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2017 DIGILAW 626 (GAU)

H. Throngkiuba v. State of Nagaland

2017-05-22

L.S.JAMIR

body2017
JUDGMENT AND ORDER : L.S. Jamir, J. 1. The brief fact of the case is that Shothumi' Village was established in the year 1914. Subsequently, Shothumi Village was bifurcated into Shothumi 'A' Village and Shothumi 'B' Village in the year 1922. Shothumi 'A' Village consists of both Yimchunger Tribe and the Sema Tribe. A dispute arose between the Yimchunger Tribe and the Sema Tribe of Shothumi 'A' Village which led to the interference by Sumi Hoho and the Yimchunger Tribal Council. The said two organisations tried to settle the mater by issuing three settlements between the parties, the first settlement on 01-04-2002, the second settlement dated Nil and the third settlement on 18-02-2004 allowing establishment of a new village within the area of the present private respondents village. Being aggrieved, the private respondents submitted a representation against the interference made by the two organisations before the Government. However, the Deputy Commissioner, Kiphire by order dated 04-10-2014, directed implementation of the said settlements made by the two organisations. Not being satisfied, the private respondents again submitted a petition dated 06-10-2015 before the Deputy Commissioner, Kiphire for settlement of the dispute by a customary court. However, the Deputy Commissioner, Kiphire instead, issued a letter dated 07-10-2005 stating that the matter has been taken up and settled by the Sumi Hoho and the Yimchunger Tribal Council and therefore, no interference was called for. 2. Being aggrieved by the letter of the Deputy Commissioner, Kiphire dated 07-10-2005, the private respondents as petitioners filed W.P (C) No. 304 (K) of 2005 which was disposed of by this Court by judgment and order dated 27-04-2007 declaring that the Sumi Hoho and the Yimchunger Tribal Council have no authority and jurisdiction to interfere with the administration of civil justice in the village and that it was the bounden duty of the Deputy Commissioner, Kiphire to either decide the matter himself or refer the matter to the Dobashi's Court (DB Court ' in short'). Consequently, the Deputy Commissioner, Kiphire endorsed the matter to the DB's Court, Kiphire by order dated 07-05-2007. The DBs. Court however, by order dated 29-08-2007 endorsed the decision of the two organisations. Consequently, the Deputy Commissioner, Kiphire endorsed the matter to the DB's Court, Kiphire by order dated 07-05-2007. The DBs. Court however, by order dated 29-08-2007 endorsed the decision of the two organisations. Against the judgment and order dated 29-08-2007 passed by the DB's Court, the respondents filed an appeal before the Deputy Commissioner, Kiphire on 24-09-2007 which was however dismissed by the order dated 14-11-2007 relying on the decision of the two organization, namely, the Sumi Hoho and the Yimchunger Tribal Council. Not being satisfied with the decision of the Deputy Commissioner, Kiphire dated 14-11-2007 and the order passed by the DB's Court dated 29-08-2007, the private respondents again approached this Court by way of Civil Revision Petition No. 14 (K) of 2007 which was disposed of by this Court by judgment and order dated 20-09-2010 holding that the Tribal Hohos have no authority to interfere with the administration of the village and in the event of dispute regarding the affairs of the village, it was either the Deputy Commissioner or his assistant to decide the dispute either by themselves or by referring the matter to the DB's Court. Further, this Court by the judgment and order dated 20-09-2010 came to the finding that the order of the DB's Court and the Deputy Commissioner, Kiphire were solely based on the decision of the Tribal Hohos viz Sumi Hoho and the Yimchunger Tribal Council and accordingly, both the orders dated 29-08-2007 and 14-04-2007 passed by the DB's Court and the Deputy Commissioner, Kiphire were set aside by remanding the matter to the Deputy Commissioner, Kiphire to dispose of the matter by reasoned and speaking order after giving opportunity to both the parties of being heard and also keeping in mind the provision provided under the Government Memorandum dated 22-03-1996. 3. As the dispute continued between the Yimchunger Tribe and the Sumi Tribe of Shothumi 'A' Village and with an intend for an amicable settlement, a joint public meeting of the Yimchunger Tribe and the Sumi Tribe was held on 10-05-2011 and thereafter, a Memorandum of Understanding (' MOU' for short) was signed between the Sumi Tribe and the Yimchunger Tribe for establishment of a new village from Shothumi 'A' Village provided the said new village is established at least two kilometers away from the Shothumi 'A' Village. It was also provided in the MOU that the deadline for establishment of the new village to be from 10th May, 2011 to 10th May, 2012 and failing to do so, the Yimchunger Tribe will become Sumi Citizen of Shothumi 'A' Village. Pursuant to the MOU, a no objection certificate dated 22-05-2011 was also issued by the private respondents' village. In the meantime, the Yimchunger Tribe of Shothumi 'A' Village split into two groups, one led by the father of the present petitioner No.1 and the other led by one Shobu Yimchunger. In the meantime, the State respondents proceeded for recognition of the village led by the father of petitioner No.1 by taking all necessary steps as provided under the Office Memorandum dated 22-03-1996 which culminated in issuance of public notice dated 05-04-2012 by the Deputy Commissioner, Kiphire calling for claims and objections, if any, within 30 days from the date of issue of the said notice for recognition of Sangtsuwung Village. After issuance of the notice dated 05-04-2012, the private respondents village filed a representation dated 17-04-2012 objecting to the recognition of Sangtsuwung Village led by the father of petitioner No.1 on the ground that the Yimchunger Tribe had split into two groups and that the no objection certificate issued by the private respondents village was for establishment of a new village of Yimchunger Village as one single group. 4. In the meantime, in terms of the directions passed by this Court by judgment and order dated 20-09-2010 in Civil Revision Petition No. 14 (K) of 2007, the Deputy Commissioner, Kiphire referred the dispute between the petitioners' village and the private respondents' village to the DB's Court, Kiphire. The DB's Court, Kiphire by judgment and order dated 27-06-2011 allowed establishment of the Yimchunger Village with a direction to the private respondents' village to issue no objection certificate within 15 days to the petitioners' village. Being aggrieved, the private respondents again filed an appeal on 01-08-2011 before the Deputy Commissioner, Kiphire. Surprisingly, the Deputy Commissioner, Kiphire issued a show cause notice against the private respondents for filing the said appeal and therefore, having no option, the private respondents village approached this Court by way of Civil Revision Petition No. 7 (K) of 2012 challenging the show cause notice issued by the Deputy Commissioner, Kiphire. Surprisingly, the Deputy Commissioner, Kiphire issued a show cause notice against the private respondents for filing the said appeal and therefore, having no option, the private respondents village approached this Court by way of Civil Revision Petition No. 7 (K) of 2012 challenging the show cause notice issued by the Deputy Commissioner, Kiphire. The said revision petition was disposed of by order dated 25-07-2012 by directing the Deputy Commissioner, Kiphire to dispose of the appeal filed by the private respondents. Again, the Deputy Commissioner, Kiphire issued another Memorandum dated 04-08-2011 stopping all financial grants and benefits to the private respondents village and therefore, they had to approach this Court again by filing W.P (C) No. 145 (K) of 2012 challenging the Memorandum dated 04-08-2011 which was disposed of by this Court on 17-09-2014 by quashing and setting aside the Memorandum dated 04-08-2011. In the background as stated herein above, the petitioners village has approached this Court praying for a direction to the State respondents to issue recognition to the petitioners village. 5. Heard Mr. Imti Longchar, learned counsel for the petitioners. Also heard Ms. V. Suokhrie, learned Additional Senior Government Advocate appearing for the State respondents as well as Mr. Imti Longjem, learned counsel appearing for the private respondent Nos. 6 and 7. 6. Mr. Imti Longchar, learned counsel for the petitioners submits that on the basis of a joint public meeting held on 10-05-2011 between the Yimchunger Tribe and the Sumi Tribe of Shothumi 'A' Village, MOU was signed whereby, the petitioners were allowed to establish a village beyond two kilometers away from Shothumi 'A' Village stating the deadline from 10th May, 2011 to 10th May, 2012. He submits that pursuant to the MOU, the private respondents have also issued no objection certificate dated 22-05-2011. In terms of the MOU, the petitioners have also established the village within the deadline prescribed therein. Thereafter, the State respondents had proceeded to take steps for recognition of the petitioners' village in terms of the criteria laid down in the Office Memorandum dated 22-03-1996. The boundaries of the petitioners' village were also demarcated and thereafter, the Deputy Commissioner, Kiphire had issued the public notice dated 05-04-2012 calling for claims and objections against the recognition of Sangtsuwung Village. The boundaries of the petitioners' village were also demarcated and thereafter, the Deputy Commissioner, Kiphire had issued the public notice dated 05-04-2012 calling for claims and objections against the recognition of Sangtsuwung Village. It was at this stage that the private respondents' village had submitted the objection by way of a representation dated 17-04-2012 against the recognition of the petitioners' village. He submits that as the MOU has already been signed between the petitioners village and the private respondents village and further as no objection certificate dated 22-05-2011 was also issued by the private respondents village, the question of objection of the petitioners village does not arise inasmuch as, they have established the village beyond two kilometers from Shothumi 'A' Village and that the State respondents had also taken steps for giving recognition of the petitioners village without any complaint or objection from any quarters. Further, the representation dated 17-04-2012 submitted by the private respondents village was merely to stall the recognition of the petitioners village without any basis and therefore, a direction has to be issued to the Deputy Commissioner, Kiphire/respondent No. 3 to dispose of the representation dated 17-04-2012 and thereafter, process the matter to the State Government for giving recognition to the petitioners village. He also submits that the delay in disposing of the representation dated 17-04-2012 was caused due to the interference made by the Office of the Commissioner of Nagaland, Kohima/respondent No.2 with vested interest in favour of the private respondents village. As such, further direction be issued to the respondent No. 2 not to interfere with the decision making process of the respondent No.3. 7. Ms. V. Suokhire, learned Additional Senior Government Advocate appearing on behalf of the State respondents submits that on the strength of the no objection certificate dated 22-05-2011 issued by the private respondents village, all necessary steps were taken for recognition of the petitioners village which resulted in the issuance of the public notice dated 05-04-2012 by the respondent No.3 However, during the notice period, the private respondents village submitted a representation dated 17-04-2012 objecting to the recognition of Sangtsuwung Village/petitioners village and therefore, the file pertaining to the recognition of the petitioners village could not be processed any further. She also submits that as per the criteria laid down by the Office Memorandum dated 22-03-1996, a new village seeking recognition should obtain no objection certificate form the Village Council Chairman of the parent village indicating the boundaries of the village. That being the position, the State respondents are not in a position to issue recognition to the petitioners' village. 8. Mr. Imti Longjem, learned counsel appearing for the private respondent Nos. 6 and 7, on the other hand, submits that the MOU which was signed between the Yimchunger Tribe and the Sema Tribe was with a condition that the Yimchunger Tribe would establish a village beyond two kilometers from the Shothumi 'A' Village. The Yimchunger Tribe had split into two groups, one led by the father of the petitioner No.1 and the other by one Shobu Yimchunger and therefore, the private respondents village had made the objection through the representation dated 17-04-2012 against recognition of the petitioners village inasmuch as, the private respondents had given its no objection certificate only on the condition that the Yimchunger Tribe of Shothumi 'A' Village establishes only one Yimchunger Village. He also submits that no direction can be issued to the respondent No. 3 for considering the representation dated 17-04-2012 at this stage inasmuch as, there is an appeal pending before the respondent No.3 which is yet to be decided. It is submitted that the said appeal filed by the private respondents' village on 01-08-2011 will have to be decided by the respondent No.3 in terms of the directions passed by this Court by judgment and order dated 20-09-2010 passed in Civil Revision Petition No. 14 (K) of 2007. 9. I have heard the submissions forwarded by the learned counsel for the parties. 10. The facts leading to the filing of the present writ petition has already been discussed herein above and therefore, this Court does not find it necessary to relate the facts any further. 11. An important point of note is that in terms of the directions passed by this Court in Civil Revision Petition No. 14 (K) of 2007 by judgment and order dated 20-09-2010, the Deputy Commissioner, Kiphire referred the matter to the DB's Court, Kiphire. 11. An important point of note is that in terms of the directions passed by this Court in Civil Revision Petition No. 14 (K) of 2007 by judgment and order dated 20-09-2010, the Deputy Commissioner, Kiphire referred the matter to the DB's Court, Kiphire. The DB's Court by judgment and order dated 27-06-2011 had thereafter, allowed establishment of the petitioners village led by the father of petitioner No.1 with a further direction to issue no objection certificate within 15 days to the petitioners village. Being aggrieved, the private respondents village have filed an appeal on 01-08-2011 before the Deputy Commissioner, Kiphire which is still pending for disposal. It is also important to note that this Court again by judgment and order dated 25-07-2012 passed in Civil Revision Petition No. 7 (K) of 2012 had directed the respondent No. 3 to dispose of the appeal filed by the private respondents' village. From the records, it is seen that the appeal filed by the private respondents' village on 01-08-2011 is still to be disposed of by the respondent No.3. 12. Considering the facts and circumstances of the case, until and unless the dispute between the petitioners village and the private respondents village is finally brought to a logical conclusion by the respondent No.3, the issue of giving recognition to the petitioners village would not arise. Therefore, in the considered opinion of this Court, it would be fruitless to issue a direction to the respondent No.3 to dispose of the representation dated 17-04-2012 made by the private respondents' village against the recognition of the petitioners' village. It would be in the fitness of things that the respondent No. 3 should first dispose of the appeal filed by the private respondents' village on 01-08-2011 at an early date. 13. In view of the discussions made herein above, the respondent No.3/ the Deputy Commissioner, Kiphire is directed to dispose of the appeal dated 01-08-2011 filed by the private respondents village at an early date but not later than 6 (six) months from the date of receipt of a copy of the order of this Court by the respondent No.3. It is further directed that the respondent No.3 shall not be influenced by any observations made by this Court nor by the earlier decisions that has been passed either by the DB's Court, Kiphire or by the Deputy Commissioner, Kiphire. It is further directed that the respondent No.3 shall not be influenced by any observations made by this Court nor by the earlier decisions that has been passed either by the DB's Court, Kiphire or by the Deputy Commissioner, Kiphire. While deciding the appeal, the respondent No. 3 is expected to apply his judicious mind without being influenced by any extraneous consideration and also taking into consideration the Office Memorandum dated 22-03-1996 as directed by this Court by judgment and order dated 20-09-2010 in Civil Revision Petition No. 14 (K) of 2007. 14. With the above observations and directions, this writ petition is accordingly disposed of. 15. No costs.