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2007 DIGILAW 583 (GAU)

Tukiye v. A. D. C. (J), Zunheboto

2007-08-29

BIPLAB KUMAR SHARMA, D.BISWAS, RANJAN GOGOI

body2007
JUDGMENT : Ranjan Gogoi, J. 1. The petitioners and the Respondent Nos. 3 and 4 are residents of New Shena village located in the Zunheboto District of the State of Nagaland. In the proceedings before the customary courts as well as the courts constituted under the Rules for Administration of Justice and Police in Nagaland, 1937 (as amended), out of which the present writ petition has arisen, while the petitioners contended that the office of the Gaon Bura in the Sema Naga tribe is a hereditary office and therefore the respondent Nos. 3 and 4 are not entitled to be appointed to the said office, the respondent Nos. 3 and 4 contended to the contrary. The dispute between the parties was sought to be resolved by the learned Additional Deputy Commissioner (J), Zunheboto, by his order dated 29.7.1996 holding that as the claim of the respondent Nos. 3 and 4 to the office of Gaon Bura was in respect of new offices, not previously held by any person on hereditary basis. The respondent Nos. 3 and 4 would be entitled to the said office on account of necessity. 2. Aggrieved, the petitioners had instituted the present writ proceeding, primarily, contending that under the Sema Naga customary law the office of Gaon Bura is hereditary and no claim to the said office on any other basis would be authorized under the customary practices and usages which have been in vogue since time immemorial. At the hearing of the writ petition, reliance was placed on behalf of the petitioners on a published book titled 'Sema Nagas' by J.L. Hutton. In the said published work the acknowledged claim of hereditary succession being with reference to the office of Chieftain and not specifically to the office of the Gaon Bura, the Division Bench had made a reference of the above point at issue to a larger Bench particularly in view of the categorical stand taken in the counter-affidavit of the respondent Nos. 3 and 4 that the two offices i.e. that of Gaon Bura and Chieftain are different and distinct. That is how the present Bench is in seisin of the matter. 3. 3 and 4 that the two offices i.e. that of Gaon Bura and Chieftain are different and distinct. That is how the present Bench is in seisin of the matter. 3. The published books and known works on Sema customary law being few and the celebrated work of Hutton being the primary authoritative text on the subject it had become necessary for the Court to determine the precise customary practice in question on the basis of the available opinions of the elders of the Tribe or of duly constituted and recognized bodies representing the Sema Tribe. Accordingly, the Court by order dated 15.2.2007 had directed the Chief Secretary of the State to ascertain the correct position and inform the Court the prevailing customary practices in the Sema Tribe with regard to appointment of Chief/Gaon Bura and whether the post of Chief and Gaon Bura is one and the same. 4. The learned Advocate General of the State who was requested by the Court to assist it in the matter, in the course of several hearings of the case, had placed an initial report of the Chief Secretary which is to the effect that the office of the Chief and Gaon Bura in Sema Tribe is essentially the same though as a matter of practice the Chief is known as the 'Akukau'. On behalf of the Chief Secretary a report dated 4.11.2006 submitted by the President of the Western Sumi Kukami Hoho was also submitted to the effect that in the Sema Tribe a Chief is also known as a Gaon Bura. In the said report it has been stated that the fundamental distinction between a Chief/Gaon Bura of a Sema village and the similar office in other tribes is that in so far as Sema villages are concerned, the Chiefs/Gaon Buras "are not selected or elected by the villagers but are the descendants of the Chiefs/Gaon Buras who rule over the village on hereditary basis." In the said report it has also been stated that the above customary practice has been in vogue amongst the Sema Nagas till date and since time immemorial and further that though Chiefs/Gaon Buras receive their appointment orders from the Government, such appointment orders are in reality recognitions of the existing status of the Chief/Gaon Bura. In compliance with the Court's order dated 15.2.2007 the Chief Secretary has also filed an affidavit dated 25th July 2007 enclosing a report dated 12.7.2007 issued by the President of the Sumi Hoho, Zunheboto which is the Apex body of the Sema Tribes in Nagaland. The Chief Secretary in the affidavit has enclosed the view expressed by the said body in the report dated 12.7.2007 which is to the following effect. "the Chieftainship (GB ship) in Sumi Society is hereditary by traditional customary practice even long before the British regime in the then Naga Hills District of Assam. In other words only the sons and grandsons of the village founder are solely entitled to inherit the Chieftainship (AKUKAU). No new assistant chief (GB) can be appointed in any way without the consent or recommendation of the village founder and his heirs. In recognition of their position, Chiefs were given Red Blanket by then British Government which is still in force, otherwise Chiefs had been there (sic) in their own traditional shawl in those days." 5. The materials indicated above make it clear that amongst the Sema Nagas the status of Chieftainship is conferred on the founder of a village who is also known as a Gaon Bura. Both the expressions 'Chief and 'Gaon Bura' are interchangeable though it is obvious to us that as the Gaon Bura, the Chief may be specifically performing the duties assigned to the office of the Gaon Bura by law, in addition to which the Chief, as the head of the village, may have other/additional responsibilities. It is also obvious to us from the report dated 12.7.2007 of the Sumi Hoho, Zunheboto, that though there may be more than one Gaon Bura appointed in course of time for better administration of the village any such Gaon Bura appointed must be with the consent of the founder of the village and must have a lineage which is traceable to the founder of the village. The report of Sumi Hoho further makes it clear that from time immemorial Chiefs of Sema villages had their own traditional shawls. With the coming of the British Government the Chiefs were also given the red blanket which is a symbol of the office of the Gaon Bura. 6. The report of Sumi Hoho further makes it clear that from time immemorial Chiefs of Sema villages had their own traditional shawls. With the coming of the British Government the Chiefs were also given the red blanket which is a symbol of the office of the Gaon Bura. 6. An authoritative exposition of the customary usages and practices prevalent in any particular tribe is a delicate task that the Courts are often called upon to perform. As the customary usages and practice, on being duly recognized, will have the necessary legal sanction behind it effecting the lives of the members of the particular tribe, such a delicate task has to be performed by the Court either on a comparative assessment of the published works available on the subject or on opinions of responsible elders of the tribe or duly accredited organizations representing the tribe. In the present case, as already noticed by us, the published works on the subject are few and the same do not elaborately throw light on the issue on which we have been called upon to render our opinion. The Court, therefore, had no option but to resort to the second alternative by requiring the Chief Secretary to verify and ascertain the correct position and thereafter submit a report. The opinion of the Chief Secretary as formulated and placed before us has been on the basis of the opinion expressed by different quarters including the views of the highest body of the tribe i.e. Sumi Hoho. The materials placed before us are free from any kind of ambiguity and indicate the traditional practice in vogue with sufficient clarity and with near unanimity. We are, therefore, of the view that the said materials can be safely relied upon by us in coming to our conclusion that the office of the Chief and Gaon Bura in Sema Tribe is one and the same and the said office is a hereditary one. 7. An attempt has been made by Dr. N.K. Singh, learned counsel appearing for the respondent Nos. 3 and 4 to contend that a customary practice having the force of law which recognizes a public office i.e. of Gaon Bura to be hereditary would be contrary to Articles 14 and 16 of the Constitution and therefore, even if this Court is to hold that such a customary practice exists the same must be declared to be unconstitutional. 3 and 4 to contend that a customary practice having the force of law which recognizes a public office i.e. of Gaon Bura to be hereditary would be contrary to Articles 14 and 16 of the Constitution and therefore, even if this Court is to hold that such a customary practice exists the same must be declared to be unconstitutional. In this regard Dr. Singh has taken us through the pleadings contained in the counter affidavit of the Respondent Nos. 3 and 4. 8. We have given our anxious consideration to the above aspect of the case projected by the respondent Nos. 3 and 4. The contention, as noticed above, was not an issue at any stage of the proceedings prior to the present writ petition. The same has been raised by the respondent Nos. 3 and 4 for the first time in the present writ petition wherein the order dated 29.7.96 passed by the learned A.D.C. (J), Zunheboto holding the office of the Gaon Bura not to be hereditary has been assailed by the writ petitioners. However, for reasons which are obvious, we have not thought it proper to preempt the challenge made on the aforesaid score and instead we have deemed it appropriate to consider the said question on its merits. 9. The issue raised on the point of constitutionality of the customary practice in vogue, as recorded by us, has to be answered in the negative on the ratio of the law laid down by the Apex Court in Madhu Kishwar & Ors. Vs. State of Bihar & Ors. reported in (1996) 5 SCC 125 . In the aforesaid case the Apex Court was considering a challenge made against certain provisions of the Chotonagpur Tenancy Act, 1908 which provided for succession to property in favour of the male descendants to the exclusion of the female descendants. Though the minority judgment in the said case had proposed reading down Sections 7 and 8 of the statute to include the expression 'female descendants" within the expression 'male descendants", wherever occurring, the majority view was not in favour of what was proposed in the minority judgment though the unanimous view in the aforesaid case was that it may not be desirable to declare the customary practices amongst the tribals as offending Article 14 of the Constitution. The observations contained in paragraphs 5 and 6 of the judgment in Madhu Kishwar (supra) would succinctly sum up the situation and therefore are being extracted below. "5. In the face of these divisions and visible barricades put up by the sensitive tribal people valuing their own customs, traditions and usages, judicially enforcing on them the principles of personal laws applicable to others, on an elitist approach or on equality principle by judicial activism, is a difficult and mine-boggling effort. Brother K. Ramaswamy, J. seems to have taken the view that Indian legislatures (and Governments too) would not prompt themselves to activate in this direction because of political reasons and in this situation, an activist court, a political as it avowedly is, could get into action and legislate broadly on the lines as suggested by the petitioners in their written submissions. However laudable, desirable and attractive the result may seem, it has happily been viewed by our learned brother than an activist court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. For in whatever measure be the concern of the court, it compulsively needs to apply, somewhere and at sometime, brakes to its self-motion, described in judicial parlance as self-restraint. We agree therefore with brother K. Ramaswamy, J. as summed up by him in the paragraph ending on p. 36 (para 46) of his judgment that under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 15 and 21 of the Constitution and each case must be examined when full facts are placed before the Court. 6. With regard to the statutory provisions of the Act, he has proposed to the reading down of Sections 7 and 8 in order to preserve their constitutionality. The words "male descendant" wherever occurring would include "female descendants". It is also proposed that even though the provisions of the Hindu Succession Act, 1956 and the Indian Succession Act, 1925 in terms would not apply to the Scheduled Tribes, their general principles composing of justice, equity and fair play would apply to them. The words "male descendant" wherever occurring would include "female descendants". It is also proposed that even though the provisions of the Hindu Succession Act, 1956 and the Indian Succession Act, 1925 in terms would not apply to the Scheduled Tribes, their general principles composing of justice, equity and fair play would apply to them. On this basis it has been proposed to take the view that the scheduled tribe women would succeed to the estate of paternal parent, brother or husband as heirs by intestate succession and inherit the property in equal shares with the male heir with absolute rights as per the principles of the Hindu Succession Act as also the Indian Succession Act. However much we may like the law to be so we regret out inability to subscribe to the means in achieving such objective. If this be the route of return on the court's entering the thicket, it is far better that the court kept out of it. It is not far to imagine that there would follow a beeline for similar claims in diverse situations, not stopping at tribal definitions, and a deafening uproar to bring out systems of law in line with the Hindu Succession Act and the Indian Succession Act as models. Rules of succession are indeed susceptible of providing differential treatment, not necessarily equal. Non-uniformities would not in all events violate Article 14. Judge-made amendments to provisions, over and above the available legislation should normally be avoided. We are thus constrained to take this view, even though it may appear to be conservative for adopting a cautions approach, and the one proposed by our learned brother is, regretfully not acceptable to us." 10. In the light of the above discussions we feel justified in negating the challenge founded on the touchstone of the equality clause under the Constitution. We, therefore, declare that amongst the Sema Nagas the office of the Chief and the Gaon Bura is the one and the same and the said office is a hereditary one. We, consequently, allow the writ petition and set aside the order dated 29.7.96 passed by the learned Addl. Deputy Commissioner (J), Zunheboto in Civil Appeal No. 2 of 1995.