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2020 DIGILAW 13 (MEG)

Gujeng Marak v. G. H. A. D. C.

2020-03-04

H.S.THANGKHIEW

body2020
ORDER : H.S. Thangkhiew, J. 1. By means of the instant writ petition the petitioners have assailed the orders dated 20.12.2011 passed by the E.M In-charge Revenue, GHADC and order dated 16.04.2015 passed by the Chief Executive Member, GHADC on the ground that the orders so passed, were without jurisdiction and made in exercise of powers not vested upon them by law. This challenge is based on the premise that the Executive Members are only vested with powers to adjudicate on matters arising from, or relating to any Akhing dispute as per the Garo Hills Autonomous District Council (Social Customs and Usages) Validating Act, 1958, and they do not exercise any other judicial functions pertaining to civil disputes. 2. Heard Ms. S.G. Momin, learned counsel on behalf of the petitioner and Mr. S. Dey, learned counsel on behalf of the respondent No. 1 to 3 and Mr. A.G. Momin, learned counsel on behalf of the respondent No. 4. 3. Ms. S.G. Momin, learned counsel submits that the point of issue in the writ petition is in the exercise of powers by the Executive Member In-charge Revenue of the GHADC in passing an order that amounts to a Money Decree, when no such power has been vested upon them to do so. Alluding to the facts, learned counsel submits that the petitioner No. 1 and the respondent No. 4, are joint Nokmas of their Akhing which is known as Gandupara, wherein there is situated a Rubber Plantation which has been started since 1988-89, and the profits and proceeds arising therefrom used to be shared among the cultivators, who were the clan members themselves as per customary practice. She submits that one Shri. Tangan Sangma the predecessor of Respondent No. 4 sometime in 2007, had obtained an ex-parte order dated 14.06.2007 from the Executive Member In-charge Revenue with regard to rights over the said plantation apart from also restraining the petitioners from operating the same. Learned counsel submits that the said proceedings were conducted without issuance of notice to the petitioners, who then moved for vacation of the said order. Learned counsel submits that the said proceedings were conducted without issuance of notice to the petitioners, who then moved for vacation of the said order. However, she submits in the meantime, the petitioners' other clan members approached this Court by way of WP(C) No. 249(SH) of 2007 and this Court was pleased to stay the operation of the order dated 14.06.2007 passed by the Executive Member In-charge Revenue and by order dated 20.10.2010 the writ petition was disposed of with a direction to the District Council to adjudicate the dispute as per law. 4. Learned counsel submits that thereafter while the petitioners were expecting that the matter would be adjudicated as per procedure established by law, were surprised when they came to learn about the order dated 20.12.2011, whereby the Executive Member In-charge Revenue had ordered that the Respondent No. 4 was entitled to 50% of the proceeds of the Rubber plantation which was assessed at Rs. 6 to 7 Lakhs per annum. Learned counsel submits that they came to learn about the existence of the order only on 24.04.2014, and after obtaining a certified copy on 07.05.2014, preferred an appeal before the Chief Executive Member GHADC, which was numbered as G.D.C. Revenue Appeal No. 38A/C of 2014. Learned counsel submits that amongst others, a ground had been taken that the dispute was a civil dispute between the members of the Garo Schedule Tribe and as such, should be adjudicated under the provisions of The Garo Hills Autonomous District (Administration of Justice) Rules, 1953. She submits that however, the Learned Chief Executive Member by order dated 16.04.2015, upheld the order of the Executive Member In-charge Revenue for which the petitioners are before this Court. 5. Learned counsel submits that the orders, both of which are impugned herein, are without any jurisdiction, inasmuch as, the dispute related to a monetary claim based on the principle of realization of damages by way of civil action, which is not maintainable under Section 8(1) of the Garo Hills Autonomous District Council (Social Customs and Usages) Validating Act, 1958, which bars civil suits only with regard to disputes in the matter of succession of Nokmaship of any Akhing, or any other matter relating to or connected with any Akhing. She submits that the proceedings initiated by respondent No. 4, being a damage suit therefore cannot be adjudicated by the Executive Member In-charge Revenue as the same was not a dispute over Nokmaship or boundaries of an Akhing and as such was beyond their jurisdiction. Learned counsel then referred to the proviso of Rule 11 of The Garo Hills Autonomous District (Administration of Justice) Rules, 1953 which stipulates that the Chief Executive Member or a member of the Executive Committee or any other member of the District Council shall not be entitled to hold office as Judicial Officers of the District Council Court. In this context, she contends that the nature of the dispute being civil, the Executive Members being debarred from occupying any judicial office by operation of the Rules 1953, had usurped the powers of the Judicial Officers of the District Council Court in adjudicating the matter. She submits that the law being clear in this regard as to respective jurisdictions and powers, the impugned orders are bad in law and are to be set aside and quashed and the dispute if any should be before the District Council Courts. 6. In reply to the submission of the learned counsel for the petitioner Mr. S. Dey, learned counsel for the respondent No. 1 to 3 and Mr. A.G. Momin, learned counsel for the respondent No. 4 more or less have tendered identical submissions and submitted that jurisdiction was not barred inasmuch as, the dispute which has arisen from the sharing of profits from the Rubber Plantation is not a personal dispute between the petitioner and the respondent No. 4, as the rubber plantation is on the Akhing land and that the answering respondent No. 4's clan is also entitled to a share of the said profits. It is submitted therefore, that the dispute though not a dispute regarding Nokmaship is however centered around the assets of the Akhing and the same was well within the jurisdiction of the Executive Member In-charge Revenue, GHADC under Section 8(1) of the Garo Hills Autonomous District Council (Social Customs and Usages) Validating Act, 1958. The counsels contend that there being no infirmity in the exercise of jurisdiction, the impugned orders are sustainable in law, and the challenge put forward by the petitioners are without any merit. As such, it is prayed by the respondents that the writ petition be dismissed. 7. The counsels contend that there being no infirmity in the exercise of jurisdiction, the impugned orders are sustainable in law, and the challenge put forward by the petitioners are without any merit. As such, it is prayed by the respondents that the writ petition be dismissed. 7. I have heard learned counsels for the parties. The point of contention in the instant application is limited to one issue, and that is whether the Executive Member In-charge Revenue and the Chief Executive member, GHADC were correct in entertaining the case of the respondent No. 4 and adjudicating the same under the provisions of the Garo under Section 8(1) of the Garo Hills Autonomous District Council (Social Customs and Usages) Validating Act, 1958. In this regard, it would be apposite to quote here under Section 8 of this Act which will be relevant for the purposes of deciding this case. The same reads as follows: "8(1). Whenever a vacancy occurs in the office of a Nokma of any Akhing or there arises any dispute in the matter of succession of Nokmaship of any Akhing or any dispute with regard to any other matter relating to or connected with, any Akhing and the boundaries thereof, the matter shall be referred, in the first instance, to the Revenue Member for disposal in accordance with the customary practice and the usages of the Garos." This Act of 1958, as the title indicates and also the object stated therein, was enacted to validate social customs and usages which are prevalent in the Garo Hills which are not against morality or public policy. The succession to the office of Nokmaship of any Akhing being practiced as per custom, as also other related issues to this office were therefore by the operation of Section 8(1) of this Act of 1958 put under its purview to the exclusion of Civil Courts as provided by Section 11 of this Act. This premise being a settled position as to the jurisdiction of the Executive Member In-charge Revenue, this Court is to examine as to whether it was the competent forum to decide the dispute in question. 8. This premise being a settled position as to the jurisdiction of the Executive Member In-charge Revenue, this Court is to examine as to whether it was the competent forum to decide the dispute in question. 8. The case as put up by the petitioner apart from other grounds is that the question pertaining to the determination of civil rights of the party is essentially a subject matter within the jurisdiction of Civil Courts and cannot be decided by the Revenue Member. The instant dispute admittedly concerns only the alleged non-payment of the share of profits from the proceeds of the sale of rubber from the rubber plantation by the petitioner to the respondent No. 4. This essentially is purely a dispute which is monetary, and has no bearing or does it concern any matter connected with the office of the Nokma or related to any boundary dispute. The impugned orders on examination also substantiate the fact that the same is a monetary dispute, inasmuch as, even the directions contained therein are in essence and purport like a Money Decree. 9. The Garo Hills Autonomous District (Administration of Justice) Rules, 1953 as enacted provides for the Constitution of Courts, their extent, jurisdiction and also the procedure to be adopted. These Rules govern the function and the exercise of powers of the Courts constituted under these Rules from the village court level upto the District Council Courts. Rule 11 of these Rules, provides for the appointment of Judicial Officers of the District Council Courts but the proviso thereto, specifically bars the appointment of the Chief Executive Member, Member of the Executive Committee or any member of the District Council from holding the office of Judicial Officer of the District Council Court. It is before these Courts that all other disputes between the members of the Garo Schedule Tribe which are outside the purview of the Act, 1958 are to be brought. The instant dispute being purely civil in nature, therefore could not be adjudicated before the Revenue Member of the GHADC, and further the Revenue Member or any member of the District Council thereof, being barred from holding office of Judicial Officer, the assumption of jurisdiction by the Revenue Member and upheld by the Chief Executive Member, is therefore without any jurisdiction and contrary to the provisions of the Garo Hills Autonomous District Council (Social Customs and Usages) Validating Act, 1958. 10. 10. For the foregoing reasons, this writ petition is allowed and the impugned orders dated 20.12.2011 and 16.04.2015 are set aside and quashed. 11. No order as to cost.