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2014 DIGILAW 746 (GAU)

Marmi Riram v. State of Arunachal Pradesh and Ors.

2014-07-30

INDIRA SHAH

body2014
1. Heard Mr. Dicky Panging, learned counsel, appearing on behalf of the petitioner. Also heard Mr. R.H. Nabam, learned Senior Government Advocate, appearing on behalf of State respondent Nos. 1, 2, 3 and 4, and Mr. Kento Jini, learned counsel, appearing on behalf of private respondent No. 5. 2. The Gaon Buras ('GBs') are the village authorities who are appointed in terms of section 5 of the Assam Frontier (Administration of Justice) Regulation, 1945 ('Regulation of 1945'). As per the Regulation, the criminal justice as well as Civil justices systems in the State of Arunachal Pradesh are administered by the Deputy Commissioner and village authorities. The Deputy Commissioner is the appointing authority of the village authorities/GBs. The Government of Arunachal Pradesh has issued detailed guidelines for regulating the method of appointment of village authorities/GBs, which are, enumerated, hereunder, for ready reference : "(2). MODE OF SELECTION OF H.G.Bs/G.B.: (a) The basic character of this age-old customary institution is democratic, therefore, the method of selection be through unanimous or through majority opinion of the adult residents of the village at a full and open meeting of all village adults to be conducted m the presence of the administrative officer of the area. The quorum for such a meeting will be one third of the total number of persons above 18 years of age in the village. (b) The meeting shall be convened and attended by the administrative officer of the area and conducted in free, open and unbiased manner. The administrative officer will explain to the villagers present in the meeting the qualifications of a person must possess for getting elected as G.B. and also bring to their notice that the person selected as G.B. should be persons with influence and acceptability in the village and should possess knowledge on customary laws, as well as he should have an interest in the development of the village. He will also explain the circumstances/conditions which will disqualify a person from being elected as G.B. or will lead to his dismissed even after selection and appointment. (c) The administrative officer concerned shall maintain records of the proceedings of the meeting, along with a record of all those present in the meeting. He will then forward the name of the person selected as G.B. along with his bio-data and character and antecedent report, the proceedings of the meeting and his recommendations to the Deputy Commissioner. (c) The administrative officer concerned shall maintain records of the proceedings of the meeting, along with a record of all those present in the meeting. He will then forward the name of the person selected as G.B. along with his bio-data and character and antecedent report, the proceedings of the meeting and his recommendations to the Deputy Commissioner. (d) The selection made by majority opinion will not be binding on the Deputy Commissioner concerned for appointment of G.B. The Deputy Commissioner will apply his own mind based on the report, and recommendations of the administrative officer and the proceedings of the meetings and either accept or reject the selection. If the Deputy Commissioner rejects the selection. He will have to record the reasons in writing and communicate it to the person selected and to the administrative officer with the direction to convey the reasons of rejection in writing to the people of the village and convene the meeting again to recommend name of some other person. If the name of the same person is recommended, the Deputy Commissioner will have the right of appointing a person of his choice as G.B. (e) The person, whose selection has been rejected by the Deputy Commissioner, will have the right of appeal against the order of rejection before the concerned Divisional Commissioner." 3. The writ petitioner Sri Marmi Riram, hereinbefore, is qualified to be appointed as a G.B. On 6.8.2007, a meeting was convened in the Eshi-Chiku village under the chairmanship of Circle Officer, Basar, for appointment of a fresh GB of the said village. Thereafter, the name of the petitioner was forwarded by the Addl. Deputy Commissioner, Basar, for appointment, as the new GB of Eshi-Chiku village. 4. As there was a ban imposed on appointment of new G.B. by the Chief Secretary, the petitioner was not appointed as G.B. of the said Eshi-Chiku at that relevant point of time. In due course of time, out of 4 G.B.s, of the said Eshi-Chiku village, in the year 2012, 2 G.Bs. namely Late Toni Riram and Late Tumkar Riram, expired. As such, 2 posts of G.Bs. fell vacant. The private respondent No. 5, viz., Maryam Riram @ Marpek Riram, in the meantime, applied for appointment to the post of G.B., on 28.9.2012. His application was recommended by the Zilla Parishad Member (ZPM), Chairperson of Basar Anchal Samity, Anchal Sainity. namely Late Toni Riram and Late Tumkar Riram, expired. As such, 2 posts of G.Bs. fell vacant. The private respondent No. 5, viz., Maryam Riram @ Marpek Riram, in the meantime, applied for appointment to the post of G.B., on 28.9.2012. His application was recommended by the Zilla Parishad Member (ZPM), Chairperson of Basar Anchal Samity, Anchal Sainity. Member ('ASM'), Gram Panchayat ('GP') Chairperson and Gram Panchayat Members ('GPMs'). The Addl. Deputy Commissioner, Basar, forwarded the names of the petitioner as well as the private respondent No. 5 for appointment as G.B.s of the said Eshi-Chiku village to the Deputy Commissioner, Aalo, vide forwarding letter on 28.1.2013. Thereafter, a complaint was alleged by the HG.B. of Lipu-Namchi village wherein it was alleged that the villagers of Eshi-Chiku village have unanimously selected one Sri Rimo Riram in place of Late Tori Riram and also prayed in the said complaint for recalling the candidature of the petitioner and for conducting a public hearing at village level by the competent authority. The petitioner has alleged that the complainant Sri Nyajir Riram is a resident of Lipu-Namchi village and, therefore, he has no locus standi to raise objection in respect of appointment of the petitioner as G.B. of Eshi-Chiku village. The matter regarding appointment of the petitioner and the private respondent No. 5 was placed before the Deputy Commissioner, Aalo, who appointed the said respondent No. 5 without any public hearing and kept the appointment of the present petitioner, in abeyance, till the completion of public hearing. Being aggrieved, the petitioner has challenged the appointment of private respondent No. 5 as G.B. on the ground that the said private respondent No. 5 has been appointed only on the recommendations of some influential persons of the area and no public meeting was convened as per the Circular/Guidelines notified by the Government on 27.2.2011, and, therefore, the appointment of private respondent No. 5 is, ex facie, illegal. 5. While referring to the case of Toki Megu and Ors. v. State of Arunachal Pradesh and Ors., [Writ Petition No. 209(AP) of 2009], Mr. Panging, learned counsel for the petitioner, has submitted that in the absence of any statutory rules, the guidelines are required to be followed strictly by the concerned authorities before appointing G.B. of a village. 5. While referring to the case of Toki Megu and Ors. v. State of Arunachal Pradesh and Ors., [Writ Petition No. 209(AP) of 2009], Mr. Panging, learned counsel for the petitioner, has submitted that in the absence of any statutory rules, the guidelines are required to be followed strictly by the concerned authorities before appointing G.B. of a village. In the cited case, as per the direction of the Deputy Commissioner, the Circle Officer, convened a meeting of village eldefs of the village for the purpose of selection and recommendation of names of G.Bs. However, there was nothing to indicate about the presence of one-third of total numbers of persons above the age of 18 years in the Said public meeting and, therefore, this Court held that the requirement of presence of one-third of total numbers of persons above the age of 18 years in the village, for selection of a G.B., was not followed. 6. The respondent No. 5, in his counter affidavit, has averred that the name of the petitioner was recommended in the year 2007 by convening a meeting of few villagers. But at the relevant point of time, there was no- vacancy for the post of G.B, and the petitioner was not appointed. When the vacancy arose in the year 2012, after the death of Late Tori Riram (G.B.), the then ASM submitted an application on 7.9.2012 to the Deputy Commissioner, Aalo, for appointment of the petitioner as G.B. of the said village. While the application of the petitioner was pending, another application was submitted by the HGB in favour of one Sri Rimo Riram against the resultant vacancy of Late Tori Riram (G.B.) and in the said application, the G.B. of Lipu-Namchi and Echi-Chiku villages made a request to the concerned authority that the candidature of the petitioner may be recalled and a public hearing be conducted in the village level. Accordingly, the said Deputy Commissioner directed the Addl. Deputy Commissioner, Basar, to conduct a public hearing against the resultant vacancy of Late Tori Riram (G.B.) for 2 contesting candidates, i.e., the present petitioner and Sri Rimo Riram. A further vacancy in respect of one more G.B. was created on the death of Late Tumkar Riram, HGB, who expired on 29.1.2012. Accordingly, the said Deputy Commissioner directed the Addl. Deputy Commissioner, Basar, to conduct a public hearing against the resultant vacancy of Late Tori Riram (G.B.) for 2 contesting candidates, i.e., the present petitioner and Sri Rimo Riram. A further vacancy in respect of one more G.B. was created on the death of Late Tumkar Riram, HGB, who expired on 29.1.2012. The private respondent No. 5 had submitted an application on 28.09.2012, for his appointment as G.B. to the said vacant post and along with his application, he annexed the recommendation of Panchayat Members, character certificate issued by the Officer-in-charge of the concerned police station. The ASM, G.Bs., GPs Chairperson, GPMs, etc., of Echi-Chiku and Lipu-Namchi villages also submitted an application on 28.09.2012, in favour of private respondent No. 5 for appointment as G.B. against the resultant vacancy of Late Tumkar Riram. Thus, according to the respondents, the petitioner had applied for his selection as G.B. against the resultant vacancy of Late Tori Riram (G.B.) and the private respondent No. 5 had applied for the post of G.B. against the resultant vacancy of Late Tumkar Riram (HGB). Therefore, the petitioner has no locus standi to challenge the appointment of private respondent No. 5 as G.B. The respondents averment is that the private respondent No. 5 was selected unanimously by the villages of both the villages, abovementioned, and, therefore, the HGB, G.Bs., ASM, Chairpersons of GPs, GPMs, etc., had unanimously recommended the name of the private resgojjdent No. 5 for appointment as G.B. of Echi-Chiku village agasints the resultant vacancy which arose from the death of Late Tumkar Riram. 7. There is nothing on record to support the contention of the private respondent No. 5 that he was unanimously selected by the villagers of the said villages, for the post of G.B. of Eshi-Chiku village except the recommendations of HGB, G.Bs., ASM, Chairpersons of GPs, GPMs, etc., of Eshi-Chiku and Lipu-Namchi villages. Admittedly, in this case, no public healing was convened in respect of selection of private respondent No. 5 as G.B. Therefore, the Circular/Guidelines, as quoted earlier, was not followed by the appointing authority while appointing the private respondent No. 5 to the post of G.B. Although section 5 of the Regulation of 1945 says that the Deputy Commissioner is the appointing authority of the G.Bs. the said Regulation does not describe the mode of appointment of the G.B. by the Deputy Commissioner. The mode of appointment of the G.B. has been envisaged in the Circular/ Guidelines as formulated by the Government of Arunachal Pradesh and as per the decisions passed by this court in WP(C) No. 209(AP) of 2009 (supra), and in the case of District Registrar, Palghat v. M.B. Koyyakutty and Ors., AIR 1979 SC 1060 , in the absence of any statutory law on any particular point, the Government can fill-up that gap and supplement the rules by issuing an administrative instruction/note in consistent with the statutory provisions already framed or enacted and, thus, guidelines should be strictly followed. 8. In the case cited by Mr. Jini, learned counsel for the private respondent No. 5, Naseem Bano v. State of U.P. and Ors., (1996) 4 SC 46, it was held that the notification is only an executive order and it cannot over-ride the Regulation. There is no dispute that any notification cannot override any statutory rule or Regulation but in absence of any statutory rule, the guidelines which is not inconsistent with the statutory rule, must be strictly followed. 9. In view of the above, the respondent authorities, more particularly, the respondent No. 2, i.e., the Deputy Commissioner, West Siang District, Aalo, Arunachal Pradesh, is hereby directed to hold the public meeting for selection of 2 G.Bs. of the Eshi-Chiku village, strictly, in terms of the Circular/Guidelines dated 27.2.2001. Till then, it is also hereby directed that the present private respondent No. 5, viz., Sri Maryom Riram @ Marpek Riram, who is already functioning as G.B. of Eshi-Cliiku village, shall continue to remain as G.B. of the said village and shall carry-out all the assigned duties, as per law. It is further hereby made clear that an endeavour shall be made by the respondent authorities to complete the entire selection process for appointment of G.Bs., for the said villages, within a period of 2 months from today, without fail. 10. With the above directions, this writ petition stands disposed of. However, there shall be no order as to costs. 11. The connected records be handed-over to the learned Senior Government Advocate immediately.