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2013 DIGILAW 58 (MEG)

Brimsingh Mawphniang v. State of Meghalaya

2013-11-29

PRAFULLA C.PANT, S.R.SEN

body2013
Judgment Prafulla. C. Pant, C.J. 1. By means of this writ petition, the petitioner has sought writ in the nature of direction quashing order dated 13-5-2010 passed by respondent No. 2, and order dated 15-6-2010 and 29-11-2010 passed by respondent No. 3 refusing the petitioner to recognize him as Sordar of village Nongladew. Further, mandamus has been sought directing the respondents No. 2 and 3 to allow the petitioner to function as Sordar of village Nongladew. Heard learned counsel for the parties and perused the counter affidavit of respondent No. 3 and rejoinder affidavit to it. Other parties did not file their counter affidavits. 2. Brief facts of the case are that the petitioner belongs to Khasi tribe of Meghalaya, by birth and lives in village Nongladew, District Ri-Bhoi. It is pleaded by the petitioner that on 6-12-2008, the villagers of village Nongladew elected him as Sordar of the village whereafter the petitioner started discharging his duties of Sordarship. He made a representation dated 20-12-2008 to the Syiem of Nongkhlaw (respondent No. 3) to grant him Sanad of Sordarship. However, respondent No. 3 (Syiem of Nongkhlaw) unreasonably delayed the process of granting the Sanad, and finally vide impugned letter dated 13-5-2010 communicated rejection of the claim of the petitioner and reiterated vide impugned order dated 29-11-2010 and directed the petitioner not to use the word (Sordar) against his name. Vide impugned order dated 15th June 2010 (Annexure VII to the petition), respondent No. 2 informed the petitioner that he can be appointed as 'Headman of the locality' of the village as mentioned in the letter dated 13-5-2010 (Annexure VIII to the petition) sent by respondent No. 3. It is pleaded by the petitioner that merely for the reason that he got married to a Garo woman, he does not cease to be a member of Khasi community, nor his marriage with Garo woman can deprive him of his Sordarship of the village. Alleging that the impugned orders passed by respondents No. 2 and 3 are arbitrary and illegal, particularly when in 2009 he was called to attend meeting of Durbar Hima of Nongkhlaw by the respondent No. 3 (Syiem of Nongkhlaw) in 2008-2009. 3. Only respondent No. 3 filed the counter affidavit. Alleging that the impugned orders passed by respondents No. 2 and 3 are arbitrary and illegal, particularly when in 2009 he was called to attend meeting of Durbar Hima of Nongkhlaw by the respondent No. 3 (Syiem of Nongkhlaw) in 2008-2009. 3. Only respondent No. 3 filed the counter affidavit. It is stated in the counter affidavit that only a male Khasi who is born and brought up in the village having a Khasi wife and children can be "Headman of the village" (Sordar). It is further stated that earlier also in similar circumstances one Jonesh Sangma was denied Sanad for the post of Sordar in the year 2006, in respect of village Nongladew. In para 6 of the counter affidavit of the answering respondent, it has been stated that most of the villagers of Nongladew are Garos. It is further pleaded that infact village Nongladew is under the village Headman (Sordar) of village Umsong. Clarifying the same, it is stated in the counter affidavit that infact Nongladew is a locality under the administration of Headman of village Umsong. Respondent No. 3 in his counter affidavit has further stated that appointment in succession of Chiefs and Headmen of Nongkhlaw Syiemship is governed by United Khasi Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headman) Act, 1959. In reply to para 18 of the writ petition, it is stated in the counter affidavit that since the petitioner is looking after the welfare of the village Nongladew, he was invited to attend meetings of consultative Durbar of Hima as a responsible member of Nongladew, and the same does not confer him the right to be recognized as Sordar. 4. From the affidavit and counter affidavit mentioned above, two issues arise in this petition:- (i) Whether the petitioner being married to Garo woman ceases to be a member belonging to Khasi tribe? (ii) Whether Nongladew is locality of village Umsong? 5. As far as question No. 1 is concerned, it is settled principle that a person belonging to a particular tribe does not cease to be member of such tribe merely for the reason that he got married to a woman of different tribe provided that, after marriage such person continues to live with his family in the traditions of his original tribe and follows the customs of such tribe. Since none of the respondents have denied that the writ petitioner was a member of Khasi tribe and there is nothing on record to show that he is following any other customs except the customs and traditions of a Khasi, therefore, this Court is not hesitant in holding that the petitioner continues to be a member of the Khasi tribe. 6. In this connection it is relevant to mention here that a member of Scheduled Caste, born to Scheduled Caste parents never loses his caste throughout his life. He does not lose it by marriage with non Scheduled Caste woman nor such woman by reason of marriage becomes member of Scheduled Caste. Offspring to inter-caste couple gets the caste of either of his parents in whose family he was brought up. 7. As to the question No. 2, it is relevant to mentioned here that it has been pleaded in the counter affidavit of respondent No. 3 that Nongladew is locality of village Umsong. Petitioner could not show that Nongladew is separate village of Khasi community. As such unless such village is declared separate village for the purpose of electing Sordar, the petitioner can not claim the post. Learned counsel for the petitioner failed to show us if there had been any independent Sordar of Nongladew, vis-à-vis Sordar of village Umsong. Learned counsel for the respondent No. 2 and 3 stated before this Court that they have no objection to recognize the petitioner as Rangbah Dong (locality Headman) of Nongladew. 8. Attention of this Court is also drawn to Section 3 and 7 of the United Khasi Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headman) Act, 1959 which reads as under:- 3. "Election or Nomination and Appointment of Chief and Headman:-Subject to the provisions of this Act and the Rules made thereunder, all elections or nominations and appointment of Chiefs and Headmen shall be in accordance with the existing custom or prevailing in the Elaka concerned and or in accordance with the orders as the Executive Committee may issue from time to time. The Secretary of the Executive Committee or any Officer appointed by the Executive Committee, in this behalf shall be the Returning Officer for all nominations or elections under this section". 7. The Secretary of the Executive Committee or any Officer appointed by the Executive Committee, in this behalf shall be the Returning Officer for all nominations or elections under this section". 7. Confirmation of Headmen:-(i) All nomination and/or elections of Headmen shall be reported to or as the case may be, be conducted by the Chief and his Durbar who shall forthwith declare the nomination and/or result of the election and issue appointment letter to the person concern with information to the Executive Committee. (ii) If any dispute arises regarding any matter relating to or connected with the nomination of headmen, the dispute shall be referred by the party or parties concerned to the Chief and his Durbar on payment of Durbar fee of Rs. 40 (Rupees Forty) for decision. An appeal against such decision shall lie to the Executive Committee whose decision is final. The appeal to the Executive Committee shall be filed within 30 days from the date the order of the Chief and his Durbar is communicated to the party or parties concerned accompanied by:- (a) The certified copy of the order appeal against; (b) A petition fees of Rs. 100 (Rupees one hundred) only. (iii) Notwithstanding anything contained in sub-section (i) above, the Executive Committee may, either on application or of its own initiative conduct the nomination and election of headman and issue appointment letter if the Chief and his Durbar fails to do so. 9. Expression "Headmen" is defined in clause (k) of Section 2 of the above mentioned Act which provides that "Headmen" means a Myntri, a Basan, a Matabor, an Elector, a Pator, a Sirdar Shnong, and Rangbah Shnong. We are told by learned counsel for the parties that "Sirdar Shnong" means Sirdar of the village and expression "Rangbah Shnong" means Headman of the village. It is also pointed out by learned counsel for the respondents that election of the petitioner was not held as provided in Section 3 quoted above. Undoubtedly, there is no document produced before this Court showing that any nominations were invited by any Returning Officer appointed by the Secretary of the Executive Committee for elections of village Nongladew. In the circumstances, merely on the basis of communication sent by villagers (Annexure-I to the writ petition) does not confer the title of village Headman (Sordar Shnong) to the petitioner. In the circumstances, merely on the basis of communication sent by villagers (Annexure-I to the writ petition) does not confer the title of village Headman (Sordar Shnong) to the petitioner. As to the Annexure-XIII filed with the writ petition which shows that in the year 2008-2009, the petitioner was invited to attend meeting by the Syiem of Nongkhlaw Syiemship, Mairang, it is sufficient to say that while inviting the petitioner to a meeting it is nowhere mentioned that he is Sordar of Nongladew. As such, the document is of little help to the petitioner. 10. For the reasons as discussed above, we do not find force in this petition which is liable to be dismissed with the observation that the petitioner infact is no more than a locality Headman. Accordingly, the writ petition is dismissed with the observation as above. No order as to costs.