AI Structured Summary
Not yet generated for this judgment
Judgment
This batch of three writ appeals, arise from three writ petitions i.e., WP(C) No. 353 (SH) of 2009, WP(C) No. 250 (SH) of 2009 and WP(C) No.251 (SH) of 2009, which were disposed of by a common judgment and order dated 10.09.2012, by the Gauhati High Court (being the erstwhile jurisdictional High Court of the State of Meghalaya). In WA No. 6 of 2013, arising from WP(C) No. 353 (SH) of 2009, which was at first dealt with by the learned Single Judge, the dispute was regarding the boundary between Depa Doratcha Akhing, a private community land and Chimabangshi Reserve Forest, which had been notified as a Reserve Forest, since 19.06.1883; as it appears, with boundaries notified on 29.01.1932. This particular dispute has already had more than its fair share of doing the rounds before this Court and from the records and materials available, the genesis of the subject matter of dispute, being Civil Rule No. 1004 of 1983, which was filed by the State against an order dated 17.08.1983 passed by the Executive Member-in-Charge, Revenue, GHADC, in connection with the land in dispute. In the said Civil Rule by order dated 19.08.1988, directions had been issued that the boundary be demarcated by the Deputy Commissioner of the concerned District and that status quo was to be maintained in the meanwhile. It is to be noted that this order was passed in Misc. Case No. 568 of 1983 arising out of Civil Rule No. 1004 of 1983. Subsequently, by order dated 09.06.1989, a direction was passed for handing-over physical possession of encroached land on the basis of the demarcation which had been made pursuant to the order dated 1988. However, in another connected Misc. Case being Misc. Case No. 1099 of 1988, an order dated 18.09.1989 was passed which is reproduced hereinbelow:-
"ORDER
Date 18-9-89.
An order was passed on 18-8-89 to demarcate the boundary between Chinshangshi Reserved Forest and Depa Daracha Akhing No. 53. Sri Sen states that pursuant to this order some demarcation was done on 31-3-1989 and 1-4-89. In support of the submission, the learned counsel has produced a sketch map and also states that the Field Measurement Book would bear his submission. It, however, seems that this demarcation work was undertaken by Assistant Enforcement Inspector and some other officers of the Deputy Commissioner's Officer under the supervision of the Additional Deputy Commissioner. But then the Additional Deputy Commissioner himself is not very satisfied with the aforesaid demarcation work. It has, therefore, become necessary to properly demarcate the aforesaid two lands under the supervision of the Director of Survey, Government of Meghalaya.
Let the Director of Survey, therefore, undertake the work, and if during the course of survey, it would be found that the survey undertaken earlier portrays the correct picture and has been duly undertaken, the Director would survey, otherwise a fresh survey would be done in the presence of all parties.
I have passed this order after hearing Shri Sen, the learned Counsel for the Petitioner, Shri N.M.Lahiri, Learned Advocate General, Meghalaya for the State of Meghalaya who have agreed to receive this order.
Let the survey be done within a period of two months from today.
Let a copy of this order be given to the Learned Counsel of both the sides, within two days.
Sd/- B.L.Hansaria,
Judge
Sd/- W.A.Shishak Judge."
Thereafter, it appears that many subsequent events unfolded which involved related proceedings and even attachment of the disputed area under sections 145 and 146 Cr.P.C. which eventually culminated in a Criminal Revision, being Crl. Rev. No. 25 (SH) of 1999, filed by the writ petitioner, wherein the orders passed in criminal proceedings were quashed and attachment orders were also vacated. However, the stalemate continued and in spite of repeated representations, possession of the demarcated portion of the said land was never handed-over to the writ petitioner, which compelled him to file the writ petition, being WP(C) No. 353 (SH) of 2009, out of which the instant appeal (WA No. 6 of 2013) has arisen. The prayer made therein was for handing-over possession of the land, based on the orders dated 19.08.1988, 09.06.1989 and 18.09.1989 passed by the High Court in Civil Rule No. 1004 of 1983 and the survey report of the Additional Director of Survey dated 22.12.1989.
In Writ Appeal No. 35 of 2012, arising out of WP(C) No. 250 (SH) of 2009, the appellant, as Nokma of Bangonggrri Akhing had instituted the said writ petition for restoration of the land allegedly encroached by the State respondents based on the report submitted by the Mouzadar of the Garo Hills Autonomous District Council coupled with a request made by the Executive Member i/c Land Revenue, GHADC, dated 25.11.2008 in this regard. This writ petition, by the impugned common judgment, came to be dismissed by the learned Single Judge on the ground that the matter involved disputed questions of fact.
Similarly, the appellant in Writ Appeal No. 36 of 2012 arising out of WP(C) No. 251 (SH) of 2009, had instituted the writ petition as Nokma of Rongrenggrri Akhing being aggrieved by the alleged encroachment of the State respondents and had also based his claim on the report submitted by the Mouzadar of the Garo Hills Autonomous District Council and also on the request by the Executive Member i/c Land Revenue, GHADC, report dated 23.09.2008. This writ petition along with WP(C) No. 250 (SH) of 2009 were dismissed as not maintainable for non-exhaustion of alternative civil law remedy.
Being aggrieved by the directions passed by the learned Single Judge in WP(C) No. 353 (SH) 2009, the State of Meghalaya, as writ appellant, preferred WA No. 6 of 2013.The other aforementioned writ appeals i.e., WA No. 35 of 2012 and WA No. 36 of 2012 have been preferred by the private parties (writ petitioners) on the refusal of the learned Single Judge to entertain the same. Situated thus, it would therefore be apt to examine WA No. 6 of 2013 first, before adjudicating on WA No. 35 of 2012 and WA No. 36 of 2012.
Mr. A. Kumar, learned Advocate General assisted by Mr. K.P. Bhattacharjee, learned GA for the appellant, at the outset submits that the directions contained in the impugned order of the learned Single Judge for the State respondents to hand-over physical possession of the alleged demarcated Akhing land to the respondent Shri Minjing Sangma, based on a survey report dated 22.12.1989 prepared by the Additional Director of Survey, was based entirely on a wrong premise. To qualify this submission, the learned Advocate General contends that the learned Single Judge had erroneously observed that the previous orders in the earlier proceedings had accorded a right in favour of the respondent inasmuch as the said interim orders dated 09.06.1989 and 18.09.1989 - on the basis of which the survey was conducted - had, in fact, been superseded by subsequent orders dated 06.08.1990 and 13.09.1990, which had been all passed in Civil Rule No. 1004 of 1983. Learned Advocate General asserts that the learned Single Judge could not have relied upon the survey report dated 22.12.1989 as the same was not final and conclusive and submits that the learned Single Judge should have also similarly dismissed WP(C) No. 353 (SH) of 2009, alongwith the other two writ petitions for raising disputed questions of fact in writ proceedings. To buttress his arguments that the learned Single Judge vide the impugned order dated 10.09.2012, had passed the said order without noticing the subsequent orders dated 06.08.1990 and 13.09.1990, he submits that a review application to place these vital facts, being Review Petition No. 8 (SH) of 2012 was filed, which however came to be rejected vide order dated 17.12.2012, on the ground that the State had not annexed the orders dated 06.08.1990 and 13.09.1990 in its affidavit-in-opposition. Learned Advocate General submits that the non-consideration of the subsequent orders, which were material for the proper adjudication of the dispute, would constitute an 'error apparent' within the meaning of Section 114 and Order 47 Rule 1 of the CPC.
Learned Advocate General then submits that the order dated 10.09.2012 - as far as it concerns WP(C) No. 353 (SH) 2009 - is liable to be set aside as the same suffers from glaring errors. Firstly, he submits that reliance has been placed on the order dated 18.09.1989 passed in a Misc. Case in Civil Rule No. 1004 of 1983, in granting relief to the petitioner, when, in fact, by subsequent orders dated 06.08.1990 and 13.09.1990 passed in Civil Rule No. 1004 of 1983 itself, the order dated 18.09.1989 no longer survived for consideration. The second error made by the learned Single Judge, he contended, was in holding that the claim of the writ petitioner stood decided by the survey conducted pursuant to order dated 18.09.1989, when, in fact, the subsequent orders dated 06.08.1990 and 13.09.1990, referred to earlier, had permitted for a re-survey to rectify and correct the survey dated 18.09.1989. In this context, the learned Advocate General has placed reliance on the judgment of Yashwant Sinha vs. CBI & Anr. reported in (2020) 2 SCC 338 and the case of Assistant Commissioner Income Tax vs. Saurashtra Kutch Stock Exchange Ltd. reported in (2008) 14 SCC 171.
The learned Advocate General then further submits that the writ petition should have been dismissed as the entitlement of the writ petitioner could not have been determined by way of the interim orders dated 09.06.1989 and 18.09.1989, inasmuch as no final relief can be claimed by way of interim orders. He submits that the interim orders were subject to the final determination of the matter and did not decide any right or entitlement of the petitioner. On the contention that final relief cannot be granted by way of an interim order, the learned Advocate General has relied upon the cases of State of U.P. vs. Rumsukhi Devi reported in (2005) 9 SCC 733 and of Bharat Sanchar Nigam Ltd. Ors. Vs. Prem Chand Premi & Anr. reported in (2005) 13 SCC 205. Learned Advocate General submits that in view of the ratio of the aforesaid decisions, the reliance of the petitioner on interim orders as the final determination of the competing rights, is misconceived and should have been rejected by the learned Single Judge.
Another limb of challenge to the impugned order put up by the learned Advocate General is that the writ petition should have been dismissed as not maintainable for being based on disputed questions of fact. He draws the attention of this Court, to paragraphs 13 & 14 of the impugned judgment wherein the learned Single Judge had proceeded to dismiss WP(C) No. 250 (SH) of 2009 and WP(C) No. 251 (SH) of 2009 by holding that serious and complicated issues had been raised which cannot be decided in proceedings under Article 226 of the Constitution. Learned AG contends that this finding would also apply proprio vigore to the facts of WP(C) No. 353 (SH) of 2009, which had raised identical and similar serious and complicated disputes and the same should have also been dismissed, being identical to the other writ petitions.
The learned Advocate General submits that the findings of the learned Single Judge that the dispute was finally settled by the previous orders is incorrect inasmuch as the orders dated 06.08.1990 and 13.09.1990 passed in Civil Rule No. 1004 of 1983 permitted the rectification of the mistakes in the survey report dated 18.09.1989. In this context, it is also submitted that the dismissal of the Review Petition No. 8 (SH) of 2009 by the order dated 17.12.2012 is unsustainable as the ground of dismissal of the review was based on the erroneous observation that the order dated 06.08.1990 and 13.09.1990 passed in Civil Rule No. 1004 of 1983 were not on the records of the learned Single Judge, when, in fact, specific reference and reliance had been placed on the said orders in the counter affidavit of the appellant before the learned Single Judge.
Coming to the instant appellate proceedings, learned Advocate General submits that vide order dated 03.11.2014., this Court had recorded the submissions of the appellant that the survey of 22.12.1989. was invalid and was pleased to direct for a fresh survey of the disputed lands. Learned Advocate General submits that the very issuance of such a direction to conduct a fresh survey was necessitated as the previous survey was deemed incorrect and also disputed by the appellant. He submits that it is, therefore, apparent that such disputed survey could not have been made the basis for allowing the writ petition of the petitioner. Learned Advocate General has also expressed his client's dissatisfaction in the survey report submitted by the Survey of India, Meghalaya and Arunachal Pradesh in April, 2019, by arguing that the said report has failed to demarcate the disputed land and has recorded inconsistent findings. He has also drawn our attention to the conclusions and recommendations of the Survey Report of 2019, which he submits has clearly recorded the failure of the Survey of India, to conduct a proper survey of identification and demarcation of the boundaries concerned because the area in question is hilly and undulating with dense forest coupled with the absence of proper spatial information. Learned Advocate General has also pointed out the alleged lapses and inconsistent observations made in the survey report and asserts that no reliance can be placed on the same to establish the claim of the petitioner. In conclusion, he submits that the latest survey report as directed by this Court only fortifies the fact that there are serious disputed questions of fact that cannot be settled or looked into by way of writ proceedings, and that the entire writ proceedings are therefore liable to be dismissed. As such, he prays that the writ appeal be allowed on the facts as placed above.
Mr. K. Paul, learned Senior counsel for the respondent in reply to the submissions urged by the learned Advocate General submits that the contention that the learned Single Judge only relied on the interim orders dated 19.08.1988, 09.06.1989 and 18.09.1989 and not the final orders dated 06.08.1990 as well as 13.09.1990, cannot be sustained. He submits that it is apparent in the impugned order itself that the same were duly taken note of by the learned Single Judge and after due consideration had come to the finding that the writ petitioner (respondent herein) was being deprived of the fruits of the long litigation. He further submits that even if it is assumed that the orders dated 06.08.1990 and 13.09.1990 were not considered by the learned Single Judge, the same would have no bearing on the final outcome of the case as the order dated 06.08.1990 had only directed that if there was any mistake in the survey, those mistakes may be rectified. Learned Senior counsel submits that the Additional Director, Meghalaya Survey, by letter dated 13.03.1991 (Annexure-3 Page-125) which was reiterated by letter dated 08.01.1993 (Annexure-3 Page 126) had clearly opined that no further survey was required to be undertaken for the purpose of demarcation of the boundary. These letters, the learned Senior counsel contends, effectively make the purport and intent of the order dated 06.08.1990 redundant and as such, does not in any manner render the findings of the learned Single Judge erroneous.
With regard to the other proceedings which had culminated in final orders being passed in Crl. Rev. No. 25 (SH) of 1999 by the Gauhati High Court including other orders passed by the Executive Authorities which had closed the proceedings and also resulted in the removal of attachment orders, learned Senior counsel submits that the fact that these orders had never been challenged by the State authorities before any higher forum has also firmly established the claim and the rights of the writ petitioner which was also observed by the learned Single Judge by holding that the claim of the State respondents was barred by the principles of constructive res judicata and could not be raised in the present round of litigation.
Mr. K. Paul, learned Senior counsel while closing his arguments, submits that the survey that has now been conducted by the Survey of India has clinched the issue in favour of the writ petitioner as it not only re-confirms the findings of the earlier survey to the effect that private land has been encroached, but also the fact that the writ petitioner has been deprived of enjoyment of their rightful property, apart from the timber seized from them not being released till date. He lastly submits that there being no justifiable grounds put forth by the State appellant to deny the writ petitioner his just rights, the writ appeal against the impugned judgment ought to fail and be dismissed with costs.
We have heard learned counsel for the parties. The grounds urged by the appellant State to question and seek quashment of the order dated 10.09.2012 passed in WP(C) No. 353 (SH) of 2009, is, in fact, within a narrow compass i.e., the non-consideration by the learned Single Judge of the subsequent orders dated 06.08.1990 and 13.09.1990 passed in Civil Rule No. 1004 of 1983 which, as contended by the appellant, had permitted the State authorities to revisit and rectify the survey conducted by the Additional Director, Meghalaya Survey, dated 22.12.1989. The finality of the said report which was accepted by the learned Single Judge on which the mandamus was issued for handing-over of the Akhing land to the writ petitioner was, in fact, the only point in issue in the present appeal.
However, in the course of the proceedings of this appeal before the Division Bench of this Court, certain developments have taken place pursuant to orders passed by this Court, which can be said to have altered the dimension and the complexion of the lis between the parties. Of extreme relevance is the order dated 03.11.2014 which for the sake of convenience is reproduced hereinbelow:-
"W.A. No. 6 of 2013
BEFORE
THE HON'BLE MR. JUSTICE UMA NATH SINGH,
CHIEF JUSTICE (ACTING)
THE HON'BLE MR. JUSTICE S.R. SEN
03.11.2014
This writ appeal has been preferred by the State of Meghalaya, being aggrieved by the judgment and order passed by learned Single Judge of the Gauhati High Court sitting at Shillong in a bunch of writ petitions namely:
W.P. (C) No. 250(SH) of 2009 Shri Pongdo Marak - Vs - The State of Meghalaya and Others
W.P. (C) No. 251(SH) of 2009 Shri Deben Marak - Vs - The State of Meghalaya and Others
W.P. (C) No. 353(SH) of 2009 Shri Minjing Sangma - Vs - The State of Meghalaya and Others.
On the basis of earlier survey conducted in the matter under the direction of Division Bench, the court by the impugned order has directed grant relief(s) as prayed for.
Dr. B.P. Todi, Learned Additional Advocate General appearing for the appellant State submits that since the survey ordered by the High Court was obstructed by the respondent, the same could not have been made the basis for grant of relief(s). In that view of the matter, it would be necessary to assign the job of survey of the area afresh to an independent agent. However, after the survey of the land, even if it is found that the respondents claims are correct, still, it can be said that the lands have acquired the character of the reserved forest with the efflux of time, and most probably, the respondents may only claim the compensation in terms of various directions issued from time to time by Hon'ble the Apex Court in the case of T.N. Godavarman Thirumulpad Vs. Union of India &Ors (1997) 2 SCC 267. Thus, we direct the Directorate of Survey of India, Shillong, an undertaking of the Union of India, to conduct the survey of lands in question within a period of 2(two) months and to submit a report to this court within the premises as set out in earlier directions issued by the Gauhati High Court.
The parties to the lis are directed to extend full cooperation to the supervising authority and shall participate during the course of survey exercise of the area in question, failing which, the court may take adverse view and pass appropriate order under the law.
List this matter on 05.01.2015.
JUDGE
CHIEF JUSTICE (ACTING)"
It is noted that by this order this Court had issued directions for a fresh survey to be conducted by the Survey of India and for the same to be completed within a period of 2 (two) months. As seen from the office noting, the copy of this order was forwarded and received by the Additional Surveyor General, North East Zone, Survey of India, Shillong and also the Director, Survey of India, Shillong.
Thereafter, this Court by order dated 12.02.2015 which is also quoted hereinbelow, directed the Divisional Forest Officer, Tura and the Principal Chief Conservator of Forest to supply all the relevant records relating to Chimabangshi Reserve Forest as well as the area in dispute to the Director of Survey of India.
"WA. No. 6 of 2013
BEFORE
THE HON'BLE MR. JUSTICE UMA NATH SINGH,
CHIEF JUSTICE (ACTING)
THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH
12-02-2015
Mr. K.Paul, learned Advocate, appears for the respondents.
Towards order dated 03-11-2014, a communication dated 23-1-2015, has been received from the Director, Survey of India, Malki, Shillong. The content of the letter on reproduction reads as:
"OFFICE OF DIRECTOR MEGHALAYA & ARUNACHAL PRADESH GEO-SPATIAL DATA CENTRE
SURVEY OF INDIA
No.T-28/40-A-ChimabangshiR.F.
Date: 23 Jan., 2015
To
The Registrar General,
High Court of Meghalaya,
Shillong.
SUB: COURT'S ORDER DATED 03/11/2014 -
REGARDING.
REF: Your letter No. W.A. No. 6 of 2013
In WP(C) No. 353 of 2009
Surveyor General, North Eastern Zone,
Shillong.
Sir,
With reference to your above cited letter, this is to bring your kind notice that a copy of the subject Court's order was endorsed to this office by the Deputy Secretary to the Government of Meghalaya, Forests and Environment Department vide his letter No. FOR.93/2009/347 dt. 26-11-2014. On receipt of the same, a communication vide this office letter No. T-364/40-A-Chimabangshi R.F. dt. 08-12-2014 was made with the Deputy Secretary to the Government of Meghalaya, Forests and Environment Department with a request to pass necessary instructions to the Principal Conservator of Forest & HOFF, Meghalaya, Shillong to visit this Centre alongwith all relevant records/documents related to the Chimabangshi Reserve Forest (R.F.) and the Suit Land area and also to explain/define the exact requirements of the survey. In response to this office communication, the Divisional Forest Officer, Garo Hills Division, Tura vide his letter No. A/9/2/614-16 dt. 19-12-2014 handed over some records/documents in respect of Chimabangshi R.F. and the Suit Land area to this office on 24-12-2014. Certain clarifications were sought by this office vide letter No. T-03/40-A-Chimabangshi R.F. dt. 08-01-2015 from the Divisional Forest Officer, Garo Hills Division, Tura on various matters and issues involved and also asked to supply certain other records/documents which are very much essential for making a proper planning before undertaking the field survey. These information/clarifications are yet to be received.
This is the current status of the subject matter. For your kind information, please.
Yours faithfully,
Sd/-
(P.V.Srinivas)
Director."
Thus, we direct the Divisional Officer, Tura, Principal Chief Conservator of Forest and HOFF, Meghalaya, Shillong, to supply all the relevant records/documents relating to Chimabangshi Reserve Forest as well as the suit land area, to the Director, Survey of India within a period of 15 days. The Director Survey of India shall also give opportunities to the parties to this lis, if it is felt necessary.
List the matter after 15(fifteen) days.
JUDGE CHIEF JUSTICE (ACTING)"
Thereafter, as the survey could not be completed in the stipulated time, further extensions were granted by this Court, vide orders dated 03.03.2015 and 07.04.2015. As can be seen from the order sheet, the survey report was finally submitted by the Director, Survey of India, Shillong, before the Registry on 27.03.2019 and the same was noted by this Court in its order dated 28.03.2019. The appellant State, however, found the survey report unacceptable and disputed the findings of the said report by way of an affidavit dated 04.07.2019 stating therein that the survey report was inconclusive, ambiguous, improper and not detailed.
As observed earlier, the entire complexion of the appeal and ground of challenge to the impugned order by virtue of the subsequent developments can be said to have shifted the focus only to the effect that the latest survey report would have on the competing rights of the parties. By the order dated 03.11.2014, it can be taken that the grievances as put up in the writ appeal stood resolved, as the main plank for which interference of the order of the learned Single Judge was sought no longer existed, inasmuch as, a fresh survey has been ordered which was accordingly completed.
In this backdrop therefore, in our considered opinion, to revisit and reopen the question of survey notwithstanding any reservation as to the accuracy of the Survey of India's report will no doubt result in reverting the position back to 19.08.1988, when the first demarcation was ordered by the order of the Division Bench in Civil Rule No. 1004 of 1983. As observed by the learned Single Judge, the writ petitioner has not been allowed to enjoy the fruits of litigation, and as such, to allow the matter to be prolonged any further by entertaining the objections of the State appellant will undoubtedly cause injustice.
A further reason that calls for closure of the matter is the conspicuous fact that the interim order dated 03.11.2014 directing for the survey, was never put to challenge by way of an appeal or otherwise, which, therefore, creates an estoppel as against the appellant from questioning the outcome of the same, as the said order has attained finality on the same being complied with. Notwithstanding anything else, the survey which was conducted by an agency such as the Survey of India, Government of India and not by any private agency, cannot be put to question and scrutiny at this belated stage, at the behest of the appellant-State, more so on technical issues for which a writ Court is not equipped to decipher.
The judgments, as placed by the learned Advocate General, in view of the changed circumstances of the appeal are found not relevant and are inapplicable in the facts of the present case.
For reasons above mentioned, the writ appeal being WA No.6 of 2013, is disposed of with a direction that the apportionment and demarcation be made as per the report submitted by the Survey of India pursuant to the orders of this Court and also to release seized timber, if any, as ordered by the learned Single Judge vide the impugned order. The entire exercise shall be completed by the State authorities preferably within a period of 4 (four) months but not later than 6 (six) months from date of receipt of a photostat certified copy of this order.
In view of the disposal of WA No.6 of 2013, the connected miscellaneous applications, being MC (WA) No.53 of 2015 and MC (WA) No.112 of 2013, stand disposed of accordingly.
No costs.