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2018 DIGILAW 89 (MEG)

C. Aikom Diengdoh v. K. H. A. D. C.

2018-12-07

MOHAMMAD YAQOOB MIR, S.R.SEN

body2018
ORDER : Mohammad Yaqoob Mir, J. 1. Petitioner has prayed for quashing the order dated 28.07.2017 and letter dated 01.11.2017. In terms of letter dated 01.11.2017, the petitioner has been removed as Sordar Shnat Raid Tynring and an administrator appointed to look after the administration until a new Sordar is elected. Factual matrix: 2. The petitioner was elected as Sordar in the year 2009 so was duly appointed by the Syiem of Khyrim (respondent No. 16) as is clear from the Sanad No. 7 of 2009 dated 16.03.2009 issued by the Chief of Khyrim Syiemship, Smit. 3. Vide letter dated 25.04.2017, it has been conveyed to the petitioner by the Joint Secretary to the Executive Committee, KHADC, Shillong that there has been no village Dorbar for a very long time, as such was informed to hold the village Dorbar of Tynring village within ten days. All the residents of Tynring both male and female who have attained 18 years of age having Epic Card to attend the Dorbar. The petitioner challenged the said letter dated 25.04.2017 by medium of WP(C) No. 100 of 2017 titled "Shri C. Aikom Diengdoh v. Khasi Hills Autonomous District Council & Ors." which stand disposed of vide order dated 09.05.2017 providing that operation of the letter dated 25.04.2017 shall remain in abeyance. However, the official respondents therein were permitted to take appropriate decision in the matter after providing adequate opportunity of hearing to the petitioner. 4. Joint Secretary to the Executive Committee, KHADC vide letter dated 19.05.2017 issued a show cause notice as to why the petitioner has stopped holding of Dorbar. In response, petitioner has submitted a detailed explanation dated 25.05.2017. On considering the show cause notice, the Executive Committee, KHADC after holding an enquiry has observed that the petitioner could not substantiate his claim that Dorbar has been held as per the Acts and Rules. To find out the truth, it is necessary to hold the Dorbar so as to prove as to whether petitioner has been re-elected on 18.12.2015 as claimed by him. The Dorbar was to be held within fifteen days in presence of the Ministers along with the officials of KHADC. As a follow up, on 11.08.2017, it was conveyed to the petitioner to make public announcement for holding the Dorbar on 14.08.2017 so as to prove that the people have again re-elected him as Sordar on 18.12.2015. 5. The Dorbar was to be held within fifteen days in presence of the Ministers along with the officials of KHADC. As a follow up, on 11.08.2017, it was conveyed to the petitioner to make public announcement for holding the Dorbar on 14.08.2017 so as to prove that the people have again re-elected him as Sordar on 18.12.2015. 5. The Dorbar was held on 14.08.2017 which was attended by both male and female. A report was prepared wherein, it was mentioned that the petitioner had been re-elected as Sordar on 18.12.2015, appointment was duly approved and confirmed by the Syiem of Khyrim. 6. There has been another complaint against the petitioner, based on which from the office of Syiem of Khyrim, Syiemship, Smit, a letter was sent to the petitioner on 27.09.2017 asking him to hold the Dorbar of Tynring on 09.10.2017 so as to ascertain that the people of Tynring still have the confidence in him. Male adult of Tynring were to take part in the voting, however, on 05.10.2017 a correction was issued to read, male and female instead of male only, in the letter dated 27.09.2017. 7. Vide letter impugned dated 01.11.2017 issued from the office of Syiem of Khyrim Syiemship, Smit, it was conveyed to the petitioner that as per the referendum of Elder of Raid Nongkrem, petitioner has lost the confidence of the people residing in Shnat Raid Tynring, Khyrim Syiemship. Therefore, as per Section 9(1)(h) of the United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959, he has been removed as Sordar Shnat Raid Tynring and an administrator has been appointed to look after the administration until a new Sordar is elected. Aggrieved whereof, instant petition has been filed. 8. The contention of learned counsel for the petitioner is that as per customary practice, only males who had attained 18 years of age or above could participate in the Dorbar for voting. Females were not entitled to vote. Secondly, it is projected that the respondents have not followed the customary practice, therefore, have illegally removed the petitioner as Sordar Shnat Raid Tynring. 9. Respondents No. 1 to 5 in their affidavit-in-opposition have made it clear that they have acted on the basis of the complaints received against the petitioner based on which, he was asked to convene a public Dorbar. 9. Respondents No. 1 to 5 in their affidavit-in-opposition have made it clear that they have acted on the basis of the complaints received against the petitioner based on which, he was asked to convene a public Dorbar. Whereas, respondent No. 16 in his affidavit has specifically pleaded that the petitioner had claimed that it would be wrong on his part to convene a general village Dorbar on 09.10.2017 by including both males and females as being against the customary practice in the village. But vide report dated 14.10.2017, the Bakhraw (Elders/Myntris) of Raid Nongkrem, who had gone to Tynring on 09.10.2017, confirmed that a crowd of villagers had gathered at the village ground. When the Myntris and the representatives of KHADC reached the venue of the meeting meant to seek referendum on the status of the petitioner as Sordar Shnat Raid Tynring, after deliberation a decision was taken to proceed with the election process of Sordar Shnat Raid Tynring. Participation of male and female voters was on the suggestion of the Bakhraws of Raid Nongkrem (Myntris). 10. The respondents No. 6 to 15 in the affidavit at para 12 have specifically pleaded that KHADC having codified the customary law providing for participation of all adults inhabitants of the village, including the women, in the affairs of the village Dorbar, so there is no question of breach of any customary law/practice. Further, it has been pleaded that many adjoining villages including the village of Mawpdang, Seijiong and Diengpasoh falling within the same Syiemship have been traditionally allowing full participation of adult women residents of the village in all matters of the village Dorbar. 11. Whether the petitioner has lost the confidence of the people, is the centre of controversy. The pretext of the petitioner is that females as per custom cannot participate in the election process is without any logic. Section 9 of the United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 provides for removal and suspension of Headmen. Section 9(1)(h) read as under:- "9. Removal and Suspension of Headmen.- (1) The headmen may be removed from office or suspended by the Chief and his durbar if in their opinion- (h) he has lost the confidence of the majority of the members of the clan that elect him or by the persons eligible to elect the headman concern." 12. Section 9(1)(h) read as under:- "9. Removal and Suspension of Headmen.- (1) The headmen may be removed from office or suspended by the Chief and his durbar if in their opinion- (h) he has lost the confidence of the majority of the members of the clan that elect him or by the persons eligible to elect the headman concern." 12. Members of the clan irrespective of any gender, however, only adult or eligible to elect a headman. Same position is supported by the Khasi Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Rules, 2015. Sub-section (1), (6) and (8) of Section 2 in this behalf are relevant to be quoted:- "2.(1) Definitions:- In these Rules, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them as follows:- (6) "Dorbar Shnong" means a traditional village institution where the prevailing age-old customary and traditional governance and adjudication are carried out in open Dorbar by all Khasi residents inhabiting a particular village/locality who have attained the age of 18 (eighteen) years. Such Dorbar shall be convened at least once a year or as may deemed necessary and is presided over by a Rangbah Shnong/Headman/Sordar Shnong, as the case may be. (8) "Headman" means a traditional head of a village and includes a Rangbah Shnong, Sordar, Shnong, a Matabor duly elected as per custom prevailing in a village or Elaka." 13. Sub-section (6) clearly envisage that inhabitants who have attained the age of 18 years have the right to attend the Dorbar, there is no question of male and female, all persons above the age of 18 years can participate. Now to claim that there is a custom providing the right to vote only to male is not in anywhere establish nor any such custom can be in consonance with good conscience or public policy. How can adult female be deprived of the right to vote in the electoral process governing the election of a Sordar. 14. It is stated by the learned counsel for the parties that the term of the petitioner as Sordar was up to 2019. That being so it would be appropriate to direct the respondents to take all necessary steps for holding the Dorbar as well as the election. 15. 14. It is stated by the learned counsel for the parties that the term of the petitioner as Sordar was up to 2019. That being so it would be appropriate to direct the respondents to take all necessary steps for holding the Dorbar as well as the election. 15. Since the petitioner has been removed as Sordar vide letter impugned dated 01.11.2017, whether the people have lost the confidence or not is a question to be answered. Therefore, in the facts and circumstances, this petition is disposed of with the following directions:- (i) The respondent-authorities shall hold the Dorbar of Shnat Raid Tynring so as to hold the election, in case petitioner is elected, then he shall be appointed for a fresh term; (ii) If some other person is elected then same person shall be appointed. 16. The exercise shall be undertaken and completed by the official respondents within a period of twenty days from the date order is served upon them. 17. Petition disposed of as above.