A.H. SAIKIA, J- Heard Mr. E.Y. Renthungo, learned counsel for the petitioner and Mrs. Lucy, learned Government Advocate appearing on behalf of the State respondents. None appears for the private respondent No. 5 despite notice being duly served upon him. 2. The grievance made in the writ petition is two fold : (i) That the Sub-Divisional Officer (Civil) Sanis [for short SDO(C)] acted illegally and without jurisdiction in passing the Notification dated 2nd June, 2001 (Annexure-7 to the writ petition) by which the petitioner No. 2 to 5 were disqualified from exercising their franchise in the Election / Selection of Village Council Chairman to be held on 6.6.2001, and (ii) That the Deputy Commissioner, Wokha, under whose jurisdiction the village in question falls also acted illegally and without jurisdiction in passing the impugned order dated 7.6.2001 (Annexure-10 to the writ petition) by which the respondent No. 5 was notified to be elected / selected as Chairman of Sanis village. 3. Before delivering upon the rival contentions of the parties, it would be appropriate to refer those impugned orders which are extracted as follows : "GOVERNMENT OF NAGALAND OFFICE OF THE SUB-DIVISIONAL OFFICER (C) SANIS: NAGALAND NO. COUN/VCM/S/2000-01 Dt. Sanis the 2nd June, 01 NOTIFICATION It is hereby notify to all VCMs and GBs of Sanis village that Election/Selection of Village Council Chairman of Sanis village will be held on 6.6.01 in the Officer of the undersigned at 10 AM. It is also hereby notify that the four VCMs namely 1. W. Orensao 2. V. Nzanbemo 3. Nongothung and 4. Nyamo shall not be entitled to exercise their franchise as they have undertaken/pledged their support in written in favour of two intending candidates for VCC. However, the question of their replacement if so desire by the villagers shall be taken after the election/selection of VCC. Further, if the villager feels that their replacement is not require, then they will continue to be VCMs. This refer Deputy Commissioner letter No. CON/MISC- 1/2000-01 Dt. Wokha the 18th May, 2001. (K. LIBANTHUNG LOTHA) Sub-Divisional Officer(Civil) Sanis : Nagaland." "GOVERNMENT OF NAGALAND OFFICE OF THE DEPUTY COMMISSIONER WOKHA No. COUN- 1/2000-01 Dated Wokha the 7th June, 01. ORDER It is hereby notified that, as per the provisions of the Nagaland Village Council Act, 1978 and prevailing Customary practices being followed in the Village, Shri Chenirao Murry is Elected/Selected as Chairman of Sanis Village. ORDER It is hereby notified that, as per the provisions of the Nagaland Village Council Act, 1978 and prevailing Customary practices being followed in the Village, Shri Chenirao Murry is Elected/Selected as Chairman of Sanis Village. This is subject to the disposal of complain received. (IMKONGTEMSU AO) Deputy Commissioner Wokha." 4. Challenging the impugned orders mainly on two grounds, Mr. E.Y. Renthungo learned counsel for the petitioners, has force fully argued that the Officer concerned responsible for passing the impugned orders acted illegally and without jurisdiction and thereby committed a grave error of law in passing the impugned orders. The learned SDO(C) was not authorised to disqualify the petitioner No. 2 to 5 who were the elected members of the Village Council and this impugned Notification is contrary to the provisions of law laid down under Section 17 of Village and Area Council Act, 1978 (for short the Act). Section 17 provides as follows : "If any question arises as to whether a member of a Village Council has been subject to disqualification, the question shall be referred to the decision of the State Government whose decision thereon shall be final." 5. On perusal of the above provision, I find enough force in the submission of the learned counsel for the petitioner. The language of Section 17 is clear and unambiguous. It appears that to disqualify a member of the Village Council, power has been vested only upon the State Government meaning thereby, the SDO(C) has no such power to disqualify any member of the Village Council. 6. The second limb of submission of the learned counsel is that the respondent No. 5 is not qualified to be elected/selected as Village Council Chairman, and such election/selection of respondent No. 5 as ordered vide order dated 7.6.2001 is illegal and in violation of the provisions of the Act. His contention is that, the respondent No. 5 was earlier convicted by DBs Court on two counts. In one case, during his tenure as GB, the respondent No. 5 was found destroying some one's fencing without valid reasons for which a fine of Rs. 2507- (Rupees two hundred fifty) was slapped upon him by the said Village Court, and on another occasion, the respondent No. 5 was again imposed with a fine of Rs. In one case, during his tenure as GB, the respondent No. 5 was found destroying some one's fencing without valid reasons for which a fine of Rs. 2507- (Rupees two hundred fifty) was slapped upon him by the said Village Court, and on another occasion, the respondent No. 5 was again imposed with a fine of Rs. 1507- (Rupees one hundred fifty) by DBs Court for violation of Lotha customary law while he was Head GB-cum-acting Chairman. In making such submission, the learned counsel for the petitioner has relied on the Annexure-5 annexed to the writ petition. It is stated that Section 9 of the Act provides for removal of any member on any one of the grounds laid down therein from sub-clause (a) to (f). He has also stated that under Section 9 of the Act, the power to remove member has been vested upon the State Government. Section 9 provides that the State Government may remove any member of the Village Council from his office on any one of the grounds mentioned in sub-clause (a) to (f). Sub-clause (a) provides that any member of the Village Council may be removed by the Government if he is convicted of any offence involving moral turpitude by a Court of law. Again Sub-clause (f) provides that any member of the Village Council may also be removed who has been found guilty of misconduct in discharge of his duties or of any disgraceful conduct and two-third of the total number of the Village Council at a meeting recommend his removal. When the respondent No. 5 having been found to be convicted by a Village Court which is the Court of law, and such offence committed by him, as above mentioned, being in the nature of moral turpitude, as argued by Mr. E.Y. Renthungo, and also two third of the total members of the Village Council having represented to the SDO(C) being the competent authority for controlling the Village Council under Section 22 of the Act, which provides for control of Village Council, as evident from Annexure-5 to the writ petition, being filed on 28.5.01 much before the election on 6.6.2001, the State Government ought to have taken steps for removal of respondent No. 5 before contesting the election for Village Council Chairman in terms of Section 9 of the Act. 7. 7. Having gone through the provisions of law referred above and considering the factual situation in the case, this Court is of the view that the submission of Mr. Renthungo appears to have held water. A bare perusal of the impugned order dated 7.6.2001 makes it seemingly clear that authority also perceived the existence of those allegations against the respondent No. 5 for which the impugned order itself, the authority observed "This is subject to the disposal of complain received". In view of the legal position laid down under Section 9 of the Act, in my humble opinion, the impugned order dated 7.6.2001 needs interference. 8. At this stage, Mrs. Lucy, the learned Government counsel relying on the Affidavit filed by the State respondents, has argued that the petitioner No. 1 himself contested the election only submitting his nomination paper on 6.6.2001 for the post of Village Council Chairman, but when he was defeated by his opponent by a margin of one vote, he along with his supporters withdrew from their voting. She has referred to Annexure-I annexed to the Affidavit in opposition filed by the respondents. This Court is not inclined to accept such submission. The law is clear that if a member is disqualified by virtue of his conviction by a Court of law or found guilty of misconduct or any disgraceful conduct or two third of the total member of the Village Council at the meeting recommends for removal, it is the duty of the State Government to remove any such member which also includes the Chairman of the Village Council, from his office. In the instant case, it is manifestly evident from Annexure-5 that 11 (eleven) members of Village Council out of 16 total member as seen in Annexure-l(a) to the writ petition, on 28.5.2001 well ahead of election (i.e. 6.6.2001), complained before SDO(C) against the respondent No. 5 but the authority failed to look into the same. It was the duty of SDO(C) to forward the same to the State Government to do the needful. 9. It was the duty of SDO(C) to forward the same to the State Government to do the needful. 9. In view of what has been discussed and observed herein above and upon hearing the learned counsel for the parties, this Court is inclined to pass the following orders: (1) The impugned Notification dated 2nd June, 2001 issued by the SDO(C) disqualifying the petitioner 2 to 5 from exercising their franchise in the Election/ Selection of Village Council Chairman held on 6.6.2001 is without jurisdiction and illegal, and consequently the same is hereby set aside and quashed. (2) The State Government especially Respondent No. 2 is directed to look into allegation/complaint dated 28.5.2001 (Annexure-5) lodged with the SDO(C) and on proper enquiry, examination and verification and also after giving adequate opportunity of hearing to all the interested parties he shall pass necessary orders in accordance with law and also in terms of Section 9 of the Act. It is made clear that this direction be completed within a period of 2 (two) months from the date of receipt of this order. A certified copy of this order accompanied by a copy of this writ petition with all the annexures appended thereto be submitted to the above mentioned authority to do the needful according to the direction indicated herein above. In the result, this writ petition is allowed. No costs.