JUDGMENT P K. Musahary, J. 1. Heard Mr. C.T. Jamir, learned senior counsel assisted by Mr. Wati Jamir, learned Counsel for the Petitioner. Also heard Mr. L S Jamir, learned Additional Advocate General, Nagaland and Mr. Taka Masa, learned Counsel, appearing for Respondent No. 6. 2. The Petitioner village council, represented by its acting Chairman, challenges the order dated 18.6.2009 passed by the Political Assistant to the Deputy Commissioner, Peren and order dated 28.8.2009 passed by the Deputy Commissioner, Peren whereby the Petitioner village has been directed to dismantle all the makeshift in the jhum kheti within two months and leave the place. The facts leading to passing of the aforesaid impugned orders are narrated hereunder: 3. The Petitioner is a traditional village established sometime in the 18th Century. They belong to a particular Naga tribe. Inter-tribe conflict and warfare was prevalent amongst them in the older days. The Petitioner village was subjected to constant warfare from the neighbouring villages. They could not resist the warring neighbour tribe and as a result the Petitioner-village had to leave the traditional village for a secured place. They left/abandoned the traditional village under the care of Peren Village with condition that they would take over the village again after their return. The inmates of the Petitioner village returned and with the permission of Peren Village they established the new Peren Village in 1961. The Petitioner's case is that in the year 1999 the Petitioner and the Peren Village Council had a joint meeting and it was agreed between the parties to establish the present Petitioner's village. However, the dispute arose in the year 2001 when the Petitioner started clearing the jungle for the establishment of their own village at the ancestral land. Respondent No. 6 lodged a complaint before the ADC, Peren alleging that the Petitioner was encroaching his land. The Petitioner also submitted their reply to the ADC in response to the allegation of Respondent-authorities. During the pendency of the aforesaid complaint, on 9.7.2001 a memorandum of understanding (MOU in short) was signed between the Petitioner and the Respondent-authorities at the initiation of a local arbitrator wherein it was agreed that the Respondent-6 would withdraw the complaint lodged before the ADC so as to settle the dispute as per the old tradition and custom. Accordingly, by an order dated 23.7.2001, the ADC Peren dropped the complaint lodged by the Respondent No. 6. Accordingly, by an order dated 23.7.2001, the ADC Peren dropped the complaint lodged by the Respondent No. 6. Although the said complaint of the Respondent No. 6 was withdrawn, no steps were taken by the Respondent-authorities as well as the arbitrator to settle the dispute in terms of the MOU. The Petitioner on several occasions requested the Respondent No. 6 to have a joint meeting to settle the dispute but he did not turn up. Then on 15.3.2004 the Petitioner submitted a letter dated 14.3.2004 to the Deputy Commissioner requesting him to preserve and protect their ancestral land till an MOU is signed between the parties. Thereafter the Petitioner requested the Respondent No. 6 on several occasions to settle the dispute but it yielded no response. The Petitioner submitted a letter to the Zeliangrong Baudi (HOHO), an Apex statutory body recognized under the customary law to settle the dispute as per customary practices. On receipt of the said letter, the Zeliangrong Baudi (HOHO), summoned the Respondent No. 6 on several occasions. As the Respondent No. 6 did not turn up, the HOHO on 25.11.2005 rendered a decision declaring the Petitioner as the rightful owner of the land in dispute. Subsequently, on 6.6.2006 an MOU was executed between the Petitioner and the Respondent No. 6 initiated by an arbitrator incorporating certain terms and condition. The Respondent No. 6 failed to abide by and implement the said MOU and neglected to settle the dispute as per the agreed terms and condition. As a result, the Petitioner had to withdraw the said MOU and submitted a representation on 17.4.07 to the Respondent-WP(C) No. 208(K) of 2009 page 4 of 14 Deputy Commissioner, Peren requesting him to execute a sale deed/agreement with the Petitioner with regard to establishment of Peren District Headquarter. 4. While the Petitioner was in possession of the land, the Respondent No. 6 reopened the dispute by lodging a complaint to the Political Assistant to Deputy Commissioner and a case being Pol Case No. 2/PRN was registered. On receipt of summons the Petitioner appeared before the authority and presented their case that without conducting any spot verification, by order dated 18.3.2009, the Political Assistant to Deputy Commissioner, directed the Petitioner to stop cutting jungles for jhum cultivation and carry out any development activities on the disputed land. On receipt of summons the Petitioner appeared before the authority and presented their case that without conducting any spot verification, by order dated 18.3.2009, the Political Assistant to Deputy Commissioner, directed the Petitioner to stop cutting jungles for jhum cultivation and carry out any development activities on the disputed land. The Political Assistant to Deputy Commissioner, thereafter, without ascertaining the real cause of dispute and without conducting spot verification, solely on the basis of complaint of Respondent No. 6, passed the impugned order dated 18.6.2009 directing the Petitioner to vacate their huts/temporary houses within a period of one month. It is stated that the said impugned order was passed as per decision of the ADC on 23.7.2001, but in the said order dated 23.7.2001, the ADC Peren allowed only to withdraw the complaint lodged by Respondent No. 6 without any mention as to the decision taken on the disputes. However, the PA to D.C. by misinterpreting the aforesaid order passed the impugned order dated 18.6.2009. Being aggrieved by the order dated 18.6.2009, the Petitioner submitted a representation to the P.A. to D.C. seeking necessary clarification/rectification of his order for the interest of justice and welfare of the parties. While the Petitioner was taking necessary steps with the PA to D.C. to solve the dispute, the Respondent-D.C, again passed another order dated 28.8.2009 directing the Petitioner to dismantle all huts/temporary houses and makeshift in the jhumkheti within two months and leave the place. This order is also under challenge in this writ proceeding. 5. The Respondent No. 6 has taken a stand that the ancient Petitioner village is no more in existence. In the 18th Century it was attacked by Nkau village and in the said attack many widows and aged persons were killed. The totally shaken Heralwa village was unable to invade Nkau village for revenge. Finding no other alternative, the said Heralwa village approached the Peren village for help offering an Ox. The Peren village accepted the request of the Heralwa village and attacked Nkau village and recovered the Heralwa village but the Petitioner had always apprehension that it would be attacked again by Nkau villagers. Due to such apprehension the Petitioner abandoned the village. The inmates of the Heralwa village spread themselves and settled down in various Zeliang villages. The Peren village accepted the request of the Heralwa village and attacked Nkau village and recovered the Heralwa village but the Petitioner had always apprehension that it would be attacked again by Nkau villagers. Due to such apprehension the Petitioner abandoned the village. The inmates of the Heralwa village spread themselves and settled down in various Zeliang villages. At the time of abandoning their village the entire Heralwa village was handed over/gifted to Peren village as an acknowledgment to protection given against the Nkau village. According to the Respondent No. 6, "this was a sign to prove that the Peren village was their protector and because of which they could leave peacefully and spread out to other villages for their future. However, following the traditional way of parting their land, three jhumming areas known as (1)Regaketeiram (2) Nambelulo (3) Mpiembelulo were excluded from other land given to Peren Village and it was handed over to Late Namrangtuing and his brother late Ramkiebe who had gone to Peren village for settlement at the time of abandoning Heralwa village. They were adopted by Ndang clan of Peren village and their descendents presently belong to Ndang Clan of Peren Village. The said three areas are still in possession of Shri Raitu Elku and Shri Hegeulliang, the descendant of late Namrangtuing. It is respectfully reiterated that the descendents of Late Namrangtuing are presently permanent residents and bona fide citizens of Peren village belonging to Ndang clan. It is also categorically stated that all the lands handed over/gifted by the erstwhile Heralwa village to the Peren Village including the three jhumming areas are exclusively within the jurisdiction of Peren village and the villagers have peaceful enjoyment and possession without any disturbance since the 17th/18th century till date. Therefore, the so called Heralwa villagers have no right to claim the ownership of the land. The land exclusively belongs to the Peren village. 6. In the affidavit-in-opposition filed by the Respondent No. 6 it has been specifically stated that at no point of time, the Peren Village Council had ever issued "No Objection Certificate" (NOC in short) for establishment of Heralwa villager which is a mandatory requirement for establishment of a village as per standing Govt. policy. 6. In the affidavit-in-opposition filed by the Respondent No. 6 it has been specifically stated that at no point of time, the Peren Village Council had ever issued "No Objection Certificate" (NOC in short) for establishment of Heralwa villager which is a mandatory requirement for establishment of a village as per standing Govt. policy. The MOU dated 9.7.2011 was signed only for maintaining good relation as per custom that the descendents of the erstwhile Heralwa villagers scattered in several Zeliang village and Peren village on condition that they do not encroach upon the Respondent's land. It is also reiterated that the parent village council at no point of time had ever agreed to hand over their traditional land to any individual or group. As regards the HOHO the Respondent No. 6 stated that it is only an NGO, a social organization and not a statutory body recognized under any law. The HOHO has no judicial power and/or authority. According to the Respondent No. 6 the Peren District Headquarters were established on the land of Peren village and the Petitioner has no right whatsoever to claim any right over the land of the Peren District Headquarters. The Petitioner's village has made the present claim with 'sole ulterior motive" to snatch away the impugned compensation for Peren District Headquarter. In fact the Petitioner's village is trying to encroach and capture the land belonging to Peren and new Peren Village through filing complaints and litigations in the court. The petition is liable to be dismissed for non-joinder of new Peren village as a Respondent. Moreover, the petition is liable to be dismissed inasmuch as the Petitioner has no locus standi to file the present writ petition through Council Chairman(Acting), Shri Haigo Zeliang, who is a permanent resident of Jalukie "B" village, a Govt. recognized village under Peren district. He does not belong to village; he is rather a resident of Jalukie "B" village and an elector from the said place. 7. The stand of the State-respondents is that- (1) There is no village by the name Heralwa in the list of recognized villages in the State of Nagaland. The village council is established only by recognized villages. He does not belong to village; he is rather a resident of Jalukie "B" village and an elector from the said place. 7. The stand of the State-respondents is that- (1) There is no village by the name Heralwa in the list of recognized villages in the State of Nagaland. The village council is established only by recognized villages. Petitioner Village being an unrecognized village, the question of having a village council does not arise and the Petitioner has no locus standi to file the writ petition through the so called acting Chairman of Heralwa village Council. (2) There is no existence of any village in Peren District by the name of Heralwa village. The surrounding villages have to issue NOC allowing establishment of a new village. On receipt of NOC from all the surrounding villages, a spot verification is to be conducted and a report is to be forwarded to higher authority as per the laid down procedure. No such procedure was followed in the matter of alleged establishment of Petitioner village. The Petitioner village was therefore directed to vacate the disputed area within one month by issuing the impugned orders to control law and order problem that may arise in the district and to prevent any untoward incident. (3) The complaint lodged by Respondent No. 6 before the ADC Peren was no doubt withdrawn and MOU was signed at the initiation of the local arbitrator but the dispute between the Petitioner village and Respondent No. 6 remained unsolved for the reasons best know to them. However, the Petitioner cannot reestablish its village unless the parties concerned solve the dispute and mutually agree to establishment/re-establishment of village. As the village is sought to be established by the Petitioner without any NOC and mutual consent from Respondent No. 6, there is no apprehension of breach of peace and tranquility and it is the bounden duty of the Respondent No. 6 to pass the impugned order to maintain the law and order situation and there is no illegality in passing the impugned orders. The impugned orders under such circumstances should be allowed to remain in force till final settlement is arrived at between the Petitioner and the Respondent No. 6. In his oral submissions, Mr. Jamir, learned Addl. A.G. states that Petitioner is a self-styled village. It has never applied for recognition as a Govt. listed village. The impugned orders under such circumstances should be allowed to remain in force till final settlement is arrived at between the Petitioner and the Respondent No. 6. In his oral submissions, Mr. Jamir, learned Addl. A.G. states that Petitioner is a self-styled village. It has never applied for recognition as a Govt. listed village. Such unrecognized village cannot have a village council and even if any village council is constituted by unrecognized village, it has no legal entity under the existing law. 8. The main dispute in this case is in regard to existence of Heralwa village. It is a village, as claimed by the Petitioner, which existed since 18th Century established and abandoned by the villagers for not being able to save it from the warring rival tribe and temporarily left with the Peren village till their return. The Respondent No. 6 has disputed this claim. He has disputed even the very existence of the said traditional village. The State-Respondents have also denied the existence of such traditional village. The State-Respondents have denied the existence of Petitioner village as the name of the Petitioner village does not find place in the list of both recognized and unrecognized villages in Peren district. As per the stand taken by the parties, it is abundantly clear that the existence of traditional village by the name Heralwa village and the modern day village by name Peren village is highly disputed. Such a highly disputed fact as regards the existence of a particular village can not be adjudicated by the court of law, particularly by a writ court exercising power under Article 226 of the Constitution of India. The matter should be dealt with for taking appropriate decision and/or settlement after making proper verification and taking evidence of the people concerned and also taking into account the relevant available documentary evidence. Admittedly, this process was not pursued by the authorities concerned and this Court is not supposed to take such burden cast on the executive. 9. The pleadings of the parties clearly reveal that the dispute is alive between the Petitioner and the Respondent No. 6 and admittedly the initiative taken for amicable settlement of the issue outside the court could not be arrived at till this date. 9. The pleadings of the parties clearly reveal that the dispute is alive between the Petitioner and the Respondent No. 6 and admittedly the initiative taken for amicable settlement of the issue outside the court could not be arrived at till this date. It is also an admitted position that the name of the Petitioner village does not figure in the list of recognized as well as unrecognized villages under Peren District published as on 11.1.2010, which has been annexed to the counter affidavit filed by the State-Respondents. In that view of the matter, this Court is not in a position to hold that Petitioner village is a recognized village within the jurisdiction of Peren District and pass an order to the effect that the Petitioner village should be included in the list of recognized village. It is for the Respondent authorities concerned to take necessary steps to recognize the Petitioner village subject to necessary verification and fulfillment of requirements under the existing rules, procedure and Govt. policy. 10. Chapter 1 of the Nagaland Village and Area Councils Act, 1978 (hereinafter in short referred to 1978 Act) provides for constitution of village council, conduct of business and duties, administration of justice, village administration and control of village council. Section 3 of the 1978 Act clearly provides that every recognized village shall have a village council. As per explanation to the aforesaid Section Village means and includes an area recognized as a village as such by the Govt. of Nagaland. It also provides that an area in order to be a village should fulfill the following conditions (a) The land in the area belong to the population of that area or given to them by the Govt. of Nagaland, if the land in question is a Govt. land or is given to them by the lawful owner of the land; and (b) the village is established according to the usages and customary practice of the population of the area. As per the said explanation to Section 3, no recognition has been given to historical or traditional background or status of an area for recognition of a particular area as a village. As per the said explanation to Section 3, no recognition has been given to historical or traditional background or status of an area for recognition of a particular area as a village. What is to be noted in this case is that the Petitioner is mostly insisting on the traditional status of the area in which they claim to have been inhabiting as a tribe which they had to abandon due to war with the neighbouring rival tribe and returned claiming the said land back from Respondent No. 6. There is no document or record on such traditional status of the land in question. The Petitioner may be correct in putting forward such claim on the aforesaid traditional background but such claim is not maintainable under the 1978 Act. Section 3 speaks only about a village and/or an area recognized as a village by the State Govt. and not any other village or area. 11. The provision under Section 3 empowers the State Govt. to recognize a particular area as a village on fulfillment of the aforesaid conditions. It implies making of application by a section of people inhabiting a particular area for recognition as village. The area under the occupation of a section of people residing in a place/area must be able to show that they are lawful owners of the land or the said land has been given to them by the Govt. and was established according to the usages and customary practices. No material has been placed before the court supporting that the village was established by the Petitioner as per usages and customary practice. The rule does not say that whatsoever village is established by a Section of people or tribe could get recognition of the Govt. automatically without applying for recognition as per provision under Section 3. The allegation of the State-Respondents that the Petitioner never applied for recognition as village has not been denied meaning thereby that the Petitioner made no application for recommendation of the village. Making of application for establishment of a new village is a pre-requisite and if such application is made, it is required to be processed and examined by the authorities concerned to find out whether the pre-conditions mentioned in the explanation to Section 3 have been fulfilled or not. The Respondent-authorities may deny recommendation to a village if it fails to satisfy the pre-condition. The Respondent-authorities may deny recommendation to a village if it fails to satisfy the pre-condition. If it is established that the Petitioner made no application seeking recognition of his village by the State, no fault could be found with the State-Respondents in issuing the impugned order for maintaining the apprehended law and order situation and for preventing untoward incident between the rival parties. In that view of the matter, in my considered view, the impugned orders are not liable to be quashed or set aside. This petition is lacking in merit and accordingly it is dismissed. 12. However, for the ends of justice, Petitioner is given liberty to approach the Respondent-authorities concerned to make application seeking recommendation of its village under the provision of Section 3 of 1978 Act and if such application is made, the Respondent-authorities shall consider and dispose of the same by a speaking order which may be communicated to the Petitioner. No costs.