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2011 DIGILAW 599 (GAU)

Hermon Ryngskai v. Jaintia Hills Autonomous

2011-07-20

TINLIANTHANG VAIPHEI

body2011
JUDGMENT T. Vaiphei, J. 1. The short question which falls for consideration in this writ petition is whether, on the facts and circumstances of the case, the dispute raised by the rival parties can be construed to be an election dispute, which should be decided only in accordance with Section 7(2) of United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959. 2. The controversy arose when the District Council-Respondents issued the impugned order dated 27-1-2011 (Annexure-1) authorizing the Respondent No. 5, who is none other than the Dolloi of Elaka Darrang, to look after the administration of the village till a new Headman was appointed despite the claim of the Petitioner that he was duly elected as the Headman of the village in accordance with the customary practice and usage. The case of the Petitioner is that following the expiry of the term of Shri Benedict Ryngksai as the Headman of Darrang village, a Durbar was convened on 16-1-2010 presided over by the private Respondent as its Chairman wherein he was unanimously elected as the new Headman. On the same day, the Respondent No. 5 along with the inhabitants of the village gave their approval to the election of the Petitioner and authorized him to take charge and start working as the Headman in accordance with the custom prevailing in the Elaka. The decision was thereafter sent to the District Council (Respondent 1) on 17-1-2010 for approval/recognition/confirmation. In the meantime, a dispute was raised by some clan concerning the said election of the Petitioner from Ryngksai clan as the Head in the Durbar, which resulted in their filing representation by them to the Administrative Officer of the District Council for allowing them to elect their own Headman in accordance with the custom prevailing in the Elaka since time immemorial. However, this objection was withdrawn by some of the complainants in their letter at Annexure-V. Subsequently, while he was discharging the function of the Headman of the village, the impugned order was issued. Contending that the impugned order is illegal, arbitrary and mala fide. This writ petition has been filed by the Petitioner. 3. Though originally there were five Respondents in the case, five other Respondents were impleaded as party-Respondents on the basis of their respective applications. Except for the Respondent No. 6, no affidavit-in-opposition is filed by any of the remaining Respondents. Contending that the impugned order is illegal, arbitrary and mala fide. This writ petition has been filed by the Petitioner. 3. Though originally there were five Respondents in the case, five other Respondents were impleaded as party-Respondents on the basis of their respective applications. Except for the Respondent No. 6, no affidavit-in-opposition is filed by any of the remaining Respondents. The Respondent No. 6 is the former Headman, whose term had expired, which warranted the holding of the disputed election. It is his case that despite the prevailing customary law governing the electing the Headman of this village from any clans in the village, the Ryngksai clan of the Petitioner arbitrarily adopted a resolution in the year 2000 prohibiting other clans from electing the Headman and that since 2000 the election of the Headman has been conducted forcibly among the members of the Ryngksai clans only to the exclusion of other 18 clans of the village; their elected headman neither gave financial report to the public nor was the general Dorbar meeting for the development of the village summoned. In the General Meeting held on 19-12-2009 to resolve the aforesaid crisis, the villagers of Darrang along with the members of the Ryngksai clan collectively decided to elect the Headman from any clan of the village and any bona fide members of the village, for which different clans would have the right to caste their vote and contest the post of Headman of the village. Pursuant to that meeting, which was chaired by the Dolloi of Darrang Elaka, the name of the Respondent No. 6 was also proposed by different clans to contest the election. However, suddenly, the members of the Ryngksai clans with the help of Awakening Association, which belongs to Ryngksai clan, announced that only members of the Ryngksai clan would be eligible to cast their vote and contest the post of Headman. Due to the undemocratic conduct of the members of the Ryngksai clan, members belonging to the other clans had boycotted the election, but the members of the Ryngksai clan forcibly went ahead with the election and elected the Petitioner as the Headman contrary to the time tested customary law as well as the said resolution dated 19-12-2009 by the public. 4. 4. This led the Respondent No. 6 along with 24 members belonging to different clans of the same village registered their protest before the District Council vide the letter dated 16-1-2010 and demanded action. As the situation in the village became more and more alarming, he along with 30 members belonging to various clans filed an appeal bearing dated February, 2010 before the District Council, Jowai explaining the entire history of the customary practice concerning the system of election and voting rights for electing the Headman and other mantries. They also requested the District Council to immediately conduct an inquiry, to not recommend the Petitioner as the Headman and conduct a fresh election by allowing all the people of the village to participate in such election to elect the best person as their Headman. It is the case of the answering Respondent that unlike any other village within the Elaka Darrang, this village has the consistent customary practice and usages of allowing any villager belonging to any clan to caste vote in the election to, and contest the post of Headman, to run the village institutions. In spite of this longstanding customary practice, he and other members of the various clans were not allowed to take part in the election held on 16-1-2010, as a voter or a candidate. On the basis of their complaint, the Respondent No. 5 made sincere attempt to resolve the dispute, but was unable to do so, which he duly reported to the District Council on 11-10-2010. As the election of the Petitioner was illegally held, the District Council rightly passed the impugned order. These are the sum and substance of the case of the Respondent No. 6. 5. The procedures for the appointment and succession of Chiefs and Headman in the Autonomous Districts of the Khasi Hills and Jaintia Hills are governed by the United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 ("the Act" for short). Section 3 of the Act says that subject to the provisions of the Act and the rules made there under, all elections and appointments of Chiefs or Headmen shall be made in accordance with the existing customs prevailing in the Elaka concerned. There is no dispute at the Bar that election to the post of Headman is to be conducted in accordance with "the existing customs prevailing in the Elaka concerned". There is no dispute at the Bar that election to the post of Headman is to be conducted in accordance with "the existing customs prevailing in the Elaka concerned". Section 7 deals with the confirmation of Headmen, which reads thus: 7. Confirmation of Headmen: (1) All the appointments of the Headmen in the Elakas specified in Appendixes-I and II shall be confirmed by the Chief and his Durbar and the names of such headmen shall forthwith be sent by the Chief to the Executive Committee. (2) If a dispute arises regarding any matter relating to or connected with, the election of headmen, the dispute shall be referred by the party or parties concerned to the Chief and his Durbar for decision. An appeal against such decision shall lie to the Executive committee whose decision shall be final. 6. On a plain reading of Section 7, it becomes obvious that the appointment of a Headman in the Elaka shall have to be confirmed by the Chief and his Durbar and the names of such headmen have to be sent by the Chief to the Executive Committee of the District Council without any delay; that if there be any dispute regarding any matter relating to or connected with, the election of headmen, the dispute shall be referred by the party or parties to the Chief and his Durbar for their decision and that against the decision of the Chief and his Durbar, an appeal will lie before the Executive Committee whose decision is to be final. The question for determination in this writ petition is, whether the election held on 16-1-2010 which resulted in the disputed election of the Petitioner can come within the purview of the election dispute contemplated by Section 7(2)? If the answer is in the affirmative, whether the Executive Committee has the jurisdiction to pass the impugned order without requiring the parties to seek remedy provided for by Section 7(2)? If the Executive Committee has no such jurisdiction, whether the impugned order is null and void? What actually happened on 16-1-2010 can be gathered from the letter dated 1-2-2010 of the Respondent No. 5, who is the Dolloi of Darrang Elaka (Chief of the village), addressed to the Jaintia Hills District Council, Jowai, which is annexed at Annexure-III. If the Executive Committee has no such jurisdiction, whether the impugned order is null and void? What actually happened on 16-1-2010 can be gathered from the letter dated 1-2-2010 of the Respondent No. 5, who is the Dolloi of Darrang Elaka (Chief of the village), addressed to the Jaintia Hills District Council, Jowai, which is annexed at Annexure-III. For better appreciation of the controversy, it will be appropriate to reproduce hereunder the relevant portion of the English Translation of Annexure-III made by the Senior Translator of this Court: With this, I am pleased to inform you that there has been a selection of Office-bearers, as a renewal on 16-01-2010, which was as follows: At the very outset from the side of the crowd, they requested me, in the capacity of U Doloi, to regulate the selection of the Headman of Darrang village. So, I started by questioning from the Ryngksai clan: As you have asked for time from the village crowd in the last Dorbar held on 19-12-2009 to mediate on this aspect. So, today the 16-01-10, you must show the person to the crowd. Accordingly, they indicated one, U Herman Ryngksai to be the Headman in Darrang. From my side, I questioned the village crowd, if they agree or not. Some from the crowd indicated another U Stynli Sushen, as the Headman of Darrang. All in a sudden, arose a grumble-mumble in between the crowd and Ryngksai clan to such an extent that from the crowd who came for this Dorbar left and never returned. Thereafter, I again questioned those who were present from the Ryngksai clan as well as the crowd and including me as a Chairman called their attention by saying that the Dorbar is not over and those who left did not return. I then further questioned from the members both from Ryngksai clan and the crowd as to how to proceed. All who were present stated to proceed on in the Dorbar for selection and appointment of the Office-Bearers of Darrang village. Accordingly, I proposed if they agree for U Herman to be a Headman. The answer which I got was that they have accepted. Sd/-B. Khongwang Dalloi, Elaka Darrang, Dalloiship. All who were present stated to proceed on in the Dorbar for selection and appointment of the Office-Bearers of Darrang village. Accordingly, I proposed if they agree for U Herman to be a Headman. The answer which I got was that they have accepted. Sd/-B. Khongwang Dalloi, Elaka Darrang, Dalloiship. Thereafter, follows the selection of other members: 1 U Herman Ryngksai - Headman Darrang 2 U Ruswell Khongwang - Assistant Rangbah Shnong 3 U Policarpus Synkrem - General Secretary 4 U Balnet-Pohli - Assistant General Secretary 5 U Linus Lamin - Treasurer 6 U Jaspernem Suchen - Member 7 U Makferson Pohti - Member 8 U Benedik Ryngksai - Member 9 U Siknal Lamin - Member After selection and appointment of the above-mentioned Office-Bearers, I gave a vote of thanks speech to all the crowd of village Darrang and closed the Dorbar. 7. As already noticed, the author of the aforesaid letter is none other than the Respondent No. 5, who is the Chief of the Elaka and who had conducted the disputed election. From the said letter, undoubtedly, it is evident that there was some commotion in the meeting when he conducted the election. Objection was raised by the members of some clans when they were excluded from participating in that election either as a candidate or a voter. It may be noted that the Respondent No. 5 had also clearly stated that the election went ahead which ultimately resulted in the election of the Petitioner as the Headman of the village. Therefore, rightly or wrongly, election has been conducted, prima facie, in accordance with existing customary practices and usages. Immediately after the election, the Petitioner also constituted the Dorbar as evident from Annexure-III. Thus, both the election of the Petitioner as the Headman and his selection of the members of the Dorbar have also been confirmed by the Respondent No. 5 which is also obvious from Annexure-III as otherwise he would not have sent his report to the Executive Committee. All that was required to be done then was the approval of the election of the Petitioner as the Headman and his selection of the members of the Dorbar by the Executive Committee of the District Council. However, the Executive Committee, instead of approving the election of the Petitioner as the Headman or his selection of the Dorbar, issued the impugned order nullifying his election. However, the Executive Committee, instead of approving the election of the Petitioner as the Headman or his selection of the Dorbar, issued the impugned order nullifying his election. In my opinion, the dispute about the election of the Petitioner as the headman is a dispute regarding any matter related to or connected with the election of headman which should have been referred by the aggrieved parties to the Chief and his Dorbar for decision under Section 7(2) of the Act. A person aggrieved by the decision of the Chief and his Durbar has the right to prefer an appeal before the Executive Committee, whose decision shall be final. The dispute raised by the private Respondents is about the exclusion of members belonging to clans other than Ryngksai clan from participating in the election as a voter or as a candidate. The dispute raised is also about the manner in which election of the Headman is to be conducted in accordance with "the existing customs prevailing in the Elaka concerned". Thus, in my opinion, the Executive Committee of the District Council have completely overlooked Section 7(2) of the Act while issuing the impugned order and have in the process committed illegally. Instead of issuing the impugned order, they ought to have approved the election of the Petitioner as the Headman and directed the private Respondents to take recourse to the alternative remedy available to them under Section 7(2) of the Act. No unique circumstances are made out by the Respondents to take recourse to the extra ordinary jurisdiction of this Court. The legal position is reiterated by the Apex Court in Gujarat University v. N.U. Rajguru 1987 Supp SCC 512 at paragraph 6, which reads thus: 6. It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute is neither a fundamental right nor a common law right, instead it is a statutory right regulated by the statutory provisions. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute is neither a fundamental right nor a common law right, instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution bypassing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify bypassing the alternative remedies. In the instant case, there existed no circumstances justifying departure from the normal rule as even the challenge to the validity of statute 10 was not pressed by the Respondents before the High Court. 8. The result of the foregoing discussion is that this writ petition succeeds. The impugned order dated 27-1-2011 at Annexure-1 to the writ petition is hereby quashed. It is hereby declared that the Petitioner shall continue to be the Headman of Darrang village until his election is set aside by the competent body or till his tenure ends by operation of law, whichever is earlier. It shall, however, be open to the private Respondents to seek of Section 7(2) of the Act to redress their grievance, if so advised. The parties shall bear their respective costs. Petition allowed.