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2019 DIGILAW 1327 (GAU)

Chumchamo Emungri v. State of Nagaland

2019-12-05

ACHINTYA MALLA BUJOR BARUA, SANJAY KUMAR MEDHI

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. U.K. Nair, learned Council appearing for the appellants and Ms. T. Khro, learned senior Govt. Advocate for the Nagaland. 2. The Office Note dated 20.4.2018 shows that notices have duly been served on the respondents No. 3 & 4. We have taken note of the communication of the Civil Judge Junior Division Wokha, Nagaland dated 22.3.2018 which shows that notices upon respondents No. 3 & 4 have duly been served. 3. Further, the documents enclosed to the said communications also bears the signature of respondents No. 3 & 4. Accordingly, the notices upon the respondents No. 3 and 4 are accepted from the date on which it was served as per the communication of the learned Civil Judge, Wokha. But inspite of the notices having been served, none appears for the respondents No. 3 & 4 and consequently, we proceed with the matter in their absence. 4. On the expiry of the term of the earlier Village Development Board (in short VDB) of the Pongidong Village Council, the Village Council in the meeting dated 29.11.2015 adopted a resolution for selection/election of the VDB Members. The resolution of 29.11.2015 had resolved to have one VDB Member from every 20 households. 5. Pursuant there to an order dated 16.1.2016 was issued by the Sub Divisional Officer (Civil) Wokha Nagaland, wherein, pursuant to the resolution dated 29.11.2015 of the Pongidong Village Council, the distribution of VDB Members for each clan/khel was worked out. The order dated 16.1.2016 is extracted as follows: " Office of the Deputy Commissioner Wokha Nagaland Order Dated Wokha the 16th Jan 2016 No. SDO(C) SADAR/2015-16: (1) In tune with Pongidong village council resolution passed on 29.11.2015 for selection of 1 VDB Members for each 20 household and as per the outcome of the 15th of January 2016 meeting at Pongidong community hall for verification/determination of total Member of households in the village, the distribution of VDB Members for each clan/khel is here by worked out as below: (a) Emungri clan/Khel-1 Member (b) Ovung clan/khel-1 Member (c) Humtsoe Lankiwoe clan/khel-2 Members. (d) Tsopoe clan/khel-2 Members, (e) Humtsoe chumpo olongo clan/khel-3 Members (f) Ezung clan/khel-1 Member 2. Village council Pongitong should ensure that adequate women Members are also selected/elected to ensure adequate women representation (as per VDB Module Rule). 3. (d) Tsopoe clan/khel-2 Members, (e) Humtsoe chumpo olongo clan/khel-3 Members (f) Ezung clan/khel-1 Member 2. Village council Pongitong should ensure that adequate women Members are also selected/elected to ensure adequate women representation (as per VDB Module Rule). 3. All informalities of nomination/selection/election of VDB Members from each clan/khel should be completed by the 20th of January 2016. 4. The election/selection of VDB Secretary should be conducted on the 22nd of January 2016. Sd/- (Mhomo Tungoe) Sub-Divisional Officer (Civil) Wokha:: Nagaland" 6. Consequent thereof the selection took place and vide notification dated 9.2.2016, the following persons were accepted against the khel/clan: 7. The respondents No. 3 and 4 namely K. Nzanthung Humtsoe and Tsubemo Emugnri had assailed the inclusion of Sansow Humtsoe against Humtsoe Chumpo Olongoclan and Chumchamo Emungrui against Emungri clan. The writ petition was numbered as WP (C) 17 K/2016 before the Kohima Bench. 8. The learned Single Judge vide judgment dated 19.12.2016 had directed the Deputy Commissioner Wokha to conduct a fresh election/selection of the VDB Secretary, to be preceded by a fresh selection of the Members of the VDB from the Humtsoe Chumpo Olongoclan and Emungri clan under the supervision of the Village Council of Pongidong Village, strictly in accordance with law as provided for the purpose. 9. As directed by the learned Single Judge in the judgment dated 19.12.2016 in WP(C) 17 K/2016, the Pongidong Village Council, Wokha by their communication dated 15.3.2017 informed the Deputy Commission, Wokha as to the result of the selection/election done in respect of the two VDB Members of the Humtsoe Chumpo Olongo clan and Emungriclan. For the Humtsoe Chumpo Olongo clan, where K-Nzanthung Humtsoe was selected/elected and Sansow Humtsoe was selected/elected for the Emungri clan. 10. The communication further stated that the selection/election was done through Council majority and the two persons concerned were unanimously selected as the VDB Members. In spite of such selection/election by the Pongidong Village Council as contained in the communication dated 15.03.2017, the Deputy Commissioner, Wokha vide order dated 26.05.2017 had included the names of the Achumo Humtsoe for the Humtsoe Chumpo Olongo clan and Chumchamo Emungrui for the Emungrui clan, to be the two Members in the VDB. 11. The order of the Deputy Commissioner of 26.05.2017 containing the names of Achumo Humtsoe and Chumchamo Emungrui as the VDB Members was assailed by Nzanthung Humtsoe and Tsubemo Emugnri in WP (C) 79 K/2017. 12. 11. The order of the Deputy Commissioner of 26.05.2017 containing the names of Achumo Humtsoe and Chumchamo Emungrui as the VDB Members was assailed by Nzanthung Humtsoe and Tsubemo Emugnri in WP (C) 79 K/2017. 12. The learned Single Judge by the order dated 02.02.2018 in WP(C)79K/2017 arrived at a conclusion that as the Village Development Boards Model Rules (Revised) 1980 had clearly indicated that the Members of the Managing Committee of the VDB be chosen by the Village Council Members, 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 Deputy Commissioner could not have issued the order dated 25.6.2017 replacing the Nzanthung Humtsoe and Tsubemo Emugnri with Achumo Humtsoe and Chumchamo Emungrui, respectively. 13. Accordingly, the Deputy Commissioner was directed to approve the names of the VDB Members as forwarded by the Pongidong Village Council in its communication dated 15.3.2017 and thereafter, allow the VDB to select the Secretary. 14. Being aggrieved by the judgment dated 02.02.2018, of the learned Single Judge, the intra Court appeal has been preferred. The letter dated 26.04.2017 of the Pongidong Village Council referred in the judgment of the learned Single Judge provided that the nomination of Achumo Humtsoe was buried in the meeting at the Deputy Commissioner's Hall, Wokha on 25.03.2017 and the head count was conducted where 25 heads favoured Achumo Humtsoe and 32 head favoured K. Nzanthung Humtsoe. 15. With regard to Chumchamo Emungrui, the communication dated 24.4.2017 provided that the selection/election of Chumchamo Emungrui was not submitted and hence there was no reason to confirm him. Accordingly, the contents of the communication dated 16.01.2016 and 15.03.2017 were reiterated. 16. As already noted the order of 16.1.2016 merely provides for the distribution of the posts amongst the various clans whereas the resolution of 15/03/2017 provided for the selection/election of Nzanthung Humtsoe for the Humtsoe Chumpo Olong clan and Tsubemo Emugnri for the Emungri clan. 17. When we read the three documents that is the letter dated 26.4.2017, order dated 16.1.2016 and the Village Council Resolution 15.3.2017, it is discernable that the learned Single Judge had merely accepted the letter dated 26.04.2017, neither giving any reasons, nor deciding the core issue at hand. 17. When we read the three documents that is the letter dated 26.4.2017, order dated 16.1.2016 and the Village Council Resolution 15.3.2017, it is discernable that the learned Single Judge had merely accepted the letter dated 26.04.2017, neither giving any reasons, nor deciding the core issue at hand. The issue for adjudication in the dispute is whether the procedure of a selection/election be done through the Village Council majority method or a procedure of selecting/electing one VDB Member from every 20 household related to their clan is to be followed. 18. In this respect, we take note of that in the resolution dated 29.11.2015 of the Pongidong Village Council, it was decided/resolved to adopt the method of having one VDB Member from every 20 household. We have also taken note of that the resolution dated 29.11.2015 merely provides to give one VDB Member from every 20 household without mentioning that it would be related to the clan. 19. In this respect, we take note of the provisions of Rule 4 (b) of the which inter-alia provides that the Members of the Management Committee of that VDB shall be chosen by the Village Council concerned. The rules merely provide that the Members of the Management Committee of VDB would be chosen by the Village Council concerned but the procedure to be followed had not been provided. To arrive at an appropriate adjudication we required the Deputy Commissioner, Wokha to file an affidavit clearly indicating as to what procedure is to be adopted by the Village Council as per the requirement of law. 20. The Deputy Commissioner accordingly filed the affidavit dated 27.11.2019 wherein in paragraph 3 (ii) it is provided as follows: "It may be stated that along the line of the VDB Model Rule 1980, as a customary practice each clan/khel nominate its Member/Members as decided by the Village Council resolution. In this instant case number of VDB Member to be nominated was clearly mentioned in the Pongidong Village Council resolution dated 29.11.2015 which clearly states that one VDB Members will be awarded per 20 households. As such each clan/khel would have to nomine such number of person/persons to the Village Council who then will forward the names to Deputy Commissioner for appointment" 21. As such each clan/khel would have to nomine such number of person/persons to the Village Council who then will forward the names to Deputy Commissioner for appointment" 21. The information provided by the Deputy Commissioner is that the customary practice under VDB Village Development Boards Model Rules, 1980 (Revised), each clan/khel is to nominate its Member/Members as decided by the Village Council resolution. In other words the Village Council resolution dated 29.11.2017, which provides to give one VDB Member from each 20 household, is to be read to be one VDB Member from ever 20 household in relation to the respective clan. The Deputy Commissioner further clarifies that the clan/khel would have to nominate the member to the Village Council who in turn would forward it to the Deputy Commissioner. 22. The procedure indicated by the Deputy Commissioner in his affidavit clearly demonstrates that the members to the VDB are to be selected/elected from every 20 household by the respective clans. The Deputy Commissioner further clarifies that each clan/khel would have to nominate such number of person/persons to the Village Council who would then forward the names to the Deputy Commissioner. The procedure indicated by the Deputy Commissioner in his affidavit clearly demonstrates that the members of the VDB are to be selected/elected from every 20 household by the respective clans. 23. Accordingly, the method adopted by the Pongidong Village Council as depicted in their communication dated 15.03.2017 that the selection/election was done through Council majority, would have to be considered to be in deviation of the required customary practice and consequently in deviation of the requirements of Rule 4 (b) of the Village Development Boards Model Rules (Revised) 1980, which requires that the Members of the Managing Committee of the VDB shall be chosen by the Village Council concerned. The other members of the Pongidong Village Council having been selected/appointed by the respective clan/khel members, it would be arbitrary and also contrary to the village council resolution to now allow them to exercise their voting right for selecting/appointing the other members of the same council. 24. In view of the conclusion arrived, we are of the view even the contents of the communication dated 26.4.2017 of the Pongidong Village Council is contrary to the customary practise that is required to be followed and hence, the view contained therein would be unsustainable. 24. In view of the conclusion arrived, we are of the view even the contents of the communication dated 26.4.2017 of the Pongidong Village Council is contrary to the customary practise that is required to be followed and hence, the view contained therein would be unsustainable. As the learned Single Judge in the judgment dated 2.2.2018 in WP(C) 79 K/2017 without an adjudication, had followed the communication dated 26.04.2017, we are of the view that the judgment dated 2.2.2018 would be unsustainable. Accordingly, the judgment dated 02.02.2018 in WP (C) 79K/2017 is set aside. 25. Accordingly, the order dated 26.5.2017 of the Deputy Commissioner Wokha nominating Achumo Humtsoe as a Member of the Humtsoe Chumpo Olongo clan and Chumchamo Emungrui as a Member from the Emungri clan to be the Members of the VDB of Pongidong Village, therefore, stands upheld. Although, the reasons for upholding is for the reasons that have been indicated herein. 26. Appeal stands allowed as indicated above.