D. Jack vs State Of Manipur

[1] Heard Shri D. Julius Riamei, learned Advocate appearing for the petitioner; Shri Th. Ibohal, learned Senior Advocate appearing for the private respondent and Shri Niranjan Sanasam, learned Government Advocate appearing for the State respondents.

[2] The validity and correctness of the mutation order dated 09/07/2015 issued by the respondent No.4, Sub-Deputy Collector, Tamenglong in favour of the private respondent is under challenge.

[3.1] According to the petitioner, the father of the petitioner and the private respondent, late Shri D. Chorei died on 18/12/1991 leaving behind him his wife, Smt. Namgakliu; one daughter, Smt. Elizabeth Chorei and three sons-Shri D. Reuben Chorei, Shri D. Anthony Chorei, private respondent and Shri D. Jack, the petitioner. The petitioner is the youngest son of late Shri D. Chorei. Smt. Elizabeth Chorei, the eldest among the siblings is already married after the death of her father. Smt. Namgakliu, the mother of the petitioner is remarried. While Shri D. Reuben Chorei is the eldest among three sons of late Shri D. Chorei, the respondent No. 5 is the second son and the petitioner is the third son.

[3.2] There was a family settlement in respect of the properties of the father of the petitioner and the private respondent, because of which the agricultural lands measuring about 7 acres and forest lands at Magura Village, Karimganj, Assam were apportioned between Shri D. Reuben Chorei and Shri D. Anthony Chorei. The agricultural lands (lousal in Manipuri) of the said lands at Magura Village, Assam are being enjoyed by them. The property located at Ward No. IV, Tamenglong District HQ, Manipur measuring 60x70 feet is to be given to the petitioner when he becomes of age. In terms of the said settlement, the property located at Ward No. IV, Tamenglong District HQ was mutated in the name of the mother of the petitioner, Smt. Namgakliu vide order dated 23/10/1992 passed by the Deputy Commissioner, Tamenglong, as all the three sons of late Shri D. Chorei were minors. When the petitioner became a major, his mother executed a gift deed dated 21/11/2015 in his favour with respect to the property, located at Ward No. IV, Tamenglong District HQ, Manipur, which was registered in the office of the Sub-Registrar, Tamenglong District HQ. Thereafter, the petitioner got the said property mutated in his name vide order dated 21/11/2015 passed by the Sub-Deputy Collector, Tamenglong.

[3.3] Out of love and affection, the private respondent, being the eldest brother of the petitioner, was permitted to live in the said property temporarily but taking undue advantage of it, he started claiming title over the said property. The private respondent, fraudulently by misrepresentation, suppressing material facts and documents and claiming himself to be the eldest son of late Shri D. Chorei, submitted an application for mutation of the said property in his name. The Addl. Deputy Commissioner, Tamenglong vide its letter dated 06/07/2015 directed the SDO, Tamenglong to conduct an enquiry/ verification on his application. The respondent No.4, Sub-Deputy Collector, without conducting any proper enquiry/ verification as directed, issued arbitrarily the mutation order dated 09/07/2015. The said order dated 09/07/2015 was issued by the respondent No.4 hastily and in a haphazard manner. The private respondent, on the strength of the said mutation order dated 09/07/2015 started claiming title and raised hue and cry by making several statements in the local print media which prompted the petitioner to get a legal notice issued to him to cancel the said mutation order but he failed to do that. Hence, the instant writ petition has been filed by the petitioner.

[4.1] The instant writ petition is contested by the private respondent by way of an affidavit-in-opposition stating that the petitioner has not placed the correct facts on record before this Court and in addition thereto, it has been stated that late Shri D. Chorei of Karimganj, Assam came to Tamenglong in and the year 1979. He was appointed as Male Nurse under the State Government and joined his service at District Hospital, Tamenglong. He married late Smt. Tombi Kamei and out of his wedlock, one daughter, namely Smt. D. Elizabeth Chorei and two sons, namely Shri D. Reuben Chorei and Shri D. Anthony Chorei were born. Shri D. Reuben Chorei is a mentally disabled person. His sister Smt. D. Elizabeth Chorei is married. When his father was living with his first wife, Smt. late Tombi Kamei, his father took Smt. Namgakliu Riamei as a mistress in the year, 1990 and the petitioner was born to him. His father, late Shri D. Chorei expired on 18/12/1991 while late Smt. Tombi Kamei expired in the year, 1992.

[4.2] After about 6 (six) years from the death of his father, his step-mother, Smt. Namgakliu was remarried to Shri Helen Gangmei, Naga Ching, Tamenglong in the year 1997 and since then, the petitioner has been living with his mother. After the death of his father, Smt. Namgakliu got appointed as a Sweeper in the Medical Department under the die-in-harness scheme. His step-mother, Smt. Namgakliu through her second husband, gave birth one son and two daughters and since Smt. Namgakliu enjoyed her salaries, they did not pay any money for the maintenance of his brother and sister and himself.

[4.3] In the homestead land measuring 70x60 feet, his late father constructed a wooden house in the year 1984 and similarly, in the other land having an area of 30x20 feet, a wooden building is standing. It has been specifically denied that there was any settlement in the family and that the agricultural lands measuring about 7 acres and forest lands at Magura Village, Karimganj, Assam were apportioned between him and his brother. It has also been denied that the land measuring about 60x70 feet situated at Ward No. IV is to be given to the petitioner. He and his brother and sister being minors, they were not aware of the properties of their father in Assam. It has been learnt by him with reason that his step-mother Smt. Namgakliu and her natural issues including the petitioner fraudulently and concealing the true history of the legal heirs, obtained succession certificate from the office of the Deputy Commissioner, Tamenglong. After the death of his father, he himself and his brother and sister continued to stay in the same house. Without his knowledge, the order dated 23/10/1992 and the gift deed dated 21/11/2015 were made illegally and unsustainable and not binding on them. Being it his share of land, he filed an application dated 25/06/2015 to the Addl. Deputy Commissioner, Tamenglong who vide its letter dated 06/07/2015 directed the SDO, Tamenglong to conduct an enquiry/ verification. Thereafter, the mutation order dated 09/07/2015 was issued rightly to record his name on the basis of the enquiry conducted by the SDO. Since the dispute relates to a plot of land which is possessed by him since his birth, it is a civil in nature and therefore, the writ petition filed by the petitioner is not maintainable. Moreover, he having stayed there for more than 12 years, his right is perfected by the principle of adverse possession. In view of the fact that the petitioner's mother has already obtained succession certificate in respect of the other land measuring 28x32 feet, it becomes the share of the petitioner and the land situated at Ward No. IV, Tamenglong District HQ is his share along with his brother and sister.

[5] The subject matter in issue relates to a piece of land measuring an area of 60' X70' feet situated at Tamenglong HQ. Admittedly, there is no any land law applicable to the lands situated in the hill areas of Manipur including the Tamenglong Area. As per the order dated 23-10-1992 issued by the Deputy Commissioner, Tamenglong, a copy of which has been filed along with the petition, the said land was allotted to Smt. Namgakliu, the mother of the petitioner. On perusal of it, it is not clear as to the provision of law under which it was allotted to her. In other words, the provision of law is nowhere stated in the said order for allotment. During the course of hearing, it has been submitted by the learned counsel appearing for the petitioner that prior to the independence, certain lands were donated by the villagers to the then Deputy Commissioner and the land in issue is part of them. What is the status of the lands which were allegedly donated by the villagers after India having attained independence, is not known. Whether the said allotment in favour of Smt. Namgakliu was valid, is also not known. There is no material placed on record either by the petitioner or by the private respondent to verify it. In respect of the lands situated in the valley, the provisions of the Manipur Land Revenue and Land Reforms Act, 1960 are applicable and the Deputy Commissioner is empowered to make allotment of lands after the approval being granted by the State Government. It is not so in the present case and since the provisions of the Manipur Land Revenue and Land Reforms Act, 1960 will have no application in the hill areas including the present land, the validity and correctness of the order dated 23-10-1992 remains unclear, although it is not a subject matter in issue in the present case. But it will definitely have a bearing while deciding the issue involved herein relating to the correctness of the impugned order.

[6] The case of the petitioner is that after the death of his father, there was a family settlement by which it was mutated in the name of his mother vide order dated 23-10-1992 issued by the Deputy Commissioner, as the petitioner was a minor. When he became a major, it was gifted to him by his mother vide Gift Deed dated 21-11-2015 and on the same day itself, it was mutated in his name. In the meantime, the private respondent was allowed to stay there temporarily but taking advantage of it, he approached the Deputy Commissioner who vide its order dated 08-07-2015 directed to the SDO, Tamenglong to conduct an enquiry/ verification. But the Sub-Deputy Collector, without holding an enquiry, issued the impugned order mutating the land in the name of the private respondent. The averments made in the writ petition have been denied by the private respondents. According to him, the land belonged to his father and he has been staying therein from his childhood and since the succession certificate has been issued in the name of his step mother in respect of the other land, the land which is a subject matter in issue, has fallen in his share and accordingly, he applied for mutation which the Sub-Deputy Collector did it in his name. From the pleadings as aforesaid, it is seen that there is a disputed question of facts and law which cannot be decided by this Court for want of materials. In other words, there are no materials placed on record, on the basis of which the disputed question of facts can be decided by this Court.

[7] As has been observed hereinabove, the source of power by which the said land was allotted to the mother of the petitioner by the Deputy Commissioner, is not disclosed in the order dated 23-10-1992. Similar is the case with the letter dated 06-07-2015 written by the Addl. Deputy Commissioner, Tamenglong. The authority of the office of the Deputy Commissioner for having issued the order dated 23-10-1992 is not known with the result that the power of the Sub-Deputy Collector, Tamenglong is also not known. It is well known that no officer can act without it being backed by the law. While issuing the order dated 09-07-2015, the source of authority is not disclosed and therefore, this Court is of the prima facie view that the Sub-Deputy Collector has issued the impugned order without any authority of law. In view of the peculiar facts and circumstances, this Court is of the further view that the mere quashing the impugned order will not solve the controversy arisen amongst the members of the family. Even if an order may be passed by this Court while deciding the issue involved in the present writ petition, another issue will crop up out of the said land and the litigation amongst them will unnecessarily go on for the reason that there is no land law applicable to the said land. In this regard, it may be noted that in the case of Mrs. Jubilee Koi Vs. State of Manipur & ors., WP(C) No.369 of 2009 decided on 28-06-2016, this Court has observed that in order to obviate such litigation or to resolve any issue arising out of the land in the hill areas, there is a need to have a separate land law applicable to the hill areas. In other words, such a land law is indispensable, in the present day circumstances and in the interest of the people in the hill area, so as to determine their title and ownership over the land as required and mandated under the provisions of the Transfer of Properties Act. Paragraph 10 thereof reads as under:

"[10] While deciding the issue involved herein, one aspect which the people in the hill areas may keep in mind, has arisen as regards the customary laws prevailing in the hill areas. Customary laws means a set of rules or norms practiced in a community for a long time. With the passage of time, customary laws have undergone radical changes, as a result the question, commonly and generally asked in the public, is as to what actually the customary laws are. Many people in the hill areas have, these days, started approaching the civil courts or this Court to redress their grievances in respect of various issues arising out of customary laws and some of which, mention may be made, are (a) who is the Chief of a recognised village because the Chief is the ex-officio Chairman of the Village Authority. Various orders/ notifications issued by the State Government declaring the result of the election of the members of the Village Authority showing therewith the name of the Chairman of the Village Authority have become the subject matters in issue in some cases; (b) who is the owner of the land of the village? This issue has arisen in many cases where the lands are acquired by the Government for undertaking development projects and compensation to be paid for it. There seems to be no definite clarity with respect to the ownership of the land of the village. On the one hand, a Chief is said to be the only owner of the land of the village and if that be so, the question of inheritance may arise only in the family of the Chief. But the said reports of the Law Research Institute talk about the custom whereby inheritance in respect of land takes place in every family of the Kuki tribes; (c) what are the documents to be produced by the people in the hill areas to prove the ownership or the title over the land? This issue has arisen in some cases where the documents of ownership of the land are required to be mortgaged for a loan being granted by the bank in respect of some social development schemes launched by the Government of India. The above issue (a) and (b) are inter-related and are relevant from the point of view of the decision rendered on 12-05-2014 by the Division Bench of this court in Writ Appeal Nos. 59 of 2011, Union of India Vs. S. Shangreikhai and Writ Appeal No. 42 of 2013, State of Manipur Vs. S. Shangreikhai wherein the issue regarding payment of compensation on account of water being diverted by the Assam Rifles affecting irrigation in private fields arose, when the Hon'ble Court held that since none of the private respondents was able to produce any document in proof of title, compensation could not be paid to them so long as they did not prove title over the lands under their possessions. This ruling has been followed in a subsequent case namely K. Peter & anr. Vs. State of Manipur & ors., reported in (2015) 1 NEJ 255 wherein this court has again held that since the petitioners have failed to establish their title over the land in issue, no writ can be issued for directing the respondents to pay compensation to them. These issues are illustrative and not exhaustive. One of the reasons as to why such issues have arisen in recent times, appears to be that there is no land law applicable in the hill areas and in the absence of such a land law, hill areas are not surveyed; owners are not identified and recorded in the revenue record; pattas are not issued in favour of the owners of the land and therefore, litigations are bound to occur, the number of which will increase day by day. India is a democratic country where the people are considered to be supreme and therefore, the Government is run by its representatives; the money held by the Government is considered to be the public money and the employees of the Government are considered to be public servants. People of India have given to themselves a Constitution with a view to secure to all its citizens, justice, liberty and equality. Even after 65 years of independence, we have not been able to achieve fully the objectives specified in the preamble of the Constitution despite a number of development projects/schemes being undertaken continuously by the Government. It appears to be felt in some circle of the Government of India that having a land law in the hill areas may be a need of the hour and may enhance the process of development towards achieving justice, liberty and equality and in particular, economic equality. Therefore, this court is of the sincere and bonafide view that it is high time for the people in the hill areas to think of having a land law applicable in the hill areas so as to avoid unnecessary and unwarranted litigations from the unscrupulous litigants."

[8] In view of the above and keeping in mind the peculiar facts and circumstances of the present case, the instant writ petition is disposed of with the following directions:

(a) The matter is referred to mediation for which the Member Secretary, Manipur Legal Services Authority, Lamphelpat Court Complex, Imphal shall appoint a Mediator, within two weeks from the date of receipt of a copy of this judgment and order, who shall explore the possibility of a family settlement;

(b) Both the petitioner and the private respondent are directed to appear before the Member Secretary, Manipur Legal Services Authority on 03-04-2020 to know the name of the Mediator and for further proceedings;

(c) In the event of the matter not being resolved by the Mediator amicably, he/ she shall pass an appropriate order which shall be communicated to the parties in time;

(d) Thereafter, it will be open to either of the parties to approach the Civil Court for appropriate order and till an interim order being passed by the Civil Court as regards the possession of the said land, the private respondent who is now occupying the same, shall not be dispossessed;

(e) A copy of this judgment and order shall be sent to the Member Secretary, Manipur Legal Services Authority, through a special messenger, at the earliest possible for her doing the needful.