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2018 DIGILAW 210 (GAU)

K. Nzanthung Humtsoe v. State of Nagaland

2018-02-02

LANUSUNGKUM JAMIR

body2018
JUDGMENT : Lanusungkum Jamir, J. 1. Heard Mr. Taka Masa, learned senior counsel assisted by Mr. Arenlong, learned counsel appearing for the petitioners. Also heard Mr. K. Wotsa, learned Senior Government Advocate appearing for the State respondent Nos. 1 and 2 as well as Mr. D. Stephen, learned counsel appearing for the respondent Nos. 3 and 4. Mr. Taka Masa, learned senior counsel appearing for the petitioners submits that the petitioners along with commonly aggrieved persons had earlier approached this Court by way of W.P.(C) No. 17 (K) of 2016 challenging the action of the S.D.O. (C), Wokha with regard to the elections/selections of VDB Members and Secretary of Pongidong Village, Wokha. The said writ petition was disposed of by this Court by judgment and order dated 19.12.2016 directing the Deputy Commissioner, Wokha/respondent No. 2 to conduct a fresh election/selection of VDB Secretary which shall be preceded by a fresh selection of members of the VDB from Humtsoe Chumpo Olongo Clan and Emungri Clan under the supervision of the Village Council, Pongidong Village strictly in accordance with law. The said exercise was to be completed within a period of three months from the date of receipt of the judgment and order by the respondent No. 2. In compliance to the judgment and order dated 19.12.2016, the respondent No. 2 by an order dated 03.03.2017, directed the Pongidong Village Council to conduct fresh election/selection of VDB Secretary which shall be preceded by a fresh election of the members of the VDB members from the Humtsoe Chumpo Olongo Clan and Emungri Clan under the supervision of the Village Council. The said exercise was to be completed on or before 25.03.2017. Accordingly, the Chairman, Pongidong Village Council issued a Circular dated 08.03.2017 in terms of the directions passed by the respondent No. 2 stating that there will be a meeting of the Village Council on 15.03.2017 at Pongidong Village Community Hall and requested all VCMs/GBs to attend the meeting without fail. Thereafter, the Chairman of the Pongidong Village Council by a letter dated 15.03.2017 wrote to the respondent No. 2 stating that the selection/election was done through the council majority and the petitioner No. 1 from Chumpo Olongo Humtsoe Clan and the petitioner No. 2 from the Emungri clan were unanimously selected as VDB members of the two clans. Thereafter, the Chairman of the Pongidong Village Council by a letter dated 15.03.2017 wrote to the respondent No. 2 stating that the selection/election was done through the council majority and the petitioner No. 1 from Chumpo Olongo Humtsoe Clan and the petitioner No. 2 from the Emungri clan were unanimously selected as VDB members of the two clans. Further, the final VDB members of the Pongidong Village were reflected in the letter and a request was made to initiate for election/selection of VDB Secretary of Pongidong Village at the earliest. 2. While the petitioners were awaiting a positive response, the Extra Assistant Commissioner, Office of the Deputy Commissioner, Wokha issued a Circular dated 20.03.2017 on the direction of the respondent No, 2 stating that a consultative meeting will be held on 23.03.2017 at Community Hall, Pongidong Village with regard to selection/election of VDB members of Humtsoe Chumpo Olongo Clan and Emungri Clan and the Chairman and GBs of Humtsoe Chumpo Olongo Clan and Emungri Clan, the Village Council Chairman and all Village Council Members, Pongidong Village, the household heads of Humtsoe Chumpo Olongo Clan and household heads of Emungri Clan of Pongidong Village were directed to attend the meeting. In the said meeting, the members were informed by the EAC that a direction was issued to verify and confirm the election of VDB members of Humtsoe Chumpo Olongo Clan and Emungri Clan under the supervision of the Village Council. The members present had therefore, informed the EAC about the earlier selection/election on 15.03.2017 and submission of the letter dated 15.03.2017 by the Chairman of Pongidong Village Council to the respondent No. 2. Thereafter, the Chairman and Secretary of Humtsoe Chumpo Olongo Clan by a letter dated 25.03.2017 addressed to the respondent No. 2 had reaffirmed the general resolution dated 22.08.2015 and 15.03.2017 on the re-selection of the petitioner No. 1 for VDB member from Humtsoe Chumpo Olongo clan. Similarly, the Emungruiclanby letter dated 25.03.2017 had also written to the respondent No. 2 adhering to the selection of the petitioner No. 2 as VDB member. However, the respondent No. 2 had issued the impugned order dated 26.05.2017 approving the list of VDB members of VDB members of Pongidong Village including respondent No. 3 and respondent No. 4 in place of the petitioner No. 2 and the petitioner No. 1 respectively. However, the respondent No. 2 had issued the impugned order dated 26.05.2017 approving the list of VDB members of VDB members of Pongidong Village including respondent No. 3 and respondent No. 4 in place of the petitioner No. 2 and the petitioner No. 1 respectively. Being highly aggrieved, the Chairman of Pongidong Village had submitted representation dated 26.04.2017 and 29.05.2017 against the decision of the respondent No. 2 for selection/election of the respondent Nos. 3 and 4 as VDB members of Humtsoe Chumpo Olongo Clan and Ekhung Clan. Further, the petitioners have also made separate representation dated 30.05.2017 to the respondent No. 2 with regard to their replacement by the respondent Nos. 3 and 4 respectively and requested for restoration of the VDB membership in respect of the petitioner in terms of the re-election that was done on 15.03.2017. However, as there was no response, the petitioners are before this Court praying for setting aside the impugned order dated 26.05.2017 with a further direction to approve the names of the petitioners as VDB members in terms of the re-election that was done on 15.03.2017. 3. Learned senior counsel for the petitioners submits that the order dated 26.05.2017 issued by the respondent No. 2 was in clear contravention of the judgment and order dated 19.12.2016 passed by this Court in W.P.(C) No. 17 (K) of 2017 inasmuch as, the respondent No. 2 had failed to adhere to the decision of the respective clans more particularly, the Humtsoe Chumpo Olongo Clan and Emungri Clan for election/selection of the petitioners as members of the VDB. The Pongidong Village Council had conducted the selection/election of VDB members from the said two clans on 15.03.2017 where, the petitioners were selected/elected by their respective clans. The Village Council had thereafter, recommended the names for approval to the respondent No. 2 however, the respondent No. 2 had instead, entertained and accepted the application of the private respondents and approved their names by the impugned order dated 26.05.2017 and therefore, the decision making process of the respondent No. 2 is most arbitrary and illegal. It is also submitted that when the EAC, Office of the Deputy Commissioner, Wokha had conducted the verification/confirmation, it was ascertained that the petitioners have the majority households and support from their respective clans. However, such verification, confirmation was also not considered by the respondent No. 2. 4. It is also submitted that when the EAC, Office of the Deputy Commissioner, Wokha had conducted the verification/confirmation, it was ascertained that the petitioners have the majority households and support from their respective clans. However, such verification, confirmation was also not considered by the respondent No. 2. 4. Learned senior counsel for the petitioners further submits that the respondents, through the Sub-Divisional Officer (C), Wokha, Nagaland had issued an order dated 16.01.2016 on the basis of the Pongidong Village Council resolution which was passed on 29.11.2015 for selection of 1 (one) VDB member for each 20 (twenty) household. In the said order, the distribution of VDB members was specified with regard to 6 (six) khels which are the Emungri Clan, Ovung Clan, Humtsoe Lankiwoe Clan, Humtsoe Chumpo Olongo Clan and Ezung Clan. However, on the basis of complaint letters dated 15.3.17, written by the Chairman and Secretary of Emungri Clan and Chairman and Secretary of Pongidong Humtsoe Ekhung Clan, the respondent No. 2 had acted arbitrarily by issuing the impugned order dated 26.05.2017. It is submitted that the Pongidong Village Humtsoe Ekhung is an unrecognized clan in terms of the order dated 16.01.2016 issued by the Sub-Divisional Officer (C), Wokha inasmuch as, in the order, only 6 (six) khels/clans are recognized for distribution of VDB members wherein, amongst the 6 (six) clans/khels, the Humtsoe Chumpo Olongo clan is recognized. There is no mention of the said Pongidong Village Humtsoe Ekhung and therefore, on the basis of complaint made by a minority breakaway group, the respondent No. 2 could not have acted on the same, more particularly, when the petitioner Nos. 1 and 2 have been elected/selected in the presence of the Pongidong Village Council in terms of the Village Development Board Model Rules, 1980 (herein after "the Rules of 1980") which was enacted in exercise of powers conferred by Sub-section 1 of Section 50 of the Nagaland Village and Area Council Act, 1978 (herein after "the Act of 1978"). The petitioner Nos. 1 and 2 having been elected/selected under the supervision of Pongidong Village Council in terms of the Rules of 1980 as well as on the basis of clear direction passed by this Court by judgment and order dated 19.12.2017 in W.P.(C) No. 17 (K) of 2016, the respondent No. 2 could not have acted in the manner that was done while issuing the order dated 26.05.2017. Learned senior counsel also submits that the villagers of Pongidong Village are undergoing great hardship inasmuch as, all the development funds have been stopped due to the controversies that has been created by the action of the respondents. In that view of the matter, he submits that a direction be issued to the respondent No. 2 to approve the selection/election of the petitioner Nos. 1 and 2 from Humtsoe Chumpo Olongo Clan and Emungri Clan and thereafter, set in motion for election of VDB Chairman in the interest of Pongidong Village. 5. Mr. K. Wotsa, learned Senior Government submits that the E.A.C., Office of the Deputy Commissioner, Wokha had convened a consultative meeting on the direction of the respondent No. 2 on 23.03.2017. In pursuance of the judgment and order dated 12.01.2017, the respondent No. 2 had issued an order dated 03.03.2017 directing the Chairman, Pongidong Village Council to conduct fresh election/selection of VDB members from the Humtsoe Chumpo Olongo Clan and Emungri Clan. Thereafter, the Pongidong Village Council had forwarded the names of the petitioner Nos. 1 and 2 as VDB members from the Chumpo Olongo Clan and Emungri Clan respectively. However, the office of the respondent No. 2 received separate complaint letters on 16.03.2017 from the Chairman and Secretary of Pongidong Village Humtsoe Ekhung and the Chairman and Secretary of Emungri clan. In the complaint from the Chairman and Secretary of Pongidong Village Humtsoe Ekhung, it was stated that due to the internal differences within the Humtsoe Chumpo Olongo Clan, 21 household had decided to disassociate from the Humtsoe Chumpo Olongo clan. Thereafter, the Pongidong Village, Humtsoe Ekhung having 21 households have selected the respondent No. 4 but the same was not accepted by the Pongidong Village Council. Further, the Chairman and Secretary of Humtsoe Chumpo Olongo clan by another letter addressed to the respondent No. 2 had reaffirmed their stand of the joint resolution dated 22.08.2015 and 15.03.2017 on the reelection of the petitioner No. 1. He also submits that similarly, the complaint letter dated 16.03.2017 from the Chairman and Secretary, Emungri clan states that the households of Emungri clan had unanimously selected the respondent No. 3 as VDB member from the Emungri clan which was not accepted by the Pongidong Village Council. He also submits that similarly, the complaint letter dated 16.03.2017 from the Chairman and Secretary, Emungri clan states that the households of Emungri clan had unanimously selected the respondent No. 3 as VDB member from the Emungri clan which was not accepted by the Pongidong Village Council. It was on the basis of such complaint letters that the respondent No. 2 had directed the EAC, Wokha to have a consultative meeting to settle the differences within the clans and therefore, the allegation of the petitioners that the EAC, Wokha had conducted counting of household is not correct inasmuch as, the EAC Wokha along with the DBs had held a meeting on 25.03.2017 as observers on the request made by the clan. After the consultative meeting with the stakeholders and on verification, a report was prepared by the EAC, Wokha and the same was submitted to the respondent No. 2 on 27.3.2017. On receipt of the report, the respondent No. 2 had written a letter dated 13.4.2017 to the Chairman of Pongidong Village Council raising certain queries and also requesting to submit a report at the earliest. However, the Pongidong Village Council by letter dated 26.04.2017 had reiterated its stand with regard to the selection/election of the petitioners that was forwarded by the letter dated 15.03.2017. 6. Learned Senior Government Advocate also submits that the respondent No. 2 not being convinced with the letter dated 26.4.2017 written by the Pongidong Village Council and considering that the issue of VDB formation of Pongidong Village Council was a long protracted one and for which the general public are put into great hardship, decided to constitute the VDB of Pongidong village based on the verification report that was submitted by the EAC Wokha on 27.03.2017 and thereafter, the order dated 26.05.2017 was issued without prejudice to any parties and in tune with the Rules of 1980. He, therefore, submits that the respondent No. 2 being the Ex-Officio Chairman of the VDB had acted in a manner that was in the interest of the public of Pongidong Village and to solve the crisis that has been going on for a very long time. In that view of the matter, learned Senior Government Advocate submits that no interference is required in the impugned order dated 26.05.2017. 7. Mr. D. Stephen, learned counsel appearing for the respondent Nos. In that view of the matter, learned Senior Government Advocate submits that no interference is required in the impugned order dated 26.05.2017. 7. Mr. D. Stephen, learned counsel appearing for the respondent Nos. 3 and 4 while reiterating the submissions made by the learned Senior Government Advocate further submits that the Circular dated 08.03.2017 issued by the Chairman of Pongidong Village Council and the letter dated 15.03.2017 forwarding the names of the selected/elected VDB members are contrary to the order dated 03.03.2017 issued by the respondent No. 2 as well as the judgment and order dated 19.12.2012 passed by this Court inasmuch as, the Village Council instead of supervising the process of selecting/electing the 2 VDBs from their respective clans had themselves by a majority decision recommended the names of the petitioner as VDB member from their respective clan and had submitted the same to the respondent No. 2 by the letter dated 15.03.2017. He also submits that the Chairman and Secretary of Emungri clan had submitted a letter dated 11.03.2017 along with the names of 23 households and signatures whereby, the respondent No. 3 was selected/nominated as the VDB member of Emungri clan. Further, on 15.03.2017, the Chairman and Secretary of Pongidong Village Humtsoe Ekhung had submitted a letter along with the names of 21 households and signatures to the Chairman Pongidong village whereby, the respondent No. 4 was selected/elected as clan VDB members. However, the Pongidong Village Council had rejected the approved list of both the clans and had instead, submitted its own choice of list to the respondent No. 2. Therefore, the Chairman and Secretary of both the clans had submitted complaint letters both dated 15.03.2017 highlighting the issue and seeking for judicious intervention. 8. Learned counsel for the respondent Nos. 3 and 4 also submits that the Pongidong Village Council had passed a resolution dated 29.11.2015 stating that 1 (one) VDB member will be awarded per 20 households. The said resolution dated 29.11.2016 still holds the field and therefore, when the Humstoe Ekhung of Pongidong Village has 21 households, they are entitled to have 1 (one) VDB member. However, the Pongidong Village Council, on the other hand, had just rejected the case of the Pongidong Humtsoe Ekhung by reiterating its stand that the election/selection of the petitioner No. 1 which is detrimental to the interest of the Humtsoe Ekhung. However, the Pongidong Village Council, on the other hand, had just rejected the case of the Pongidong Humtsoe Ekhung by reiterating its stand that the election/selection of the petitioner No. 1 which is detrimental to the interest of the Humtsoe Ekhung. It was for this reason that the respondent No. 2 had directed the EAC, wokha to have a consultative meeting in order to resolve the issue. The verification report of the EAC, Wokha would also clearly indicate that it was a neutral consultative meeting without any adverse remarks/suggestion on either of the parties. On a consideration of the said report, the respondent No. 2 had rightly written the letter dated 13.04.2017 to the Chairman of Pongidong Village Council raising queries and asking for submission of report to his office at the earliest. However, the Chairman, Pongidong Village Council had with mala fide interest in support of the petitioner Nos. 1 and 2 had instead written the letter dated 26.04.2017 reiterating the council resolution that was passed on 15.03.2017. He submits that the Pongidong Village Council instead of being a neutral body had acted in a manner prejudicial to the Pongidong Humtsoe Ekhung and the Emungri Clan which is not in the interest of the general public. 9. I have considered the submissions forwarded by the learned counsel for the parties. 10. At this stage, this Court finds it necessary to re-enter into the judgment and order dated 19.12.2016 passed in W.P.(C) No. 17 (K) of 2016. In the said judgment, the relevant Sections and Rules of the Act of 1978 and the Rules of 1980 were quoted and discussed. While discussing Rule 6 of the Rules of 1980, this Court had made an observation that there is no provision under the Rules of 1980 empowering the Chairman of the VDB Lethe Deputy Commissioner/Additional Deputy Commissioner to delegate its power to any sub-ordinate officer/authority and thereafter had come to the finding that selection/election of the management Committee of the concerned VDB will have to be supervised/approved by the Ex-Officio Chairman i.e. the Deputy Commissioner/Additional Deputy Commissioner concerned and none else. Thereafter, this Court had directed the respondent No. 2 to conduct fresh election/selection of the VDB Secretary of Pongidong Village which shall be preceded by a fresh selection of the members of VDB from the Humtsoe Chumpo Olongo Clan and Emungri Clan under the supervision of the Village Council of Pongidong Village strictly in accordance with the law as provided for this purpose. 11. This Court has also taken into consideration the order dated 16.01.2016 issued by the Office of the Deputy Commissioner distributing the members of VDB members for each clan/khel as per the outcome of the meeting at Pongidong Community Hall held on 15.01.2016. In the said order, there are only 6 (six) clans/khels with the respective members prescribed for each clan/khel. Amongst the 6 (six) clan/khel, the Emungri Clan figures at Serial No. (a) and the Humtsoe Olongo Chumpo clan figures at Serial No. (e). There is no mention nor any distribution of VDB member for the Pongidong Humtsoe Ekhung. It is not disputed at the bar that the order dated 16.01.2016 still holds the field without any modification. The direction passed by this Court in the judgment and order dated 19.12.2016 clearly specifies that the selection/election of Pongidong Village VDB Secretary shall be preceded by a fresh election of the members of the VDB from Humtsoe Chumpo Olongo clan and Emungri Clan. No direction was issued for selection/election of VDB members from Pongidong Humtsoe Ekhung. The order dated 03.03.2017 issued by the respondent No. 2 also clearly directed to conduct fresh election/selection of VDB members from Humtsoe Chumpo Olongo Clan and the Emungri Clan. No direction was issued by the respondent No. 2 for having the election/selection of VDB members from the Pongidong Humtsoe Ekhung. The order dated 16.01.2016 being still in force, it was incumbent upon the respondent No. 2 to have considered, the forwarding letter dated 15.03.2017 written by the Chairman of Pongidong Village Council. It was also incumbent on the respondent No. 2 to have considered the complaint dated 15.03.2017 written by the Chairman and Secretary of Pongidong Village Humtsoe Ekhung as a complaint made by 21 households who had disassociated from Chumpo Olongo Humtsoe Ekhung and that there was no allocation of any VDB members to the said Humtsoe Ekhung in the order dated 16.01.2016. 12. 12. The letter of the respondent No. 2 dated 13.04.2017 written to the Chairman of Pongidong Village Council on receipt of the verification report of the EAC, Wokha as well as the reply by the Chairman of Pongidong Village Council dated 26.04.2017 has also been considered. The rules of 1980 clearly indicates that members of the Management Committee of the VDB shall be chosen by the Village Council Member. Therefore, when the Village Council of Pongidong Village had written back by the letter dated 26.04.2017 reiterating the order dated 16.01.2016 and the Village Council resolution dated 15.03.2017, the respondent No. 2 could not have issued the impugned order dated 26.05.2017 replacing the petitioner Nos. 1 and 2 by the respondent Nos. 3 and 4. It is important to note that this Court by judgment and order dated 19.12.2016 had observed that there is no provision under the Rules of 1980 empowering the Chairman of the VDB i.e. the Deputy Commissioner to delegate its power to any sub-ordinate officer/authority. The respondent No. 2 could not have deputed the EAC, Wokha for any consultative meeting with the contending parties. Therefore, the report of the EAC, Wokha cannot be taken cognizance by this Court. 13. This Court has also taken into consideration the submission of the parties concerned that the general public of Pongidong Village are put into great hardship due to infighting amongst the 2 (two) clans inasmuch as, the Pongidong Village is unable to select/elect the VDB Secretary till date. 14. In the facts and circumstances of the case as discussed hereinabove, this Court is of the considered opinion that the impugned order dated 26.05.2017 issued by the respondent No. 2 stands vitiated. Accordingly, the same is set aside and quashed. The respondent No. 2 is directed to approve the names of the VDB members as forwarded by the Chairman of Pongidong Village Council by its letter dated 15.03.2017 and thereafter, allow the VDB members to select the Secretary of Pongidong Village. 15. Writ petition is allowed. No costs.