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Judgment
Heard Shri Kh. Tarunkumar, the learned counsel appearing for the petitioner; Shri R.S. Reisang, the learned Senior Govt. Advocate appearing for the respondent Nos. 1, 2 and 3 and Shri N. Ibotombi, the learned Senior Advocate appearing for the private respondent.
By the instant writ petition, the petitioner has prayed for issuing a writ or direction for quashing and setting aside the impugned order dated 30-04-2012 issued by the SDO, Kamjong.
1. According to the petitioner, he is the Headman of Kangpat Khullen which is a hill house tax paying village bordering with Myanmar under Kamjong Sub-Division, Ukhrul District, Manipur. One of the villagers of Kangpat Khullen Village namely, Shri C. Ngaraipam and Shri Jamkhomang Haokip, Chief of Choro Khullen Village executed a Deed of Conveyance on 10-10-1992 in the presence of witnesses because of which the forest products of Choro Khullen Village were sold out to Shri Ch. Ngaraipam in consideration of Rs. 30,000/- (rupees thirty thousand) only. 3.2. Soon after Kuki-Naga ethic clash which broke out sometime in the year 1992-93, the villagers of Choro Khullen Village which was mainly a Kuki Village, had decided to move away due to ethnic tension and under the said circumstance, the Chief of Choro Khullen Village, Shri C. Jamkhomang Haokip sold out the whole village land to the said Shri C. Ngaraipam on payment of Rs. 90,000/- (rupees ninety thousand) only as consideration by executing a second Deed of Conveyance/Sale of Immovable property dated 06-02-1993 in the presence of the witnesses. Thereafter, in a meeting of Kangpat Khullen Village Authority held on 05-01-1993, Shri C. Ngaraipam produced his Deed of Agreement for purchasing the land of Choro Khullen Vilalge land and requested the Village Authority to register the same before the Village Court and accordingly, the Village Authority decided that the said land be merged with their village. Since then villagers of Kangpat Khullen Village have been extracting the forest products i.e., Teak, Khangra and other valuable timbers and selling the same to the contractors. On 26-09-1996 another agreement was signed between the same parties namely, Shri C. Ngaraipam of Kangpat Khullen Village and Shri Jamkhomang Haokip, the Chief of Choro Khullen Village on the condition that in case Shri Jamkhomang Haokip failed to come back and re-settle at their village, the title of village should stand vested to Shri C. Ngaraipam.
3.3. A Zingsho Longphang which is an organization, requested the petitioner''s villagers to set apart some portion of the village land bordering with Myanmar for opening a border town which was agreed to sometime in the year 2001. A survey team selected the plain area which is part of the Choro Khullen Village including some portion of Skipe Village land known as "Chongjui" area for opening the said border town, the name of which was suggested by the team, was "Zingshophai". The private respondent trespassed into the Choro Khullen Village without any permission from the Kangpat Khullen Village and when inquired, he informed that he had been sent by the authority of Zingsho Longphang. Therefore, the Kangpat Khullen Village authority held its meeting on 30-03-1995 and resolved that any settlement of the border town be confined to the place selected by the joint survey team and no one should be allowed to settle at the Choro Khullen Village land and in the event of border town being opened, every persons coming to settle there should get themselves registered. Even the original Choro Khullen villagers were not happy with the trespass and the Chief of Choro Khullen Village wrote a letter to Shri C. Ngaraipam asking as to why they were unable to evict the private respondent. The crux of the problem started when the private respondent along with some other persons started extracting timbers for their personal gain.
3.4. In continuation of its earlier agreements, a Deed of Agreement dated 20-01-2009 was entered into between the Choro Khullen Village and Kangpat Khullen Village whereby the whole Choro Khullen Village land had been sold to Kangpat Khullen Village. Thus, the Kangpat Khullen Village became the sole and absolute owner and possessor of both Choro Khullen Village and Choro Khunou Village land. An application dated 27-07-2009 was submitted to the SDO, Kamjong, Ukhrul District, Government of Manipur with a prayer for registration and inclusion of Choro Khullen Village and Choro Khunou Village land as part and parcel of Kangpat Khullen Village. The Kangpat Khullen villagers on 25-01-2009 and 31-05-2009 served quit notices to the private respondent and since the private respondent remained silent, another notice dated 10-02-2010 was served again informing him to leave the village by 31-05-2010 failing which necessary action would be taken against him.
3.5. On 26-07-2010 the SDO, Kamjong, issued a notification recognizing the private respondent as the Headman of Choro Khullen Village to which the Headman of Kangpat Khullen Village submitted an objection dated 06-08-2010 not to give any recognition to the private respondent. However, the Headman of Kangpat Khullen Village came to know that the private respondent had bogus claim that he had purchased the Choro Khullen Village land from Shri Jamkhomang Haokip by producing fake and fabricated sale and purchase Deed dated 13-06-2006. When the private respondent and his men continued to extract timbers despite notice being served upon them, the Kangpat Khullen villagers drove out many unauthorized persons. Since the private respondent did not pay any heed, the Kangpat Khullen villagers on 03-01-2011 evicted the private respondent and his men from Choro Khullen Village by pulling down the existing huts which led to the lodging of a report to the O.C., Chassad P.S. by the brother of the private respondent resulting in the registration of an FIR No. 1(2) 2011 Chassad P.S. u/s 337/342/458/34 IPC and 27 another Act. The Chief of Kangpat Khullen Village lodged complaints with the Chief Association (Tangkhul Naga Wungnao Long) against the private respondent as well as the Deputy Commissioner on 05-01-2011 for taking action against the private respondent and consequently, the D.C., Ukhrul directed the SDO, Kamgjong to enquire into and submit a report. Accordingly, the SDO, Kamgjong issued a notice dated 26-03-2011 to all concerned for a meeting to be held on 07-04-2011 as regards the recognition of Choro Khullen Village as a Revenue Village. The petitioner''s villagers again lodged a complaint to the Deputy Commissioner, Ukhrul on 05-04-2011 informing that despite ban order being issued by the SDO, the private respondent and his men violated it by cutting down various forest trees and therefore, legal action be taken against them. On the personal approach with the Deputy Commissioner, Ukhrul by the villagers of the petitioner, the SDO, Kamjong served a notice dated 15-03-2012 informing both the Headmen of Kangpat Khullen Village and Choro Khullen Village to meet the Deputy Commissioner, Ukhrul at his office chamber on 19-03-2012. Both the parties were present to present their cases when the Deputy Commissioner advised the SDO, Kamjong to enquire into and submit a report. However, the SDO, Kamjong instead of issuing notice in respect thereof, had issued the impugned order.
To contest the writ petition, the private respondent has filed an affidavit-in-opposition wherein the averments made in the writ petition have been denied except those which are admitted by him specifically. In his affidavit, it is stated that he started the process of establishment of a new village called Zingshophai which was later renamed as Choro(Z) on the basis of an order dated 11-10-1999 passed by the SDO, Kamjong and he and his villagers have been in physical possession of Choro Village, since the day he purchased it from Shri Jamkhothang Haokip at a consideration of Rs. 3,50,000/- vide a Sale Deed dated 13-06-2006, out of which a sum of Rs. 2,40,000/- was paid on the execution of the Sale Deed and the balance was paid thereafter. After perusal of all the documents produced by the parties, the SDO, Kamjong issued the impugned order dated 30-04-2012 thereby ordering that name of the private respondent be entered in the Douzi Book as headman. There is no violation of the provisions of Manipur (Village Authorities in Hill Areas) Act 1956 as amended by the Manipur (Hill Areas) District Council (Third Amendment) Act, 2008 because the impugned order was not issued to recognise the Choro Village as Hill House Tax Paying Village. As per Electoral Roll, 2012 for the 43-Phungyar Assembly Constituency published by the Authority, Choro(Z) has been recognised as a full fledged Village and the Notification dated 06-03-2013 has shown that the private respondent was elected as the Chairman of the Village Authority. The deed for purchase of forest products and the deed of sale dated 06-02-1993 entered into between Shri C. Ngaraipam and Shri Jamkhothang Haokip have no legal validity in the view of the agreement dated 26-09-1996 by which the said Sale Deed dated 06-02-1993 had been cancelled on payment of Rs. 80,000/-. The stand of the State Government as indicated in their affidavit is stated that the Choro Village which was inhabited by the Kukis, was deserted after ethnic clash and as per Douzi, Shri Tongam Haotip was the Chief of the Choro Village. The issue involved herein relates to private dispute between the petitioner and the private respondents and therefore, the same is to be decided by a civil court. As regards the averments made in the petition, it has been stated that on the basis of an agreement between Shri Jamkhomang Haokip and Shri C. Ngaraipam made on 10-10-1992, the forest products of the Choro Village were sold to Shri C. Ngaraipam. Although it has been submitted by Shri C. Ngaraipam that Shri Jamkhomang Haokip had sold the whole village by executing a deed of conveyance/Sale of immovable property, the Village Authority Resolution for merger was not submitted to the State Government. At the initiative of the Tangkhul Civil Organisation, it was decided to establish a border village to be named as ZINGSHPHAI in the land of Choro Village. The establishment of the said border village was not objected to by the Chief of the Choro Village. With regard to the private respondent, it has been stated that the private respondent obtained a Sale Deed dated 13-06-2006 from Shri Jamkhomang Haokip by way of processing recognition of village Chro(Z) for which he was directed to obtain "no objection" from the neighbouring village.
Shri Kh. Tarunkumar, the learned counsel appearing for the petitioner commenced his submissions on two points-one, the Choro Village is not a recognised village and two, the SDO, Kamjong is not competent to issue the impugned order recognising the private respondent as the Chief of the Choro Village. So far as the first point is concerned, he has given up his submission, when it was shown to him that Choro Village had already been recognised as village having less than 20 tax-paying houses as per schedule to the Manipur State Hill Peoples (Administration) Regulation 1947. As regards the second point, it has been submitted by him that the SDO, Kamjong has no power to issue the impugned order recognising the private respondent as the Chief of Choro Village. In support of his contention, the learned counsel appearing for the petitioner has relied upon the decision of the Hon''ble Gauhati High Court in K. G. Kalung Vs. State of Manipur reported in 2010 (3) GLT 688 wherein one of the issues is as to whether the SDO, Saitu has any power to authorise a person to act as a Khullakpa or not. The contention of the counsel appearing for the petitioner therein was supported by the learned Government Advocate to the effect that SDO has no power to declare a new village and also to authorise a person to act as a Khullakpa of that village, as such power is only with the State Government. The Hon''ble High Court held:
"14. After growing through the provisions of sub-section (2) of Section 3 of the Act and the impugned order as well as the submission of the learned counsels, this Court is of considered opinion that the respondent No. 2, SDO, has no power to allow the prayer of the respondent No. 3 for establishment of a new village in the name and style Namthanjang Rongmei Village within the village boundary of the petitioner and to allow the respondent No. 3 as a Khullakpa of the said proposed village as the said power is only with the State Government and the State only, considering the general interest of the people of a particular village and on demand of the said villagers, can establish a new village, except the State no other authority has the power to allow any of the villagers or any other authority to allow establishment of a new village and also to act as a Khullakpa of the said village unless authorized by the State Government in accordance with law. But, in the instant case, in fact, the respondent No. 2, by way of his decision allowed the respondent No. 3 to establish a new village and to act as Khullakpa of such a village or divide the village and village authority of the petitioner, hence, according to this Court law laid down by this Court in K. Khubam (supra0 has some bearing. When a statute prescribes a particular mode or manner for doing a particular act, that act must be done in that manner alone and not at all."
On the other hand and to counter the above contention of the learned counsel appearing for the petitioner, it has been submitted by Shri N.Ibotombi, the learned Senior Advocate appearing for the private respondent that there is nothing illegality, when the SDO, Kamjong has issued the impugned order declaring the private respondent as the headman and allowing his name being entered in the Douzi and to pay hill house tax. In other words, it is only for a limited purpose in the sense that the private respondent is allowed to get his name entered in the Douzi so as to enable him to pay annual house tax. Reliance has been sought to be placed by him upon the decision in Assam Conductors Manufacturer''s Assn. Vs. The Assam Electricity Board & ors., reported in 1997 (3) GLT 49 to contend that a proceeding under Article 226 of the Constitution would not be appropriate for a decision on the issue involved herein. He has placed reliance also in DLF Housing Construction (P) Ltd. Vs. Delhi Municipal Corporation & ors. reported in (1976) 3 SCC 160 wherein the Hon''ble Supreme Court has held that in a case where the basis facts are disputed and complicated questions of law and fact depending on evidence are involved, the writ court is not the proper forum for seeking relief. The right course for the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case.
In the affidavit filed on behalf of the State Government, it is nowhere stated that the SDO, Kamjong has any authority to issue the impugned order and moreover, the State Government has failed to point out any provision of law by which the SDO, Kamjong is empowered to issue the impugned order. The Manipur (Village Authorities in Hill Areas) Act, 1956 provides for constitution and functions of Village Authorities, Section 3(4) of which provides that where there is a Chief or Khullakpa in a village, he shall be the ex-officio Chairman of the Village Authority of that village and where there is no such Chief or Khullakpa in the village, the Chairman of the Village Authority shall be elected by the members of the Village Authority from among themselves. On perusal of the said Act itself, it is seen that there is no provision in the Act for declaration of a Chief of a Village. The decisions cited by the learned counsel appearing for the private respondents will have no application at all, as the facts and circumstances thereof are deferent from that of the present case. However, the decision relied upon by the counsel appearing for the petitioner has some relevance and application as regards the power conferred upon and to be exercised by the SDO, Kamjong. Moreover, it may be noted that in the said case namely K.G.Kalung''s case, the State Government has taken a specific stand that the SDO, Saitu has no power to recognise a person as a Chief of a Village and such power can only be exercised by the State Government. Accepting the stand of the State Government, the Hon''ble High Court has held that SDO, Saitu has no power to recognise or declare a person as the Chief of a village. One aspect which needs to be noted is that the real and the main issue involved herein which cannot be decided by this court is as to whether the land of Choro Village had been sold either to the petitioner or to the private respondent or not. This issue can only be decided by the Civil Court based on evidence adduced by them and only after such a issue having been decided by the Civil Court, the next issue that ought to be, is as to who is the Chief of the Village. In the present case, without the main issue being decided by a Civil Court, the SDO, Kamjong has declared the private respondent as the Chief of the Choro Village and that his name be entered in the Douzi. Having perused the materials on record, this court is of the view that the impugned order is absolutely illegal for the reason that the SDO, Kamjong has issued the impugned order without any authority of law. The impugned order declaring the private respondent as the headman of the Choro Village, will tantamount to admitting the claim that the private respondent had purchased the land of Choro Village, without the issue as regards the factum of purchase and ownership being decided by the Civil Court and in other words, the SDO, Kamjong has put the cart in front of the horses. Keeping in mind the issue involved herein, the SDO, Kamjong ought to have told the parties to approach the Civil Court before issuing the impugned order itself and not after the same being issued by it.
For the reasons stated hereinabove, the instant writ petition is allowed and consequently, the impugned order dated 30-04-2012 issued by the SDO, Kamjong is quashed and set aside with no order as to costs. It is made clear that this court has not expressed any opinion as regards the issues which have been held to be decided by a Civil Court.