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2017 DIGILAW 1035 (GAU)

Yitsabemo Odyuo v. State of Nagaland

2017-08-02

SONGKHUPCHUNG SERTO

body2017
JUDGMENT : Songkhupchung Serto, J. 1. This is a writ petition filed under Article 226 of the Constitution of India praying for quashing and setting aside the impugned Order No. COUN-1/2010-11/158-3, dated 27.09.2016, passed by the Deputy Commissioner, Wokha, revoking the Order No. COUN-1/2010-11, dated 23.09.2016, passed by himself wherein the petitioner's election/selection as a Chairman of Yanthamo Village Council in Wokha district was notified. The case of the petitioner as submitted by his learned counsel Mr. Lhusisato Iralu is as follows: After the selection of members of the Village Council of Yanthamo Village for the term of 2016-2020 was approved by the State Government and notified the Sub-Divisional Officer (Civil), Wokha, vide Notification No. SDO (C)/MISC-1/2015-16/490-17, dated 31.08.2016, directed all the Head Gaon Burahs (GBs) to initiate for election/selection of Village Council Chairman and to complete the process of selection/election and submit their respective reports on or before 10.9.16. Pursuant thereto, the Head GBs of Yanthamo Village, issued an order dated 08.09.2016 stating that nomination/election of Village Council Chairman of the village will be held 09.09.2016 as per the time framed given here below: (i). Nomination time:- 6:30 A.M. to 7:30 A.M. (ii). Withdrawal time:- 7:30 A.M. to 8:30 A.M. (iii) Election time:- 8:30 A.M. to 9:30 A.M. 2. As per the notice or the order, the election was held on 09.09.2016 to elect/select the Village Council Chairman of Yanthamo Village between the two contestants namely, Mr. Yistabemo Odyuo and one Mr. Jenisao Ngullie. In the election, Mr. Yitsabemo Odyuo, (the petitioner) was elected as he got 20 votes out of 34 votes. On the same day the election was held, the Head GB submitted a report to the Deputy Commissioner, Wokha (the respondent No. 4) and the same was received by the Deputy Commissioner, Wokha, who then issued an Order No. COUN-1/2016-11, dated 23.09.2016, notifying that the petitioner has been elected as Chairman of Yanthamo Village for a term of 5 (five) years i.e. 2016-2020 w.e.f. from the date of issue of the order. However, the Deputy Commissioner, Wokha on 27.9.2016, issued the impugned order (at Annexure-G of the writ petition) thereby revoking the earlier order dated 23.09.2016, issued by him until further order/Aggrieved by this second order issued by the Deputy Commissioner, Wokha, the petitioner has approached this Court for quashing and setting aside the same. 3. However, the Deputy Commissioner, Wokha on 27.9.2016, issued the impugned order (at Annexure-G of the writ petition) thereby revoking the earlier order dated 23.09.2016, issued by him until further order/Aggrieved by this second order issued by the Deputy Commissioner, Wokha, the petitioner has approached this Court for quashing and setting aside the same. 3. The learned counsel for the petitioner submitted that the impugned order was issued purportedly based on the letter No. SDO(C)/MISC-1/2015-16, dated 09.09.2016, of the SDO (Civil), Wokha, addressed to the Head GB of Yanthamo Village directing him not to conduct election/selection of Village Council Chairman of Yanthamo Village until and unless allegation levelled against him are clear or is further directed by the authority. The learned counsel also submitted that this letter was received on 09.09.2016 but at 1:50 P.M. as it is evident from the face of the notice itself where the date and time of received of the copy of the same are given, but, by then the election of the Village Council Chairman of Yanthamo Village was already held and the selection/election result was already declared and the report was already submitted to the Deputy Commissioner, Wokha. 4. The learned counsel drew my attention to section 7(1) of the Nagaland Village Councils Act, 1978 and submitted that the Village Council elect its own Chairman as empowered under the Act and there is no need of obtaining approval either from the Government or the respondent No. 4 and officers under him. Section 7(1) of the Nagaland Village Councils Act 1978 reads as follows:- Chairman "Section 7(1) The Village Council will choose a member as Chairman of the Council" 5. The learned counsel after having submitted as stated above submitted also that the order impugned is not only uncalled for but is ultra vires the provision of law section 7(1) of the Nagaland Village Councils Act, 1978, therefore, the same is not sustainable in law. 6. The learned counsel also drew my attention to O.M. No. HCME/CL-1/97, dated 21.05.2005, issued by Commissioner & Secretary (LSG), Home Department (Home Branch), Government of Nagaland. 6. The learned counsel also drew my attention to O.M. No. HCME/CL-1/97, dated 21.05.2005, issued by Commissioner & Secretary (LSG), Home Department (Home Branch), Government of Nagaland. In the said O.M., it is stated that the approval of the State Government is required for members chosen to be in the Village Council under section 4 of the Nagaland Village and Area Councils Act, 1978 but no such approval is required in the case of Village Council Chairman who is chosen by the members in terms of the section 7(1) of the Nagaland Village Councils Act, 1978. After referring to the O.M. as stated above, the learned counsel in support of his submission cited the case of the Animo Jemu Vs. State of Nagaland & Ann reported in (1997) 3 GLR 50, particularly para-6 of the judgment. The same reads as follows: "6. On close scrutiny of section 7, it appears although approval as such is, conveyed by the State Government, such Government, such action does not appear to be mandatory inasmuch as once Village Chairman is elected by the elected members of the village council unless such Chairman is removed under the relevant provision of law, in my view a person who is elected Chairman shall hold the post of Chairman whether or not approval is conveyed. At the same time the impugned order dated 7th June, 1996 was issued not because approval has not come from the Government but because the petitioner has been removed by A.D.C. as VCM. It may also be stated that none has really challenged before a competent authority the validity of the election/selection of the petitioner as Chairman of the Village Council". The learned counsel also cited the judgment of this High Court passed in the case of (unreported judgment) W.C. Kui Vs. State of Nagaland & Ors. Writ Appeal No. 34(K) of 2007 on 03.12.2007. The learned counsel referred to para-7, 8 & 9 of the judgment. The same are reproduced here below:- "7. The learned Single Judge recorded his findings at para-6 of the Judgment as follows: "6. It is clarified in the said Office Memorandum that the approval of the State Government is required for members chosen for village Council in accordance with the prevailing customary practices and usages in terms of Section 4 of the Act of 1978. The learned Single Judge recorded his findings at para-6 of the Judgment as follows: "6. It is clarified in the said Office Memorandum that the approval of the State Government is required for members chosen for village Council in accordance with the prevailing customary practices and usages in terms of Section 4 of the Act of 1978. However, it is stated therein that the approval of the State Government is not required for the village Council Chairman chosen by its members in terms of Section 7(1) of the Act. In this view of file matter, I consider it appropriate that the approval of the State Government is not required for the appointment of the Chairman and the Deputy Commissioner is empowered or authorized to issue appointment order of the Chairman, which is accordingly been done by passing the impugned order dated 21.9.2006." 8. The learned Single Judge is right in holding that no provision and in particular Section 4 of the Act of 1978 contemplated the approval of the State Government in so far as the election of the Chairman of the village Council is concerned; but the learned Judge however, came to the conclusion that the impugned proceedings need not be interfered with as the proceedings were not issued by the Government. With great respect to the learned Single Judge we are unable to agree with the said conclusion reached by the learned Judge. 9. As we have already noticed the scheme in so far as it is relevant for the present purpose, the approval of the State Government or any authority insofar as the Village Council is concerned is only contemplated under section 4 of the Act which stipulates that the election of the members of the Village Council are required to be approved by the State Government insofar as the election of the Chairman of the Village Council, no such approval is contemplated under the Act at any rate no provision is bought to our notice by either of the Council appearing for the respondents?'. 7. After having referred to the two judgments, the learned counsel reiterated his submission that the State Government and the Deputy Commissioner, Wokha has no power or authority under the Nagaland Village Councils Act, 1978 in matters concerning election or selection of the Chairman of the Village Council. 7. After having referred to the two judgments, the learned counsel reiterated his submission that the State Government and the Deputy Commissioner, Wokha has no power or authority under the Nagaland Village Councils Act, 1978 in matters concerning election or selection of the Chairman of the Village Council. The learned counsel also made an alternative plea that the complaint submitted by the two G.Bs. of the Village Council which is annexed at Annexure-I of the affidavit-in-opposition filed by the respondents No. 1 to 6 which is the basis on which the SDO (Civil), Wokha, wrote a letter to the Head G.B. of Yanthamo Village, dated 09.09.2016, which in turn was the cause or reason for the respondent No. 4 for having issued the order impugned herein was complaint against the Head G.B., and it is not related to election of the Village Council Chairman in which the petitioner was elected, as such, the impugned order was issued based on such unrelated complaint and only to circumvent election of the petitioner as Village Council Chairman. Therefore, the same is unreasonable and illegal. 8. Mr. K. Wotsa, learned Sr. Government Advocate who appears on behalf of the respondents No. 1 to 5 submitted that under section 22 of the Nagaland Village Councils Act, 1978, the Deputy Commissioner and Officers under him have the power to control and supervise the Village Councils within his jurisdiction, therefore, the Deputy Commissioner, Wokha was competent to issue the impugned order. The learned Sr. Government Advocate also submitted that the letter dated 09.09.2016, of the SDO (Civil), Wokha, addressed to the Head GB of Yanthamo Village though it was received only at 1:50 P.M. on 09.09.2016, the contents of it reveals that the message intended to be conveyed through it was already conveyed verbally on 8.9.2016 to the Head GB of Yanthamo Village through the Court Secretary of District Customary Court, Wokha Therefore, conducting of election to the post of Village Council Chairman of Yanthamo Village by the Head GB of the village on 09.09.2016 was in violation of the direction given by the competent authority of the district, as such, the election of the petitioner is illegal and the Deputy Commissioner who is the respondent No. 4 was right in having passed the order impugned herein. The learned Sr. The learned Sr. Government Advocate further submitted that since the election was conducted illegally, a fresh election for electing the Village Council Chairman may be ordered.; 9. I have considered the rival submissions of both the learned counsels representing the parties. There cannot be any dispute on the fact that election of the Village Council Chairman is the domain of the Village Council itself as per the provision of section 7(1) of the Nagaland Village Councils Act, 1978. The duty or function of the district administration or the State Government would at best be to issue a notification by way of affirming or acknowledging the selection/selection of the Village Chairman once election/selection has been completed. Before the election/selection of the Village Council Chairman of course the district administration has to ensure that council members have been selected as per the provisions of the Act and the selection/election has been approved by the Government. Thereafter, issue such instruction or order/notification on selection of Village Council Chairman by the Village Council. Beyond that the Nagaland Village Councils Act does not provide any authority or power on the State Government or the Deputy Commissioner and the officers under him in the matter of election/selection of the Village Council Chairman. This has been sufficiently made clear not only by the contents of the section 7(1) of the Nagaland Village Councils Act but also by O.M. dated 21.05.2005, issued by the Commissioner & Secretary (LSG), Home Department (Home Branch), Government of Nagaland, and also the judgment cited by the learned counsel for the petitioner, therefore, J find no need to go into any further discussion on the issue mentioned above. The second issue which needs determination is as to whether the complaint submitted by the two GBs of Yanthamo Village to the Deputy Commissioner, Wokha would have been a valid ground to prevent the election of the petitioner or to declare the same null and void. The contents of the complaint submitted by the two Head GBs reads as follows; "To, The Deputy Commissioner, Wokha; Nagaland. Sub: Complaint against Shri Phyuso Ngullie head GB In-Charge Yanthamo Village for Misusing GB Resolution Register. Sir, With reference to the subject cited above, we the undersigned GB's of the Yanthamo Village would like bring the letter of the complaint against Shri Phyuso Ngullie. Sub: Complaint against Shri Phyuso Ngullie head GB In-Charge Yanthamo Village for Misusing GB Resolution Register. Sir, With reference to the subject cited above, we the undersigned GB's of the Yanthamo Village would like bring the letter of the complaint against Shri Phyuso Ngullie. That Sir, as per your notification we the GB'S of Yanthamo village had resolved some Resolution and maintain GB's register on 3rd March 2016 regarding selection/election of the village Council Chairman and VCM's and handle the Resolution (Register) to Shri Phyuso Ngullie Head GB in-charge. But with a span of time Shri Physo Ngullie had tear some pages of GB's Resolution Register without the knowledge of GB's. Therefore, we the undersigned request your competent authority to kindly take stern action against Shri Phyuso. Ngullie for misusing GB's resolution of Yanthamo Village. This is for your kind information and necessary action please. Yours faithfully, Sd/- Longshithung Kikon GB Yanthamo Village Sd/- Tsenchithung Kikon GB Yanthamo Village” From the contents of the complaint what can be gathered is that a resolution register/book was maintained by the GBs of Yanthamo Village for election of the Village Council Chairman and some pages has been allegedly removed by the Head GB., therefore, it was requested that stern action be taken against him. There is no mentioned of stopping or differing election process of the Village Council Chairman or to take any appropriate action in that regard. The only prayer made in the complaint was to take stern action against the Head GB. The contents of this complaint reveals that the action of the SDO (Civil) not to hold the election was uncalled for and arbitrary. Further, though Mr. K. Wotsa, learned Sr. Government Advocate have emphasized that the contents of the letter dated 09.09.2016, was already conveyed verbally to Head GB through the Court Secretary of the District Customary Court, Wokha, I am not inclined to accept this plea of the learned counsel because there is nothing to show that the direction of the SDO (Civil) given in the said letter have been verbally conveyed to the Head GB of Yanthamo Village. It may also be added here that before the impugned order dated 27.09.2016 was issued, the Deputy Commissioner, Wokha, should have given a chance or opportunity of being heard to all concerned. It may also be added here that before the impugned order dated 27.09.2016 was issued, the Deputy Commissioner, Wokha, should have given a chance or opportunity of being heard to all concerned. In view of the discussions and the conclusions drawn above, this Court is of the opinion that the impugned order is illegal and cannot be upheld. Therefore, the same is quashed and set aside. The respondents will do well by allowing the petitioner to function as Chairman of the Village Council and to perform his duties in the interest of the Village as per the law provided. With this, the writ petition is disposed.