Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 798 (GAU)

Soutish Youroin v. State of Meghalaya

2011-09-23

TINLIANTHANG VAIPHEI

body2011
JUDGMENT T. Vaiphei, J. 1. In this writ petition, the petitioner is questioning the validity of the order dated 17.3.2011 issued by the Executive Committee of the Khasi Hills Autonomous District Council placing him under suspension pending inquiry against him and then appointing the private respondent as the Acting Wahadadar of the Sheila Confederacy in his place. The facts giving rise to the writ petition, as pleaded by the petitioner, are that the District Council enacted the United Khasi-Jaintia Hills Autonomous District Council (Election of Wahadadar) Act, 1955 ("Wahadadar Act" for short) prescribing the procedure for, and the terms and conditions, of the appointment of Wahadadar of the Sheila Confederacy ("the Confederacy" for short) and that this Confederacy consists of nine villages, namely, (1) Sheila, (2) Mustoh, (3) Nongtrai, (4) Dewsaw, (5) Tyngnger, (6) Lyngkhom, (7) Umtlang, (8) Rumnong and (9) Nongwar, each of which possesses its own village Durbar (Sandi), which are under the control of the Wahadadar of the Confederacy. The administration of the Elakas under the District Council differ from one Elaka to another and unlike the other Elakas, the administration of the Confederacy vests in the Wahadadar and the Durbar Hima, which consists of two representatives from each of the nine villages. The Wahadadar and his Durbar thus form the administrative body of the Confederacy, which has been the customary practice since time immemorial, and there is no Executive Durbar under this Confederacy. The Executive Committee of the District Council issued the notification dated 1.10.2009 inviting eligible candidates for the filing nomination for election to the office of the Wahadadar of the Confederacy in accordance with Section 14(b) of the Election Act. The petitioner and others filed their nomination papers to the Returning Officer. In the election, the petitioner was duly elected as the Wahadadar of the Confederacy, which was subsequently approved by the Executive member in charge of the Elaka Administration, KHADC, and he was then granted the Sanad purporedly under the provisions of the United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of the Chiefs and Headmen) Act, 1959, which is not applicable to the Sheila Confederacy. 2. It is also the case of the petitioner that after his election, he assumed the office and started discharging his functions. 2. It is also the case of the petitioner that after his election, he assumed the office and started discharging his functions. In the year 2010, the Mustoh Village Durbar (U Sandi Mustoh) vide their letter dated 25-8-2010 approached the petitioner for issuing No Objection Certificate (NOC) on behalf of the Confederacy for the purpose of setting up of a Cement Factory at U Sandi Mustoh, which is under the Confederacy. The petitioner thereafter convened an Executive Durbar Meeting on 17-9-2010 in which it was agreed to issue the NOC as was done in the case of Lum Mawshuh Minerals Pvt. Ltd., a subsidiary of Lafarge Surma Cement Ltd. of the Bangladesh. A draft agreement to that effect was also being made. In the meantime, the petitioner, for the purpose of the smooth functioning of the Confederacy, recommended new names as Executive Members and sought for the approval of the respondent No. 3. However, to his consternation, four Executive Members of the Durbar lodged the complaint dated 13-10-2010 before the respondent No. 2 by making several false and mischievous allegations against him and requested respondent 2 to place him under suspension. One Kondro Ksanlah, a representative of the Sheila Village Durbar and who was removed from his office for causing enmity between fellow villagers, was one of the complainants. The complaint was discussed by the Confederacy Durbar in its meeting held on 3-12-2010. This was followed by another complaint dated 1-12-2010 filed by some vested interest with respondent 2 concerning the issue of the said NOC, the resolution and the Agreement executed with Mustoh Cement Limited subject to the approval of respondent 2. Another complaint was also filed in respect of the appointment of new members of the Executive Durbar. As directed, the petitioner submitted his show cause to respondent 2 denying all the allegations levelled against him. However, the respondent authorities, on the complaint dated 13-10-2010, framed the charges on their own and issued the impugned order of suspension before and without granting him an opportunity of hearing. Subsequently, another notification dated 17-3-2011 was issued by the respondent No. 2 clarifying that the suspension had been issued in exercise of the powers conferred by Section 6 of the United Khasi-Jaintia District (Appointment and succession of Chief and Headman) Act, 1959 and that the private respondent had been appointed as the Acting Wahadadar of the Confederacy until further order. Subsequently, another notification dated 17-3-2011 was issued by the respondent No. 2 clarifying that the suspension had been issued in exercise of the powers conferred by Section 6 of the United Khasi-Jaintia District (Appointment and succession of Chief and Headman) Act, 1959 and that the private respondent had been appointed as the Acting Wahadadar of the Confederacy until further order. This was followed by another order dated 17.3.2011 issued by respondent 3 directing the petitioner to hand over all the documents, materials, money and other belongings of the Confederacy to the private respondent and nullifying the Sanad dated 17.12.2009 issued to him. It is the contention of the petitioner that there is no provision under the Wahadadar Act for placing a Wahadadar of the Confederacy under suspension and that the suspension is, therefore, contrary to the provision of the Wahadadar Act and is, therefore, liable to be quashed. 3. The writ petition is opposed by all the respondents. However, it is only the District Council, which alone files an affidavit-in-opposition. The case of the District Council is that the District Council, which is a body corporate and can sue and be sued, has not been made a party respondent and the writ petition suffers from non-joinder of a necessary party and is thus liable to be dismissed on the very threshold on this ground alone. It is pointed out by the District Council that while the procedure for election of Wahadadar in the Confederacy is regulated by the Wahadadar Act, the powers of the District Council with respect to disciplinary action against, and other matters of administrative control over, the Wahadadar of the Confederacy are governed by the provisions of another Act, namely. United Khasi-Jaintial Hills Autonomous District Council (Appointment and Succession of Chiefs and Headmen) Act, 1959 ("the Act of 1959") and that the Act of 1959 has not superseded the Election Act, which operates in a different field and basically deals with the procedure for the election of the Wahadadar. There is nothing wrong in issuing the Sanad of the petitioner for the post of Wahadadar under Section 5 of the Act of 1959 inasmuch as the operation of the Wahadadar Act is limited to and is concerned with prescribing the election procedures for the post of Wahadadar. There is nothing wrong in issuing the Sanad of the petitioner for the post of Wahadadar under Section 5 of the Act of 1959 inasmuch as the operation of the Wahadadar Act is limited to and is concerned with prescribing the election procedures for the post of Wahadadar. The fact that the Confederacy is administratively controlled by the District Council and is subject to the provisions of Sections 6, 11 and other relevant provisions of the Act of 1959 is self-evident from Section 2(a) read with Entry 5 of Appendix II, which defines the term Chief to include the Wahadadar of the Confederacy. It is contended by the answering respondents that the impugned order of suspension has been passed by the respondent No. 2 in exercise of the powers conferred by Section 6 of the Act of 1959 and the same has been issued after granting an opportunity of hearing to the petitioner though no such obligation is cast by the Act of 1959. Similarly, the consequential order of appointing the respondent No. 4 as the Acting Wahadadar has also been issued by the appropriate authority under Section 11 of the Act of 1959: respondent No. 4 has been discharging the functions of the Wahadadar with effect from 21-3-2011. It is, therefore, submitted by the answering respondents that there is no merit in this writ petition, which is liable to be dismissed with cost. 4. After hearing the learned counsel appearing for the rival parties and on examining their pleadings and the materials on record, it becomes clear that the sole question which falls for consideration in this writ petition is, whether the Wahadadar Act is a self-contained Code governing not only the procedure for election to the office of Wahadadar in the Confederacy but also the power of suspension of the Wahadadar pending inquiry against him. It is strenuously urged by Mr. M.Z. Ahmed, the learned senior counsel for the petitioner, that such power is not available under the Wahadadar Act, and the respondent authorities cannot take resort to the provisions of the Act of 1959, which is not applicable to the Confederacy, to suspend the petitioner. It is strenuously urged by Mr. M.Z. Ahmed, the learned senior counsel for the petitioner, that such power is not available under the Wahadadar Act, and the respondent authorities cannot take resort to the provisions of the Act of 1959, which is not applicable to the Confederacy, to suspend the petitioner. According to him, the Wahadadar Act is a special law whereas the Art of 1959 is a general law and it is a settled principle of law that where there is a conflict between a special law and general law, the provisions of the special law shall prevail, and the recourse taken by the respondent authorities to the Act of 1959 by disregarding the Wahadadar Act to suspend the petitioner is misconceived, and is ultra vires the provisions of the special law. He draws support from the following decisions:-- (1) K.R. Shenoy v. Udipi Municipality, AIR 1974 SC 2177 ; (2) Hindurao v. Krishna Rao, AIR 1982 Bom 216 ; (3) Jagdev Singh v. Registrar, Cooperative Societies, AIR 1991 P & H 149 and (4) U. Messingh v. District Council, AIR 1969 A & N 94. Mr. VGK Kynta, the learned counsel for the District Council, however, supports the impugned order and submits that the power of suspension pending enquiry is traceable to the proviso (i) to Section 9(3) of the Act of 1959, which exclusively deals with such matter. He contends that the provisions of the Wahadadar Act do not cover the procedure for disciplinary action against a Chief or a Headman including the power of suspension pending inquiry and since this Act is found to be non-exhaustive, the Act of 1959 came to be enacted to deal with the detail procedures for, among others, taking disciplinary action against a Chief or a Headman of a village including the power to suspend the Chief or Headman pending an inquiry into the charges levelled against him. Even assuming without admitting that the provisions of the Act of 1959 are not applicable to the Sheila Confederacy also, contends the learned counsel, under Section 30 of the Meghalaya Interpretation and General Clauses Act, 1972, it is clearly provided that where any enactment confers a power to make any appointment, the authority having the power to make appointment shall also have the power to suspend or dismiss any person appointed by him, and so construed, the respondent No. 2 has the power by necessary implication the power to issue the impugned order suspending the petitioner from his office pending inquiry against him. He relies on the following decisions to fortify his submissions :-- (1) Ajay Kumar v. Union of India, AIR 1984 SC 1130 ; (2) Beepathuma v. Shankarnarayana, AIR 1965 SC 241 and (3) T. Cajee v. U. Jormanik Siem, AIR 1961 SC 276 . Mr. H.S. Thangkhiew, the learned senior counsel appearing for the private respondent, also endorses the submissions of the learned counsel for the District Council and relies on the decision of the Apex Court in Partap Singh v. State of Punjab, AIR 1964 SC 72 . 5. Before proceeding further, it may straightaway be noticed that the scope of sub-clause (ii) of the third proviso to Section 6 of the Act of 1959 came up for consideration before the Apex Court in Khasi Hills Autonomous District Council v. Charleston Sohtun, 2002 (8) Supreme 576 , and it was held therein that Section 6 of the Act contemplates that while removing or suspending Syiems referred to therein, an opportunity of being heard is to be given but the said proviso is not applicable in cases of suspension pending inquiry. As noticed earlier, the basic contention of the petitioner is that the Wahadadar Act is a special law governing the power of removal of the Wahadadar of the Confederacy and when this law does not contain any provision for suspension pending inquiry, the question of invoking the provisions of the Act of 1959 does not arise. A comparative reading of both the Wahadadar Act and the Act of 1959 will indicate that the former Act is apparently enacted to deal exclusively with the election of the Sheila Confederacy while the latter Act is meant for all the Elakas including the Sheila Confederacy except the procedure for electing Wahadadar in the Sheila Confederacy. A comparative reading of both the Wahadadar Act and the Act of 1959 will indicate that the former Act is apparently enacted to deal exclusively with the election of the Sheila Confederacy while the latter Act is meant for all the Elakas including the Sheila Confederacy except the procedure for electing Wahadadar in the Sheila Confederacy. The term "Wahadadar" is defined by Section 2(h) of the Wahadadar Act to mean a Chief of the Sheila Confederacy. Section 3 is about the Wahadadarship and the term of the office, whereas Section 4 prescribes the person to conduct the election. Then, Section 5 stipulates voting by secret ballot and symbol system, while Section 6 prescribes the manner in which electoral Roll is to be prepared. Sections 7, 8 and 9 are about the Electoral Rolls, preparation of symbols, ballot papers, etc. by the Executive Committee and the qualification for electors respectively. Sections 10, 11, 12 and 13 deal with the method of voting, time and hours of voting, recording of votes and qualification for Wahadadarship respectively Then there are Sections 14, 15, 16, 17, 18, 19, 20 and 21, which all deal with the procedure and the manner in which the election is to be conducted. This takes me to Section 22 upon which heavy reliance is placed by the learned senior counsel for the petitioner in assailing the impugned order of suspension. As the construction of this provision is likely to have a direct bearing on the outcome of the writ petition, the same is reproduced below: 22. Duties of the elected candidate.--The candidate duly declared elected shall:-- (I) Carry out all orders issued on him from time to time by the Executive Committee or its officers acting for and on behalf of the Executive Committee. (II) Run the administration of the Confederacy in accordance with the customary rules and practice as may be approved by the Executive Committee and in accordance with such laws, rules and regulations as may be passed from time to time by the District Council. (III) Collect all the revenue from Sheila Confederacy which are the dues of the District Council and shall deposit the same to the District Fund, United Khasi-Jaintia Hills Autonomous District. (IV) Be liable to removal at any time by the order of the District Council if found that he is not discharging his responsibilities. (III) Collect all the revenue from Sheila Confederacy which are the dues of the District Council and shall deposit the same to the District Fund, United Khasi-Jaintia Hills Autonomous District. (IV) Be liable to removal at any time by the order of the District Council if found that he is not discharging his responsibilities. (V) Live in one of the villages of the Confederacy and shall establish his office at Sheila where he shall transmit all his official business." 6. Though all the provisions of the Act, except for Clause (v) of Section 22 undoubtedly are concerned with the manner and the procedures for conducting the election to the office of the Wahadadar, the reference made to removal of Wahadadarship provided for in Clause (v) cannot be lost sight of, and seems to convey the idea that the Wahadadar Act is being intended to be an exhaustive code for regulating the election as well the removal of the Wahadadar, and no other law is enacted by the Legislature for his removal. However, as the preamble to the Act of 1959 indicates, this Act has also been enacted to make provisions for the appointment and succession of Chiefs and Headmen. Section 2(a) of this Act also, among others, includes Wahadadar as one of the Chiefs of any Elaka. What is Elaka is defined in Section 2(h) to mean any administrative unit in the District specified in Appendix I, II and III or any other administrative unit to be constituted and declared as such by the Executive Committee. Thus, two types of Elakas are contemplated by this Act, namely, (i) an Elaka already specified by the Act in Appendix I, II and III and (ii) an administrative unit being constituted and declared to be so by the Executive Committee of the District. The name of Sheila Confederacy found a placed at serial number 5 of Appendix II to the Act and this Confederacy is, therefore, the original Confederacy/Elaka, which is specified under the Act of 1959 and not the one constituted by the Executive Committee in accordance with Section 2(h). The power of removal and suspension of Chiefs specified in the Act of 1959 or so constituted by the Executive Committee in accordance with this Act are conferred by Section 6, which read thus : 6. The power of removal and suspension of Chiefs specified in the Act of 1959 or so constituted by the Executive Committee in accordance with this Act are conferred by Section 6, which read thus : 6. Removal and suspension of Chiefs.-- The Chief may be removed from office or suspended by the Executive Committee if in its opinion, (a) he violates any of the terms and conditions of his appointment; or (b) he violates any of the laws, regulations, rules and the resolutions passed by the Council; or (c) he refuses to carry out the orders and instructions issued by the Executive Committee; or (d) he is found to be mentally unfit to carry out his functions; or (e) has been incapable of carrying on the administration to the satisfaction of the Executive Committee due to ill-health, old age or habitual drunkenness; or (f) he violates any customary rights and practises prevailing in the Elaka concerned and duly approved by the Executive Committee; or (g) he has been convicted of an offence involving moral turpitude; (h) has been oppressed the people of the Elaka and they have just cause for dissatisfaction with his misrule; or (i) he has lost the confidence of the majority of his electors or of the people of the Elaka; (j) he is an undischarged insolvent; or (k) he does not reside within the Elaka; or (l) he has been conducting himself in a manner derogatory to his office or prejudicial to the interest of the Elaka or part thereof; or (m) has been conducting himself in a manner which may undermine the authority of the Executive Committee of the District Council; Provided that every such case shall be placed before the council in its next Session; Provided further that no Chief shall be removed from office or punished with suspension unless he is given an opportunity of being heard; Provided further that the requirements of the second proviso shall not apply-- (i) in the case where the order of removal or punishment or suspension is awarded on account of his being convicted of an offence involving moral turpitude; (ii) in the case of order of suspension pending inquiry". 7. Clause (ii) of the third proviso to Section 6 of the Act of 1959 provides that the Executive Committee is endowed with the power to suspend a Chief pending inquiry against him. 7. Clause (ii) of the third proviso to Section 6 of the Act of 1959 provides that the Executive Committee is endowed with the power to suspend a Chief pending inquiry against him. There can be no dispute that the Wahadadar Act is a special law, whereas the Act of 1959 is a general law providing comprehensive provisions for dealing with situations not contemplated by the special law, which is basically concerned with the procedure for, and the manner in which, the election to the office of the Wahadadar is to be conducted. There is no dispute at the bar, nor there be any, that the Act of 1959 does not repeal the Wahadadar Act. The settled law is that there is presumption against repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting the law has complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. As already noticed, the provisions of the Wahadadar Act do not contain the power of suspension pending inquiry and all it said is that a candidate duly declared elected is liable to removal at any time by the order of the District Council if it is found that he is not discharging his responsibilities. Undoubtedly, under the special law also, there is already a power vested in the District Council to remove a Chief on the ground specified therein. But the procedure for removal of the Chief is not laid down therein. On the other hand, the Act of 1959 elaborately provides for a number of additional grounds for removal of a Chief. Secondly, an express power is also conferred by the general law for suspension of the Chief pending inquiry. But both the laws are passed by the competent law-making authorities within a span of three years of each other. In my opinion, there is hardly substantial repugnancy/inconsistency between the special law and the general on the power of removal of a Chief by the Executive Committee. But both the laws are passed by the competent law-making authorities within a span of three years of each other. In my opinion, there is hardly substantial repugnancy/inconsistency between the special law and the general on the power of removal of a Chief by the Executive Committee. The principles that a prior particular or special law is not readily held to be impliedly repealed by later general enactment is explained by the Apex Court in Municipal Council, Palai v. T.J. Joseph, AIR 1963 SC 1561 in the following manner: A general statute applies to all persons and localities within its jurisdiction and scope as distinguished from a special one which in its operation is confined to a particular locality and, therefore, where it is doubtful whether the special statute was not intended to be repealed by the general statute the Court should try to give effect to both the enactments as far as possible. 8. Thus, a law applicable to a locality or to a class of cases or individuals is a special law, which, in this case, is the Wahadadar Act as distinguished from a general law, which is the Act of 1959 which applies to the whole community or a particular community. If the general law by its own terms recognises the existence or continuance of special law on the subject, no question of inconsistency or repeal of the special law can also arise. In the case at hand, the Act of 1959 provides for the power of suspension of a Chief pending inquiry against him, which is not provided for in the Wahadadar Act We are not, in the case at hand, concerned with the power of removal: we are rather concerned with the power of suspension. The provision with respect to the power of suspension is for the first time engrafted in the Act of 1959 by a competent Legislature, and there is no conflict or repugnancy between the provisions of the Wahadadar Act and the Act of 1959. In other words, full effect can be given to both the provisions as there is no mutual irreconcilability between them. More so, when the Act of 1959 does not render compliance with the Wahadadar Act impossible, nor does compliance with the former necessarily and automatically involve violation of the latter. In other words, full effect can be given to both the provisions as there is no mutual irreconcilability between them. More so, when the Act of 1959 does not render compliance with the Wahadadar Act impossible, nor does compliance with the former necessarily and automatically involve violation of the latter. In the view that I have taken, the answer to the question as to whether the Wahadadar Act is an exhaustive Code must be in the negative: the Wahadadar Act does not envisage the power of suspension of a Wahadadar/Chief pending inquiry. That being the legal position, I hold that the provisions of the Act of 1959 concerning the power of suspension of a Chief are also equally applicable to the office of Wahadadar in the Confederacy of Sheila. That apart, under the General Clauses Act, the power to appoint carries with it the power to dismiss or remove and also the incidental rower of suspension pending inquiry. In my opinion, such power is inherent when the power of removal or appointment is conferred upon an authority. I am fortified in my view by the observation of the Apex Court in Partap Singh case (supra) wherein it has been held that if Rules do not invest the Government with the power of suspension, the power of suspending a Government servant is vested in the authority which appoints the Government servant in view of Section 16 of the General Clauses Act, 1897. Though the aforesaid principle is laid down in the context of service case, I do not see any reason as to why such salutary principle should not be held applicable to the post of Wahadadar, which is also a public post. For what has been stated in the foregoing, there is no merit in this writ petition, which is hereby dismissed. However, on the facts and in the circumstances of the case, the parties are directed to bear their respective costs. Petition dismissed.