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2015 DIGILAW 1304 (GAU)

Unity Village v. State of Nagaland

2015-10-08

MANOJIT BHUYAN, UJJAL BHUYAN

body2015
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. Taka Masa, learned senior counsel for the appellants, Mr. T.B. Jamir, learned Addl. A.G, Nagaland for respondents No. 1 to 4 and Mr. Imti Longjem, learned counsel for respondent No.5. 2. This appeal is directed against the judgment and order dated 11.5.2015 passed by the learned Single Judge disposing of W.P.(C) No.57(K)/2015 filed by the appellants as the writ petitioners. 3. Appellant No. 1 is the Unity village which is a Government recognised village and is represented by its Chairman. Appellant No.2 is the Secretary of the Village Council whereas appellants No. 3 to 22 are village council members. 4. According to the appellants, a public meeting was held in the Unity village on 3.2.2014 and elected village council members including the Chairman and Secretary for a period of 5 years. This was communicated by the Chairman to the Deputy Commissioner, Dimapur on 4.2.2014. It appears that Home Department, Government of Nagaland had approved constitution of the village council by the appellants as per provisions of the Nagaland Village and Tribal Councils Act, 1978 (1978 Act) which was conveyed to the Deputy Commissioner, Dimapur on 7.7.2014. Thereafter, Deputy Commissioner issued order on 18.7.2014 appointing the village council members of Unity village as per Government approval. Thus, appellants came to be appointed as village council members of Unity village. 5. It appears that respondent No.5 and others had raised objection to the appointment of the appellants as village council members. Objection was submitted to the Deputy Commissioner, Dimapur on 2.8.2014. It was contended that the general meeting referred to in the selection of village council members was in fact held for a different purpose, namely, to celebrate recognition of the village by State Government. Constitution of the village council did not reflect popular mandate of the village. 6. Extra Assistant Commissioner, Chumukedima passed an order dated 8.12.2014 stating that as per direction of the Deputy Commissioner, Dimapur village council members were restrained from performing their functions/duties. 7. Appellants approached this Court by filing W.P.(C) No.242(K)/2014 challenging the legality and validity of the restraint order dated 8.12.2014. During the pendency of the writ proceeding, Deputy Commissioner, Dimapur made a reference dated 3.2.2015 to the Commissioner, Nagaland for resolution of the dispute under Section 20 of the 1978 Act. 7. Appellants approached this Court by filing W.P.(C) No.242(K)/2014 challenging the legality and validity of the restraint order dated 8.12.2014. During the pendency of the writ proceeding, Deputy Commissioner, Dimapur made a reference dated 3.2.2015 to the Commissioner, Nagaland for resolution of the dispute under Section 20 of the 1978 Act. It was stated that a dispute had arisen regarding selection/election of the village council members of Unity village. Therefore, the reference was made. 8. This Court by order dated 19.3.2015 took note of the reference dated 3.2.2015 and disposed of the writ petition by directing the State to take a decision on the reference made within six weeks. Restraint order dated 8.12.2014 was quashed. Observation was made that the State would take an independent decision in the matter and in the event the appellants were aggrieved, they would have the liberty to approach this Court. 9. Joint Secretary to the Government of Nagaland, Home Department informed the Commissioner on 30.3.2015 approval of the Government for dissolution of the village council of Unity village. Commissioner was requested to direct the district administration of Dimapur for re-constituting the village council as per provisions contained in Section 4 of the 1978 Act. Office of the Commissioner, Nagaland thereafter, conveyed the aforesaid decision to the Deputy Commissioner, Dimapur on 1.4.2015. 10. This led to filing of the related writ petition W.R(C) No.57(K)/2015 by the appellants. It was contended before the learned Single Judge that if it is a case of dissolution of village council, Section 54 of the 1978 Act would apply and in the event of invoking the provisions of Section 54, the requirements laid down under the said Section would have to be complied with. Noncompliance to the preconditions would render the order passed under Section 54 null and void. Respondents did not file any affidavit countering the contentions advanced on behalf of the appellants. Learned Single Judge accepted the arguments of the learned counsel for the appellants that in the absence of affidavit, the averments made in the writ petition stood un-controverted and therefore, would be deemed to have been admitted. Learned Single Judge further observed that notwithstanding the above, provisions of Section 20 of the 1978 Act could not be ignored. Learned Single Judge accepted the arguments of the learned counsel for the appellants that in the absence of affidavit, the averments made in the writ petition stood un-controverted and therefore, would be deemed to have been admitted. Learned Single Judge further observed that notwithstanding the above, provisions of Section 20 of the 1978 Act could not be ignored. Since a complaint had been made regarding constitution of village council in which respondent No.5 was the first signatory, there was a dispute with regard to selection and approval of the village council members. Learned Single Judge however, accepted the contention of the appellants that there was violation of Section 54 of the 1978 Act. But learned Single Judge took the view that a further opportunity should be granted to the State to re-consider the matter. While orders of dissolution were set aside, matter was remanded back to the State for re-consideration of the matter strictly in terms of the provisions of the 1978 Act. It was directed that till the matter was decided by the State Government the present village council should be allowed to function. It is against this order that the present writ appeal has been filed. 11. This Court by order dated 20.5.2015 admitted the writ appeal and passed an interim order directing maintenance of status quo as regards holding of office of village council members. It was further ordered that fresh enquiry should not be carried out by State as per order of the learned Single Judge. 12. The genesis of the present round of litigation lies in the reference dated 3.2.2015 made by the Deputy Commissioner, Dimapur to the Commissioner, Nagaland. Though in the reference, it was stated that representation was submitted by villagers of Unity village for dissolution of the village council under Section 54 of the 1978 Act and for reconstitution of new village council, the reference to the Government was made under Section 20 of the 1978 Act. This reference came to be made when the writ petition filed by the appellants against the restraint order dated 8.12.2014 was pending before the Court. This Court on occasions more than once has made it abundantly clear that when the Court is in seisin of a matter, it would not be permissible for the executive authority to dabble in the same subject matter which is pending consideration before the Court. This Court on occasions more than once has made it abundantly clear that when the Court is in seisin of a matter, it would not be permissible for the executive authority to dabble in the same subject matter which is pending consideration before the Court. It would amount to interference in the administration of justice. Therefore, such conduct has been deprecated by this Court in a number of decisions, reference to which may not be necessary at this point of time. 13. Be that as it may, it is evident from a reading of the reference that it was made under Section 20 of the 1978 Act. Decision of the Government was to dissolve the village council which is a course of action provided under Section 54 of the 1978 Act. When this was put to challenge before this Court, learned Single Judge made a reference to Section 20 and took the view that there was a dispute as regards selection and approval of village council members which was referred to the State Government. Accepting the plea of the appellants that there was violation of Section 54 of the 1978 Act, learned Single Judge quashed the orders of dissolution of the village council. However, a view was taken that another opportunity should be granted to the State to consider the matter again. Accordingly, the matter was remanded back to the State Government for re-consideration strictly in terms of the provisions of the 1978 Act. While remanding the matter back to the State Government, learned Single Judge did not mention under which provision reconsideration by the State was called for. As noticed above, initially a reference was made to Section 20 but in the penultimate paragraph of the judgment, while quashing the dissolution orders as being in violation of Section 54, granted another opportunity to the Government to consider the matter again. Question is as to whether such reconsideration was to be done under Section 20 or under Section 54 of the 1978 Act? 14. The 1978 Act was enacted by the State of Nagaland to consolidate and amend the laws relating to constitution of village and tribal councils in the State and to regulate their duties and functions and for matters connected therewith. 14. The 1978 Act was enacted by the State of Nagaland to consolidate and amend the laws relating to constitution of village and tribal councils in the State and to regulate their duties and functions and for matters connected therewith. Initially, the short title of the 1978 Act was Nagaland Village And Area Councils Act, 1978 and by virtue of subsequent amendment it came to be known as Nagaland Village and Tribal Councils Act, 1978, already referred to as the 1978 Act. Section 3 of the 1978 Act provides for constitution of village council in every recognised village and Section 4 deals with how village council is to be constituted. Qualification for members of village council are prescribed under Sections 5 and 6. Tenure of a village council is of 5 (five) years unless dissolved earlier by the State Government. The tenure of 5 (five) years is, however, extendable beyond that period by the State Government for a period not exceeding 1 (one) year at a time. While Section 7 provides for a Chairman to be chosen by village council members. Section 8 provides for selection and appointment of a Secretary. State Government is vested with the power to remove members of the village council tinder Section 9 on the grounds mentioned therein. Powers and duties of the village council are enumerated in Section 12. The village council is also empowered to administer justice within the village limits in accordance with the customary law and usages. It is also vested with the powers of administration of the village including maintenance of law and order. Disqualifications for being selected as member of the village council are laid down in Section 16. In case any question arises as to disqualification, the question shall be referred to the State Government whose decision shall be final. Section 18 visualizes 3 (three) situations when a seat (member of village council) shall fall vacant- (1) When a member dies, (2) When a member resigns and (3) When a member is removed by the State Government on being disqualified. Sections 19, 20 and 21 are relevant and are placed under the heading "Filling of Casual Vacancy". As per Section 19, when a seat becomes vacant, the Chairman shall call upon the village concerned to choose a member. Sections 19, 20 and 21 are relevant and are placed under the heading "Filling of Casual Vacancy". As per Section 19, when a seat becomes vacant, the Chairman shall call upon the village concerned to choose a member. Under Section 20, when a dispute arises as to the selection of any member of village council, the matter shall be referred to the State Government whose decision shall be final. Section 21 declares that every village council shall be a body corporate having perpetual succession and common seal, competent to hold, acquire and dispose of property, both movable and immovable. The authority of the village council is to be exercised through the Chairman. Section 22 provides for general power of superintendence of the State and its authorities over the village councils. Section 54 deals with dissolution of a village council. As pier sub section (1), if the State Government is satisfied on receipt of a report from the Deputy Commissioner or is otherwise satisfied that a situation has arisen in which a village council cannot function in accordance with the provisions of the 1978 Act, the State Government may by order published in the Gazette direct that the village council shall be dissolved from such date and f or such period as may be specified in the notification. Consequential steps to be taken following dissolution are mentioned in sub sections (2) and (3). As per sub-section (3), the order of dissolution has to be placed before the State Legislative Assembly and would become effective upon its approval by the Assembly, with or without modification. This is the broad scheme of the 1978 Act in so far village council is concerned. 15. As can be seen from the above, Sections 20 and 54 visualizes different situations and are independent of each other. While Section 20 deals with dispute relating to selection of any member of a village council, may be one member or may be more than one member, Section 54 deals with dissolution of a village council as a whole. 16. For a proper perspective, we may first look at the provisions of Section 20. As already noticed above, Section 20 is clubbed together with Sections 19 and 21 of the 1978 Act under the heading "Filling of Casual Vacancy". 16. For a proper perspective, we may first look at the provisions of Section 20. As already noticed above, Section 20 is clubbed together with Sections 19 and 21 of the 1978 Act under the heading "Filling of Casual Vacancy". It is a settled principle of interpretation of statute that a particular provision of the statute has to be read in the overall context of the statute and not in isolation. A statute has to be interpreted keeping in mind the objective sought to be achieved by the statute. Objective of the 1978 Act is to consolidate the laws relating to constitution of village and tribal councils in the State of Nagaland and to regulate their duties and functions and for matters connected therewith. 17. From a careful perusal of the provisions of the 1978 Act, we feel that in functional terms village councils are somewhat similar to panchayats which are constituted under Article 243 - C of the Constitution of India. Therefore, if we look at it from that perspective, village councils are grass root level institutions of local self governance. Objective is to ensure that villages are governed by villagers themselves in accordance with customary law and usages. A fair degree of autonomy is granted to the village council in the discharge of their functions and duties. As noticed above, the members of village council are either elected through popular mandate or by customary law and usage. In such circumstances, we are of the view that there should be minimum Governmental interference in the functioning of village council and other authorities under the 1978 Act. 18. Having said so, we may once again advert to the provisions of Section 20 of the 1978 Act. Section 20 is preceded by Section 19 which says that w hen a seat becomes vacant, the Chairman shall call upon the village concerned to chose a member. A seat may become vacant only in 3 (three) situations visualised in Section 18 as noticed above. Under Section 20, if a dispute arises as to the selection of "any" (emphasis ours) member of a village council, the matter shall be referred to the State Government whose decision there on shall be final. Therefore, Section 20 visualizes 3 (three) things. A seat may become vacant only in 3 (three) situations visualised in Section 18 as noticed above. Under Section 20, if a dispute arises as to the selection of "any" (emphasis ours) member of a village council, the matter shall be referred to the State Government whose decision there on shall be final. Therefore, Section 20 visualizes 3 (three) things. Firstly, a dispute must arise; secondly, the dispute has to relate to the selection of any member of a village council; and thirdly, in the event of such dispute, the matter is to be referred to the State Government whose decision shall be final. In view of the provisions contained in Sections 18 and 19 and the fact that provisions of Section 20 follows the provisions of Sections 18 and 19, the dispute referred to Section 20 necessarily relates to filling up of vacancy referable in Section 19. That is why the word "any" is used in Section 20. As per the Concise Oxford English Dictionary, Indian Edition, the word "any" has been defined as referring to one or some of a thing or number of things, no matter how' much or how many; whichever of a specified class might be chosen. Black's Law Dictionary, Sixth Edition, defines "any" as some; one out of many; an indefinite number. "Any" does not necessarily mean only one person, but may have reference to more than one or to many. The word "any" has been explained as having diversity of meaning and may be employed to indicate "all" or "every" as well as "some" or "one" and its meaning in a given statute depends upon the context and the subject matter of the statute. It is also a settled proposition that while interpreting a statute, presumption is that legislature will not use any word or expression in the statute unnecessarily. Every word used in a statute carries its own meaning. Therefore, the word "any" appearing in Section 20 refers to vacancy of seat under Section 19. It may be one vacancy or more than one vacancy. In the event of dispute relating to selection of member to such vacant seat or seats, a reference is required to be made to the State Government for its decision. The question which, therefore, arises is who shall make the reference? Broad features of Section 20 have already been discussed. It may be one vacancy or more than one vacancy. In the event of dispute relating to selection of member to such vacant seat or seats, a reference is required to be made to the State Government for its decision. The question which, therefore, arises is who shall make the reference? Broad features of Section 20 have already been discussed. Section 20 deals with a dispute relating to selection of members to a village council. Therefore, it is a dispute confined to members of a village council and not functioning of the village council. We have already noticed that the authority of the village council is exercised through the Chairman. As per Section 19 which precedes Section 20, it is the Chairman of the village council who has been entrusted with the duty to call upon the village to chose-a member or members to fill up the vacancy or vacancies. Having regard to the above, the dispute referred to in Section 20 therefore would have to be referred to the Government, if it is so required, by the Chairman of the village concerned. Such an interpretation would be in tune with the broad objective of the 1978 Act which we have already adverted to above. 19. Section 54, on the other hand, refers to dissolution of the village council. It is a drastic provision whereby the State Government is empowered to dissolve an existing village council. However, before directing dissolution, the State Government must be satisfied either on the basis of a report from the concerned Deputy Commissioner or otherwise that a situation has arisen in which the village council cannot function in accordance to the provisions of the 1978 Act. The satisfaction of the State Government has to be subjective satisfaction based on objective criteria. It has to be based either on the report of the Deputy Commissioner or otherwise. Since it is a drastic power, the satisfaction referred to in Section 54 has to be a recordable satisfaction. Reasons will have to be assigned as on what basis the said satisfaction has been arrived at. The reasons have to be germane to the object sought to be achieved, which is dissolution of the village council. There has to be a reasonable nexus or live link between the reasons recorded and the satisfaction arrived at to justify invoking of Section 54 of the 1978 Act. The reasons have to be germane to the object sought to be achieved, which is dissolution of the village council. There has to be a reasonable nexus or live link between the reasons recorded and the satisfaction arrived at to justify invoking of Section 54 of the 1978 Act. Once the satisfaction is reached and the order of dissolution passed, the same has to be published in the State Gazette. But before that it has be placed before the Assembly for ratification. Only after ratification with or without modification the order of dissolution will become effective. It is also a well settled proposition of law that when a law requires a thing to be done in a particular way, it has to be done in that way and in no other way; other methods of performance are necessarily prohibited. This salutary principle of administrative law has been consistently followed by the Constitutional Courts of the country since the decision in Nazir Ahmed v. King Emperor reported in AIR 1936 Privy Council 253 following the English decision in Taylor v. Taylor. 20. In the light of the above discussion, we are unable to agree to the view taken by the learned Single Judge remanding the matter back to the State Government for fresh consideration. Accordingly, we set aside that portion of the order of the learned Single Judge dated 11.05.2015, remanding the matter to the State Government for fresh consideration. 21. Appeal is, therefore, allowed. 22. No order as to costs.