Meghalaya High Court
Smt. Sibilish M Sangma vs . G.H.A.D.C & Ors. on 11 March, 2019
Author: H.S.Thangkhiew
Bench: H.S.Thangkhiew
Serial No.01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 210 of 2016 Date of Decision: 11.03.2019
Smt. Sibilish M Sangma Vs. G.H.A.D.C & Ors.
Coram:
Hon'ble Mr. Justice H.S.Thangkhiew, Judge
Appearance:
For the Petitioner(s) : Mr. R. Kar, Adv. with
Ms. S.G. Momin, Adv.
For the Respondent(s) : Mr. S. Dey, Adv. (For R 1-3)
Mr. K.S. Kynjing, Sr. Adv. with Ms. I.L. Mawphlang, Adv. (For R 4).
1. Heard Mr. R. Kar, learned counsel assisted by Ms. S.G. Momin, learned counsel for the petitioner and Mr. S. Dey, Standing Counsel G.H.A.D.C for the respondent No. 1 to 3 and Mr. K.S. Kynjing, learned Sr. counsel assisted by Ms. I.L. Mawphlang, learned counsel for the respondent No. 4.
2. The brief facts leading to this instant writ petition are as under :
The Petitioners are the members of the Mansang Kalcheng Clan and the Private Respondent No. 4 is a member of the Chambugong Wage Clan. The case of the Petitioners is that many years ago, the Daronggre II-20 (16) A‟khing land was acquired by way of purchase from the Koches by the predecessors of the Petitioners and of the respondent No. 4 that is, by both the clans jointly.
Further, the case as projected is that Daronggre Akhing was since 1926, jointly represented continuously by Nokmas from the Mansang Clan, Page 1 of 14 firstly by Shri. Jingran Marak and his wife Smti. Megan Sangma, till the present day, by Shri. Dipson Ch. Marak along with the petitioner, Smti. Sibillish M. Sangma. That as such, all along, both the Mansang and Chambugong Clans jointly possessed the rights of management of the said Akhing. In the year 2001, on the death of the alleged last recorded Nokma, Shri. Tiran Marak, the petitioner filed a petition to register her name as a Co-Nokma of the said Akhing before the GHADC. The said case was registered as G.D.C/Rev/Case No. 8 A/C of 2001- 2002.
The Executive Member, In- Charge Revenue rejected the claim of the petitioner and on appeal, being preferred, the same was not interfered with by the CEM, GHADC. The petitioner there by, being aggrieved, approached this Court by way of WP(C) No. 96 (SH) of 2010. This Court, by order dated 14.09.2011, was then pleased to set aside the order dated 07.01.2009, passed by Learned Executive Member, In- Charge Land Revenue/ G.H.A.D.C, and also the appellate order dated 05.02.2010 passed by Chief Executive Member, G.H.A.D.C, and directed for a fresh trial of the matter, and to decide the same after affording adequate opportunity of hearing to both the parties.
On remand, the matter was taken on board before the Learned Executive Member, In-Charge Revenue and the same was registered as G.H.A.D.C/REV. 25 A.C of 2011. The Learned Executive Member framed as many as eleven issues and examined witnesses from both sides. After adjudicating the matter, the Learned Executive Member, GHADC found that the petitioners had not been able to establish the case in any manner, and came to a finding that the petitioner‟s side were never Page 2 of 14 registered or recorded as Nokmas at any point of time. However, due to the existence of an order dated 11.01.1956, passed by the then Chief Executive Member, which indicated the existence of Mansang Clan as joint Nokmas in the Akhing, the said order prevented the said Revenue Member from rejecting the claims of the Mansang Clan totally. The reason given was that that since it was order of the CEM which is a higher office than his, he was not competent to interfere with the same. As such, by order dated 30.07.2015, he disposed of the matter by directing the parties to maintain the status as it prevailed.
The respondents, being aggrieved thereby, preferred an appeal before the Chief Executive Member, G.H.A.D.C assailing the order dated 30.07.2015 passed by the Learned Executive Member In-Charge Revenue and the same was registered as G.H.A.D.C/REV the appeal No. 54 A.C of 2015.
The Learned CEM after hearing the parties came to a categorical finding that there is no Mansang Clan Akhing in Darrongre and that whatever Mouzadar report relied upon by the petitioner to support their, was not on the basis of any order or Court direction, and as such was untenable. The appeal was thus allowed by order dated 08.06.2016, holding that Darrongre Akhing is the single Akhing of Chambugong Clan only. Being aggrieved by the appellate order passed by the Learned CEM/ G.H.A.D.C. the petitioner is now before this Court by means of the instant writ petition.
3. Mr. R. Kar, learned counsel for the petitioner submits that the petitioners right of joint Nokmaship over the Daronggre Akhing, in a most arbitrary manner, had been taken away by the order dated 08.06.2016, passed by the Learned CEM, GHADC. He submitted that Page 3 of 14 the order was passed without taking into consideration all the materials on record, and that by passing the impugned order, the same amounted to a review of the order dated 11.01.1956, passed by the then Chief Executive Member, which had recognized the joint Nokmaship of the Petitioner‟s and the Respondent‟s Clan over the Akhing.
4. The next limb of argument of the learned counsel for the petitioner, is that till date, the sanctity of the order dated 11.01.1956, passed by the then Chief Executive Member, survives, and that the same is binding upon the parties, inasmuch as, the order was passed in 1956, before coming to force of the G.H.A.D.C Social Custom and usage (Validating Act, 1958) and any challenge to the same could have been done only by way of a civil suit. The last submission of learned counsel of the petitioners is that, in passing the impugned order the Learned Chief Executive Member had travelled beyond the scope of law relevant for the purpose and as such, prayed that the impugned order dated 08.06.2016, be set aside and that the respondent be directed not to disturb the Joint Nokmaship of the Petitioners Clan, in terms of the order dated 11.01.1956 passed by the then CEM/ G.H.A.D.C.
5. The learned counsel for the respondents No. 1 to 3, have in their submissions, and by affidavit stated that there is no officially recorded Nokma registration from the petitioners side till date, with the authorities, whereas, the respondents are having documents of registered Nokmas from their side from the first registered Nokma till present day, namely :
(i) Ringa Sangma and Gagan Marak,
(ii) Jingbal Sangma and Nangme Marak,
(iii) Ballindro Sangma and Somjimoni Ch. Marak.
(respondent 4)
6. He further submitted that on the remand of this matter by order of this Court dated 14.09.2011,the Learned EM, had considered and examined the matter in fine detail, and came to a finding that there was no cause of action for the petitioner to maintain her claim and also that there was no registered Nokma from their side. However, he submitted Page 4 of 14 that the order was not totally given in favour of the respondent No. 4,in spite of being satisfied on all counts, on a wrong impression about the operation of the order dated 11.01.1956, which was taken into consideration and given undue weightage, in spite of the fact, that there was a direction from this Court to consider the matter afresh by directing for a fresh trial.
7. The further, submissions advanced by the learned counsel were that none of the documents produced by the petitioners were made pursuant to any enquiry or on the basis any order issued by any competent authority, and even the alleged certificate of the Learned Executive Member dated 03.12.2003, is not based on any finding or enquiry but made on a misrepresentation. Similar, is his contention with regard to the self-report of the mouzadar dated 1926, which he stated was not made on the basis of any revenue proceeding, as should have been the case in such matters. As such, he submitted that no reliance could be placed on these documents which were produced by the petitioners and they were to be disregarded in their entirety.
8. His last submission was that the matter as it stood, the documents furnished by the petitioners being not based on any enquiry or any order of a competent authority, cannot destroy the findings of the Learned Executive Member recorded on 30.07.2015 and the appellate order of the Learned Chief Executive Member which were passed after minute consideration all of the facts and circumstances relevant thereto.
9. Mr. K.S. Kynjing, learned Sr. counsel assisted by Ms. I.L. Mawphlang, learned counsel for the respondent No.4, submits that the Daronggre Akhing was first acquired by Late Shri. Darong Sangma and his wife Smti. Khimdi Ch. Marak. Since, then the Akhing was called Daronggre Akhing, after the name of the first Nokma Shri. Darong Sangma in his honour. He stated that the said Akhing was in the peaceful and exclusive possession of the Chambugong Clan and all official correspondences/works in connection with Daronggre Akhing before and after its registration were done by, and in the name of the Page 5 of 14 Akhing Nokma of Chambugong Clan without any interference from the Petitioners, or their predecessors in interest.
10. It is the submission of the learned senior counsel that the official creation and registration of Daronggre Akhing was completed on 29.05.1925, and the entire documents and map etc. were in the name of Ringa Sangma Nokma and the same was approved by the then Deputy Commissioner without any objection from any quarter. He then refers to the genealogical tree of the Chambugong Clan of Daronggre Akhing, and orders dated 02.12.1958 and 05.06.1989 passed by the Executive Member In-Charge Land Revenue/G.H.A.D.C. whereby successor Nokmas was recorded. He drew the Courts attention to the fact that the succession of the said Nokmas, was done as per procedure and was registered and approved by the competent authority, as reflected in the order dated 02.12.1958 and the last order dated 05.06.1989 by virtue of which the present Nokma (Respondent No. 4) is holding office.
11. The learned counsel contended that the report dated 13.05.1926 of the Mouzadar, by which the petitioner have tried to base their claim upon, is without the signatures of Ringa Sangma the then Nokma nor does it bear the signatures of any Chra (Male Members) of Chambugong clan. That apart, he submits, there was no enquiry, or any order by any competent authority ordering the same before making the said Mouzadar Report dated 13.05.1926, and as such the said Mouzadar Report is clearly a manufactured document made at the behest of the Mansang Clan and in connivance the Mouzadar and as such no reliance could be placed on the same.
12. In reply to the main submission of the petitioners that the order dated 11.01.1956 passed by the then CEM is binding on the parties, the learned Sr. counsel submits that the CEM being an appellate authority in these matters, he was not the competent authority to pass the order dated 11.01.1956. This aspect he states, is also fortified by the fact that the subsequent orders dated 02.12.1958 and 05.06.1989 allowing the registration of Nokmaship by the respondent of the Chambugong clan Page 6 of 14 was done by the authority concerned i.e., the Executive Member In- Charge Land Revenue GHADC.
13. The learned Sr. counsel has placed reliance on a judgment of the Gauhati High Court passed in Ringa Sangma V/s Jasang Marak Civil Rule No. 172 of 1953 published in the Unreported Cases (Assam High Court) 1954-1956 Volume 2. This case co incidentally involved the predecessors of the parties herein, and it was held, that the Chief Executive Member had no jurisdiction to entertain such cases. He submits that, therefore any such action, which had been taken by the Chief Executive Member, which had culminated in the order dated 11.01.1956, was without any jurisdiction and as such a nullity in the eye of law.
14. Learned Sr. counsel has also placed reliance on the Principles of Garo Law by Jangsan Sangma by referring to Chapter VIII and IX of the said authority, which deals with the office of Nokma and Akhing and his powers. He also referred to the Garo Hills Autonomous District (Administration of Justice) Rules, 1953 and has also cited the following decisions namely:
AIR 1993 Kerala 104, Full Bench.
V.V. Mammikutty Haji v. M.V. KallianiAmma (FB) Para 24. Page 123..... "When a court transcends the limits prescribed for it by law, and assumes to act where it has no jurisdiction, its adjudications will be utterly void and of no effect either as an estoppels or otherwise. A judgment pronounced by a tribunal having no authority to determine the matter in issue is necessarily and incurably void, and may be shown to be so in any collateral or other proceeding in which it is drawn in question".
Para 30. Page 126.. The ultimate decision can be challenged, in spite of „finality‟ and „exclusionary clauses‟, since the jurisdiction was assumed, where it did not exist, by wrongly deciding jurisdictional fact and the decision was not a decision under the Act, but a nullity.
AIR 2004 SC 2836 Ashok Leyland Ltd. V. State of Tamil Nadu and Another Para 116 Page 2861......... "The principle of res judicata is a prodecural provision. A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an Page 7 of 14 order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppels, waiver or res judicata. This question has since been considered in Sri Ramnik Vallabhdas Madhvani and others v. Taraben Pravinlal Madhvani (2003(9) Scale 412) wherein this court observed in the following terms......"
15. With regard, to the other arguments raised by the petitioner, the learned Sr. counsel submits that there is nothing on record to show the Nokma registration of the Mansang Clan till date, and though they are producing a document showing their family tree, the same has been prepared by themselves illegally as their names are not and were never registered as Nokmas before the GHADC. He further, submits that on the other hand, the Respondent clan is having documents of registered Nokmas from her side since the first registered Nokma till the present Nokma. He lastly submits that based on the facts and materials, the petitioners claim is not sustainable in law, more so, when in the proceedings before the Learned Executive Member In-Charge, and the Learned CEM, both the forums had come to definite findings on the status of the petitioner‟s clan claim to joint, nokmaship of the Akhing, which was in the negative, when the matter had been taken up on remand from this Court. As such, he prayed that the writ petition be dismissed.
16. I have heard learned counsels for the parties and have examined the materials on record, with due consideration to the earlier precedents on this matter especially with regard to the manner and custom governing the management of an Akhing and the appointment and succession of Nokmas.
17. An Akhing, is normally a jhum land owned by a village community. Before the advent of the District Council, the authority looking into the appointment and succession of Nokmas and the administration of Akhing was the Deputy Commissioner and all records of Akhings were maintained in his Office. With the creation of the District Council the administration is now vested with the G.H.A.D.C. Page 8 of 14 An Akhing has been defined in Regulation (II) of 1954 and Act. No. 1/60 as:-
(a) any land held by a clan or machong under the custody of head of the clan or machong called Nokma and recognised as such by the District Council.
(b) any land held collectively by a particular community of a village or group of villagers under the custody of a recognised head of the said community called Nokma.
The Regulation also describes the four different types of Akhings, that existed in the Garo Hills.
18. The succession of Akhing land, is also subject to the ordinary laws of inheritance, through the system of Nokna and Nokkrom, who are entitled to succeed to the Akhing. When this succession is effected, their names are then recognized and approved as Nokmas and entered in the records of the District Council where the genealogical table is maintained. The real owner is the wife, but for all practical purposes the husband is spoken of as a proprietor.
The real owner of the Akhing as noted earlier is the wife whose name also finds place in the Genealogical record along with the husband, who becomes the Nokma, by virtue of his marriage with her. As such, now the defined meaning of Nokma as per Section 4(8) of the „The| Garo Hills Autonomous District (Social Customs and Usages) Validating Act, 1958‟, is "head of a clan or Machong who holds any land as a custodian on behalf of the clan or Machong." The position of Nokma also being that of a guardian and manager of his wife‟s property, he cannot sell, dispose of or in any way encumber the Akhing land, or any part thereof, without the consent of his wife and her Machong.
19. In the instant case, the dispute is with regard to the claim of the petitioner to joint Nokmaship of Daronggre Akhing on the ground that the same has been acquired jointly by the Mansang clan to which the petitioner belongs, and by the Chambugong clan to which the respondent No. 4 belongs. Reliance has been placed by the petitioners Page 9 of 14 on the Mazoudar Report dated 13.05.1926 and the order dated 11.01.1956 passed by the then CEM and a certificate issued by the Executive Member In- Charge Land Revenue dated 03.12.2003 to substantiate their claim with regard to their right as joint Nokma. The Mouzadar Report, however, does not bear the signatures of Shri Ringa Sangma or his clan member who was the then duly recorded Nokma. There is no record of any statements of Shri Ringa Sangma and his clan people reflected in the said report, who as per records and findings of the learned forums below was the recorded Nokma. The fact that Ringa Sangma was the recorded Nokma is substantiated by official documents dated 29.05.1925, showing that Ringa Sangma was the Nokma. After the death of Ringa Sangma on 02.12.1958, one Jingbal Sangma and his wife succeeded to the office of Nokma and thereafter on the death of Shri Jingbal Sangma (Nokma), Ballindro Sangma and the present respondent No. 4 were registered as Nokmas on 05.06.1989.These facts, are borne out by the records that the respondent No. 4 and her clan, and her predecessors in interest, were controlling Daronggre Akhing since 1925.
20. Usually, when a joint Akhing is established Nokmas of both clans are mentioned in the same documents and their family tree is also incorporated therein. In this case, however, the only duly registered documents, which are recognized by the competent authority, is of the Chambugong clan. It is important to note herein, that in the proceedings that was conducted by the Executive Member In-Charge Revenue, on the matter being remanded by this Court, a detailed enquiry was under
taken and witnesses also were examined. The findings that emerged from these proceedings through a detailed enquiry, and record of evidence tendered by witnesses was that, since the time of Ringa Sangma the first recorded Nokma, the Akhing was being managed and controlled by the Chambugong clan and that the same was never in dispute. The only point that is noted by the learned EM In-Charge Revenue in favour of the petitioner was that one Jingran Marak a purported joint Nokma from the Mansang clan had fled to Goragre with his wife Megan Sangma. Though, Megan Sangma came back after the death of Jingran Marak, but as they had abandoned the Akhing, Page 10 of 14 whatever rights they possessed stood relinquished by the operation of Garo customary law and practice which enjoins that a Nokma can never abandon his Akhing.
21. The findings of the learned EM In-Charge Revenue which cannot be ignored, as the same are on undisputed facts and evidence, though over-whelming found in favour of the respondent No. 4 and her clan, was not decided or declared finally in favour of the respondent No. 4, due to the existence of the order of the learned CEM dated 11.01.1956, wherein it had been observed that Daronggre Akhing was not disputed to be the joint Nokmaship of the Mansang and Chambugong clan. A plain reading of the order dated 11.01.1956 reflects that the same is with regard to an application for partition of Daronggre Akhing which was not acceded to by the then CEM as there was no consent from the Maharis for the same. It is noted, that this proceeding before the CEM was before the passing of Garo Hills Autonomous District (Social Customs and Usages) Validating Act, 1958‟, which had laid down the provisions with regard to jurisdiction of the G.H.A.D.C over the Akhing matters.
22. The judgment in the case of RingaSangma V/s JasangMarak published in the Unreported Cases of the Assam High Court 1954- 1956Volume2, page 191, held that a suit for partition of an Akhing cannot be heard by the CEM as he lacks jurisdiction. This decision has been relied upon heavily by the learned Sr. counsel for the respondent No. 4.
Para 3 which is relevant is quoted herein below:
"...........It is clear that he has no jurisdiction to hear the partition suit. The proceeding which terminated by his order dated 15.5.53, and the partition suit both shall be sent by the District Council Court to some other subordinate Court competent to hear these matters,..............."
23. This Court now has to examine the effect of the order dated 11.01.1956, placed against the facts and pleaded case of the parties, as to whether this order has cemented the right and claim of the petitioners to joint Nokmaship or not. The other aspect is, in view of the observation contained therein, whether this order will operate as res-
Page 11 of 14judicata in the matter. The implication of the order dated 11.01.1956, in my opinion, is the most germane issue to be examined and decided. This Court has given thoughtful consideration to the facts and materials at hand and also the conditions and requirements and their fulfillment thereof to substantiate any claim to Nokmaship. Apart from the requirement that inheritance should be from the female line i.e., matrilineal, which is in the realm of customary law and orderly course of inheritance of the Garos, the concurrence of the Maharis and other clan Members with regard to the affairs of the Akhing, such as its use and alienation is also a necessary requirement. The most important aspect however, is that the name of Nokma who is holding office of any particular Akhing and a genealogical table of the family tree must be recorded and available in the office of the G.H.A.D.C. Added documentation which substantiates the holding of office, is also the approval accorded by the District Council Authorities to a new Nokma when he assumes office. The above stated requirements must be present in order to agitate any claim for Nokmaship and in the absence of such materials and compliances; the claim in most cases will be unsustainable.
24. The Petitioners, as can be discerned from the materials on record, do not fulfill any of the conditions as stated above, inasmuch as, no member of their clan has ever been registered as joint Nokmas at any point of time. The Mouzadar Report furnished by them, does not disclose on what terms and under whose authority it was made, and more importantly also does not bear the signatures of the Members (Maharis) as is required. Further, neither is the family tree that has been produced, bear any official stamp of recognition or approval by any authority. The same is the case of the certificate dated 03.12.2003 issued by the Executive Member i/c Revenue, the basis of issuance of which has not been substantiated by the petitioner in any manner. On the other hand, the respondent No. 4 and her predecessor in interest, have adequate and authentic documentation showing the factum of their clan being the sole proprietors of the Akhing, and that they were in management of the same continuously since its inception, from Ringa Sangma Nokma to the present, as even the present respondent No. 4 has Page 12 of 14 got herself- registered and approved as Nokma of Daronggre by the District Council authorities.
25. The only point i.e., left to discuss, as noted earlier, is the order dated 11.01.1956 passed by the Chief Executive Member. This case was remanded back to the District Council vide order dated 14.09.2011passed by this court and the orders of both the Executive Member and Chief Executive Officer were set aside with a direction that the matter undergo fresh trial. As aforementioned and observed, the matter was examined and discussed in detail by the Executive Member and though the findings were in favour of the Respondent No. 4, complete relief was not given due to the existence of the order dated 11.01.1956. On appeal the matter was finally decided in favour of the respondent No. 4.
26. The order dated 11.01.1956 passed by the then CEM was in a matter regarding partition of the Akhing which as per the judgment dated 12.05.1954 in Ringa Sangma V/s Jasang Marak (as published in the Unreported Cases (Assam High Court) 1954-1956 Volume 2 pg. 191), the Learned CEM had no jurisdiction to entertain. Furthermore, it is observed that the said observation was not contextual to the stated case. I am inclined to accept the arguments of the learned counsel for the respondents, in this regard, that the observation being an aberration of the entire proceedings concerning Partition, the same should be disregarded.
27. Another pertinent factor which is noted is that the order dated 11.01.1956, was passed before the coming into force of „The| Garo Hills Autonomous District (Social Customs and Usages) Validating Act, 1958‟, which under Section 7, has since its commencement vested the powers with the District Council in such disputes, i.e. Nokmaship succession, which were earlier otherwise exercised by the Deputy Commissioner. Coupled with the settled position of law as enunciated by the Division Bench of the Gauhati High Court, with regard to Akhing partition, by which the CEM has been found to lack jurisdiction, the judgment operates as a „judgment in rem‟ and as such Page 13 of 14 the observation as to Nokmaship, being rendered therein, though not assailed, makes the order dated 11.01.1956, redundant and as such no reliance can be placed on the same.
28. Otherwise also, the impugned order dated 08.06.2016 has also discussed the issue in detail, and the findings recorded therein are conclusive in favour of the respondent No. 4 and the same being a reasoned order, I am also inclined to uphold the same. On the point of whether the principle of res-judicata will apply, this merits no consideration in the proceedings inasmuch as the observation made in the 11.01.1956 order, is not a finding based on any proceeding which concerns the competing claims of Nokmaship of the parties but an observation in a partition case .
29. For the reasons above stated, after taking all the facts and circumstances into consideration, the Writ Petition fails and the same is dismissed. I however, had make it clear that this matter which was brought before this Court is strictly with regard to the claim of joint Nokmaship over Daronggre Akhing by the petitioners, and does not touch upon any other claims or rights which they may have against the Respondent No. 4 and her clan (machong).
30. Parties to bear their own costs.
31. Registry is directed to return the Lower Court‟s case record.
JUDGE Meghalaya 11.03.2019 "D.Thabah PS"
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