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2020 DIGILAW 749 (GAU)

Jevishe Y. Assumi v. State of Nagaland

2020-11-09

SONGKHUPCHUNG SERTO

body2020
JUDGMENT : Songkhupchung Serto, J. 1. Heard Ms. Z. Zhimomi, learned counsel for the petitioners and also heard Mr. K. Angami, learned Government Advocate appearing for the State respondents and Mr. I. Longjem, learned counsel appearing for the private respondents No. 6 to 9. 2. This is a writ petition challenging; (i) the letter dated 25.11.2019 of the Chairman, Natsumi Village Council recommending the respondent No. 9 to the Additional Deputy Commissioner, Pughoboto to appoint him as the VDB Secretary of Natsumi Village; (ii) the letter dated 19.03.2020 of the respondents No. 7 & 8 requesting the Deputy Commissioner, Zunheboto to cancel the selection of the new VDB member of the Natsumi Village and; (iii) the letter dated 30.05.2020 of the respondent No. 3 directing the Additional Deputy Commissioner to look into the letter of the respondents N. 7 & 8 mentioned above and to verify and settled the issues and also submit a report for further necessary approval. And, praying for; (i) a direction to appoint the petitioner as VDB Secretary of the Village of Natsumi as per the decision of a meeting of the Village Council and VDB held on 26.02.2020; (ii) for a direction directing the respondents to appoint VDB Secretary of Natsumi Village as per the Rule-7 of the Village Development Boards Model Rules, 1980 (Revised) and (iii) praying for a direction directing the Additional Deputy Commissioner, Pughobototo act in pursuance of his notification dated 16.12.2019, issued vide his Memo No. ADC/DEV/VDB-19/2019/719; and cause selection of the VDB Secretary of Pughoboto for the tenure 2019-2022. 3. The Village Council of Natsumi Village selected 9 VDB Member of the Village and the same was forwarded to the ADC, Pughoboto, vide letter dated 25.11.2019 by the Chairman of the Village Council. Thereafter, by alerter dated 21.11.2019, the Chairman of Natsumi Village Council through a letter addressed to 2 GB's belonging to Aqami Khel namely, Shri. Kiyevi and Shri. Kivixe requesting them that they should deliberate with their Khel members and elect the VDB Secretary before 25.11.2019. In response to the said letter one of the GBs namely, Mr. Thereafter, by alerter dated 21.11.2019, the Chairman of Natsumi Village Council through a letter addressed to 2 GB's belonging to Aqami Khel namely, Shri. Kiyevi and Shri. Kivixe requesting them that they should deliberate with their Khel members and elect the VDB Secretary before 25.11.2019. In response to the said letter one of the GBs namely, Mr. Kiyevi Swu intimated the chairman of the Village Council of Natsumi that in pursuance of his letter the GBs and VDB members of the village from Aqami Khel held a meeting on 23.10.2019 and has selected the petitioner to be VDB Secretary of the Village and also requested the chairman to forward the same to the higher authority for necessary action. However, the Chairman of Natsumi Village Council, vide his letter dated 25.11.2019, addressed to the Additional Deputy Commissioner, Pughuboto recommended the appointment of the respondent No. 9 as VDB Secretary of Natsumi Village purportedly based on the decision of Aqami Khel in their meeting held on 23.10.2019. In view of the conflicting resolutions, recommending two persons to be the Secretary of the VDB of Natsumi Village, the Additional Deputy Commissioner, before whom the matter came up for resolving the issue appointed three persons namely Shri Atovi, P.A to DC, Shri. Ghozheto D.B-I and Shri. Kughaje, D.B-II, vide his letter No. ADC/DEV/VDB-19/2019/699, dated 03.12.2019 to verify the meeting resolution of Natsumi Village Council regarding the selection of new VDB Secretary and new VDB Management Committee and submit the report to him on or before 09.12.2019. In pursuance of the said order, the persons whose names are mentioned above submitted their report to the Additional Deputy Commissioner, Pughoboto which is reads as follows; "Sub: Verification Report of Natsumi Village VDB Secretary Election. Sir, With reference to the subject cited above, I have the honour to submit herewith the verification report on Natsumi Village VDB Secretary election. As per the direction of higher authority, we the under undersigned three members undertook the verification on 9th Dec. 2019. As per the local arrangement Khel rotation wise Aquami Khel has to select VDB Secretary and as per this arrangement the village council has authorized the two GB's of Aquami Khel to elect one VDB secretary. But due to differences among the Khel they have elected tow VDB Secretary. One has been elected by, the public and the other has been elected by the leaders in the Khel. But due to differences among the Khel they have elected tow VDB Secretary. One has been elected by, the public and the other has been elected by the leaders in the Khel. On the condition we have tried our level best to settle the matter but both the parties have not agreed to comprise. Therefore, in conclusion we have advised village authority to elect the VDB Secretary with refer to VDB Management board election model at the earliest." 4. Following the submission of the report dated 10.12.2019, mentioned above, the Additional Deputy Commissioner, Pughoboto, issued a Notice No. ADC/DEV/VDB-19/2019/719, dated 16.12.2019, notifying that the election of the VDB Secretary of Natsumi Village will be held in the Office of Additional Deputy Commissioner, Pughuboto at 12:00 P.M. in the court of D.B on 19.12.2019. The notice also mentioned that only the members listed in the Annexure-A of the notice i.e. 9 VDB members and Shri. Kiyevi and Shri. Kivixe; 1 (one) Village Council Member and Shri. Shikaho Abraham, Chairman of the Village Council are to be present during the election process. The notice also made it clear that the VDB Secretary of the Management Committee of Natsumi Village would be selected by the VDB Members only, therefore, all the members of the VDB Management Committee are to be present without fail and, in case they fail the selection to the VDB Secretary will not be held. Further, it was also made clear that no representative of the VDB member will be allowed. The notice also directed and made it clear that Shri. Keiyevi, Shri. Kivixe and 1 (one) VCC and Shri. Shikaho Abraham and the Chairman of the Nalsumi Village Council should be present as witnesses but, they will not have voting right. Further, the notice also stated that the selection would be done through secret ballot and the entire process will be carried out strictly as per the VDB Model Rules, 1980 of the Government of Nagaland. The notice also mentioned that any person violating the rules during the election process would be penalized as per the provisions of Law and all members should be present by 11:30 A.M with their identity card (driving license, pass book, Aadhaar card, Government ID card, EPIC, etc.) without which entry into the voting hall will not be permitted. Lastly, the notice mentioned that the entire election process will be video-graphed. Lastly, the notice mentioned that the entire election process will be video-graphed. However, it appears from the correspondences that the election could not take place due to the absence of 3 VDB members and the Chairman of the Village Council. In the meanwhile, vide his letter No. ADC/DEV/VDB-19/2019, dated 19.12.2019, the Additional Deputy Commissioner, Pughoboto, directed the Chairman, Natsumi Village Council to submit the Village Council resolution approving the selection of Shri. Kahuto (the respondent No. 9) as VDB Secretary of Natsumi by the members of the Aqami Khel. The issue remaining unresolved, the petitioner is before this Court challenging the letter, recommendation and the order mentioned and at the same time praying as stated above. 5. Ms. Z. Zhimomi, learned counsel for the petitioners, after submitting to some length submitted that, the petitioners will have no problem of accepting if the writ petition is disposed of with a direction that the Secretary of VDB should be selected as per the provisions of Rule-7 of the VDB Model Rules, 1980. The learned counsel also submitted that, since the Additional Deputy Commissioner, Pughoboto has taken steps towards the same as per his notification dated 16.12.2019, issued under Office Memo No. ADC/DEV-19/2019/719, he may be directed to complete the process. 6. Ms. Z. Zhimomi also submitted that, though it is true that there was are solution of the Village Council and the GBs of Natsumi Village in a meeting held on 16.04.1997 that, VDB Secretary shall be selected Khel wise and the selection should be held by the public of the Khel, this is in clear violation of the provision of Rule-7 of VDB Model Rules, 1980. Therefore, the petitioners would be happy if a direction is issued by this Court to that effect that the respondents should henceforth strictly abide by the provisions of VDB Model Rules, 1980 in the selection/election of the Secretary of VDB. 7. Mr. I. Longjem, learned counsel appearing for the respondents No. 6 to 9 submitted that as per the VDB Model Rules, 1980, the Village Council of Natsumi Village from time to time formed the Management Committee of the VDB of the Village by selecting two persons each from each Khel in order to give equal representation to all the Khels and the 9th member was always selected from among the women folk to represent women of the village. Mr. Mr. Longjem also submitted that in 1997, in a joint meeting of the Village Council and the GBs of the Village, are solution was passed wherein, it was provided that the Secretary of the VDB would be held by each Khel on ration basis and that the Secretary should be selected or elected by the members of the Khel concerned. And, following the resolution Natsumi Village from time to time had been selecting the Secretary from each Khel on rotational basis. Therefore, the respondent No. 9 was selected by the members of the Khel to be the Secretary of the VDB and, as per the recommendation of the Khel the Village Council Chairman forwarded his name to the Additional Deputy Commissioner, Pughoboto for further necessary action, therefore, the petitioner who was recommended by few individuals has no case. 8. Mr. Longjem also submitted that the members of the Management Committees of VDB were also selected as per the Resolution of 1997, therefore, if the selection of the respondent No. 9 which was done in pursuance of the same resolution is accepted as null and void being violative of the Rule-7 of the VDB Model Rules, 1980 then the selection of all the management Committee of the VDB for the tenure of 2019-2022 would also have to declare null and void. 9. The Government of Nagaland in 1989 notified the VDB Model Rules, 1980. The relevant provisions of the same are given here below; "Government of Nagaland Department of Rural Development Notification Dated Kohima, the 21st November, 1989. ............................................. ............................................. "4(b). There shall be a Management Committee of the VDB's which shall be entrusted with the management of the Village Development Boards and the funds of the VDB's, the members of the Management Committee of the VDB shall be chosen by the Village Council concerned. The tenure of the members of the Management Committee of the VDB shall be 3 (three) years unless decided otherwise by the Village Council by resolution. The members of the Management Committee of the VDB may include members of the Village Council those person who are not members of the Village Council or those who are ineligible to be chosen as, or for being members of the Village Council by virtue of the age or by virtue of tradition and custom. The members of the Management Committee of the VDB may include members of the Village Council those person who are not members of the Village Council or those who are ineligible to be chosen as, or for being members of the Village Council by virtue of the age or by virtue of tradition and custom. The minimum members of the Management Committee of the VDB' shall not be less than 5 (five) members and the maximum numbers of members shall not exceed 25(twenty five) members. The number of Women Members to be included in the Management Committee of the VDB should not be less than one-fourth 1/4 of the total number of members of the Management Committee of the VDB's. 5. A member of the Management Committee of the VDB including the Secretary may be replaced by the resolution of the Village Council, for reasons to be recorded in the resolution subject to the approval of the Chairman of the VDB, i.e. the concerned Deputy Commissioner or the Additional Deputy Commissioner. 6. The Deputy Commissioner/Additional Deputy Commissioner shall be the ex-officio Chairman of the VDB in their respect district sub-division. 7. The Member of the Management Committee shall select one among themselves as Secretary who shall be a person who is literate having a minimum qualification of matriculation and above. He shall be paid a remuneration ranging from Rs.1000-Rs.3000 only per month as may be decided by the VDB concern commensurate with their funds/resources preferably from interest accrued from the concerned VDB fixed deposit. No village council Chairman or Head GB or Village Administration Head etc. shall be permitted to hold the post of the VDB Management Chairman." 10. From the above provisions of the Model Rules, what can be deduce is that there shall be a Management Committee of the Village Development Board in every village consisting of not less than 5 members but not exceeding 25, depending on the size of the population, which shall be constituted of members to be chosen by the Village Council concerned. Secondly, that the tenure of the members of Management Committee shall be 3 years unless decided otherwise by the Village Council by resolution. Thirdly, that there shall be women members in the Management Committee whose number should not be less than 1/4th of the total number of members of the Management Committee. Secondly, that the tenure of the members of Management Committee shall be 3 years unless decided otherwise by the Village Council by resolution. Thirdly, that there shall be women members in the Management Committee whose number should not be less than 1/4th of the total number of members of the Management Committee. Fourthly, that member of the Management Committee of the VDB including the Secretary can be replaced by the resolution of the Village Council concerned for reasons to be recorded but, subject to the approval of the Chairman of the VDB who is the concerned Deputy Commissioner or Additional Deputy Commissioner. Fifthly and, the most relevant for this case is that, the Secretary of the Management Committee shall be from one among themselves, selected by the members of the Management Committee who has a minimum educational qualification of matriculation. For the sake of clarity, it may be stated again that, Rule-7 of the Model Rules makes it mandatory that the Secretary of Management Committee of Village Development Board should be selected by the members of the Management Committee concerned from one among themselves but who has a minimum qualification of matriculation. There is no other provision in the Model Rules which provide otherwise or provides any exception to the provisions of Rule-7. The settled principle of law is that when a statute provides a certain way or method of doing something it has to be done in that way only. In this case, Rule-7 makes it amply clear that it is the members of the Management Committees only who should select the Secretary of the Committee from among themselves and not by any other person or body. Therefore, the selection process of the Secretary of the Management Committee of VDB of Natsumi Village initiated or undertaken by the Village Council Chairman and the Khel member of Aqami cannot be valid in the eye of law as they are in violation of the provisions of Rule-7 of VDB Model Rules, 1980. Therefore, the selection process of the Secretary of the Management Committee of VDB of Natsumi Village initiated or undertaken by the Village Council Chairman and the Khel member of Aqami cannot be valid in the eye of law as they are in violation of the provisions of Rule-7 of VDB Model Rules, 1980. Accordingly, all the actions taken by the Village Council Chairman, for selection of the Secretary of the Management Committee of VDB, Natsumi Village which are impugned in the writ petition are quashed and set aside, and the Additional Deputy Commissioner, Pughuboto is directed to continue with the initiative already under-taken by him by having issued notification dated 16.12.2019, vide his Office Memo No. ADC/DEV/VDB-19/2019/719 to facilitate the selection of the Secretary, VDB Management Committee of Natsumi Village strictly according to the provisions of Rule-7 of the VDB Model Rules, 1980, within a period of 1 (one) month from the date of receipt of a copy of this order. The writ petition is disposed of.