such in view of the foregoing reasons is set aside and the matter is remanded back to the Court of the Learned Executive Member In-charge Revenue to proceed with the matter in a manner as stated above. 16. 15. The impugned order dated 31.08.2016 passed by the Learned Chief Executive Member as such in view of the foregoing reasons is set aside and the matter is remanded back to the Court of the Learned Executive Member In-charge Revenue to proceed with the matter in a manner as stated above. 16. Further in taking up the matter afresh, the Executive Member Land Revenue will not be influenced by the findings recorded in the impugned order which has been aside, and shall arrive at fresh findings firstly on the preliminary issues as indicated above. 17. The writ petition is allowed and disposed of. 18. No order as to costs.