Hethila Marak and Another vs Garo Hills Autonomous District Council and Others

H.K. Sema, J.—We have heard Mr. Kar, learned Counsel for the Petitioner, Mr. Siddique, learned Counsel for the Respondent Nos. 4 and 5 and Mr. Kynging, learned Counsel for the Respondent Nos. 1 to 3.

The dispute between the Petitioner and the Respondent Nos. 4 and 5 (sic) with regard to the Nokma and Akhing land. The dispute was first raised before the learned Judicial Officer, Sub-ordinate Court in M.S. No. 1 of 1974. The learned Judicial Officer by its order dated 24.8.79 dismissed the suit for want of jurisdiction. According to the learned Judicial Officer the dispute being relating to Nokma and Akhing land, the court of competent jurisdiction is the Member of Executive Officer. Thereafter, the matter was raised before the Executive Member, Revenue in Civil Appeal No. 1. The learned Executive Member, Revenue, Garo Hills District by its judgment and order dated 4.2.91 declared Nokmaship in favour of the Petitioner Smti. Hethila Marak and her husband Sri Emithson W. Marak (sic) the rightful heir to the Nokmaship. Neither appeal nor revision has been preferred against the decision of the Executive Member, Incharge of Revenue dated 4.2.91. Hence, the judgment and order dated 4.2.91 has attained its finality, Petitioner thereafter filed an application before the Executive Officer for concentration of filed mutation obtained by Late Rusilla Marak, predecessor in interest the Respondent Nos. 4 and 5 and mutation of Akhing land of Selbalgiri Akhing in favour of the Petitioner by its petition dated 27.6.91. The said application has been rejected by the learned Executive Member, In-charge of Revenue by its order dated 20.8.91 in terms of the following:

On perusal the petition filetd by Smti. Hethila Marak W/O Shri Emithson Marak in the matter of illegal transfer of land, it is found that the case is of purely Civil in nature. The aggrieved party is, therefore, advised to seek redressal in the proper court.

Being dis-satisfied with the aforesaid impugned order, the Petitioner has preferred an appeal before the Chief Executive Member, Garo Hills District Council by Revenue Appeal No. 3 of 1991. This appeal was also dismissed by an order dated 11.2.92. Hence, the present petition. By the aforesaid impugned orders the Petitioner was directed to approach the civil court as in the opinion of the learned Executive Member, Incharge Revenue and the Chief Executive Member, the matter is purely civil in nature.

Mr. Kar, learned Counsel for the Petitioner has drawn our attention the provisions of Section 8and 11 of the Garo Hills Autonomous District (Social Customs and Usages) Validating Act, 1958, hereinafter, the Act. Section 8 deals with the Nokmaship and Akhing land and provides that any dispute arises with heard is succession of Nokmaship of any Akhing or with regard to boundary dispute of Akhing land shall be referred to the Revenue Member in the first (sic)ance for disposal in accordance with the customary practice and the usages the Garos. Sub-section (2) to Section 8 provides that it any person aggrieved the order of the Revenue Member under Sub-section (1), they may prefer an appeal to the Chief Executive Member within 60 days from the date of the order.

Section 11 of the Act bars the jurisdiction of civil court and provides that a judicial court shall entertain any suit or proceeding in respect of any matter being within the purview of the Act.

It is contended by Mr. Kar that in view of the provisions of Section 8 and 11, the learned Executive Member, Incharge Revenue and Chief Executive Member erroneously directed the parties to approach the civil court inasmuch as civil court, has no jurisdiction to deal with the dispute of Nokmaship and Akhing land. Mr. Siddique has fairly submits that so far with regard to Nokmaship and Akhing (sic) is concerned, the Executive Member has jurisdiction to cancel or mutate the (sic)prties in favour of the Petitioner. It is however submitted by Mr. Siddique (sic) Certain properties which belongs to an individual can be mutated by the Executive Member and this can only be done by a civil court by instituting a suit. (sic) are unable to accept the contention of Mr. Siddique because this question has (sic) raised neither before the Judicial Officer nor before the Executive Member then the matter was finally decided on 4.2.91. We are, therefore, of the view the properties in question is with regard to the Nokmaship and Akhing land as there is no individual properties in the dispute between the parties.

As already said, Section 8 of the Act has given exclusive jurisdiction to the Executive Member and the Chief Executive Member to decide the dispute arises out of Nokmaship and Akhing land. Further, Section 11 of the Act bars the jurisdiction of the civil court when the Sections 8 and 11 bars the jurisdiction of the civil court directing the civil court to mutate their properties of Nokmaship and Akhing land was clearly erroneous. When the civil court cannot decide the merit of the dispute arising out of succession to Nokmaship or dispute to Akhing land and boundaries thereof, the civil court has no jurisdiction to try the dispute with regard to the mutation. Since Sections 8 and 11 bars the jurisdiction of the Civil Court, therefore Civil Court have no jurisdiction to decide the dispute with regard to the mutation, cancellation or otherwise mutation etc. The result is that only the Executive Member incharge of Revenue shall be having jurisdiction to mutate or cancel mutation in respect of Nokmaship properties and Akhing land.

For the reasons aforestated the impugned order dated 20.8.91 (Annexure-5) and the impugned order dated 11.2.92 passed in GDC Rev. Appeal No. 3 Misc. of 1991 (Annexure-7) are hereby set aside and quashed. The learned Executive Member, incharge, Revenue is hereby directed to dispose of the mutation filed by the Petitioner on 27.6.81 in accordance with law. This would mean after giving notice and opportunity of hearing to the parties concerned, The learned Executive Member, Incharge Revenue shall dispose of the mutation case within a period of 2 months from the date of receipt of this order. Needless to say that the dispute has been pending since 1971 and we are of the view that the litigation must now come to an end. In this view we expect that the learned Executive Member incharge of Revenue shall start with the proceeding with right earnest and terminate the proceeding within the stipulated time as directed above and in accordance with law so that the parties shall not be left with any grievance making it necessary to approach this Court again.

With the aforesaid directions, this petition is allowed. No Costs.