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2007 DIGILAW 356 (GAU)

T. A. Rongmei v. State of Nagaland

2007-05-17

I.A.ANSARI, MAIBAM B.K.SINGH

body2007
JUDGMENT I.A. Ansari, J. 1. We have heard Mr. Imti Longchem, learned Counsel for the Petitioners-Appellants, and Mr. L.S. Jamir, learned Government Advocate, appearing on behalf of the Respondents. 2. By making an application under Article 226 of the Constitution of India, which gave rise to W.P. (C) No. 137 (K)/2001 (corresponding to W.P. (C) No. 95/1999), the Appellants, as writ Petitioners, sought for directions from the Court commanding the Respondents to declare Rongmei community as a Scheduled Tribe of Nagaland by virtue of the Constitution Nagaland (Scheduled Tribes) Order, 1970, read with Government Notifications, dated 28.4.77 and 22.1.81, issued by the Government of Nagaland, and such further directions as maybe necessary in order to treat the Rongmei community as Scheduled Tribe of Nagaland and to give them all benefits and privileges available to a person belonging to a Scheduled Tribe of Nagaland. The writ petition was registed by the Respondents by contending, inter alia, that Rongmei community had never been recognized as Scheduled Tribe of the State of Nagaland, they did not fall under the said Presidential Order and that they were not entitled to any such declaration and/or privileges as had been claimed by them. 3. Having considered the pleadings of the parties, the relevant materials on record and the law relevant thereto, a learned Single Judge dismissed the writ petition by judgment and order, dated 10.7.2003, wherein it was observed as under: 22. From the materials available on records and the reservation policy of the Government, it shows that the tribes recognized by the State Government as Scheduled Tribes were only those mentioned in the Presidential Order as well as in the letter dated 16.8:2002 issued by the Home Department, Govt. of Nagaland, to the Under Secretary to the Govt. of India, Ministry of Tribal Affairs. Neither in the Presidential Order nor in the said letter the Rongmei community was shown as a Scheduled Tribe in the State of Nagalard. The affidavit filed by the Home Commissioner also clearly speaks that the matter was even intimated to the Ministry of Social Justice and Empowerment, Govt, of India that the inclusion of Tangkhul, Mao and Rongmei as Scheduled Tribes of Nagaland was examined by the Government, but the Govt. could not accord Schedule Tribe status to the said communities. The affidavit filed by the Home Commissioner also clearly speaks that the matter was even intimated to the Ministry of Social Justice and Empowerment, Govt, of India that the inclusion of Tangkhul, Mao and Rongmei as Scheduled Tribes of Nagaland was examined by the Government, but the Govt. could not accord Schedule Tribe status to the said communities. The affidavit also shows that there is no proposal at hand to accord Scheduled Tribe status to the Rongmei community residing in the State of Nagaland. 23. Therefore, taking the stand of the State Government into consideration and keeping in mind the law laid down by the Apex Court as quoted above, this Court is of the opinion that the Court cannot add Rongmei community as a Scheduled Tribe to the Presidential Order when there is no specific provision to that effect in the Presidential Order. The Rongmei community, therefore, is not a Scheduled Tribe in the State of Nagaland. 24. For the aforesaid reasons I find no merit in this petition and accordingly it is dismissed. 4. Aggrieved by the dismissal of their writ petition, the Petitioners have preferred this appeal. 5. Upon hearing the learned Counsel for the parties and on considering the impugned judgment and order, we find that while the Petitioners-Appellants contend that they fall within the expression "Naga", which stands mentioned in the said Presidential Order, and shall, therefore, be declared and treated as a Scheduled Tribe of Nagaland, the State Respondents resist such assertions of the writ Petitioners-Appellants by contending, as already indicated hereinabove, that Rongmei community has never been treated, in the State of Nagaland, as a Scheduled Tribe of Nagaland. The question as to whether Rongmei community falls within the expression "Naga" is, in the context of the facts of the present case, not a pure question of law, but a mixed question of fact and law. Such an intensely disputed question of fact could not have been appropriately decided in a writ proceeding. 6. A writ proceeding was, therefore, not appropriate proceeding for obtaining such declarations as had been sought for by the writ Petitioners-Appellants. Such an intensely disputed question of fact could not have been appropriately decided in a writ proceeding. 6. A writ proceeding was, therefore, not appropriate proceeding for obtaining such declarations as had been sought for by the writ Petitioners-Appellants. Instead of directing the Petitioners to take recourse to a Civil court of competent jurisdiction for the purpose of obtaining declaration of the status of Rongmei community as "Naga" within the meaning of the term "Naga", which appears in the said Presidential Order, the learned Single Judge entertained the writ petition and has concluded, in effect, that the Court is not empowered to add Rongmei community as a Scheduled Tribe to the said Presidential Order and that Rongmei community is not a Scheduled Tribe in the State of Nagaland. 7. It, now, needs to be pointed out that while it is true that a Court cannot add to, or subtract from, the names of the communities mentioned as Scheduled Tribe in the said Presidential Order, what was, in fact, contended in the writ petition, by the writ Petitioners was that they already stood included within the expression "Naga", which appears in the said Presidential Order and what they needed from the Court was a formal declaration in this regard. The question, therefore, in the writ petition, was not as to whether Rongmei community shall or shall not be added to the list of Tribes mentioned as Scheduled Tribes in the said Presidential Order. What was, therefore, required to be decided, in the writ petition, was as to whether Rongmei community falls within the expression "Naga", which appears as a Scheduled Tribe community in the said Presidential Order. 8. In the circumstances, as indicated hereinabove, we are clearly of the view that the learned Single Judge has fallen into error in observing and, in substance, declaring that Rongmei community is not a Scheduled Tribe in the State of Nagaland. 8. In the circumstances, as indicated hereinabove, we are clearly of the view that the learned Single Judge has fallen into error in observing and, in substance, declaring that Rongmei community is not a Scheduled Tribe in the State of Nagaland. What the learned Single Judge could have done and ought to have done was that if he had reached the conclusion that the materials on record were not adequate to hold that Rongmei community falls within the expression "Naga", he could have dismissed the writ petition, but the learned Single Judge ought not to have held, in the context of the facts of the present case, particularly, when evidence from both ends had not been recorded, that Rongmei community is not Scheduled Tribe in the State of Nagaland. Such conclusion or finding shall, if allowed to stand good on record, cause serious miscarriage of justice and may adversely affect the right of the Petitioners-Appellants herein if they wish to seek from the civil Court a declaration of the status of Rongmei community as Scheduled Tribe in the State of Nagaland. Since the writ Petitioners had sought for a declaration that Rongmei community falls within the expression "Naga", and if such a declaration was not possible to give in the writ proceeding, no reverse declaration could have been given by the learned Single Judge to the effect that Rongmei community was not a Scheduled Tribe in the State of Nagaland. 9. What emerges from the above discussion is that since the materials before the learned Single Judge was not adequate to hold as to whether Rongmei community was Scheduled Tribe falling within the expression "Naga", which appears in the said Presidential Order, the writ petition could not have been allowed and has been rightly dismissed. At the same time, the declaration made by the learned Single Judge, in the impugned judgment and order, that Rongmei community is not a Scheduled Tribe in the State of Nagaland was also not required to be made in the said writ proceeding and, therefore, the said declaration cannot be allowed to stand good on record, for, such a declaration, in a writ proceeding, may adversely affect the rights of the Petitioners-Appellants and of their community to seek, in appropriate legal proceedings, declaration of the status of the Rongmei community as a Scheduled Tribe in the State of Nagaland. 10. 10. Considering, therefore, the matter in its entirety and in the interest of justice, this writ appeal is partly allowed. While the impugned judgment and order, dismissing the writ petition, is maintained, the conclusion and declaration made, in the impugned judgment and order, to the effect that Rongmei community is not a Scheduled Tribe, in the State ofNagaland, is hereby set aside. The Petitioners-Appellants are left at liberty to take recourse to civil court of competent jurisdiction for declaration of the status of Rongmei community as "Naga", within the meaning of the term "Naga", mentioned in the said Presidential Order. We further hasten to clarify that the setting aside of the conclusion, reached by the learned Single Judge, shall not be read as if this Court has, now, held Rongmei community as a Scheduled Tribe in the State of Nagaland, for, this question is a question, which can be best answered in a civil proceeding and not in a writ proceeding, such as the present one. With the above observations and directions, this appeal shall stand disposed of. No order as to costs.